Requirement for the consent of all heirs for the balancing of an estate account in the presence of a marriage and inheritance contract with a maximum benefit clause

A widow wanted to close the accounts of her deceased husband without the consent of her son and co-heir. She relied on a marriage and inheritance contract that maximally favored her and granted her, in addition to ownership of the freely disposable share of 3/16, the usufruct of the entire remaining part of the estate. The division of the inheritance should, based on the marriage and inheritance contract, only take place after the death of the spouse who dies second. However, the bank requested the consent of both heirs listed in the certificate of inheritance, i.e. the widow and the son, for the balancing of the estate account. After the bank initially failed to explain its position, the widow contacted the Ombudsman. He asked the bank for a statement of position. The bank then explained its legal position and referred to the statutory provisions on universal succession and the community of heirs. The Ombudsman was able to understand the bank’s reasoning and closed the proceedings with an explanatory notice to the widow.

After the death of her husband, the client contacted her bank with the request to close the bank accounts managed by her late husband. However, for this balancing, the bank required the consent of her son and co-heir.

The client was of the opinion that the balance held at the bank had to be transferred to her as heir and beneficiary of the estate, even without her son’s consent. She referred to the marriage and inheritance contract concluded between her and her husband, in which she was granted the maximum benefit and, in addition to ownership of the freely disposable share of 3/16, received the usufruct of the entire remaining inheritance share. Her son had waived the filing of an appeal against the marriage and inheritance contract. She also objected to the dossier management fee of CHF 260 per quarter charged by the bank to the estate account.

The bank rejected the request in two letters to the widow, without giving reasons for its position. The client then turned to the Ombudsman.

The Ombudsman asked the bank for a detailed statement. The bank explained that both the widow and the son were listed as heirs in the certificate of inheritance. According to the principle of universal succession under Art. 560 of the Swiss Civil Code, the heirs assume the position of the deceased bank client. Several heirs formed a community of heirs and are joint owners. They could only dispose of the estate jointly (Art. 602 paragraphs 1 and 2 Swiss Civil Code).

The bank pointed out that, according to Article 473 paragraph 1 of the Swiss Civil Code, the spouse entitled to usufruct becomes a legatee. A legacy gives rise exclusively to a claim against the heirs, not against third parties such as the bank. The marriage and inheritance contract merely regulates the internal relationship between the surviving spouse and the heirs in this respect.

In summary, the bank stated that at the time of a bank client’s death, all heirs jointly become new contracting partners of the bank and are jointly entitled to dispose of the assets. Accordingly, all heirs of the community of heirs would have to agree to a balancing according to the certificate of inheritance, regardless of the provisions in the marriage and inheritance contract. A usufruct does not change the status of heirs as established in the certificate of inheritance. As a gesture of goodwill, the bank agreed to credit the dossier management fees of CHF 259.40 that had already been charged in the course of the account closure.

The Ombudsman examined the bank’s reasoning. In his assessment, the bank had provided a comprehensible justification for its requirement and was able to rely on the relevant legal provisions. The son could only be disregarded in the disposal of the estate accounts if he had agreed to a renunciation of inheritance. However, a waiver of the filing of an objection against the marriage and inheritance contract does not constitute a waiver of the status as a heir.

The Ombudsman pointed out that, in such a situation, a bank could waive the consent of all heirs, as the widow had experienced with other banks. However, the bank would accept the risk of being held liable by an overlooked heir. According to the Ombudsman’s experience, it is common for banks to require the consent of all heirs listed in the certificate of inheritance for an account closure, even if there is a marriage and inheritance contract with a maximum benefit clause.

As the Ombudsman saw no valid arguments on the basis of which he could have motivated the bank to change its position in the present case, the Ombudsman closed the case with an explanatory notice to the widow.