Mr. Vesely, you are the author of the revision course and the exercise book on inheritance law, which were recently published in a new edition. Inheritance law underwent a major revision on January 1, 2023. What are the most important changes?
The most important change concerns the compulsory portions. On the one hand, these have been reduced to 50% of the estate with the revision, which means that a testator can now freely dispose of more assets. On the other hand, the parents' compulsory portion no longer applies. And finally, the right to a compulsory portion now expires during ongoing divorce proceedings or during proceedings to dissolve a registered partnership if the couple has lived separately for at least two years.
What do you personally think of this revision? Would you have subjected other articles or other topics of inheritance law to a revision? Which ones?
The lower compulsory portion quotas give the testator more flexibility, which I welcome. This means that personal wishes can be better implemented. At the same time, however, it must be borne in mind that the revision also applies to wills that were drawn up under the previous law. Anyone who included descendants in the compulsory portion before 2023 may therefore have assumed different inheritance shares than today. Following the revision, a testator should reconsider whether he or she still agrees with the new rules if the descendants are entitled to a compulsory portion.
The expiry of the right to a compulsory portion during divorce proceedings is certainly a good approach to revision. However, as a judge, I have very rarely seen a party die during divorce proceedings. And at no time have I had the impression that a party is delaying the divorce proceedings because they are hoping for an inheritance from the other party. In this respect, this change in the law will probably very rarely be relevant in practice.
I see cohabiting couples as a further topic for a possible revision of inheritance law. These are still not taken into account in the current revision. This lack of consideration can lead to disturbing results, because the relationship can nevertheless be very close and there may be a need for protection as a result. In this respect, adjustments could certainly be considered in the future. However, the problem is not acute and a first step has been taken indirectly by reducing the compulsory portion. As mentioned, this gives the testator more leeway, which he or she can also use in favor of a life partner.
A person wants to settle their finances on their death. How would you advise them to proceed?
Depending on the situation, it may be worth consulting lawyers who specialize in inheritance law. They can clarify the specific needs and offer tailor-made solutions. I therefore recommend professional advice.
However, if you want to draw up a will yourself, you should always observe the formalities that Swiss inheritance law attaches great importance to. It is important that it is handwritten from start to finish, bears a signature and states the date with the day, month and year. There is no formal requirement, but it is also advisable to number the pages consecutively so that completeness is immediately recognizable and missing pages are discovered.
You work as a judge at the District Court of Zurich and as a part-time deputy senior judge. What are the requirements to become a judge?
The professional requirements for working as a judge vary from canton to canton. In the canton of Zurich, a law degree is a prerequisite. This ensures that all judges are familiar with the law and case law. However, as these are constantly evolving, you must be prepared to undergo further training.
In practice, communication skills are particularly important. You have to be able to listen well and respond to the parties. Empathy and knowledge of human nature are therefore very helpful, especially when you have to explain to a party why the court has made a decision that is unfavorable to them. Here it is important to communicate in a way that is appropriate for the target audience and to express yourself clearly. If a party does not understand a decision, they will hardly be able to accept it. It is also important to judge with common sense in order to avoid offensive rulings.
And finally, a judge must be independent and neutral, which in my experience is strictly observed by all judges in practice.
Revision and exercise books are primarily intended for law students to prepare for exams. What good advice can you give to future lawyers? What would you say to a law student who would like to become a judge in the future?
The law degree course is very broadly based. It offers a good starting point to test and deepen individual interests and strengths in law. For some, inheritance law may be particularly exciting, for others commercial law or criminal law. I recommend everyone to specialize early on and to further explore their own interests in a relevant area. Student jobs and internships in courts, law firms, companies and authorities are ideal for this. Under certain conditions, you can complete a "trial clerkship" or "traineeship" at the Zurich civil and criminal courts during your studies and thus gain an initial insight into first-instance jurisdiction. If you like the practical experience, you can develop your skills in this way. In the best case scenario, your future profession will become a hobby that you pursue with passion. The experience you gain will also help you with future job applications.
I can particularly recommend the profession of judge because it is very varied and exciting. A broad spectrum is covered at the district court. At the same time, there is a certain degree of specialization. In addition, in my experience, judicial independence is very strongly practiced in Switzerland. The freedom to make decisions to the best of one's conscience without having to satisfy other interests leads to fair and good judgments. Independence and autonomy are very valuable.
Anyone interested in a career as a judge must pay attention to the respective cantonal regulations. In the canton of Zurich, the first stage after graduation usually begins with the Auditorat, an approximately one-year internship at the court. If you prove yourself during this time, you can be promoted to the position of court clerk, where you are involved in judgments and often act as the judge's right-hand man or woman. The next stage is usually work as a court clerk at the higher court, where a certain degree of specialization usually takes place and you judge judgments for the entire canton and become more familiar with higher court case law. There, as a so-called substitute judge, you will initially begin to deal with individual cases at district courts on a deputy basis; later you may also be assigned to a court for a longer period of time. Finally, you are elected as a district judge, often with the support of a political party. These usually support candidates who already have a certain amount of experience as a judge.
Mr. Vesely, thank you for the interview.
Thomas Vesely, lic. iur., judge at the District Court of Zurich. He is also a part-time substitute judge at the High Court and the Commercial Court of the Canton of Zurich.