OGH: Disclaiming Farm Inheritance Does Not Affect Heirs

Sept 30, 2022 Benn-Ibler Rechtsanwälte

In case a legal heir disclaims their inheritance without effect for their descendants, the legal heirs shall participate as representatives in the selection of the heir to be made pursuant to Section 3 of the Austrian Anerbengesetz (AnerbenG)[1]. Whether the disclaiming party would have been designated as the heir to the farm is irrelevant.

The deceased had passed away in 2019, leaving no testamentary disposition. Her legal heirs were her two cousins as well as her second cousins. One of the cousins transferred the inheritance that would have been due to her by means of a notarial deed of gift to the first and second applicants – her sons. In addition to another co-heiress, the third applicant (one of the second cousins) disclaimed his inheritance without any effect on his descendant, the fourth applicant. The first applicant argued that there is no legal difference between a gifted inheritance and disclaiming an inheritance, as was the case with him. The fourth applicant stated that it was irrelevant for the selection of the heir whether her disclaimant father would have become an heir.

The first and secondary courts found in favour of the fourth applicant.

The Austrian Supreme Court (Oberster Gerichtshof, OGH) agreed as follows:

The legal opinion with reference to Section 4a (2) last sentence of the AnerbenG stating that the legal heirs of the disclaimant would only be eligible to inherit if the disclaimant himself had become an heir pursuant to Section 3 of the AnerbenG, is not to be followed. Under Section 3 of the AnerbenG, an heir has the right to buy the agricultural estate (the so-called Erbhof) out of the estate at a take-over price. The provisions on the designation of the heir do not create an independent title of inheritance, but presuppose the existence of several heirs. As ruled in a previous decision, the Austrian Supreme Court held that if an heir renounces their right to inherit, their legal heirs take their place. In the case of disclaimer, the same shall apply as in the case of unworthy heirs, namely, that the legal heirs shall take over representation. This means that the inheritance is deemed not to have legally fallen to the disclaimant. In that case it can be assumed that the right to inherit immediately passes to the successor upon the death of the testator. From among the potential heirs, the most suitable successor for the agricultural state now must be found. These potential successors also include the representatives of the disclaiming party.

[1] In Austria and Germany, the Anerbengesetz is a particular part of law intended to counteract the fragmentation of farming estates, so-called Erbhöfe, in the course of inheritance and succession.

OGH 2 Ob 11/22i (27 June 2022)