Facts
The testator K.B. was the biological son of Polish nationals, born in 1957, and was adopted as an adult by the Bonn Local Court in 1990. By a publicly notarised disposition dated 20 December 1991, he bequeathed his assets to his biological parents.
On 5 October 1998, the testator drew up a holographic disposition of death, according to which the appellant A.A. or P.A. should be entitled to determine the purposes of his savings and his assets in Switzerland and Germany 'in their own opinion and to take expenses generously for themselves'.
The testator died fatally in an accident on 21 May 2002 in the municipality of V. (Y.); he left no descendants. The official guardian appointed the appellant as executrix of the estate. The biological parents obtained an estate resolution in Poland and a certificate of inheritance in Germany; recognition by the District Court of V. was annulled by the Cantonal Court of Schwyz in 2005. After years of proceedings, the District Court established the last domicile in Y. in 2014 and opened the dispositions in 2015; the appellant was regarded as executrix.
Following conciliation proceedings between the niece and sole heir of the adoptive parents, the descendants of the biological parents concluded a partition agreement and settlement, under which the appellant was to settle accounts and distribute amounts to the heirs through the Bank J. On 28 December 2018, the President of the District Court gave the appellant a supervisory directive to distribute the Swiss assets in accordance with the partition agreement; the appellant thereupon resigned as executrix.
On 7 October 2019, the appellant brought a legacy action against the heirs and demanded payment of the legacy 'savings and assets in Switzerland and Germany', at least CHF 418,173.70 plus 5% interest since 6 August 2015. The District Court of V. dismissed the action on 17 February 2021; the Cantonal Court of Schwyz dismissed the appeal on 9 November 2021, insofar as it was admissible.
The appellant lodged a civil law appeal with the Federal Supreme Court and requested that the action be upheld, alternatively remittal. The Bank J. was superprovisionally ordered to freeze the accounts; suspensive effect was granted. No responses were obtained.
Considerations
The civil law appeal is admissible: there is a final decision of a superior cantonal court in a pecuniary legacy action (Art. 484 et seq. CC) with an amount in dispute exceeding CHF 30,000.-- (Art. 72 para. 1, 74 para. 1 let. b, 75, 76 para. 1, 90 FSCA). Swiss law applies (Art. 90 para. 1 PILA). The Federal Supreme Court examines the application of law freely, but only the points adequately raised (Art. 42 paras. 1-2, 95 let. a FSCA). Findings of fact may only be challenged in cases of obvious inaccuracy (arbitrariness) and decisive significance (Art. 105 para. 1, 97 para. 1 FSCA).
The interpretation of a testamentary disposition is a question of law which the Federal Supreme Court examines freely, although it is bound by the factual findings on the testator's inner will. The decisive factor is the testator's actual will (Art. 18 para. 1 CO in conjunction with Art. 7 CC); interpretation according to the principle of good faith is excluded. Whoever wishes to depart from an objectively understood wording bears the burden of proof. The appellant's subjective understanding is immaterial. The complaints of arbitrariness in the assessment of evidence and of waiving interpretation due to clear wording fail, since the wording itself already requires interpretation.
The interpretation shows that the testator merely intended to grant the appellant the power to allocate the assets to the purposes or recipients she considered appropriate. The entitlement 'to determine the purposes in their own opinion' speaks against a transfer of ownership; moreover, a legacy would have rendered the wording 'to take expenses generously for themselves' meaningless. The asserted indications lying outside the disposition (donation funds, statements by the testator, religious community, age of the testator) are partly new and inadmissible, partly unproven or do not necessarily lead to…