Facts
On March 21, 1969, the unmarried Arnold [E.] established a public last will and testament. He assigned various properties to his nephew Josef X. and appointed attorney [Y.] as the executor of the will. The will was notarized by municipal clerk Z., with Margrith A. and Marie B. acting as witnesses.
After the death of Arnold [E.] on November 26, 1972, his statutory heir C. filed a lawsuit with the Cantonal Court for the invalidation of the will. As grounds, she claimed that the witness certificate did not meet the legal requirements, as it lacked the confirmation that the testator had signed the document in the presence of the witnesses and the notary, and that he had declared to them in the presence of the official that the document contained his last will.
The Cantonal Court and the High Court dismissed the lawsuit. The plaintiff appealed the decision of the second instance to the Federal Supreme Court.
Considerations
The Federal Supreme Court first determined that the executor [Y.] is the proper defendant, as the acceptance of the lawsuit would also result in the annulment of the order regarding the execution of the will.
Subsequently, the Court examined whether the witness certificate meets the requirements of Art. 501 para. 2 of the Swiss Civil Code (ZGB). It concluded that neither a…