Non-Delivery of Inventory Precludes Transfer of Ownership

Jul 18, 2025 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has determined that failure of inventory delivery constitutes an impediment to the transfer of ownership.

In her last will and testament, the testator designated her two daughters and one son as equal heirs. The second son was limited to receiving only the statutory compulsory share. All three beneficiaries named in the will submitted conditional declarations of acceptance of the inheritance.

Inventory not transferred to the recipient of the compulsory share

In October 2023, a hearing took place before the court commissioner during which, among other matters, the objections raised by the son entitled to a compulsory portion were addressed. Approximately three months later, the beneficiary of the compulsory portion requested additional investigations, citing that his objections had not been duly considered. Subsequently, two days later and in the absence of the summoned beneficiary, the court commissioner prepared the inventory and submitted the file to the probate court without transmitting a copy to the beneficiary of the compulsory portion.

The court of first instance ruled in favour of the beneficiaries designated by the will, determining that the recipient of the compulsory portion was entitled solely to that portion. This decision was affirmed by the appellate court. While it was acknowledged that the compulsory heir’s right to a fair hearing was compromised due to not receiving the inventory before the transfer of ownership, the claims presented were ultimately found to be without merit.

Unauthorized applications block ownership transfer

The OGH expressed a differing perspective:

The absence of the beneficiary of the compulsory portion at the court session does not alter the requirement that the inventory be provided to him by the court commissioner prior to the transfer of ownership. Failure to deliver the inventory before the transfer of ownership deprived the son of the opportunity to submit applications subsequent to the preparation of the inventory. This constituted a violation of his right to be heard, as it could have influenced the correctness of the decision.

The court of appeal dismissed this argument on the grounds that the appeal’s reasoning would not have affected the contents of the inventory. However, the OGH found this perspective unduly restrictive:

If applications remain pending after the inventory is prepared, case law indicates that the inventory is not considered final and a necessary condition for the transfer of ownership has not been met. In this context, the validity of the applications is not relevant.

Confirmation of the transfer decision with the indication that the applications would not have been justified in any case is therefore out of the question.

As a result, the transfer decided by the court of first instance must be set aside.

OGH 2 Ob 42/25b (29 April 2025)