Facts of the case
The decedent, born in 1942, left as legal heirs his two offspring, born in 1992 and 1996, and a life partner, born in 1984.
On December 31, 2015, the court opened and read out several testamentary dispositions.
According to the will dated February 9, 2015, the testator decreed that his legal heirs shall receive the statutory entitlement respectively the compulsory portion. He appointed a (new) executor.
In earlier wills made in 2013 and 2014, the decedent stated that his children shall get the statutory share and that his life partner would receive the available, free quota.
Court proceedings
On March 31, 2017, the life partner unsuccessfully sued the children of the decedent for division of the estate. She claimed an appointment as one’ s heir according to the wills dated March 17, 2013 and August 28, 2014. – The rulings of the Swiss Federal Supreme Court of March 22, 2022 are discussed here.
Issue
What applies if there are several wills?
The testator makes a testamentary disposition. He does not explicitly revoke a previous will. The later will supersedes the earlier unless it is undoubtedly a mere codicil (cf. Art. 511 par. 1 CC).
Considerations
The testator’s will is decisive as to whether a new will is a mere codicil or revokes the existing earlier ones. The testator’s will is to be determined by interpretation.
The person who invokes the existence of the earlier disposition must prove this strictly, in the present case the life partner. Otherwise, the legal presumption applies that the new disposition supersedes the earlier one. In case of doubt, the testator’s will to revoke shall apply.
In its judgment of March 22, 2022, the Federal Supreme Court of Switzerland held that the wording of the will of February 9, 2015, did not provide even a hint of evidence for the assumption of an amendment respectively of a codicil (BGer 5A_291/2021 consideration 2.2).
The presumption of revocation of the earlier testamentary disposition applies even if the individual dispositions do not contradict each other and can coexist (see BGer 5A_286/2021 consideration 4.2).
The testator has disposed in part of his property: The issue receives the statutory share. Any property the testator did not give by will (e.g., the freely available quota) passes to the statutory heirs (cf. Art. 481 par. 2 CC)
The affected relationship may be used for interpretation. The testator had rented an own apartment for his partner when he made his last will and testament. The relationship had no longer been firm or stable. This can be taken as an indication that the testator no longer wanted to benefit his life partner. Hence there was no codicil to the will in the meaning of an amendment (BGer 5A_286/2021 consideration 4.4).
Outcome of the lawsuit
The testator’s will of February 9, 2015, supersedes the previous wills pursuant to Art. 511 par. 1 CC. His sons inherit everything, and his life partner leaves empty-handed.
The civil partner filed an application for free legal assistance. This was rejected, since the form of order sought had no prospect of success and the complaint was unfounded (BGer 5A_292/2021 E. 4.3, E. 5).
Bottom line
As testator, you may prevent long and expensive disputes over several years: Revoke the earlier wills. Destroy the original deeds made earlier so that no codicil can be alleged.
Professional estate planning is important so that your last will and testament counts.