Recognition of a child posthumously by testamentary disposition
Paying fathers may recognize their child posthumously by testamentary disposition.
Children born out of wedlock before January 1, 1978
Children born out of wedlock before January 1, 1978, generally had no legal father, but rather an old-law paying paternity. Paying fathers acknowledged their obligation to pay maintenance to the mother and child, but not paternity.
Insufficient designation as “legal heirs” or “descendants”
Insufficient is a designation of the biological children as “legal heirs” or “descendents”.
Two months before death, a payor father stipulated in his will in 2019 that he expected to leave as legal heirs his descendants (indicating name, date of birth, and address). They are entitled to a quarter of his estate.
According to the civil status register, no child relationship exists, since the testator is neither registered as “father” nor the descendants as “children”.
Recognition possible if child relationship exists only to the mother
If the child’s relationship exists only with the mother, the father may recognize the child (Art. 260 para. 1 Swiss Civil Code). Recognition is effected by declaration before the civil registrar or by testamentary disposition or … before the court (Art. 260 para. 3 CC).
Mere appointment as one’s heir
If there is no express declaration of intent, it is a matter of mere appointment of one’s heirs.
In the present case, the will contains an effective appointment of the three children as heirs for one quarter each of the estate. Nevertheless, a clear will of acknowledgment is not recognizable. Case law and doctrine require a clear, distinct and unambiguous expression of the acknowledging party’s will. In his will of May 8, 2019, the testator did not unequivocally state that he recognized these persons as his children (see Federal Supreme Court judgment 5A_631/2021 of June 20, 2022, Consid 3.3 f.).
Payor paternity
Payor paternity does not establish a legal child relationship, which is why the payor children concerned are not entitled to a legal right of inheritance under Article 457 para. 1 CC.
Tax
The biological father (testator) can appoint his payment children as heirs to a fraction of the estate by means of a disposition of death in accordance with Art. 483 CC. Pertaining to cantonal inheritance tax, these payment children are often disadvantaged compared to legal children. A possible discrimination would have to be clarified before the European Court of Human Rights (ECHR) in Strasbourg.
Seek advice when drafting wills. Among other things, wording is crucial.