{"id":19014,"date":"2026-01-27T12:29:16","date_gmt":"2026-01-27T11:29:16","guid":{"rendered":"https:\/\/mcelegal.ch\/interpretation-des-testaments\/"},"modified":"2026-01-28T21:35:33","modified_gmt":"2026-01-28T20:35:33","slug":"interpretation-des-testaments","status":"publish","type":"post","link":"https:\/\/mcelegal.ch\/en\/interpretation-des-testaments\/","title":{"rendered":"Interpretation of Wills in Light of the Reform Entering into Force of 1 January 2023"},"content":{"rendered":"
\n
\n

I. Introduction<\/h3>\n

\n The new Swiss inheritance law, which entered into force on 1 January 2023, introduced significant changes, particularly with regard to forced heirship. The most important change consists in the reduction of the compulsory portion of descendants from three quarters (\u00be) to one half (\u00bd) of their statutory share, and the abolition of the compulsory portion of parents. At the same time, the freely disposable portion has increased. Testators may therefore freely dispose of a larger share of their assets.\n <\/p>\n

\n However, the reform does not modify the transitional rules applicable in inheritance matters. Accordingly, Articles 15 and 16 of the Final Title of the Swiss Civil Code (SCC), as well as the general principles set out in Articles 1 to 4 of the Final Title SCC, continue to apply
\n 1<\/a><\/sup>.\n <\/p>\n

\n The date of death, more precisely the date on which the succession is opened, determines the applicable law. Thus, where death occurred before the entry into force of the new law, the former law applies; where death occurred after that entry into force, the new law applies, pursuant to Articles 1 para. 3 and 15 of the Final Title SCC
\n 2<\/a><\/sup>.\n <\/p>\n

II. Principles Governing the Interpretation of Wills<\/h3>\n

\n The rules governing the interpretation of wills aim to establish the true intention of the deceased (de cujus).\n <\/p>\n

\n Pursuant to Article 18 of the Swiss Code of Obligations (CO), which applies by analogy to the interpretation of testamentary dispositions (Article 7 SCC), the true intention of the deceased must be sought, without regard to inaccurate expressions or terminology
\n 3<\/a><\/sup>.\n <\/p>\n

\n Accordingly, interpretation may not result in attributing to the deceased a will that he or she did not actually express (principle of true intention)
\n 4<\/a><\/sup>.\n <\/p>\n

\n According to the principles of testamentary interpretation developed by case law, one must first start with the wording of the text
\n 5<\/a><\/sup>. If the wording is clear and unambiguous (principle of univocal meaning)
\n 6<\/a><\/sup>, any further interpretation is superfluous
\n 7<\/a><\/sup>.\n <\/p>\n

\n However, in order to determine whether the wording is clear, account must be taken of the circumstances in which it was drafted
\n 8<\/a><\/sup>. This is why the prevailing doctrine today considers it excessive to assert that a clear text excludes all interpretation
\n 9<\/a><\/sup>.\n <\/p>\n

\n Where testamentary dispositions are formulated in such a way that they may be understood in more than one sense, or where several different interpretations are reasonably conceivable, the judge must interpret the terms used by the testator by taking into account the internal logic of the will, and may also rely on extrinsic evidence in order to interpret it
\n 10<\/a><\/sup>. Interpretation must, however, always remain guided by the will of the testator
\n 11<\/a><\/sup>.\n <\/p>\n

\n In case of doubt, preference should be given to the interpretation that preserves testamentary dispositions rather than one that would render them null or void (principle of favor testamenti<\/em>).\n <\/p>\n

\n Likewise, it must be assumed that, when making testamentary dispositions, the deceased relied on statutory succession as a basis for reflection, intending to confirm, supplement or exclude it. Where statutory succession has not been entirely excluded, it may serve as a reference for interpretation. In case of doubt, the solution most consistent with the value system of statutory succession should be adopted
\n 12<\/a><\/sup>.\n <\/p>\n

\n Finally, the party claiming that the testator\u2019s intention differs from the wording and the objective meaning of the text bears the burden of proof and must establish the concrete elements justifying such interpretation
\n 13<\/a><\/sup>.\n <\/p>\n

