Facts
In this case, it was about the establishment of a guardianship to secure the expectancy of the non-existent substitute heirs in the estate of A. The executor X. applied to the guardianship authority of the city of Y. for the establishment of a guardianship, as the primary heir B. had filed a negative declaratory action to establish that he was not burdened with a substitute inheritance in the estate of A. The guardianship authority and the higher instances rejected the application.
X. then filed a complaint with the Federal Supreme Court. The Federal Supreme Court upheld the complaint and ordered the establishment of a guardianship for the potential substitute heirs of B. in the estate of A. and the appointment of a guardian by the competent adult protection authority.
Considerations
The Federal Supreme Court stated that under the applicable law, an inheritance or inheritance matter can be granted to a person who is not yet alive or conceived at the time of the decedent's death (Art. 545 para. 1 CC). Therefore, it is necessary to ensure the protection of the interests of these not yet conceived persons (nondum concepti) under the applicable law as well.
In the specific case, the Federal Supreme Court considered it sufficient to have the interests of the nondum conceptus represented in the…