Today’s Blog was written by Jessica Butler, Law Clerk at Fasken LLP.

Nicolas Puech (“Nicolas”), the 80 year old fifth-generation descendant of Thierry Hermès, founder of renowned fashion house, Hermès, made headlines in December when he announced that he plans to bequeath at least half of his fortune to his unnamed (but apparently incredibly talented) former gardener.

The value of the Hermès brand is estimated to be €211 billion (approximately $295 billion Canadian) in 2023, while Nicolas is estimated to have a net worth of €12 billion (approximately $14.7 billion Canadian), inclusive of his 5.7% stake in the fashion house.

It has been reported that Nicolas plans to effect his testamentary wishes by adopting his former gardener, who is reportedly in his 50s, married, and has two children.  Nicolas himself is unmarried and without biological children[1].  While adult adoption is rare, it seems Nicolas, who resides in Switzerland, hopes to solidify the bequest to his gardener by providing not just a legacy payment, but by attempting to ensure that Swiss succession law recognizes the gardener as his child.  Unlike most common law jurisdictions, such as Ontario, the succession laws in civil law jurisdictions, such as Switzerland, tend to include so-called “forced heirship” rules. This means that a designated portion of a deceased’s estate is set aside and must be distributed among prescribed beneficiaries, typically certain next-of-kin such as spouses and lineal descendants. In Switzerland this protected portion of an estate is known as the “compulsory portion”[2]. If the gardener is Nicolas’ child, he would benefit from the compulsory portion.

Nicolas’ plan to gift his fortune to his gardener came as a shock to The Isocrates Foundation, a Swiss not-for-profit organization founded by Nicolas and dedicated to the protection and promotion of public debate (the “Foundation”).

Nicolas and the Foundation previously entered into an “inheritance agreement”, purportedly binding his estate to the Foundation.  As part of its 2023 annual report, the Foundation commented: “…the Isocrates Foundation became aware of it founder’s intention to cancel the inheritance agreement binding him to the Foundation. The Foundation objected. As of November 21, 2023, the Foundation has informed its partners that, until further notice, it is no longer able to examine new funding requests. … In the current situation, the Foundation continues to prioritize dialogue with its founder.”

An “inheritance agreement” is not something we are familiar with in Ontario. Not having heard of inheritance agreements myself, I did some online searches to learn more about them, and have included links to the sources in the notes. Based on the material I found, it appears that inheritance agreements are used in Switzerland and for Swiss assets[3] and may be used in place of, or in conjunction with, a Will[4]  The agreement can be made between two or more parties and provide for how and when a deceased’s assets will be distributed. It appears that inheritance agreements in Switzerland can be terminated or amended by written agreement of all the parties, but also unilaterally in some cases. It appears that Nicolas is attempting to unilaterally terminate the inheritance agreement with the Foundation.

As discussed above, inheritance agreements do not have a direct corollary in Ontario. When learning more about these inheritance agreements, I was reminded of domestic contracts, specifically those that provide for a gift to a spouse or partner in the event the other predeceases, or mutual will agreements, but while they have some similarities, they are not the same as an inheritance agreement.

If Nicolas is concerned that he may not be able to unilaterally terminate the inheritance agreement with the Foundation, it may be that his alleged intention to adopt the gardener is a means of ensuring a portion of the estate goes to the gardener, even if the inheritance agreement is upheld.

As we follow the saga of the Hermès Gardener’s impending windfall, numerous questions and legal implications loom. Will Nicolas successfully navigate Swiss inheritance law by adopting his gardener? Will the inheritance agreement with the Foundation be set aside? Stay tuned for updates and thanks for reading!

[1] https://www.cnn.com/2023/12/20/business/nicolas-puech-hermes-billionaire-gardener/index.html

[2] https://www.ch.ch/en/family-and-partnership/inheritance

[3]https://www.charlesrussellspeechlys.com/en/insights/expert-insights/private-client/2022/inheritance-contracts-an-unknown-planning-tool-for-brits-with-assets-in-switzerland/

[4] https://www.zurich.ch/en/services/knowledge/investments-and-pension-plans/swiss-inheritance-law