It is controversial which beneficiaries are entitled to a surplus after liquidation of an inheritance.
Facts
E.B. drew up a will in 2015: He appointed his godchild resp. nephew as his sole heir. In 2020, E.B. died. He left behind his sister, brother, and half-sister as legal heirs.
His nephew rejected the inheritance. The legal heirs did likewise. A liquidation surplus of over CHF 80,000 remained, which was proportionally due to the legal heirs according to the first and second instance. The Federal Supreme Court of Switzerland, however, ruled that the nephew as appointed heir was the sole beneficiary.
Law
The appointed heir may disclaim his inheritance. If the testator made a testamentary disposition from which no other discernible will is evident, his share passes to the decedent’s nearest statutory heirs (cf. Art. 572 para 2 CC).
If all the nearest heirs relinquish the inheritance, the estate is liquidated by the bankruptcy office (cf. Art. 573 para. 1 CC). If there is a surplus, this passed to those entitled to inherit as if they had not disclaimed it (cf. Art. 573 para. 2 CC).
Controversial issue
In dispute is who is the beneficiary when all appointed and legal heirs disclaim an inheritance, and a surplus remains after liquidation of the estate under bankruptcy law.
Considerations of the Federal Supreme Court
The Swiss Federal Tribunal held that the claim to a liquidation surplus is of a obligatory nature, like the claim of the legatee to the surrender of the legacy. The distribution is made according to the intestacy rules (judgment 5A_961/2022 of May 11, 2023, Consideration 5.2.1).
There are different doctrines as to who is entitled to the liquidation balance if appointed as well as statutory heirs relinquish an inheritance. According to one view, only the statutory heirs are entitled to it, according to another view, both the statutory and appointed heirs (Consideration 5.2.2).
In the case of a liquidation surplus, the Federal Supreme Court follows the minority opinion. It assumes an erroneous and therefore invalid disclaimer. This is in accordance with the clear wording of Art. 573 para. 2 CC: In the event of a surplus, the disclaimers are placed in the situation they found themselves prior to the adjudication in brankruptcy of the estate (Consideration 5.4).
The express will of the testator counted: He appointed his nephew as his universal heir. The principle of favor testamenti applied. The testator had therefore excluded the statutory heirs who were not entitled to a compulsory portion (siblings). At the time of the disclaimer of the inheritance, the siblings had no statutory inheritance rights: they did not contest the will. Thus, in the case of a testamentary disposition, the liquidation surplus must accrue to the appointed heir (Consideration 5.4).
Conclusion
The will of the testator must be observed, even when allocating a liquidation surplus.