Facts
Albert Schulthess-Lanz of Stäfa ZH passed away on December 12, 1955 in France. As legal heirs, he left behind his four children Albert Schulthess, Max Schulthess, Jeanne Schneilin-Schulthess, and Charles Schulthess. The estate consisted mainly of a property in France. No distribution of the inheritance ever took place.
The dispute was about what had happened to the inheritance share of the brother Albert. Jeanne Schneilin-Schulthess referred to a publicly certified contract dated November 26, 1960, according to which Albert had transferred his share to her. Max Schulthess claimed that he had already acquired this inheritance share earlier based on an oral agreement.
Considerations
The Federal Court decided that Swiss law is applicable to the transfer of the inheritance share. According to Art. 635 para. 1 CC, such contracts between co-heirs are to be qualified under inheritance law. Therefore, the inheritance statute, which also decides on the admissibility and effects of the transfer, is decisive.
Art. 5 para. 1 of the Jurisdiction Agreement with France stipulates that inheritance claims concerning the estate of a Swiss person who died in France are to be brought before the court of the testator's domicile. It is generally recognized that this also entails the application of the law of the domicile.
The reservation of the law of the situs in Art. 5 para. 1 sentence 2 of the Jurisdiction Agreement does not apply to the transfer of…