Facts
The deceased, Siro Scolari, left a holographic will in which he stipulated that his wife would have the full and absolute right to administer all his assets, to enjoy them and even to consume them as she deemed fit. Upon her death, what remained would be divided equally among all his nephews.
The court of first instance considered that this provision constituted a fideicommissary substitution on the residual assets and made the delivery of the inheritance to the deceased's wife conditional on the provision of a guarantee within the meaning of art. 490 al. 2 CC.
The deceased's wife requested the court to find that she was not required to transfer the hereditary assets to the nephews and to order the deletion of the annotation in the land register.
The cantonal court granted this request, considering that the testator had intended to exempt the wife from any guarantee obligation.
The deceased's nephews filed a reform appeal against this decision, requesting the complete rejection of the application.
The Federal Court dismissed the appeal and confirmed the challenged decision.
Considerations
The Federal Court considered that the fideicommissary substitution on the residual assets was a particular form of fideicommissary substitution that did not imply the obligation for the instituted party to maintain the integrity of the hereditary assets.
It estimated that the instituted party had the right to dispose of the hereditary assets and to consume them, but was required to respect the limits of good faith and not to commit acts of disposal incompatible with the purpose intended by the testator.
The Federal Court also considered that the obligation to provide a guarantee…