Facts
The case concerns the question of whether a beneficiary of a proportional legacy can hold the executor liable for damages suffered due to the executor's allegedly culpable and improper calculation of his fee, which reduced the net estate and thus diminished the proportional legacy.
[A.] is one of eleven beneficiaries in the estate of C. (deceased 1994). The testator had appointed [D.] as the sole heir. According to the will, [A.] is to receive one-twentieth of the net estate. Lawyer and notary [B.] acted as the executor.
On December 30, 1997, [B.] submitted his estate account to the heir and all legatees. According to this, the net estate amounts to just under CHF 54 million, and A.'s legacy is CHF 2,691,391.40. The account shows a fee of CHF 600,000 for B. (including the fee for bank E. and value-added tax). [D.] approved this account on January 7, 1998.
On November 10, 2009, [A.] sued the executor before the Civil Court of the Canton of Basel-Stadt. She requested that [B.] be ordered to pay her at least CHF 35,800 plus 5% interest from December 1, 2009, reserving the right to file a partial claim or additional claims.
Considerations
The liability claim against the executor is based on the law of agency and Art. 97 CO. The executor is responsible for the faithful and diligent performance of the entrusted business.
The Federal Supreme Court holds that the legatees are generally entitled to bring a liability claim against the executor. However, the…