Summary of the most important points
- In order to draw up a valid testamentary disposition (will/contract of succession), formal, content and personal requirements must be met, including the testamentary capacity of the testator. For people with dementia, testamentary capacity is frequently an issue.
- Dementia does not automatically mean a lack of testamentary capacity. Dementia is diagnosed by a medical specialist. However, a court decides on the capacity of judgement and the testamentary capacity.
- Testamentary capacity is assessed based on the individual circumstances. If the circumstances are simple, it is more likely to be affirmed than in complex, unclear cases.
Requirements for drawing up a testamentary disposition
Intestate succession set out by the Swiss Civil Code (ZGB) does not suit everyone. Many in Switzerland would like to deviate from it. This is possible with a testamentary disposition, which includes a will and a contract of succession. Various formal requirements (holographic will or notarial certification), but also content requirements (such as observing statutory entitlement) apply to both.
There are also personal requirements of the testator. The testator must have the capacity to act in order to legally acquire rights and enter into obligations during his or her lifetime. This means he or she must have reached the age of 18 and be of sound judgement. The equivalent of this requirement under inheritance law is so-called testamentary capacity: it is required to draw up a valid will or a contract of succession. Testamentary capacity is the ability of a testator to draw up a testamentary disposition and to specify instructions about their own estate. While a will requires testamentary capacity, a contract of succession requires capacity to enter into a contract of succession – although the basic prerequisites are similar.
What is capacity of judgement and how is dementia diagnosed?
The most important criterion when deciding on the validity or invalidity of a will is capacity of judgement. It is comprised of an intellectual and voluntary component. The intellectual component is a person’s ability to recognise the meaning and consequences of their actions. The voluntary component is a person’s ability to act on their own free will and without influence.
Capacity of judgement is governed in Art. 16 of the Swiss Civil Code as follows:
A person is capable of judgement within the meaning of the law if he or she does not lack the capacity to act rationally by virtue of being under age or because of a mental disability, mental disorder, intoxication or similar circumstances.
ART. 16 SWISS CIVIL CODE CAPACITY OF JUDGEMENT
A person is generally assumed to be capable of judgement unless certain conditions, including mental disorders, suggest the opposite. Dementia as a mental disorder is a medical term. The diagnosis can only be issued by medical specialists. They use standardised methods to test cognitive abilities. Many applications are still in an early stage. However, advances in artificial intelligence will support and improve diagnostics in the future.
A proven method to test for dementia is the so-called ‘mini mental state exam’. The test involves various tasks that earn points if they are solved correctly. The tasks cover a wide range of thought processes, such as orientation for time and place, mental arithmetic, repeating words or sentences, etc. The less points achieved overall, the more likely the diagnosis of dementia is.
The assessment of whether a person has capacity of judgement and what consequences this has on their capacity to act and their testamentary capacity is a legal question rather than a medical one. Therefore, the court decides on the capacity of judgement. This is based on medical findings that are summarised in assessments. Doctors present the facts, but do not give a legal appraisal. This is always the responsibility of the court.
How testamentary capacity is assessed in people with dementia
There is no general, objective benchmark as to whether someone is capable of judgement and therefore has the capacity to act and testamentary capacity. Just because dementia is confirmed in a medical assessment does not mean that the patient loses their capacity of judgement. The court looks at all circumstances of the specific case in order to answer the question of whether someone has capacity of judgement. In other words, capacity of judgement is relative in terms of the circumstances and time – it depends on how complex the patient’s life circumstances are and how clearheaded a person was at the time of drawing up and expressing their will.
If the question arises with regard to testamentary disposition whether the testator had capacity of judgement at the time of writing it, the court will first look at the contents. If the contents are simple, a lower benchmark is applied to the capacity of judgement than to complex financial or family circumstances.
Two examples
(1) ‘My daughter Tanja and my son Stefan are to receive the statutory entitlement. My wife Elfriede is to receive the released assets.’
(2) ‘I appoint my friends Anton and Bert as my heirs, who are to receive one and two thirds, respectively. I leave my art collection to my nephew Norbert in advance. I bequeath CHF 100,000.00 to each of the three children of my cousin Clara. Upon my death, I will also set up a foundation to support migrants and people in need.’
The first will (1) is relatively simple and clearly expressed. Therefore, the testamentary capacity is more likely to be affirmed, even if the dementia is in a later stage. For the second will (2), many complex considerations are required that are also challenging for healthy laymen and may even require expert advice. Therefore, a stricter benchmark regarding the testamentary capacity must be applied to such a will. In order to avoid inheritance problems due to a lack of or inadequate testamentary capacity, it is important to make considerations for estate planning in good time when dementia is diagnosed. We explain in another advisor article what happens when there is doubt about the testamentary capacity.