Dismissal of appeal against refusal to open alleged testamentary dispositions due to lack of formally valid documents

Facts

Parties and procedural history:

The appellant ([A.] ) contested the decision of the Cantonal Court of Schwyz dated 6 October 2023 (ZK2 2023 33), by which its appeal against the single judge of the District Court of Höfe was dismissed. The single judge had, by order dated 2 March 2023, opened photocopies of two testamentary dispositions, but refused to open further documents submitted by the appellant, which it qualified as holographic wills dated 27 January 2005, 30 October 1969 and 28 January 2005.

Facts:

The testator [B.] (d. 2 February 2005) left as statutory heirs his wife [C.] (d. 2022) and his daughters [D.] and [A.] . On 7 March 2005, the guardianship authority of Freienbach already opened three testamentary dispositions of the testator. With a submission dated 22 November 2022, the appellant requested the opening of further documents as testamentary dispositions. On 2 March 2023, the single judge opened only photocopies of the disposition dated 30 October 1969 and a typewritten, hand-signed “will (2nd draft)” dated 27 January 2005, which it qualified as void due to a formal defect. In a letter dated 6 April 2023, the appellant complained that the further documents had not been opened. The single judge refused reconsideration (letter dated 13 April 2023). The appellant then filed a cantonal appeal and requested that the single judge be ordered to open all documents, including those already opened, and to send them to the executor. The Cantonal Court dismissed the appeal. The appellant now files an appeal with the Federal Supreme Court and requests that the cantonal decision be set aside and that the documents in question be opened as testamentary dispositions.

Considerations

Admissibility of the appeal:

The appeal is admissible since the subject matter is a civil matter of a financial nature with a value in dispute exceeding CHF 30,000 (Art. 74 para. 1 FSCA). The Cantonal Court of Schwyz is the last cantonal instance (Art. 75 FSCA), and the contested decision is to the appellant’s detriment (Art. 76 para. 1 FSCA). The appeal was filed within the statutory time limit (Art. 100 para. 1 FSCA).

Legal nature of the opening of wills:

The opening of wills under Art. 557 CC is a matter of non-contentious jurisdiction and is not necessarily subject to the Swiss Code of Civil Procedure (CPC), since Art. 557 para. 1 CC does not require a judicial authority. In the Canton of Schwyz, a single judge of the District Court is competent, but the CPC applies only insofar as cantonal law so provides (Art. 54 para. 3 Transitional Provisions CC). Constitutional rights, in particular the prohibition of arbitrariness (Art. 29 para. 1 Cst.), may be invoked, subject to the principle of objection (Art. 106 para. 2 FSCA). The Federal Supreme Court reviews only clearly and specifically raised objections and is bound by the factual findings of the lower court (Art. 105 para. 1 FSCA), unless these are obviously incorrect or arbitrary (Art. 97 para. 1 FSCA).

Refusal to decide and formal aspects:

The appellant alleges formal refusal to decide, since the single judge did not open the documents it had submitted. The Cantonal Court denied a refusal to decide on the grounds that the appellant should already have appealed against the order of 2 March 2023, since that order implicitly indicated that the further documents did not constitute testamentary dispositions to be opened. The Federal Supreme Court confirms this view: the appellant should have challenged the order of 2 March 2023 instead of making further submissions after its issuance and subsequently filing a complaint for refusal to decide. A formal refusal to decide exists only if an authority fails to rule on a matter submitted in due time and form, although it should have done so.…