Facts of the case
The testator C died in December 2012, leaving five relatives as legal heirs. The estate included, inter alia, two apartments in a residential building. B became sole heir to these apartments due to an objective-partial division of the estate. A as well as E and F each owned an apartment in this residential building.
C drew up two handwritten documents. Both were submitted to the competent authority, opened, and read out to all parties concerned.
On February 14, 2011, C made a holographic will: “Last will and testament: I want Dr. G, notary and advocate, to dispose of my entire estate. He is to receive everything and distribute it as I have instructed him to do so.”
Another handwritten document dated June 11, 2009, with signature existed: Preparation for a will [in shorthand]. This was followed by a keyword-like listing of names and allocations in normal handwriting, including A as beneficiary: A 4th floor, cellar north, garden ½, small storage room …
Court proceedings
Based on this document dated 2009, beneficiary A filed an action against B on January 27, 2019, to transfer unencumbered ownership of the bequeathed assets. The District Court of Schwyz approved the claim, but the Cantonal Court of Schwyz dismissed it.
In a judgment dated April 23, 2023, the Federal Supreme Court upheld the dismissal of the action, imposing costs, and compensation for litigation (of CHF 9,000 each).
Issue
May the handwritten document dated June 11, 2009, be classified as a last will and testament? Is there a testator’s discernible will to testate? Does such an intent result from other circumstances?
Reasoning
It is uncontended that the 2009 document written by the decedent bears a stenographic heading “preparation for a will”.
A alleged that the testator C mentioned to him and E as well as F that he would bequeath an apartment to each of them.
The Federal Supreme Court of Switzerland considered that for a testamentary disposition to exist and to be valid, the testator must declare his testamentary intention to dispose of his assets for the period after his demise (Federal Supreme Court judgment of April 3, 2023, BGer 5A_405/2022 consideration 5.1.1).
The will must emerge from the testament itself. Externals are consulted for interpretation only in the event of ambiguity, to clarify information contained in the text (consid. 5.1.2). Only the real intention counts.
The title “preparation for a will” in shorthand, a script for internal notes, as well as in normal writing a keyword-like listing of names, to which a floor as well as further rooms are assigned, point to an internal memory aid. However, a formulation such as “I bequeath” was missing. This also indicates a draft, without declared intention to devise. Hence there is no last will (consid. 5.3.2.1).
The document does contain a final signature of the testator at the end. Irrespective of the formal requirements, it is to examine whether a last will and testament and an express intention to testate exist. Circumstances internal to the will must be considered: However, neither a signature on a document under the title “preparation for a will” nor the appointment of an executor indicate a discernible, distinctly will to testate. This could be a blueprint (consid. 5.3.2.2).
Furthermore, the testator had in his will of 2011not referred to the document of June 11, 2009. A codicil was ruled out. But besides that, only the document of 2011 had been deposited as a testamentary disposition. These circumstances outside dispositions by will also militate against an intention to testate (consid. 5.4.4.2).
The lesson is clear:
A “draft” or a notice of intent is precisely not a will as the intent to dispose and testate is missing.