– August 16, 2023

The testator’s will as a prerequisite for drawing up a will

In principle, the testamentary disposition must be made in the testator’s own hand. This is so that the testator’s will to dispose of his or her assets upon death can be expressed. However, as a rule, the testator’s will must be independently verified irrespective of whether the formal requirements are met (Federal Supreme Court 5A_405/2022 of 3 April 2023).

C. died on Christmas Eve 2012 and made B. the sole heiress of, among other things, two flats. A further document was submitted to the competent court, drawn up on 11 June 2009, in which C. detailed a list of persons to each of whom he allocated a floor and other rooms. One of the beneficiaries was A., who, on the basis of this document, filed a legacy action against B., requesting that she be obliged to transfer the legacy objects to which he was entitled to unencumbered ownership. This action was approved by the court of first instance. B. appealed against this to the cantonal court. B. appealed to the cantonal court, whereupon the court overturned the judgement. A. finally demanded before the Federal Supreme Court that the contested decision of the cantonal court be set aside and that B be obliged to transfer the bequest objects to him as undisturbed property.

According to the Federal Supreme Court, it is disputed in this case whether the document dated 11 June 2009, which was handwritten by C., counts as a will or whether it must be deprived of the character of a testamentary disposition due to the lack of testamentary intent.

In order to have a valid testamentary disposition, the testator must in particular declare his or her will. This includes, on the one hand, the declarant’s decision to shape a legal relationship in a certain way and, on the other hand, the decision to express this will. In the present case, the Federal Supreme Court interpreted the document of 11 June 2009 entitled “Preparations for a will” as merely having the character of a draft. The testator’s signature alone on the document in question cannot give rise to a testamentary intention. The bulleted list with the said title and the fact that the document had been written in shorthand indicated a draft, and such a draft lacked a dispositional or testamentary intention.

Thus, A.’s appeal to the Federal Supreme Court was dismissed for lack of testamentary intent.

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