III. Practical Issues<\/h3>\n

\n Delicate issues arise in particular where certain formulations of a testamentary disposition suggest that the testator would have disposed differently under the new law
\n 14<\/a><\/sup>. A specific example concerns a testamentary disposition drafted under the former law, according to which a descendant is reduced to his compulsory portion. The question then arises as to whether the descendant may claim three quarters of his share under the former law, or one half under the new law. This is a matter of interpreting the will of the deceased, guided by the principles developed by case law
\n 15<\/a><\/sup>. According to EIGENMANN, the true intention underlying such a provision is precisely not to grant the compulsory heir more than what the law in force entitles him to, such that the second solution\u2014granting one half of the share\u2014should in principle prevail
\n 16<\/a><\/sup>.\n <\/p>\n

\n In the case of quantified provisions or provisions expressed as fractions, it must be determined whether the testator intended to guarantee the stated share regardless of the compulsory portion applicable at the time the succession is opened, or whether he intended instead to limit the compulsory heir\u2019s share to the minimum provided by law in force at the time the testamentary disposition was drafted
\n 17<\/a><\/sup>.\n <\/p>\n

\n According to PIOTET, where a compulsory heir claims a share of the estate greater than that resulting from the reduced compulsory portion under the new law (following the reform of inheritance law effective as of 1 January 2023), it is incumbent upon that heir, pursuant to Article 8 SCC, to prove the facts justifying such an interpretation of the will
\n 18<\/a><\/sup>.\n <\/p>\n

\n Accordingly, doctrine tends to favour an interpretation consistent with the application of compulsory portions under the new law.\n <\/p>\n

IV. Practical Case<\/h3>\n

\n Mr X dies on 9 March 2023. He is survived by his son Z and his wife, Mrs Y.\n <\/p>\n

\n In a holographic will entirely handwritten, dated 2 January 2019 and signed, Mr X provides as follows: \u201cI reduce my son Z to his strict compulsory portion.\u201d\n <\/p>\n

\n To which share of the estate is son Z entitled?\n <\/p>\n

\n Analysis:
\n Article 15 para. 1 of the Final Title SCC provides that the law applicable is the law in force at the time of death. Under the new law, the compulsory portion amounts to one half of the statutory share (Articles 462 para. 1 and 471 SCC).
\n Consequently, son Z will most likely be entitled to one quarter of Mr X\u2019s estate, as he concurs with Mrs Y.\n <\/p>\n

\n Variant:
\n In the holographic will, Mr X provides as follows: \u201cI reduce my son Z to his statutory compulsory portion of three eighths (3\/8) of the estate.\u201d\n <\/p>\n

\n To which share of the estate is son Z entitled?\n <\/p>\n

\n Analysis:
\n In cases where provisions are expressed in fractions, it must be determined whether the testator intended to guarantee the stated share or, conversely, to limit the compulsory heir\u2019s share to the statutory minimum.
\n According to the prevailing doctrine, it is excessive to assert that a clear text excludes any interpretation. The circumstances in which the disposition was drafted must therefore be taken into account.
\n The judge must interpret the terms used by the testator by considering the internal logic of the will and may also rely on extrinsic evidence, such as notes left by the deceased, the nature of his relationships with the heirs concerned, or his personal situation and legal knowledge.
\n Doctrine again appears to favour application of the new law. According to EIGENMANN, the true intention underlying such a disposition is precisely not to grant the compulsory heir more than what the law in force entitles him to, such that a compulsory portion of one quarter should apply.
\n If the son, as a compulsory heir, seeks to claim a greater share than that resulting from the reduced compulsory portion under the new law, it is incumbent upon him, pursuant to Article 8 SCC, to prove the facts justifying such interpretation of the will.\n <\/p>\n

V. Conclusion<\/h3>\n

\n As briefly outlined above, issues of interpretation relating to wills drafted before 1 January 2023 may prove complex. Swiss courts will most certainly be required to rule on such cases in the near future, each case potentially presenting its own specific features.\n <\/p>\n

\n Accordingly, for testamentary dispositions established before 1 January 2023, it is recommended\u2014particularly where quantified shares are mentioned in the text\u2014to have the will reviewed by a lawyer or a notary, in order to avoid complex legal issues at the time the succession is opened.\n <\/p>\n

\n Carolina MARTINEZ PAWLEGA KOZIKOWSKA, trainee attorney
\n Julien LATTION, attorney-at-law and notary\n <\/p>\n

