How is the will to be interpreted without a substitute disposition if Mr. D does not live to see the inheritance or is predeceased?
Mrs. C was not married, had no children, and had two sisters, B and E. On June 11, 1978, Mrs. C drew up a handwritten testamentary disposition according to which, upon her death, all her possessions would pass in equal shares to her sister Mrs. B and her husband Mr. D; Mrs. E would inherit nothing.
Testatrix C died on February 8, 2013, after it was already clear that sister E and brother-in-law D were no longer alive. As legal heirs, C left her sister B and four children of her predeceased sister E, namely F, G, H and I. H disclaimed his inheritance. His son A took his place. The other children assigned their inheritance shares to A.
Lawsuit, litigation history
In its judgment of March 20, 2013, the Pfäffikon District Court opened the testatrix’s will of June 11, 1978, and deemed B to be the sole heiress.
A filed an action against B on January 10, 2014. He requested that the will of June 11, 1978 be declared invalid, that he be recognized as legal heir alongside B and that B be obliged to surrender half of the estate. Otherwise, a quarter of the estate was to be handed over to him if the will was not invalid.
The district court dismissed the action in a judgment dated March 29, 2019. A appealed against this decision. The Higher Court of the Canton of Zurich dismissed this appeal in its judgment of September 6, 2019. The Federal Supreme Court also dismissed the appeal filed by judgment of May 14, 2020 (see BGer 5A_799/2019).
Last will and testament
The testatrix stipulated in her last will and testament that her sister B and her husband D should each inherit half of her estate. D predeceased the testatrix. C did not make a substitute disposition for this case. Without such an order, D’s heirs cannot take his place.
It is disputed whether the handwritten will precludes A’s position as heir or whether the testatrix intended to exclude only her sister E or also her descendants (children and grandchildren) with the sentence “Mrs. E will not inherit”.
A acknowledged that the testatrix did not want E’s family to inherit even a centime at the time she made her will. Thus, C wanted to exclude both her sister E and her descendants from the inheritance with the phrase, “Mrs. E inherits nothing”. – Since D is predeceased, the sister B remains as the sole heir (cf. BGE 5A_799/2019 consideration 4 and 6.1.2, judgment of May 14, 2020).
Comment on the decision
If A had not made a concession during the trial that E’s family would not inherit even one penny, the sentence “Mrs. E inherits nothing” would at best have to be interpreted. According to the wording, Mrs. E is excluded from the inheritance, without reference for the exclusion of her descendants. Thus – according to the wording – the descendants of Mrs. E could have been considered legal heirs, and A – due to the disclaimer of his father and by assignment of the remaining children’s shares of the inheritance to A – could have participated in half of C’s estate. The defendant and appointed heiress B would have had to prove that the wording in no way reflected the correct result of interpretation and prove this with extrinsic elements – elements not found in the will.
Note
Siblings
Siblings are not entitled to a compulsory share. If there are no heirs entitled to a compulsory share, the entire estate may be disposed of by will (cf. Art. 470 para. 2 CC). If a testator does only dispose of part of the estate by will, the other property will pass to the legal heirs (Art. 481 para. 2 CC).
Form, content, motive, substitute disposition
Check that your will is drawn up in a formally valid manner and that the contents of your will are unambiguous, clear and unequivocal. This will help to avoid unnecessary disputes and protracted litigation. Have you recorded the purpose of your arrangements or your motive, and your last will and testament to dispose of the entire estate after your death? Have you made substitute dispositions, designating another person to take the place of the primary beneficiary if a primary beneficiary cannot or will not accept the inheritance?
Further Advice
Review your will every two years and when circumstances change.