Today is world patient safety day. Medication and treament errors are often preventable, as is malicious influence or legacy hunting.
Bequest, last will and testament
A nurse unworthy of inheriting shall not acquire anything by a testamentary disposition.
A nursing professional cared for a single woman from May 1997 until her death in 2015. The so-called testatrix bequeathed a property to him. The appointed executor refused to pay the bequest to the nurse. The nurse sued for delivery of the bequest. In vain: All instances deemed him unworthy of inheritance.
Unworthiness to inherit
A person is unworthy to inherit or acquire anything by a testamentary disposition if he or she has induced the testator to make or revoke a testamentary disposition or prevented him from doing so by malice, coercion or threat (Art. 540, par. 1, cipher 3, Swiss Civil Code). The prevention may result from mental influence, from failure to provide clarification or communication in order to correct a misconception on the part of the testator.
Dependency
The nursing specialist was the decedent’s private caregiver and nurse, as well as her legal guardian, generally authorized person and advanced directive representative. There was a high level of trust and a strong relationship of dependence.
Duty to inform
The caregiver knew that the testatrix bequeathed the house to him and included him in the will. He should have informed the testatrix that he had not acted out of friendship or affection but had charged for the care services. He had received around CHF 4,800 per month for a workload of approximately 50%.
Duty to disclose
In addition, as a guardian and health care agent, he had a duty of disclosure with regard to conflicts of interest in the case of beneficiaries under inheritance law. In 2014, the testatrix had gifted him CHF 200,000. As guardian, he had accepted the gift without obtaining the consent of the adult protection authority.
Malicious influence
It is striking that another testatrix cared for by the very same guardian had also bequeathed him a residential property. This would suggest that the testatrix had been influenced by the will.
Misconception
In the present case, the testatrix was very lonely and mentally distressed. She assumed a relationship of friendship and saw the caregiver as a savior, friend and benefactor. She was convinced that without his care she would have had to move into a nursing home.
The nurse had used the decedent’s misconception and influenced her to fraudulently enrich himself. He had disregarded his duty to inform by not disclosing the paid service.
The testatrix would not have bequeathed her property with a tax value of CHF 670,000 to the nurse if she had known that he had been adequately remunerated (see Federal Supreme Court ruling 5A_993/2020 of November 2, 2021).