Facts
On September 15, 1952, Andreas Waldispühl executed a publicly certified last will and testament, in which he appointed his wife Bertha Waldispühl-Egli as the sole heir. He appointed his brother-in-law Hermann Benz as the executor of the will. After the testator's death on September 18, 1952, in addition to the wife, five other siblings remained as heirs, two of whom waived their shares.
On July 20, 1953, the executor Benz wrote to "the heirs of the deceased Andreas Waldispühl" and enclosed a "statement" signed by the wife Bertha Waldispühl. In it, she confirmed the receipt of the household effects, one quarter of the estate assets, and other assets.
In 1973, three heirs (Elsa Benz, Julius Waldispühl and Augustin Waldispühl) filed a lawsuit against Bertha Waldispühl. They demanded a judicial declaration that the partial partition agreement of July 20, 1953 was legally binding and that Bertha Waldispühl had been wrongfully registered as the sole owner of the estate properties in the land registry since 1953.
Considerations
The Federal Supreme Court dismissed the claim. It concluded that neither a written partition agreement nor a physical partition had been concluded:
- The partition agreement did not meet the formal requirements of Art. 634 para. 2 of the Swiss Civil Code, as it was only signed by the defendant and the executor, but not by all the heirs.
- A physical partition had also not…