Dear Madam,
Yes, finally it worked and everything is now in order. I am sorry for the entire rigmarole. Please find below your answers, just like before, after your questions:
Q1: The deceased father left behind the following: Spouse (S), two sons from previous marriage (A & B), a daughter from the current wife (C), two grand children one from the first son and another one from the second son (G1 & G2). All Swiss citizens. What is the Swiss law provisions on division of properties and cash?
A1: Strictly legally, i.e. without any Will, the estate is divided as follows:
First of all, S takes that part of the common property of the spouses which is considered hers, through the effects of the matrimonial regime that the spouses had during their lifetime (this can be community of property, separation of property or participation in acquisitions). This is an unrelated matter and for everything else we assume that the estate of the deceased has already been split from the property of the surviving spouse firs.
Then, the following have rights over the estate of the deceased:
S - receives 1/2 of the estate (art. 462 pt. 1 Swiss Civil Code - SCC);
A, B and C - receive 1/6 (1/3 of 1/2) of the estate each;
G 1 and G 2 - have no right to the estate.
Q2: This family also have properties abroad. Does the Swiss court decide on that also?
A2: The competent court is the one in Switzerland where the deceased had his last habitual residence. This court is competent for:
-> everything he left in Switzerland;
-> all movable property he left abroad (this includes bank accounts).
This court is not competent for immovable property left abroad (houses, land), nor for trusts registered abroad.
For these, the court where the house, land is located or where the trust functions, is competent exclusively. So the inheritance competence can be split between many courts, depending on where the immovable assets are located.
Q3: Based on the Swiss Law, the spouse, two sons, daughter and grandchildren have share of the deceased properties and cash. Can a will decide against that.?
A3: Note G 1 & G 2 have no right to the estate (see above).
The answer to this question is yes, partly. The deceased must leave at least the following proportions of the estate (art. 471 SCC):
To S, at least 1/4;
To each of A, B and C, at least 3/4 of 1/6 (3/24 = 1/8);
The remaining rest can be disposed of freely.
The share of S can also be left as a right to use the entire share of C for her lifetime, with the 'nude property' (i.e. the right to own but not to use, until she dies) passing to C. This is a way for the SCC to say the surviving spouse can use more for her lifetime, but C will already be owner when she dies, thus entering into possession on the spot. This is usually not done anymore. Only C is affected because C is the common child. A and B cannot be touched in their rights by such a Will.
Q4: The deceased father and the spouse forced the second son (B) to sign a waiver not to claim inheritance and paid him Swiss Francs 100,000. The reason, they do not agree with his choice to marry his girlfriend who is now his wife. Is it legal to ask your one's son to waive his inheritance?
A4: Yes, if the money were paid, under Swiss law such a contract is valid, and is B is considered as having been "purchased out" of the estate. A and C would then receive 1/4 each legally, and not less than 3/4 of 1/4 each in case of a Will.
Q5: The deceased father discovered that he had glioblastoma or brain tumour on 13 Aug. 2014. Apparently the will was changed on 25 August 2014 without the two sons knowing it. Is that legal, too? Can that be contested?
A5: The presence of a disease does not affect, in itself the Will. However, if there are witnesses or other facts which lead one to assume that the father was induced (by promises, by painting a dark picture of his life etc.) by one or more of the heirs, then the Will can be contested on the ground of illegitimate induction to favor one heir over others. But again, there need to be witnesses or documents. Otherwise, there is little chance for such an action.
Q6: The step mother earlier announced via email address to the family lawyer to divide the cash in a Swiss Bank between the daughter (C) and the eldest son (A) (the one who did not sign the inheritance waiver). The lawyer replied that the step mother has the right to put the full amount under her name. Suddenly, the eldest son has no cash entitlement but the daughter of the stepmother is spending 10,000 euros a month in shopping. Meaning only the daughter of the step mother is enjoying the cash.
A6: The family lawyer probably knows S for a long time and they have a working relationship. He probably would cover his advice by saying that the money were 'common property' or her share out of the common property, which she can use as not falling within the estate. And then, of course, she gave as much as she wanted to C. However, this can be challenged in court using bank statements, on the basis that it should be part of the inheritance, calculated as such, and split between A, C and S, according to the proportions above.
Q7: What are the rights/inheritance of the two sons' children (one child for each son)?
A7: None whatsoever, as long as their parent (A and B) live. B is further precluded from the estate by having been purchased out. His rights do not pass to G2.
Q8: Am copying the excerpt of the stepmother's response to the eldest son when the latter inquired about his inheritance.
Stepson,
I am resending the family lawyer's reply of 10 months ago on this subject, which was copied to you. Also sending revised will which you would have received also. Please re-read them. If you need clarification, please contact the family lawyer. Your cash would potentially come from the sale of the two properties in Prague and Spain. However you would need my consent to sell. You are free to use vacation house in Spain when you wish.
Regards
A8: As the e-mail does not specify any legal justification for her move, please refer to A6 for why the lawyer might have considered this as appropriate.
One word about houses and land abroad:
The fact that foreign courts are competent for them creates huge legal issues. Step by step:
-> The foreign courts might not apply the same law as Swiss law. This means that, for the Prague house Czech law might be applied, while for the Spanish house, Spanish (in fact, the law of the Spanish province where it is situated - because Spain does not have one unitary system of inheritance law) law will be applied.
-> If the deceased died on or after August 17, 2015, under the EU Regulation 650/2012, then the risk outlined above is much diminished. Spanish and Czech courts would apply Swiss law.
-> If the deceased died before August 17, 2015, then the risk is quite high and requires a specific study of other laws (Czech and Spanish private international law and material inheritance law) to give an answer.
-> If either Spanish and / or Czech law is applied, the contract between the deceased and B might not be valid with respect to that particular property, the shares of each heir might be different, the reserved portions (i.e. compulsory minimum to leave to one heir) might be different, with respect to that particular property. This has to be fought out in each court, however, with its own rules, terms etc., and these trials can go on at the same time in parallel.
-> Such a situation would have to be notified to the Swiss court as well, so as to avoid exactly what S claims - that A and C can sell houses abroad. They can't, because foreign courts might decide that the house is actually jointly owned by A, C and S or even A, B, C and S.
-> The solution in such cases is usually to ask the court to split the estate, creating three "pots" (in this case): 1. for Swiss properties and worldwide cash and movables (to be split according to Swiss law); 2. for Spanish house; 3. for Czech house. In this way, each 'pot' is split according to its own rules. Note, however, that this might create its own hazards, depending on who you are. For example, B might be happy with this, as it gives him a chance to get something out of the estate after all, but S might not, given that there is a chance she might have to split the houses with B as well.
-> The terrible thing (as clients see it) and beautiful thing (from a lawyer's perspective) is that, in private international law (i.e. your situation with several countries involved) there is no over-arching law to say who is 'right' or what is 'fair'. The end result depends on the skill of the attorneys involved and their mastery in making these rules interact to their client's benefit.
-> Given such a complex inheritance, I would strongly advise retaining a Swiss, Spanish and Czech attorney, or at least a Swiss one for the beginning, to litigate your rights regarding the property, unless you are B, in which case dealing directly with Spanish and Czech courts might be more worthwhile, given that under Swiss law the contract is in principle valid, and you have been out-purchased from the estate.
I hope this has clarified matters as much as possible and thank you again for your accepting my offer.
Cordially,
Dr I L Vlad