Facts
The case concerns a fee agreement between a lawyer ([K.]) and two heirs (Ms. [W.] and [H.]) for the activity as executor. Miss G., whose only legal heir was her cousin, had appointed [H.] and Ms. [W.] as sole heirs in equal shares and [K.] as executor in a self-written will. After Miss G.'s death, there was a will contest proceeding in which [K.] initially acted as executor, but was then replaced by H.'s office colleague. Ms. [W.] and [H.] were ultimately able to reach a settlement for 58% of the estate.
[K.] then issued an invoice for 58% of the agreed fee of up to CHF 230,000. Ms. [W.] then initiated disciplinary proceedings against [K.] and [H.], in which the Supervisory Commission found that the agreed fee constituted a concealed gift, which violated the prohibition on creating unclear legal relationships.
[K.] then sued Ms. [W.] for payment of half the fee, whereupon Ms. [W.] filed a counterclaim with the aim of establishing that [K.] was not entitled to any claims beyond a reasonable executor's fee.
Considerations
The Federal Supreme Court finds that the fee agreement of September 7, 1985 is a partial simulation. Only the part of the agreement providing for a reasonable executor's fee was actually intended. The part that was to accrue to [K.] as a gift was simulated.
The Federal Supreme Court explains that the certification of the simulated fee agreement…