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Revision of the law of succession as of January 1, 2023: Do I now have to adapt my will?

Ausschnitt aus: Génot, François (2014): „Commonplace 3“, www.francoisgenot.com

The revision of the law of succession as of 1.1.2023 brings with it various innovations (read more). One of them concerns the circle of heirs protected by the mandatory portion and the amount of the mandatory portions. Therefore, it is necessary to carefully check whether a will that has already been drafted effectively expresses the testator’s last will and testament under the new inheritance law or whether there are any ambiguities.

Mr. and Mrs. Zweifel have been married for 30 years and have a daughter Ronja. If the wife dies and does not leave a will, the husband and the daughter each receive half of the estate, which corresponds to the statutory share of the inheritance. This will not change with the new inheritance law that will apply from January 1, 2023.

However, if a will exists which reads as follows: “I give my daughter a compulsory share of three-eighths”, the daughter will receive 3/8 of the estate and the husband the remainder (5/8) if the wife dies before January 1, 2023.

However, if the wife dies after January 1, 2023, the children’s compulsory share becomes smaller and is no longer ¾ of the legal share of the estate, but only ½. Thus, Ronja’s compulsory share now amounts to ¼ (½ compulsory share of the ½ statutory share of the inheritance) instead of 3/8 as before.

Quotas protected by compulsory shares, which apply after January 1, 2023

The question arises as to what the wife wanted to achieve with the will or what her effective last will and testament was. Did she want to leave as much as possible to the husband and therefore put the daughter on the compulsory portion? Or did she want to leave the daughter exactly 3/8 of the estate?

If the will had read: “I put my daughter on the compulsory portion”, it would have been expressed in an unambiguous manner that the compulsory portion would apply which was legally valid at the time of death. In the present case, this would be a compulsory portion of 3/8 in the event of the wife’s death before January 1, 2023 and a compulsory portion of ¼ thereafter.

When drafting wills or marriage and inheritance contracts, unclear wording should be avoided. This applies in particular with regard to the revision of inheritance law. Even wills or inheritance contracts that have already been drawn up should be checked and, if necessary, adapted.

Read also New Inheritance Law from 2023 – Everything You Need to Know

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