No Testamentary Acknowledgement of Paternity Where the Intent to Acknowledge Is Unclear – Referral to the Action Route

Facts

The testator [C.] (born 1940, unmarried) died on 4 July 2019. On 8 May 2019 he had a public will drawn up. In it he designated [A.] , [D.] and [B.] as his presumptive statutory heirs or descendants, appointed each of them as heir to a quarter, and designated his nephew [E.] as heir to the freely disposable portion, as the latter had been a good companion.

The civil status register recorded neither the named persons as children of the testator nor the testator as their father. The Solothurn Civil Status Office stated, upon inquiry by the Estate Office, that the testator was not the legal but presumably the biological father. He had merely acknowledged his maintenance obligation, but not paternity (under former law, so-called 'Zahlvaterschaft' or payment paternity). The will lacks a clear acknowledgement declaration.

The appellants [A.] and [B.] (represented by attorney Prof. Dr. Paul Eitel) applied on 30 April 2020 for a finding that the testator had acknowledged them as children in the disposition of 8 May 2019, and for the corresponding entry in the civil status register. The Solothurn Civil Status Office dismissed the application by decision of 13 July 2020 and classified the will as a mere appointment of heirs. The Department of Economic Affairs and the Administrative Court of the Canton of Solothurn dismissed the appeals (decision of 9 November 2020; judgment of 8 July 2021, VWBES.2020.459).

By civil law appeal of 9 August 2021, the appellants requested the annulment of the administrative court judgment and the entry of the acknowledgement of paternity. The Federal Supreme Court obtained the cantonal files but did not obtain any responses.

The subject matter of the dispute was the entry of a testamentary acknowledgement of paternity (Art. 260 para. 3 CC) in the civil status register. The appellants in particular complained of a violation of Art. 260 para. 3 CC and of faulty interpretation of the will (clarity and indication rules under Art. 500 et seq. CC), and alternatively asserted a hypothetical testator's intent.

Considerations

The Federal Supreme Court entered into the civil law appeal. It concerns a non-pecuniary matter (Art. 72 para. 2 let. b no. 2 FSCA), against a final cantonal decision (Art. 75, 90 FSCA) that is adverse to the appellants (Art. 76 para. 1 FSCA). The appeal was lodged within the time limit (Art. 100 para. 1 FSCA).

Under Art. 260 para. 3 CC, acknowledgement may be made by testamentary disposition. The wording of the statute does not require an express acknowledgement. Case law (BGE 108 II 527 consid. 2b) and legal scholarship, however, require a clear or unambiguous expression of the testator's will that emerges clearly from the wording of the will. The court considers this requirement justified from the perspective of the register authorities, because corrections to civil status registers by the authorities are permissible only for obvious oversights or errors (Art. 43 CC), whereas in disputed or unclear cases the court decides (Art. 42 CC). The Federal Supreme Court referred to BGE 108 II 88 consid. 5, where the deletion of an entry based on an unclear acknowledgement was ordered and the child was referred to the action route.

The will of 8 May 2019 is at least unclear and…