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Following parliamentary debate, a new law of succession will come into effect in 2023 in Switzerland. The new legal provisions will apply to all estates of persons who die on or after January 1, 2023.

Today, the system provides, among other things, that the legal reserve allocated to a descendant is ¾ of his or her inheritance right; that of the surviving parents is ½ each; and the legal reserve of the surviving spouse or registered partner is 1/2 (art. 471 CC).

The major changes planned for 2023 are in the legal allocation of the hereditary reserves. Indeed, the reserve share of the descendants is reduced to half of the legal share (½), thus ¼ of the estate; and the reserve share of the surviving parents will be eliminated.

However, the decedent's legal partner will still be awarded ½ of the reserve. In addition, there is still no right to the estate for the cohabitant.

This new distribution of legal shares gives the testator greater flexibility in the distribution of his or her estate. Now, half of the total estate can be distributed freely by the testator, instead of ⅜ of the estate previously.

Implications for usufruct:  

Spouses/registered partners maintain the possibility of providing for the granting of a usufruct on the entire share of the estate devolving to the joint children. However, they can extend this advantage granted to the partner; indeed, they can now attribute half of the estate in full ownership to the spouse/registered partner (i.e. the available portion of ½ of the estate, instead of the ¼ currently) and the other half in usufruct (½ instead of the ¾ currently).

However, in the event that the spouse / registered partner remarries or enters into a new registered partnership, he/she loses the usufruct on the children's inheritance reserve. The latter become full owners of their share of the estate, which is no longer subject to a usufruct.

Couple involved in divorce proceedings:

As soon as divorce proceedings or the dissolution of a registered partnership are initiated, the protection of the inheritance reserve will cease, even before the divorce or registered partnership is finally pronounced.

For this purpose, it is sufficient that:

- a divorce proceeding has been initiated by joint petition, or

- the spouses have lived separately for at least two years, and

- one of the spouses dies, and

- that this deprivation of inheritance is provided for in the deceased's will.

Finally, the surviving spouse will legally lose:

- his or her reserved portion of the estate

- his or her rights resulting from dispositions of property upon death

- the gifts provided for in the marriage contract.

Inter vivos gifts:

Whereas the current law provides that a gift made by the testator after the conclusion of a contract of succession may be voidable only if it contravenes the provisions of the contract of succession or if there is an intention to prejudice the instituted heirs, the new law of 2023 will allow the contracting party to the contract of succession to object to dispositions upon death or liberalities between living persons without the need to prove that they cause prejudice to the contracting party.

This brings us closer to a restrictive practice in the freedom of the testator to dispose of his property. 

Furthermore, the reform modifies the order in which reductions of gifts can be made in the event of a violation of the legal reserve. Until the reserve is reconstituted, the order of reduction is as follows:

1.     Acquisitions on account of death resulting from the law

2.     Gifts in lieu of death

3.     Gifts between living persons

Clarity for Pillar 3a:

Pillar 3A pension assets will now be included in the calculation of reserves (for their surrender value) and will not be included in the estate.

This provision, which is already in force but vague at present, will be expressly written and clarified in the text of the law.

In conclusion, we are moving towards a modernization of the Swiss inheritance law. The Swiss Confederation fills its gaps in the field of inheritance law by means of standards that are already applicable in many other European countries.

Jacques DEGORS & Ilona ROUSSEL

Sources : ww.ubs.com / www.bdo.ch / arpr.ch / www.mll-news.com 

MORAL TORT

In Switzerland, Article 47 of the Federal Act supplementing the Swiss Civil Code provides that "The judge may, taking into account particular circumstances, award the victim of bodily injury or, in the case of death, the family, fair compensation as moral reparation.

It appears from the practice of Swiss courts that this moral damage is assessed according to a two-stage process.

The Swiss courts therefore analyse successively :

 the objective seriousness of your injury

the elements specific to the case in question

An objective amount is thus allocated as an indication in a first phase and in a second phase, all the circumstances of the case are taken into account to adjust the basic amount, this last phase being more important in serious cases.

Phase 1: In order to calculate the basic amount to which a victim's next of kin may be entitled, the maximum insured earnings at the time of death, i.e. CHF 148,200 under the LAA (Compulsory Accident Insurance Act), must be taken into account.

https://www.swissriskcare.ch/sites/default/files/src_chiffres_cles_2022.pdf

When calculating such an amount, the aim of providing the injured party with a certain feeling of enrichment should only serve as an overall criterion, applicable in the same way to all injured parties, and making it possible to set the range within which the total compensation should be situated.

