– March 18, 2024

Signature requirement for handwritten wills

In accordance with Art. 505 para. 1 ZGB, the handwritten testamentary disposition must also be signed by hand in order to be valid. If the signature is missing, the will is invalid.

The Federal Supreme Court once again ruled on this issue in its decision BGer 5A_133/2023. In this case, the testator left behind a handwritten document that she titled a “will”. There was no signature at the end of the letter, but at the beginning of the letter she wrote the sentence “I, C., born … 1953 in U., hereby make the following testamentary disposition of my estate:”. The testatrix placed the document in an envelope, which she titled by hand as a will and recorded her name and the place of writing. She then handed the envelope to the inheritance office for safekeeping on the same day, whereupon an employee noted the date of handover.

The Federal Supreme Court essentially dealt with two questions: (a) whether the testator’s introductory self-nomination was sufficient as a signature and (b) whether the signature requirement was fulfilled by the inscription on the envelope.

The Federal Supreme Court states that the signature documents the identity of the testator as well as the completion of the disposition and its entry into force upon the testator’s death. This function can only be fulfilled by the signature if it is affixed at the end of the testamentary disposition. The signature should also serve to avoid additions. It should therefore be placed at the end of the text. It is perfectly possible for the signature to be on a sheet other than the testamentary disposition, provided that there is a clear connection between the sheets, which is evident from the content of each of the sheets. In the present case, the envelope must be a continuation of the document inside. 

It is true that the inscription “Will” refers to the document in the envelope and that it was handed in to the inheritance office on the same day that it was written. However, the testator’s name on the envelope was merely an inscription and not a signature. There was also sufficient space at the end of the document to affix a signature, which argues against it qualifying as a signature. The Federal Supreme Court ruled that the will was invalid.

In summary, it can be stated that the Federal Supreme Court continues to adhere to the strict formal requirements and that the will of the testator is, as before, subordinate to the statutory formal requirements.

If you have any questions about inheritance law, our lawyers will be happy to advise you.