Swiss Non-Discrimination Principles May Prevent Recognition Of Sharia-Based Inheritance And Probate Documents In Switzerland

Author:Mr Tobias Somary
Profession:CMS Cameron McKenna Nabarro Olswang LLP
 
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  1. Introduction

    In a recent decision (BGE 143 III 51, 21 November 2016), the Swiss Federal Tribunal refused the recognition of a certificate of inheritance ("acte d'hoirie") established by an Egyptian Court. The Federal Tribunal considered the certificate of inheritance to be manifestly incompatible with the Swiss public policy ("ordre public") by contradicting the fundamental principles of the Swiss legal order in an unacceptable way.

  2. Facts

    The deceased, an Egyptian citizen born in 1940 and of Muslim faith died on 10 March 2007 without leaving any descendants or ascendants. He was married to a German citizen of Christian faith according to Egyptian and Sharia law. His estate includes properties located in France and Egypt, as well as movable assets deposited with banks in France, Germany, and Switzerland. On 5 May 2007 the Court for Family Affairs in Egypt issued the certificate of inheritance and ordered the devolution of the estate to the siblings of the deceased. The wife of the deceased did not participate in the procedure of the certificate of inheritance. Moreover, she was not mentioned therein. On 6 August 2010 the siblings of the deceased, wishing to receive the assets deposited in the two banks in Geneva, applied to the Court of First Instance of Geneva for recognition of the certificate of inheritance issued by the Egyptian Court. On 5 July 2011 the Court of First Instance of Geneva declared the application for recognition inadmissible as the certification of inheritance has neither been submitted in original nor with any additional certificate confirming that the certificate of inheritance has attained legal force. The judgement of the Court of First Instance of Geneva was affirmed by the Cantonal Court of Geneva on 23 March 2012.

    However, on 18 July 2012 the second Civil Law Department of the Federal Tribunal admitted the appeal of the siblings and remitted the case to the Court of First Instance of Geneva for reconsideration. On 20 July 2015 the Court of First Instance of Geneva recognised and declared enforceable the certificate of inheritance. On 22 April 2016 the Cantonal Court of Geneva set aside this judgement of the Court of First Instance and rejected the application for recognition of the certificate of inheritance. Finally, the siblings lodged an appeal in civil matters and a constitutional appeal before the Federal Tribunal.

  3. Summary

    The Federal Tribunal stated that the Egyptian legislation does not recognise the...

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