Facts

Subject matter: Declaration of withdrawal from proceedings (inheritance), appeal against the decision of the Higher Court of the Canton of Obwalden of 29 October 2019 (ZG 19/007).

Parties: The appellant A.A. (represented by counsel) faces the respondents B.A. (son, respondent 1) and C.A. (son, respondent 2). All three are children of D.A., who died in 1991, and E.A., who died in 2014.

Facts:

  • The testator left a testamentary disposition dated 1 August 2013, under which B.A. was to receive an advance on his inheritance of CHF 12'500.-- and to have bought a plot of land in U. from his father below market value; his inheritance claims were thereby settled. B.A. declared his consent on 25 February 2015.
  • On 30 November 2015 A.A. initiated proceedings before the conciliation authority of Obwalden against C.A. and B.A. B.A. did not appear at the hearing; the authorisation to sue was issued on 29 February 2016.
  • On 7 March 2016 A.A. filed an inheritance partition action with the Cantonal Court of Obwalden against C.A. alone and requested, among other things, a finding that B.A. had validly waived his inheritance claims. C.A. requested dismissal of the action for lack of active or passive standing.
  • On 23 August 2016, at the request of the President of the Cantonal Court, B.A. declared withdrawal from the proceedings and stated that he would recognise the judgment, whatever it might be.
  • On 26 September 2018 B.A. requested a finding that his declaration of withdrawal from the proceedings was void. The Cantonal Court limited the proceedings to the validity of the declaration and to passive standing, and by decision of 31 January 2019 found that the declaration was valid and that C.A. alone had passive standing.

Lower instance: The Higher Court of the Canton of Obwalden upheld B.A.'s appeal by decision of 29 October 2019. It found a fundamental mistake, so that the declaration of withdrawal from the proceedings was not binding. The lapse of the declaration did not automatically make B.A. a party; this was possible only through a change of party under Art. 83 para. 4 CPC, upon application by A.A. and with the consent of C.A. The matter was remitted to the Cantonal Court, and A.A. was ordered to bear the court and party costs of both instances.

Proceedings before the Federal Supreme Court: A.A. requested that the Higher Court's decision be set aside and that the validity of the declaration of withdrawal from the proceedings and the passive standing be confirmed; in the alternative, remittal for a new determination of the party compensation. No responses were invited.

Considerations

Admissibility under FSCA: The appeal is directed against a remittal decision of the appellate court. Under Art. 90 FSCA, appeals against final decisions are admissible; Art. 91 FSCA concerns partial final decisions, Art. 92 FSCA interlocutory decisions on jurisdiction and recusal. Other separately notifiable interlocutory decisions may under Art. 93 para. 1 FSCA be appealed only if they may cause an irreparable disadvantage or if upholding the appeal would immediately result in a final decision and thereby save considerable time or costs. The party must demonstrate this, unless the requirements are manifestly…