The testator, born in 1957, adopted by Germans as an adult in 1990, made a will by public deed to dispose his property to his natural Polish parents in 1991. In addition, he made a holographic will in 1998 according to which AA or PA were entitled to designate his savings as well as assets in Switzerland and Germany according to the purposes of their opinion and to take expenses generously for themselves.
The issueless testator died in an accident in 2002. He left behind his natural and his adoptive parents.
In 2015, the District Court Y opened and read out the two wills.
AA brought a legacy action against the descendants of the decedent’s natural parents in 2019 to have them pay him the legacy (savings as well as assets in Switzerland and Germany), at least CHF 418,173.70.
In suit is whether the testator bequeathed something to AA.
Construction / interpretation
A will is a unilateral declaration of intent. The true intention must be ascertained based on the wording.
The testator – without designating beneficiaries – did not want to make over his estate to A, but only the role of determining purposes or beneficiaries as executor.
Unwritten principle of utmost personality
To estate is of a highly personal nature: it is hostile to representation (formal). The testator must determine the content of the will himself (substantive). Hence, he cannot delegate it (to the executor), not even to determine beneficiaries.
According to recent doctrine, a third party can decide according to objective and factual criteria if the specific objectives of the testator are known.
In the present case, neither the intended purpose nor the beneficiaries are known. What the testator wanted to achieve is unclear. The principle of the highest personality is violated. Thus, the disposition is void (see Federal Supreme Court judgment 5A_1034/2021 of August 19, 2022, Consid. 5.3.2).
Conversion, favor testamenti
It must be examined whether an invalid testamentary disposition can be converted into a valid disposition. The principle of favor testamenti states that if two interpretations are possible, the one that allows the testator’s will to be upheld must be chosen.
A conversion of the testamentary disposition into a foundation must be refrained from, since neither the purpose nor the potential beneficiaries are known (Consid. 6.2.1).
Conversion into a bequest with a restraint also fails, since the testator did not specify either the purpose or the beneficiaries (Consid. 6.2.2.2).
Conclusion
The 1998 will is too vague. The action was dismissed.