Interference with the legal succession renders ineligible to inherit

Mar 17, 2021 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, OGH) ruled that with the new law of succession, the interference with the legal succession, e.g. by falsification or subversion of a will, also results in ineligibility to inherit according to Sec. 540 Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB).

In the present case, the deceased testator was survived by his wife and a daughter from a previous marriage. He had not made a testamentary disposition. The wife forged a will declaring her to be the universal heir. She submitted this to the court commissioner. Later, she filed a voluntary declaration of forgery of the will. In the subsequent proceedings, the wife contested her ineligibility to inherit.

She argued that according to Sec. 540 ABGB in the new version, the jeopardizing of the legal succession was not a constituent element of the offence.

First of all, the OGH clarified that Sec. 540 ABGB does not only cover the interference with the true last will of the deceased (e.g. expressly declared by will), but also the interference with the legal succession and that such interference also leads to ineligibility to inherit. On the one hand, since the Reform of the Law of Succession 2015 (Erbrechtsreform 2015), a criminal offence against the estate also leads to ineligibility to inherit, and on the other hand, it results from the interpretation of Sec. 541 ABGB that the legislator generally assumes that every person capable of making a will is aware that the succession can be regulated by a testamentary disposition. Moreover, it is generally known that in the absence of such a will, the legal succession takes place. A person capable of making a will who does not make a testamentary disposition therefore confirms his or her will (by omission) to the extent that he or she accepts the legal succession.

Furthermore, the OGH found that an exempting resignation from the attempt, which has the goal of intentionally thwarting the realisation of the true last will of the deceased, is contrary to the ineligibility to inherit according to Sec. 540 ABGB. According to the OGH, this is to be assessed in terms of penal law.

Whether the voluntary declaration in the present case has the required degree of free volition must now again be decided by the court of first instance.

OGH 2 Ob 174/20g (28.01.2021)