Facts
The case concerns an estate where the deceased left a will dated July 28, 1971, in which he appointed Dr. X. as the executor and designated his three children from his first marriage as heirs. The deceased's second wife, who was disinherited, contested the will. On April 10, 1972, the competent authority ordered the official administration of the estate and appointed the executor as the official administrator pursuant to Article 554 paragraph 2 of the Swiss Civil Code (CC). The deceased's children appealed against this decision, requesting that the executor be replaced by a notary due to his lack of reliability and potential conflicts of interest.
The cantonal court admitted the appeal and appointed a notary as the official administrator, considering that the executor did not enjoy the trust of the heirs and had violated his duties. The executor filed a appeal for revision with the Federal Court.
Considerations
The Federal Court examined the question of whether the procedure regarding the official administration of an estate and the appointment of an official administrator constituted a civil dispute within the meaning of Articles 44 to 46 of the Ordinance on Court Fees (FJA). It considered that, as a rule, such procedures do not constitute civil disputes and are therefore not subject to appeal for revision to the Federal Court.
The Federal Court recalled its jurisprudence according to which only procedures that concern civil rights and aim to definitively settle legal relationships between private parties or between a private party and a public authority are considered civil disputes. Procedures regarding the official administration of an estate, on the other hand, are generally considered non-contentious matters.
The Federal Court…