\n

Notes<\/h3>\n
    \n
  1. FF 1018 5865 Message concernant la r\u00e9vision du Code civil (droit de successions) du 29 ao\u00fbt 2018, p. 5917 s. \u21a9\ufe0e<\/a><\/li>\n
  2. Ibidem. \u21a9\ufe0e<\/a><\/li>\n
  3. Arr\u00eat du TF 5A_862\/2020 du 25 mai 2021, consid. 6.2.2. \u21a9\ufe0e<\/a><\/li>\n
  4. STEINAUER, Les droits des successions, nos 287 et 289. \u21a9\ufe0e<\/a><\/li>\n
  5. Arr\u00eat du TF 5A_862\/2020 du 25 mai 2021, consid. 6.2.1. \u21a9\ufe0e<\/a><\/li>\n
  6. STEINAUER, Les droits des successions, no 290. \u21a9\ufe0e<\/a><\/li>\n
  7. Arr\u00eat du TF 5A_862\/2020 du 25 mai 2021, consid. 6.2.1. \u21a9\ufe0e<\/a><\/li>\n
  8. STEINAUER, Les droits des successions, no 290. \u21a9\ufe0e<\/a><\/li>\n
  9. Ibidem. \u21a9\ufe0e<\/a><\/li>\n
  10. Arr\u00eat du TF 5A_850\/2010 du 4 mai 2011, consid. 3.1.1. \u21a9\ufe0e<\/a><\/li>\n
  11. ATF 131 III 106, consid. 1.1. \u21a9\ufe0e<\/a><\/li>\n
  12. STEINAUER, Les droits des successions, no 295. \u21a9\ufe0e<\/a><\/li>\n
  13. ATF 131 III 106, consid. 1.2 ; Arr\u00eat du TF 5A_862\/2020 du 25 mai 2021, consid. 6.2.2. \u21a9\ufe0e<\/a><\/li>\n
  14. FF 1018 5865 Message Concernant la r\u00e9vision du Code civil (droit de successions) du 29 ao\u00fbt 2018, p. 5918. \u21a9\ufe0e<\/a><\/li>\n
  15. Antoine EIGENMANN, Les grandes lignes de la r\u00e9vision – Nouvelles r\u00e9serves, conditions de l\u2019action en r\u00e9duction, cas particuliers et droit transitoire, in : Maryse PRADERVAND-KERNEN \/ Michel MOOSER \/ Antoine EIGENMANN (\u00e9d), Journ\u00e9e de droit successoral 2022, no 72. \u21a9\ufe0e<\/a><\/li>\n
  16. Ibidem. \u21a9\ufe0e<\/a><\/li>\n
  17. Denis PIOTET, Le droit transitoire de la nouvelle du 18 d\u00e9cembre 2020, in : Maryse PRADERVAND-KERNEN \/ Michel MOOSER \/ Antoine EIGENMANN (\u00e9d), Journ\u00e9e de droit successoral 2023, no 12. \u21a9\ufe0e<\/a><\/li>\n
  18. Ibidem. \u21a9\ufe0e<\/a><\/li>\n<\/ol><\/div>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

    I. Introduction The new Swiss inheritance law, which entered into force on 1 January 2023, introduced significant changes, particularly with regard to forced heirship. The most important change consists in the reduction of the compulsory portion of descendants from three quarters (\u00be) to one half (\u00bd) of their statutory share, and the abolition of the […]<\/p>\n","protected":false},"author":10,"featured_media":19006,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[266],"tags":[277],"class_list":["post-19014","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-legal-news","tag-julien-lattion"],"_links":{"self":[{"href":"https:\/\/mcelegal.ch\/en\/wp-json\/wp\/v2\/posts\/19014","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/mcelegal.ch\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/mcelegal.ch\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/mcelegal.ch\/en\/wp-json\/wp\/v2\/users\/10"}],"replies":[{"embeddable":true,"href":"https:\/\/mcelegal.ch\/en\/wp-json\/wp\/v2\/comments?post=19014"}],"version-history":[{"count":3,"href":"https:\/\/mcelegal.ch\/en\/wp-json\/wp\/v2\/posts\/19014\/revisions"}],"predecessor-version":[{"id":19022,"href":"https:\/\/mcelegal.ch\/en\/wp-json\/wp\/v2\/posts\/19014\/revisions\/19022"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/mcelegal.ch\/en\/wp-json\/wp\/v2\/media\/19006"}],"wp:attachment":[{"href":"https:\/\/mcelegal.ch\/en\/wp-json\/wp\/v2\/media?parent=19014"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/mcelegal.ch\/en\/wp-json\/wp\/v2\/categories?post=19014"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/mcelegal.ch\/en\/wp-json\/wp\/v2\/tags?post=19014"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}