Standing to bring an action for partition of an estate in case of omission in a testamentary contract

Facts

Parties and procedural history:

The complainant [A.] is the daughter born out of wedlock of the testator [F.] , who died in 2018. The respondents are the testator’s wife [B.] and their three common children [C.] , [D.] and [E.] . The parties are connected by a marriage contract dated 13 December 2010 and a testamentary contract dated 13 May 2011, in which the common children were placed on the reserved portion and the entire available share was assigned to the surviving wife. The complainant was not mentioned in either contract.

On 22 November 2018, the Amtsnotariat Buchs issued a certificate of inheritance in which the complainant was not listed as an heir. On 15 July 2019, the complainant filed an action with the Kreisgericht Rheintal for a declaration and partition of the estate. With a submission dated 25 September 2019, she refined her claims and sought a declaration of her heir status and partition of the estate. Later, she supplemented her claims to include a declaration of invalidity of the testamentary contract and enforcement of her reserved portion claim.

The Kreisgericht Rheintal upheld the complainant’s standing to bring an action in an interlocutory decision dated 26 January 2021. On appeal by the respondents, the Kantonsgericht St. Gallen set aside this decision with a judgment dated 1 September 2022 and dismissed the action. The complainant then filed a civil law appeal with the Federal Supreme Court.

Complainant’s prayers for relief:

The complainant requests that the operative provisions 1, 2, 4 and 5 of the cantonal judgment be set aside and that the first-instance interlocutory decision be confirmed. She argues that the testamentary contract does not exclude her from the succession and that she therefore has standing to bring an action for partition of an estate. She also alleges violations of Art. 9 Cst. (prohibition of arbitrariness), Art. 18 CO (contract interpretation), Art. 29 para. 2 Cst. (duty to state reasons) and Art. 522 CC (reduction action).

Considerations

1. Admissibility of the appeal:

The Federal Supreme Court examines the civil law appeal for formal and substantive lawfulness. The appeal was filed within the time limit and concerns a pecuniary civil matter with a value in dispute exceeding 30,000 francs. The complainant is entitled to file the appeal. The Federal Supreme Court applies the law ex officio and examines, with free cognition, whether the contested decision violates the law. However, it limits itself to objections that are sufficiently substantiated in form and examines only clearly and specifically raised objections (Art. 95 et seq., 106 para. 1 FSCA).

2. Standing of the complainant:

2.1. Principles governing standing Under Art. 604 para. 1 CC, any co-heir may demand partition of the estate, unless they are obliged to remain in the community by contract CO by law. Heirs whose reserved portion has been entirely disregarded acquire heir status only upon a judgment in their favour declaring the testamentary disposition invalid CO reducing it. Until then, they have only a virtual heir status. They therefore do not have standing to bring an action for partition of an estate until they have established heir status by means of a judgment with constitutive effect (FSCA 143 III 369 para. 2.1).

2.2. Interpretation of the testamentary contract The testamentary contract dated 13 May 2011 does not mention the complainant. The lower court interpreted the contract according to the principle of trust and concluded that the parties to the contract had deliberately excluded the complainant from the succession. The complainant argues that the contract respects her reserved portion and that she is therefore an heir. She alleges that the lower court violated the priority of subjective interpretation (Art. 18 CO) and failed to take into account the actual will of the parties.

2.3. Assessment of the interpretation The interpretation of testamentary contracts follows the same principles as the interpretation of contracts not subject to any form requirements (FSCA 145 III 365 para. 3.2.1). What is decisive is the parties’ actual and concordant will. If this cannot be proven, the contract must be interpreted according to the principle of trust, i.e. as it had to be understood in the light of its wording and the surrounding circumstances. The lower court interpreted the testamentary contract in accordance with these principles and took into account that the complainant was not mentioned, even though the parties to the contract were aware of her existence. Moreover, the overall context of the testamentary contract suggests that only the common children were considered as heirs entitled to a reserved portion. The complainant has not asserted any differing actual will of the parties to the contract, which is why the lower court was…