OGH: Compulsory Portion Reduction under Amended Inheritance Law

Oct 14, 2022 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, OGH) has clarified the requirements for the exclusion of a reduction of compulsory portions under the amended Austrian inheritance law.

In the original case, the deceased had disinherited her granddaughter (her son had already predeceased her) because she had felt personally offended after a quarrel between her son-in-law and her granddaughter. Due to the dispute, the two of them had no further personal contact until the death of the deceased. They only met at family gatherings, but did not have any personal conversations. Neither of them made any effort to initiate contact.

The granddaughter sued the only heiress, claiming her compulsory portion. The latter replied that a disinheritance without a reason for disinheritance would have to be reinterpreted in the sense of a reduction of compulsory portion (Section 776 of the Austrian Civil Code, Allgemeines Bürgerliches Gesetzbuch, ABGB).

The most recent dispute before the Supreme Court dealt with the issue of what requirements had to be met in terms of defining the mutual lack of contact between the deceased and the granddaughter in order for a reduction of the compulsory portion to be justified.

According to Section 776 (1) ABGB, the compulsory portion may be reduced by half if there was never a close relationship between the deceased and the person entitled to the compulsory portion, or if there was no such relationship for a longer period of time before the death, such as usually exists between family members. According to paragraph 2, this right is precluded if the deceased has avoided contact for no reason at all or has given justified cause for the lack of contact.

In the old legal position, which was still based on a refusal of contact by the deceased, the Supreme Court required a prior attempt to establish contact by the beneficiary of the compulsory portion. This is now expressly no longer required, as the new legal framework shows.

However, avoidance of contact requires a certain behaviour on the part of the deceased that is subject to consequences. This is not necessarily the case if there is merely no interest in contact and the testator merely behaves passively.

OGH 2 Ob 116/22f (06.09.2022)