Facts
On March 23, 1976, Johann Friedrich J. passed away in Thusis. As legal heirs, he left behind his five daughters and the children of his predeceased son. The main asset of the estate was the testator's agricultural business, comprising just under 13 hectares.
In his handwritten will, the testator assigned the business to his grandson Rudolf J. In the event that he could not or did not want to take it over, it was to be leased out first until his granddaughter Riccarda C., the daughter of Beata C., could operate it herself after her marriage.
Ursina M. and Beata C. filed a lawsuit for the invalidity of the will and for the undivided assignment of the business to one of them. The District Court declared the will invalid, dismissed Ursina M.'s claim, and awarded the business to Beata C.
Ursina M. appealed against this decision, which was upheld by the Federal Supreme Court.
Considerations
The Federal Supreme Court states that among several heirs capable of taking over the business, the one who wants to operate the business themselves and appears suitable for this has the primary claim to the undivided assignment under Art. 621 para. 2 of the Swiss Civil Code (ZGB). The lower court had denied both applicants the suitability for self-operation, which the Federal Supreme Court did not object to, considering their age and state of health.
Since neither of the two applicants is suitable for self-operation, the decision on the assignment of the business must be made under Art. 621 para. 1 ZGB, taking into account their personal circumstances. It is relevant whether one of the claimants has descendants who may be considered for future takeover of the…