No Unrestricted Access to Court Files for Heirs

Oct 8, 2026 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) was required to determine the extent to which a statutory heir who had filed a declaration of acceptance of the inheritance was entitled, following the protected person’s death, to inspect the court file relating to adult protection proceedings.

The applicant, the deceased’s daughter, had applied for access to the full file relating to the adult protection proceedings because she suspected that her father had lacked legal capacity when he executed the lasting power of attorney.

Shortly before the protected person died, the woman who later became his widow used the lasting power of attorney to gift a substantial proportion of his real property to her daughter. The applicant sought evidence in the adult protection file of contain her father’s health and possible lack of legal capacity, and of whether the attorney and her daughter knew of those matters.

 Access to the entire file refused

The appellate court granted access only to those parts of the file directly relevant to assessing the deceased’s physical and mental condition, namely the request that a court-appointed adult representative be appointed, the clearing report, and the order discontinuing the proceedings. The remainder of the application, seeking access to the entire file, was refused.

The OGH upheld that decision. Under the second sentence of Section 141(1) of the Austrian Non-Contentious Proceedings Act (Außerstreitgesetz, hereinafter AußStrG), heirs and persons who have filed a declaration of acceptance of the inheritance have, following the protected person’s death, an extended right of access to those parts of the file that concern the person’s health.

No unrestricted right of access to the court file

An heir’s right to inspect the file is intended to establish the deceased’s true and uninfluenced wishes. It is not limited to succession disputes or questions of testamentary capacity; it may also extend to transactions that reduced the estate. The applicant must, however, specify the health-related information sought and explain its relevance to identifying or giving effect to those wishes.

The applicant had already obtained access to all parts of the file concerning her father’s mental condition. Her further application sought at information about those who later acted under the lasting power of attorney and the attorney’s daughter.

The OGH held that this information concerned neither the deceased’s health nor his income or assets and therefore fell outside the right of access under the second sentence of Section 141(1) AußStrG.

OGH 1Ob 68/26w (27 May 2026)