Obligation to Disclose a Private Foundation within an Estate

May 21, 2026 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) had to consider the question of the extent to which a person entitled to a compulsory share may demand information from a private foundation established (or co-established) by the testator. The case arose from a claim brought by the widow of a testator who died in 2022 and who had established a private foundation as early as 1998 together with his first wife and their children. The claimant sought, amongst other things, information regarding the allocation of assets, the financial status of the foundation, as well as beneficiaries and distributions.

Section 786 of the Austrian Civil Code (Allgemeines bürgerliches Gesetzbuch, hereinafter ABGB) serves as the basis for legal evaluation by providing individuals entitled to a compulsory portion with the right to access information regarding gifts relevant to that entitlement. The OGH differentiated between donations made directly to private foundations and those to third parties through the foundation. Regarding asset allocation, the OGH confirmed that the private foundation, as the recipient of such gifts, is responsible for furnishing all information required for proper valuation. The timing of asset transfer—specifically at the decedent’s death—is paramount; consequently, the foundation’s financial status as of this date must be comprehensively disclosed.

The central aspect of the decision concerns information pertaining to beneficiaries and distributions. In this context, the OGH observed an unintended gap: Neither the foundation nor the heirs are able to consistently supply adequate information, potentially undermining the enforcement of compulsory portion claims. To address this issue, the OGH confirmed the analogous application of Section 786 of the ABGB and expanded the private foundation’s obligation to provide information. Confidentiality must not block essential information sharing.

Consequently, the foundation must also reveal who benefited at the time of death and detail any distributions made according to the testator’s wishes. The private foundation effectively acts as an extension of the testator. This ruling clarifies that compulsory share claims cannot be avoided simply by involving a private foundation, reinforcing the robust protection and enforcement of such claims.

2Ob115/25p 26 March 2026