Repudiation is a unilateral act by which an heir renders their acquisition of an estate void. It is a right granted to heirs who wish to avoid the consequences of taking possession of and inheriting a succession. However, repudiation can also be motivated by other reasons, such as wishing to benefit subsequent heirs. This is a strictly personal right protected by Article 566 of the Swiss Civil Code (CC). This provision addresses two distinct scenarios: Paragraph 1 describes the situation where an heir who does not wish to remain an heir can exercise this right by clearly expressing their intention to repudiate through a written or verbal declaration to the competent authority (Article 570(1) CC). Paragraph 2 establishes a presumption of repudiation under specific circumstances. We will now examine these two scenarios in more detail.
Paragraph 1 of Article 566 CC outlines the principle of the right to repudiate, which is granted to both legal heirs and appointed heirs, but does not specify its nature or effects. For this, we need to refer to Articles 567-579 of the Code. This right is imperative, meaning it cannot be waived before the opening of the estate, even in a succession pact. Indeed, an appointed heir in a succession pact retains the right to repudiate once the estate is opened.
Paragraph 2 of Article 566 CC concretizes the presumption of repudiation, and three conditions must be met for it to apply. Firstly, the deceased must be insolvent, meaning they have a negative balance sheet, not merely a lack of liquidity. Secondly, the insolvency must be well-known or officially contested. Notoriety is assessed on a case-by-case basis, while official recognition is clearer, generally evidenced by the opening of bankruptcy, one or more certificates of lack of assets, or the initiation of a composition procedure. In case of doubt, the heir must follow the first paragraph’s provisions and therefore must take the risk of either explicitly repudiating, accepting, requesting an inventory benefit, or opting for official liquidation. Thirdly, the insolvency must exist at the opening of the estate, a specific moment. German and Italian texts are more precise on this matter. These cumulative conditions must be met for Article 566(2) CC to fully apply. The burden of proof lies with the party seeking to invoke these effects.
Attention must also be paid to the deadline for repudiation to effectuate the invalidation of the inheritance acquisition. Article 567(1) CC stipulates a three-month deadline for repudiation, which is a peremptory deadline. The deceased cannot alter this duration, as it is an imperative deadline. It is a general deadline, though various events can either extend it, such as an authority’s decision (Article 576 CC), or shorten it in case of forfeiture of the right (Article 571(2) CC). The starting point of the deadline differs depending on whether the heir is legal or appointed. The expiration of the deadline is one of the cases leading to the forfeiture of the right to repudiate. Other scenarios are also provided (Article 571(2) CC).
For more detailed information on this topic, the Valentin Legal Consultation would be pleased to assist you. You can visit us at our offices located at rue du Valentin 1, 1004 Lausanne, or contact us by phone at +41 21 351 30 00 or by email at info@cjdv.ch.
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