Thus, the Swiss courts have based themselves on the figures used in the literature, in particular the figures used by Hütte, which are most probably the closest to the current case law. A basic compensation of 35% of the share of earnings insured by the compulsory accident insurance is awarded for the death of a child (Guyaz Alexandre, le tort moral en cas d'accident:une mise à jour, SJ 2013 II p. 215 ss, 250 s.)

Therefore, in the case of a human death following a road accident, a parent would be awarded CHF 52,000 (i.e. 35% of CHF 148,200) as basic moral compensation.

Phase 2: Using the example of parents who have lost their child, the basic amount of CHF 52,000 could be increased to some extent, given the mitigating or aggravating circumstances in each particular case.

The fact of having directly witnessed the accident, the intensity of the bond between a mother and her deceased daughter, the pain caused by the loss of the child or the moral suffering resulting from the fact that no one was found guilty in the criminal proceedings, for example, are elements that may well be taken into consideration by the judges in order to increase the compensation.

However, this compensation must be fixed in a "fair" manner, thus leaving a wide margin of appreciation to the courts. As mentioned above, compensation is also assessed in comparison with similar situations and the amounts awarded in those cases.

Case law and doctrine take into account, among other things, the seriousness of the fault committed by the wrongdoer when determining the compensation. The latter should be considered only insofar as it has aggravated the claimant's psychological pain and made it even more difficult to accept the situation suffered.

In sum, there are ultimately as many grounds for awarding 100,000 francs as there are for awarding 200,000 francs or 1,000,000 francs for the same injury and it would undoubtedly be preferable for this type of decision to be taken directly by the legislator rather than left to the discretion of the judge.

ECONOMIC LOSS

Article 45 paragraph 3 of the Swiss Code of Obligations provides for damages for the loss of support resulting from the death of a loved one. It is necessary to estimate the hypothetical income that an individual would have obtained from his or her deceased loved one from the day of his or her death. In order to do this, it is necessary to examine several criteria: the amount of income, the proportion of this income that was spent on the relative, possible reductions and the duration of the support. If the support was given in kind (in the form of work, household help, care, etc.), it is possible to estimate its value, but this is more difficult to demonstrate in court.

In conclusion, when a loved one is lost, a certain category of individuals close to the deceased can claim their rights before a court to receive both compensation for the moral suffering experienced and the economic damage that follows the death.

It has been observed that the amounts awarded to relatives are small compared to what some have suffered, such as the loss of a child or parents. Only in exceptional cases has Swiss case law doubled the compensation for moral damages and prevented claims from being made for sums that are too high compared to the latter, at the risk of having claims rejected.

Today, therefore, it seems that this process is not very representative of the pain endured. The moral issue should probably be examined by the legislator in order to revalue the amounts awarded in the event of death and avoid this issue being left to the arbitrariness of a judge.

Jennifer Gaumann & Ambre Schindler

 1.    School bullying: a 21st century societal phenomenon

Bullying is generally defined as an aggressive, intentional act perpetrated by an individual or a group of individuals, repeatedly against a victim who cannot easily defend himself or herself.

More specifically, school bullying is characterized by three aspects: the repetition of a behavior, creating a relationship of domination and the existence of an intention to harm. It takes the form of aggressive behavior, whether verbal (threats, insults, lies, mockery), relational (exclusion), physical (beatings, racketeering, sexual harassment) or material (theft, damage, etc.). The effects on the young victim can be extremely harmful: dropping out of school, social isolation, anxiety, depression or somatization. In the long term, the victim of harassment can suffer significant consequences in his or her psychological and social development.

The main problem is the difficulty victims have in expressing their suffering. Therefore, fighting against school bullying requires first of all an awareness raising among students and school staff in order to avoid any lack of reactivity or minimization of the phenomenon.

