Power of disposal of the executor over an account of the testator during a pending action to have a will declared invalid

Topic: Legitimation Case number: 2020/21

The complainant was one of the two sons and sole legal heirs of the deceased, who had an account with the bank. The testator had appointed the complainant as executor and sole heir in his will. The second son had filed an action for annulment of the will, which had been rejected by the first two courts and was pending before the Federal Supreme Court at the time of the complaint. The complainant wanted to close the testator’s account and have the balance transferred to an account in his name. He submitted a certificate of executorship and a certificate of inheritance to the bank. The bank refused to balance the account in view of the pending invalidity action, whereupon the executor submitted the case to the Ombudsman. The Ombudsman considered the bank’s conduct to be correct.

The complainant was issued a certificate of executorship after the death of his father. A few years later, he succeeded before the Higher Court of the Canton of Zurich in forcing the issuance of a certificate of inheritance. Before, the lower court had refused to do so in view of his brother’s pending action for invalidity. He was of the opinion that the bank had to close the account despite the pending inheritance dispute.

After having examined the documents, the Ombudsman informed him that, according to his understanding, a community of heirs could only jointly dispose of an account of the deceased. However, it was still uncertain who would be the heirs in the specific case, since this would only be known after a final judgement on the action for invalidity brought by his brother. The certificate of inheritance obtained by him must be regarded as provisional until that time, as the bank had explained to him. The certificate of inheritance referred to this fact. An executor was only allowed to administer an inheritance and must carry out the division only when the heirs have been definitively determined and have concluded a corresponding agreement. The Ombudsman expressed understanding for the fact that the bank was not prepared to carry out the netting solely on the basis of the complainant’s instructions and before the final decision on the invalidity action, as it would otherwise expose itself to considerable liability risks should his brother prevail with the invalidity action. Moreover, the bank employees involved might even be exposed to personal legal risks. The Ombudsman could therefore well understand that the bank was not prepared to expose itself and its staff to such risks.

The complainant then contacted the Ombudsman again and expressed his dissatisfaction with the notice he had received. He argued that the balancing was a purely administrative act which he, as executor, was entitled to carry out without further ado. The bank was not liable for such an order but could rely on the legitimacy of the executor to carry it out. A liability risk would only exist for him personally. He expressed his astonishment at the fact that his view on the issue was not automatically shared.

The Ombudsman then informed him in a brief second notice that an executor, as he had already mentioned, was entitled to take administrative action but not to divide the inheritance. The e-mail with which he had instructed the bank to balance the deceased’s account had been entitled “Allocation of assets”. This allowed the conclusion that the requested balancing was not a mere administrative act, but an act of division. However, in view of the pending legal dispute, the requirements for a division were not met. There was no evidence that the testator himself had made testamentary arrangements for the division. The Ombudsman proceedings could not be used to undermine the legal proceedings pending between him and his brother. The Ombudsman was therefore not prepared to revise his opinion and definitively closed the proceedings with a second notice.