OGH: Gift Offset to Be Clarified in Contentious Proceedings

Jan 4, 2023 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has clarified: Even under the new Austrian inheritance law, offsetting of gifts must be clarified in litigation proceedings and not in probate court.

In the original case, the deceased was survived by a daughter and a son. Both made conditional declarations of acceptance of the inheritance, each for half. However, the daughter applied for offsetting of gifts pursuant to Section 753 ff of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, hereinafter ABGB) on the grounds that her brother had received several property shares and company shares as gifts from their mother before she passed away. The daughter subsequently expressly requested the appraisal of the shares. Inclusion and offset of these shares should be carried out in the probate proceedings, as a result of which her brother would no longer receive anything from the estate, the daughter argued.

However, her brother objected, arguing that the division of the inheritance should be carried out in an adversarial procedure.

The lower courts also took this view, since according to case law, the appraisal as well as the inclusion and offsetting of gifts do not constitute prerequisites for legal transfer of ownership of an inheritance.

The Supreme Court adhered to this opinion.

The offsetting of gifts does not shift the inheritance quotas, even in relation to the legal situation under the 2015 Austrian Inheritance Law Amendment Act. Rather, this simply leads to an equalisation of values. For this reason, it only plays a role in the division of the estate, when the issue is which heir is to receive how much from the estate.

The OGH stated that the right of a child to demand that gifts be set off against legal shares of the inheritance pursuant to Section 753 ABGB is not to be decided in probate proceedings. Differences on the question of the crediting of gifts do not stand in the way of devolution of the inheritance; rather, this is to be decided in adversarial legal proceedings.

OGH 2 Ob 100/22b (25 October 2022)