2.    Different international approaches to a new form of harassment

● French law: the development of legislation criminalizing school harassment
In French law, harassment is punishable under the Penal Code (C. pén. art. 222-33-2-2). Acts of harassment in the school environment are therefore covered by this offence. The French Penal Code also criminalizes violence resulting from acts of hazing and hazing itself, incitement to suicide, as well as the dissemination of degrading images or invasion of privacy (C. pén. art. 223 ff). A right to continue one's schooling without harassment has even been enshrined in article 511-3-1 of the Education Code. However, despite the qualification of school harassment as a criminally reprehensible offence, no sanction is mentioned.
● The German case: the violation of the student's personality by the teacher
Unlike French law, German law does not directly provide for instruments to punish school harassment, but its constituent acts are nevertheless likely to be sanctioned by various provisions of the Criminal Code or by disciplinary measures.
The Oberlandesgericht noted that there is a duty of protection on the part of teachers towards pupils during school hours, as long as the latter are obliged to attend school. In the Ruling of the Oberlandesgericht Zweibrücken (Germany) of May 6, 1997, Az. 7O 1150/93), it was considered that the seriousness of the infringement justified the payment of moral damages.
● The Anglo-Saxon approach: the central role of schools
In the United States, in the absence of federal legislation aimed at specifically punishing harassment as such, including school harassment, there is some protection against acts of harassment with specific characteristics. Each state has anti-harassment laws or amendments. These laws have some common denominators, such as requiring schools to take action.
The United Kingdom also has no specific anti-bullying instruments, delegating to schools the task of protecting schoolchildren, including outside the school grounds. The imposition of sanctions in the event of reprehensible behaviour is possible without any obligation on the part of the schools in this respect, unlike in American state laws.
It can therefore be seen that, in these two examples, the school is in the front line of responsibility, whether because of the risk of action against it or the threat of administrative measures.
● Swiss law: a legal vacuum on the issue of school bullying
In Swiss law, school bullying is not subject to any specific provision. However, the doctrine generally tends to assimilate it to art. 328 of the Code of Obligations, which concretizes the protection of the employee's personality against harassment occurring in the workplace. In fact, the community bond on which this article is based also exists between students and other members of the school. It is based on the duty to attend compulsory school. A crucial distinction must be made between the obsessive dimension of harassment (or stalking) and school harassment as described above (ATF 5A_526/2009 of 5 October 2009, c. 5.3, SJ 2011 I 65). Taken separately, the acts of the schoolchildren may seem harmless, but taken as a whole, their repetitive nature is destructive for the young victims.
At the legal level, cantonal laws also provide for instruments to sanction the failure of pupils to perform their duties. Art. 115 al. 2 of the Law on Public Education of September 17, 2015 mentions that "any act of violence, in any form, committed by students in or out of school [towards teachers and fellow students] is prohibited."
In view of the different legal approaches put in place, it seems that school bullying in its legal aspect is very poorly regulated or even unknown in some legislations. Switzerland, being one of the latter, focuses its attention on making schools responsible. However, it is frequently observed that prohibitions of violence are only accompanied by light disciplinary or administrative sanctions. They are almost insufficient in a context of harassment involving vulnerable people. Thus, it is necessary to take a stand on the problem by putting in place a strict policy of prevention and adequate legal sanctions to prevent the perpetrators and bystanders of harassment from minimizing the problem.
This article does not aim to evaluate which system would be the best, but highlights the need for a legal qualification. Legislation specific to school bullying could help to better target the problem and ensure a minimum of legal security for victims.
Ambre Schindler & Jennifer Gaumann

The trust is an ancient legal institution under Anglo-Saxon law. Although not provided for in our legal system, it has been recognised in Switzerland since the entry into force, on 1 July 2007, of the Hague Convention on the Law Applicable to Trusts and their Recognition of 1 July 1985.

According to Art. 11 para. 1 of the Convention, a trust validly constituted under the applicable foreign law is recognised in the other States parties to the Convention.

Given the complexity and flexibility of this institution, which may take several forms and pursue different purposes, there is no single definition of a trust. At the international level, the Convention has proposed the following definition in Art. 2(1): "[...] the term "trust" refers to the legal relationships created - inter vivos or on death - by a person, the settlor, when assets have been placed under the control of a trustee for the benefit of a beneficiary or for a specified purpose.".

The trust is therefore an institution with three parties:

- the settlor, who may be a natural or legal person, is the one who transfers his property to the trustee

- the trustee is the person who formally holds the assets, who becomes the "legal owner" of them

- the beneficiaries, who for the sake of simplicity can be indicated as the economic owners of the trust property.

The trust may be constituted by inter vivos trust or by testamentary trust. It should be noted that the deed of trust is a unilateral act of the settlor, not subject to the acceptance of the trustee, and that the trust does not have legal personality, which distinguishes it from the institution of the foundation.

In Switzerland, trusts are an important asset planning instrument, particularly in the area of inheritance, to enable the transmission of assets over several generations.

In order to prevent Swiss clients from having to turn to foreign countries to set up trusts, Parliament has instructed the Federal Council, through motion 18.3383, to create the legal basis for the introduction of this institution in Swiss law.

If the trust were to be introduced in our country, it would be necessary to adapt the Code of Obligations and other federal laws, in particular tax laws, which would explicitly specify the rules to which the trust would be subject.

The consultation procedure opened by the Federal Council on 12 January 2022 will last until 30 April 2022.

For further information, please visit

https://www.admin.ch/gov/fr/accueil/documentation/communiques.msg-id-86746.html