Challenging an Inheritance Contract: These Are the Requirements

An inheritance contract regulates a person’s estate. It is a special form of last will and testament. This puts an inheritance contract in the same category as a will, but differs in several important respects. For example, a will can be drawn up by the testator alone and is valid even without a notarization. An inheritance contract, on the other hand, requires the consent of both contracting parties, i.e., the testator and the directly affected heirs. When drawing up an inheritance contract, not only must both contracting parties be present, but also two independent witnesses and a notary public. Amendments to the inheritance contract are also only possible with the consent of all parties involved.

If a person wishes to contest an inheritance contract, it is usually with the aim of declaring it invalid. This can involve either the entire agreement being declared invalid, or just specific paragraphs or parts of the contract. The contestation is usually initiated by persons affected by the inheritance contract but who do not agree with it. However, a plausible reason must exist for this, i.e., one of the grounds for contestation must be met. The competent court decides whether a contestation is admissible.

Who can contest an inheritance contract?

An inheritance contract can be contested by various people with a legitimate interest. In most cases, this is a person who would have benefited from a previous will or through the statutory succession. It does not have to be the entire community of heirs—individuals can also contest it. Inheritance contracts can generally be contested by three different groups of people:

• Heirs: Individual legal heirs or heirs appointed by the testator can contest an inheritance contract by stating their reasons.
• Third parties: Third parties can only contest an inheritance contract if they were named by the testator in a previous disposition (e.g., in a will).
• The testator themselves: The testator themselves can only contest their inheritance contract in exceptional cases. This is the case, for example, in cases of deception or error.

Can an inheritance contract be amended?

Inheritance contracts can only be amended or revoked under certain conditions, but generally only if both contracting parties agree to the amendment. A change is therefore generally only possible during the testator’s lifetime. It must be made in the same way as the contract itself, namely in writing and in the presence of two witnesses and a notary public.

A challenge to an inheritance contract by an heir or a third party is only possible after the death of the testator and must be made within one year of learning of the death. A challenge during the testator’s lifetime is only possible in special cases. For example, the testator herself can challenge an inheritance contract for certain reasons. According to the Swiss Civil Code (CC), this is the case, for example, if the disposition was made with defects of intent (Article 469 CC). Specifically, this means that the testator entered into the inheritance contract because she was threatened, pressured, or coerced. If the inheritance contract was concluded due to deception or error, the testator can revoke the inheritance contract within one year of learning of it.

Regardless of who wishes to challenge an inheritance contract, the following must be observed: There must be a legally enforceable ground for challenge. There are various reasons why an inheritance contract can be challenged. Some of the most common cases are explained in more detail below.

To successfully contest an inheritance contract, certain grounds for contestation must be present. There are various reasons why an inheritance contract should be declared invalid. In most cases, this involves an injustice or a disposition made in error. Some of the most common grounds for contestation are listed below:

Defective will, immorality, or illegality

An inheritance contract can be declared invalid through contestation if it was concluded due to defective will. This is the case, for example, if the testator signed the inheritance contract under circumstances that she mistakenly believed to be true. This error may be due to an oversight or may have been deliberately caused by an attempt at deception.

The inheritance contract is also contestable if the testator was legally incapable at the time it was drawn up. This is the case, for example, if the testator was under 18 years of age or lacked mental capacity. An immoral or unlawful content or a condition attached to the contract also leads to the contestability of the inheritance contract (Article 519 of the Swiss Civil Code).

Formal Defects

According to Article 520 of the Swiss Civil Code, a formal defect can lead to the invalidity of a testamentary disposition. The same formal requirements apply to an inheritance contract as to a public testamentary disposition. This includes, among other things, that the document be signed and dated by both the testator and the notary (Articles 499 et seq. of the Swiss Civil Code). If this is not the case, grounds for avoidance may exist.

Action for Abatement

If an inheritance contract unlawfully excludes the statutory shares, the entire inheritance contract or the relevant paragraphs can be challenged. If the challenge is upheld, the affected provisions do not become immediately ineffective or void. They merely need to be adjusted or corrected to meet the statutory requirements. This so-called action for abatement is governed by Articles 522 et seq. of the Swiss Civil Code.

A suit for abatement can also be filed based on Article 494, paragraph 3 of the Swiss Civil Code. According to this provision, gifts or testamentary dispositions can be contested if they are incompatible with the obligations arising from the inheritance contract, if they reduce the benefits provided for in the inheritance contract, or if they have not been explicitly reserved in the inheritance contract.

Disqualification from inheritance

If an heir proves to be disqualified from inheritance, an inheritance contract concluded in their favor can be declared invalid. Disqualification from inheritance can generally only be established by serious circumstances. This is the case, for example, if the heir killed the testator or ordered the killing. The use of deceit, threats, or coercion can also lead to disqualification from inheritance (Article 540 of the Swiss Civil Code).

A will containing errors is generally not automatically invalidated, but merely contestable. In concrete terms, this means that the will remains valid until contested.

Conversely, decisions can also be void. This is the case, for example, if the will is not seriously intended (a so-called joke will) or if the document was created solely for demonstration or educational purposes. This can sometimes be difficult to assess and must therefore be examined on a case-by-case basis by a lawyer or in court.

How can an inheritance contract be contested?

To successfully contest an inheritance contract, compelling reasons must exist. The individual situation must be considered. A lawyer specializing in inheritance law is best placed to determine whether the existing grounds are sufficient for a contest. The lawyer files the action for annulment or reduction with the court. The court then decides whether the grounds for contestation are acceptable. If the lawsuit is successful, the court will declare the entire inheritance contract or the relevant paragraphs invalid.

Inheritance contract successfully contested – what now?

If the applicant is found to be in the right and the challenge to the inheritance contract is accepted, the contract becomes invalid. If only certain parts or paragraphs of the contract were in dispute, these will be deleted or adjusted accordingly to comply with the statutory provisions. The invalid inheritance contract will then be replaced by other provisions to distribute the inheritance among the community of heirs. If the testator has made other last wills and testaments, these will be followed first. Otherwise, the statutory succession takes effect (Articles 457 et seq. of the Swiss Civil Code).