OGH: Is an Inheritance of an Estate under Probate Valid?

Jun 28, 2024 Benn-Ibler Rechtsanwälte

In the case of succession in possession, the old and the new owner agree that the property of the acquirer will be transferred to another person, the successor in possession, when a condition is fulfilled, or that there is at least an obligation to transfer the property.

In the case at hand, the decedent, who died without children in 2021, had received several properties as part of the family business and farm from his father in 1994/1995 with the intent that these would be transferred undivided to the next generation. It was therefore agreed that the testator would make an irrevocable will to ensure that his sister, the respondent, would inherit the properties the testator had inherited, in the event of his remaining childless. In 1997, the testator used his father’s funds to purchase a further plot of land in order to link a hunting reserve to the other pieces of property.

In his will, the testator appointed the defendant as his sole heir and made a bequest in favour of the plaintiff for the properties transferred under the business and farm transfer agreement as well as the properties acquired in 1997. On the basis of the will, the estate was validly transferred to the defendant.

The plaintiff sought an order that the defendant consent to the incorporation of the title to the properties and surrender them. The defendant argued that the transfer agreement contained a right of inheritance in favour of the defendant.

The court of first instance dismissed the action. In respect of the property acquired in 1997, the court of appeal upheld the claim. That judgment was upheld by the Austrian Supreme Court (Oberster Gerichtshof, OGH).

In the event of childlessness, the testator was under an obligation to provide for the defendant’s inheritance. In accordance with settled case law, this agreement is a contract in favour of a third party. The right acquired by the defendant is rooted in the business and farm transfer agreement concluded between the testator and his father. According to case law, a testamentary disposition of property subject to reversionary inheritance is ineffective because the pre-legatee cannot validly dispose of the property by reason of death. The same applies to succession in possession.

As a result, upon the occurrence of the condition precedent, the defendant acquired a direct claim against the decedent’s estate.

OGH 2 Ob 246/23z (23 April 2024)