Action for invalidation of waiver-of-inheritance contract dismissed for defect of form; occurrence of condition for payment of compensation confirmed

Facts

The appellant [A.A.] (half-sister of the respondents [B.B.] and [C.B.] ) lives in South Africa. The common mother [D.A.] (testator) lived in Switzerland after her marriage to [E.B.] and died in 2017 at her residence in [V.] .

On 19 May 2010, the testator concluded in [U.] (South Africa), before a South African notary, a 'contract on a waiver of inheritance'. The appellant waived all inheritance claims and claims to the reserved portion. In return, the testator undertook to pay ZAR 50'000.-- by 30 June 2010 and to waive maintenance claims.

The Inheritance Office of the City of Zug opened the contract to the heirs in September 2017 and held out the prospect of a certificate of inheritance for the respondents. The appellant lodged an objection; the Inheritance Office ordered administration of the estate.

On 13 March 2019 the appellant sued before the Cantonal Court of Zug for a declaration that the waiver contract was invalid, a finding that she was entitled to one third of the estate, disclosure of advances, gifts and loans, as well as offsetting and an enlarged share of the estate. The Cantonal Court dismissed the action by decision of 13 May 2020. The Higher Court of the Canton of Zug dismissed the appeal by judgment of 22 October 2021, insofar as it was admissible; as regards defects of will and exploitation, it did not enter into the appeal.

By civil law appeal the appellant requested annulment of the Higher Court's judgment, a declaration that the contract was invalid, and remittal. The respondents requested non-entry, alternatively dismissal. Before the Federal Supreme Court, the disputed issues were in particular the formal validity of the notarisation under Swiss law (Art. 512 CC, Art. 500 para. 3 CC, Art. 501 para. 2 CC, § 20 BeurkG/ZG), defects of will (Art. 23, 28 CO), exploitation (Art. 21 CO), and the occurrence of the suspensive condition of payment (Art. 151 CO).

Considerations

The civil law appeal is admissible: there is a final decision of a last cantonal instance in a civil matter concerning property rights, the amount in dispute of CHF 30'000.-- under Art. 74 para. 1 lit. b FSCA is reached, and the appellant has standing under Art. 76 para. 1 FSCA. For monetary disputes, claims must be quantified; the costs award was sufficiently determined from the statement of appeal. The requirements for complaints under Art. 95 f., 97 and 105 FSCA, and the strict principle of complaints under Art. 106 para. 2 FSCA for constitutional complaints, apply. The applicable law for formal validity is Swiss law, since the testator's last residence was in Switzerland (Art. 93 para. 2 and Art. 95 para. 4 PILA in conjunction with HTestÜ).

On formal validity: a waiver-of-inheritance contract requires the form of a public testamentary disposition (Art. 512 CC); the provisions of Art. 499 ff. CC are validity provisions, the breach of which leads to invalidity under Art. 520 CC. The cantonal notarisation provisions (Art. 55 SchlT CC, BeurkG/ZG) are cantonal law, the breach of which cannot be independently challenged in proceedings before the Federal Supreme Court unless a sufficient constitutional complaint is raised. The Federal Supreme Court notes that the appellant's complaints are predominantly appellatory and insufficiently reasoned.

The finding of the Higher Court that the respondents' rejoinder asserted that the notary had signed each page and that this assertion remained uncontested is not arbitrary. The submission was treated as an uncontested fact within the meaning of Art. 150 para. 1 CPC, since the appellant had not contested it in time; furthermore, before the close of the exchange of pleadings, the respondents were able to make unrestricted submissions in the rejoinder. A breach of Art. 500 para. 3 CC therefore does not exist. A breach of the principle of party presentation and of Art. 8 CC regarding the structure of the contract was rejected, since the appellant herself had described the structure in this way in the first-instance proceedings; the differing account first presented in the appeal proceedings was untimely (Art. 317 para. 1 lit. b CPC). A breach of Art. 501 para. 2 CC was rejected for lack of sufficient substantiation of the complaint of a manifestly incorrect finding of facts. The complaint that § 20 BeurkG/ZG contravenes federal law was not heard, for failure to exhaust the cantonal instances and for lack of sufficient reasoning. No violation of the right to be heard or formal denial of justice by the Higher Court exists, since it was permissible for it to adopt the first-instance reasoning by reference.

On…