OGH on Interpreting Wills

Oct 18, 2024 Benn-Ibler Rechtsanwälte

The testator’s actual intention when drawing up their will is decisive for interpreting the will, and this intention ought to be at least somewhat apparent from the wording of the will.

In the case at hand, the deceased, who had died in 2022, left a daughter, a son, and his widow. In his last will and testament, the testator provided for the succession by operation of law, bequeathing a piece of property to his daughter in advance as a legacy and granted the defendant ‘a lifelong, gratuitous, exclusive, and highly personal right of residence and use of the entire property in the legal form of an easement of residence together with the owner of the property’.

In the probate proceedings, the daughter waived her right to inherit and assigned her claims under the estate to the plaintiff.

As the defendant had changed the door locks without authorisation, the plaintiff demanded the return of the keys. As owner of the property she was entitled to share the use of the property, which the defendant had actively prevented.

The court of first instance upheld the claim. The appellate court upheld the plaintiff’s appeal and dismissed the action. The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has recently confirmed the decision of the court of appeal.

Even if an easement exists, the owner remains entitled to all the uses that can be derived from the property without disturbing the person entitled to use it. The owner must not be hampered in their efforts to keep an eye on their home. However, this right may only be exercised to the degree necessary. Therefore, there is no need for the handing over of keys.

The scope and content of the right of use granted by the testator to the widow must be determined by interpreting the will. The will provides for an exclusive and highly personal right of residence and use of the entire property in favour of the defendant and refers only to joint occupancy with the owner. The view that only the daughter as the ‘rightful owner’ maintains a room is certainly tenable.

OGH 2 Ob 114/24i (25 July 2024)