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Suzan Can
Title
Dr.
Last Name
Can
First name
Suzan
Email
suzan.can@unisg.ch
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PublicationDie ergänzende Auslegung von Testament und Erbvertrag : die konstruktive Umsetzung eines hypothetischen Willens im ErbrechtWills and contracts of succession are legal transactions that require interpretation. It often happens that the person making the disposition mortis causa expresses his or her will unclearly and it is therefore not directly apparent to third parties, especially the court, what the disposition aims at. Handwritten wills in particular often suffer from a lack of clarity, as they are often drafted without legal advice. The purpose of the explanatory interpretation is thus to clarify the content of the dispositions and to contribute to its legal effectiveness. On the other hand, the interpretation can also lead to the identification of gaps in the disposition. Such a gap exists, in particular, if circumstances have changed since the disposition was made and the existing disposition no longer fits to the new circumstances. In order to take the testator's will into account as best as possible, the purpose of the complementary interpretation is to remedy such incompleteness. For this purpose, the complementary interpretation determines the hypothetical will of the affected person and fills the gap. However, since dispositions mortis causa are subject to formal requirements and are strictly personal legal transactions, there are certain limits to the complementary interpretation. It is not permissible for the court to implement its own will instead of the testator's will. This would be the case if the court made up for completely missing dispositions, as it would then inadmissibly insert a new purpose into the act. Gap filling in the sense of complementary interpretation in inheritance law is therefore limited to completing missing parts and adapting the already expressed purpose. This can be achieved if the court develops the hypothetical will on the basis of the actually discernible directions in the disposition and insofar continues what already exists. Moreover, the hypothetical will must always be ascertainable with a high degree of probability and must never be established in purely objective terms. Only then will the complementary interpretation be compatible with the characteristics of dispositions mortis causa and can be embedded in the existing methodology of interpretation.Type: doctoral thesis