Facts
The appellants, [A.] and [M.] , wanted to register a gift of real estate to the minor child [N.] , represented by [M.] , in the land register. The land registry office [G.] and the High Court of the Canton of Lucerne rejected the application, as they suspected a conflict of interest between the legal representative and the child.
The donor, [A.] , is the uncle of the child and brother of the legal representative, [M.] . The gift included the transfer of ownership of two plots of land, which are encumbered with a debenture. The donor reserved the right to use the plots of land until his death and took over the burdens.
The Federal Court had to decide whether the rejection of the application by the High Court was lawful and whether a conflict of interest actually existed.
Considerations
The Federal Court decided that the rejection of the application by the High Court was lawful. It found that a conflict of interest existed between the legal representative and the child, as the representative was very close to the donor and was a possible heir of the brother.
The court found that the gift posed an abstract threat to the child's interests, as the donor wanted to use the plots of land until his death and took over the burdens. It found that the appointment of a representative guardian was necessary to weigh the pros and cons of the gift from the sole perspective of the child's interest.
The court dismissed the appeal and imposed court costs on the appellants. It decided that the gift could not be…