OGH: May a Donee Grandchild Claim Add-Backs?

Oct 13, 2023 Benn-Ibler Rechtsanwälte

If an individual who (under Austrian inheritance law) is entitled to a so-called compulsory portion asserts a claim against a donee on the grounds of insufficiency of the estate, the donee who is the subject of the claim does not, in principle, have a claim to add-backs. The donee has no right of add-back against the claimant of the compulsory portion on the ground that the donee themself is the recipient of a gift. However, the Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has now confirmed an analogous application of Section 783 of the Austrian General Civil Code (Allgemeines Bürgerliches Gesetzbuch, hereinafter ABGB) to all gift recipients who have filed a claim.

The deceased, who died in 2020, made a gift of property to his grandson in 2015. The deceased had given his daughter, who was entitled to a compulsory portion, the right to live in a detached house as a gift. The over-indebted estate was then left to the widow in lieu of payment. The deceased’s daughter, who is entitled to a compulsory portion, is now suing the deceased’s grandson (her son) for payment of EUR 60,000.

Pursuant to Section 789 of the ABGB, the beneficiary of the compulsory portion who has been short-changed may demand payment of the shortfall from the donee of the deceased if the estate is insufficient to cover the compulsory portion.

The defendant objected that the value of the gift made to the plaintiff (a right of abode in a detached house) should also be added and taken into account.

However, a direct application of Section 783 of the ABGB, which regulates who may request add-backs and crediting of a gift, is not possible in this case, as the defendant grandchild does not belong to the group of persons entitled to such a claim.

However, the lower courts dismissed the claim of the daughter entitled to the compulsory portion, holding that the defendant who was only entitled to the compulsory portion in the abstract could claim the add-back of the gift made to the plaintiff by analogous application of Section 783 ABGB.

The OGH agreed with this view.

If a person specifically entitled to the compulsory portion asserts a claim against a donee who is not covered by the wording of Section 783 ABGB on the grounds of insufficiency of the estate, the donee who is the subject of the claim is also entitled to assert a claim for add-back and crediting by analogous application. In other words, the donee can raise an objection against the claimant of the compulsory portion that the latter has to take another gift into account.

OGH 2 Ob 100/23d (25 July 2023)