A pension fund granted one of its members a withdrawal of several hundred thousand francs to finance the purchase of his own home. The BVG/LPP restriction on the sale of the property was hot recorded in the relevant land register, however. Shortly thereafter, the member died. Since the inheritance was refused, the bankruptcy office was charged with liquidating the assets. The question is whether a pension fund is entitled to claim the repayment of a withdrawal from the bankruptcy assets of a refused estate.
A residential property that is sold reverts to the pension plan
Article 30d(1) BVG/LPP provides that the member or his heirs shall repay to the pension plan the amount received if the residential property is sold (lit. a), rights are granted on the residential property which are economically equivalent to a sale (lit. b) or no pension benefits are payable at the member's death (lit.c). The third possibility applies here: since at the member's death, no benefits were payable, the withdrawal therefore has to be paid back to the pension plan.
According to the wording of Article 30d(1)(c) BVG/LPP, this obligation is incumbent upon “the member or his heirsâ€, i.e. the person or persons succeeding the deceased and who inherit all his assets and liabilities in accordance with the fundamental principle of inheritance law (Article 560(1) CC). Article 560(2) ZGB provides that all the deceased's debts are transferrable and devolve upon his heirs. The legislative records concerning Article 30d(1)(c) BVG/LPP also show that the obligation contemplated in this article was conceived as a liability devolving upon the estate, a debt to be transferred to the member's heirs at his death in accordance with the provisions of inheritance law. In its dispatch of 19 August 1992 on the use of pension assets for the encouragement of home ownership, the Federal Council stated: “If a member dies and no pension benefits are payable, the deceased's estate shall be required to repay any withdrawal made for the financing of his own home to his last pension planâ€.
Withdrawals must not burden the pension plan
In Article 30d(1)(c) BVG/LPP, the legislative introduced the obligation for the member, or his heirs at his death, to repay the withdrawal in order to avoid burdening the pension plan and its members in the event that no benefits are payable at the member's death against which the withdrawal could be offset. The record of the parliamentary debates clearly shows the intent to avoid such an occurrence. Under no circumstances should members making withdrawals be granted a privilege over the other members.
The solution envisaged by the claimant would have circumvented the obligation to repay the withdrawal by allowing the heirs first to refuse the estate – comprising, inter alia, the property financed by means of the withdrawal – and then to recover the proceeds of the liquidation (Article 573(2) CC). As a result, the member, or his heirs, would have clearly had a privilege over the other pension plan members who had not made a withdrawal.
Obligation to repay a withdrawal devolves upon the estate
It follows that the obligation to repay the withdrawal in accordance with Article 30d(1)(c) BVG/LPP constitutes a liability of the member at his death which devolves upon his heirs in accordance with the provisions of inheritance law, from which provisions the BVG/LPP does not deviate. If, as in the case at hand, an estate is refused by all the heirs, it passes over to the bankruptcy office for liquidation (Article 573(1) CC and Articles 193(1)(1) and 193(1)(2) SchKG) and the claim for repayment must be duly filed with the bankruptcy. Finally, the Federal Court rejected the appeal and confirmed the decision of the cantonal court whereby the pension plan's claim for repayment of the withdrawal is to be included in the collocation plan and inventory of the refused estate.