Remuneration of a notary public as testamentary executor for the preparation of a succession declaration

Facts

X. passed away on July 8, 2000 in Geneva, leaving his sister Y. as well as his nephews and nieces as his sole heirs. Notary [A.] was appointed as testamentary executor. The heirs were in conflict with Notary [A.], particularly regarding the latter's diligence in fulfilling his duties and the fact that the heirs wished for their own counsel to prepare the succession declaration, while Notary [A.] considered himself the only one capable of performing this task.

Notary [A.] claimed fees of CHF 174,300 for the settlement of the estate and his role as testamentary executor. The heirs brought the matter before the President of the Court of First Instance of the Canton of Geneva to have these fees taxed, contesting in particular the fact that the notary could claim a fee of CHF 70,220 for the preparation of the succession declaration.

Considerations

The Federal Tribunal upheld the appeal of the heirs. It considered that the preparation of a succession declaration does not fall within the ministerial or official activities of notaries, who do not have any form of exclusivity in this regard. Notary [A.] acted in his capacity as testamentary executor, a function that can be entrusted to any citizen.

According to the Federal Tribunal, the remuneration of testamentary executors is regulated by federal…