When somebody dies, his assets must be divided among his heirs; this process is sometimes complex. A cause for litigation may thus arise. The aim of the present article is to examine the possibilities offered by arbitration in the resolution of such problems when Swiss law applies to the succession.
Once the succession process has started (after the estate owner?s (de cujus?) trespass), scholars generally acknowlege the possibility for the heirs to submit their disputes to arbitration, be it under the Intercantonal Concordate on Arbitration or the Swiss Private International Law Act. However, this possibility can be limited in some cases, mainly in the event of an official liquidation process (?liquidation officielle?).
In the same way, it also seems possible to have an arbitration clause in a ?pacte successoral?, whereby the estate owner and the heirs ? during the lifetime of the testator ? find solutions in advance relating to the liquidation of the estate.
The most debated issue is whether the testator can provide for arbitration in his or her will unilaterally, in a way that binds their heirs. The testator is usually in a position to make arbitration a condition of the legacy. The person entitled to receive a legacy under the will should not be entitled to receive anything if he does not submit himself to arbitration in case of dispute.
However, the heirs? compulsory share (?réserve?) can be an obstacle to arbitration. When the testator includes an arbitration clause in his will, the heir entitled to a compulsory share could avoid it. To prevent this, the testator could indirectly oblige his heirs to accept arbitration by providing for them to receive more than their reserved share in case they comply with the arbitration clause and, to the opposite, to a reduction of the compulsory share in case they do not comply with the arbitration clause.
To sum up, even if arbitration is not always possible in succession matters, it can be an appropriate solution in many cases, especially in order to avoid the parcelling of estates (?morcellement des successions?) which often occurs when the estate owner has assets in different countries.ASA Bulletin