Rejection of an appeal against a declaration of disclaimer of inheritance due to lack of arbitrariness

Facts

Parties and procedural history:

The complainant [A.] is one of two children of [C.] , who died on 1 December 2019. On 7 February 2020, she declared to the District Court of Weinfelden that she was disclaiming the inheritance, which the court recorded in a decision dated 20 February 2020. The municipality of [U.] challenged this disclaimer and demanded reimbursement of social assistance benefits and payment of tax debts. After these claims were satisfied by the complainant’s brother, [B.] , the municipality withdrew its claim, whereupon the District Court closed the proceedings as settled on 30 September 2020.

On 8 September 2020, the complainant filed a criminal complaint against her brother for forgery and/CO fraud; this matter is still pending.

With a submission dated 19 September 2020, the complainant applied to the District Court for the decision of 20 February 2020 concerning the recording of the disclaimer to be set aside. She based her application on Art. 328 para. 1 CPC (revision of a final decision) and Art. 256 para. 2 CPC (setting aside CO amendment of an order in non-contentious proceedings). The District Court dismissed the application in a decision dated 21 December 2020. The complainant appealed this decision to the Higher Court of the Canton of Thurgau, which dismissed the appeal in a decision dated 24 February 2021. Finally, the complainant filed an appeal with the Federal Supreme Court on 14 May 2021, seeking approval of her application for revision.

Considerations

Admissibility of the appeal: The Federal Supreme Court first examines the admissibility of the appeal. This is a final decision of a higher cantonal court against which the complainant has lost. The time limit for lodging the appeal was complied with, and the value in dispute exceeds CHF 30,000, so the appeal in civil matters is admissible (Art. 90, 75, 76, 100 para. 1, 74 para. 1 lit. b FSCA).

Legal nature of the disclaimer of inheritance: Disclaiming an inheritance is a unilateral declaration of intent that is generally irrevocable. However, it may be challenged under certain circumstances, in particular due to a defect of intent (Art. 23 et seq. CO analogously). The complainant did not challenge her disclaimer declaration in the cantonal proceedings on this ground, so this aspect is irrelevant for the present appeal.

Function of recording the disclaimer: A disclaimer must be declared to the competent authority, which records it in a protocol (Art. 570 para. 1 and 3 CC). This protocol merely serves as evidence of the submission and timing of the declaration and has no legal effect. Even if a disclaimer declaration is rejected, the heir may still rely on the declaration, and the deceased’s creditors may still take action against the heir. The authority has limited jurisdiction, in particular when ordering official liquidation CO issuing a certificate of inheritance.

Applicable procedural law: The competent authority for recording the disclaimer is determined by the cantons (Art. 54 para. 1 Transitional Provisions CC). Where the CC does not expressly provide for a court CO…