Facts
B., who died on September 30, 1970, left as his legal heirs six children from his first marriage (the plaintiffs) and his third wife (the defendant). By a holographic last will and testament dated June 1, 1959, which he supplemented on June 25, 1968, the testator had placed the children from the first marriage on the compulsory portion and assigned the available quota to his third wife.
On December 16, 1970, the executor appointed by the testator sent all heirs a copy of the asset status prepared by the cantonal tax administration and requested a statement by the end of the year. Since he received no responses, he prepared a "deed of division of the estate" on March 6, 1972, in which he stated that the entire estate assets were the wife's property and would be left to the wife.
Thereupon, the children from the first marriage filed a lawsuit against the surviving third wife of the testator, with the legal claims to determine the estate of the testator and the share of the plaintiffs and to divide the estate.
Considerations
The Federal Supreme Court states that the claim to division of the inheritance results from Art. 604 para. 1 ZGB, i.e. from federal law. The more detailed design of the inheritance division procedure, including the scope of the obligation to substantiate, is generally reserved for cantonal procedural law. However, this must take into account the federal legal provisions on the type of division (Art. 607 et seq. ZGB) and must not stand in the way of the enforcement of the materially secured claim to division under federal law.
The plaintiffs have alleged a specific composition of the estate in their statement of claim and offered proof. Furthermore, they have asserted an inheritance law…