OGH: On status as a party in probate proceedings

Jul 7, 2021 Benn-Ibler Rechtsanwälte

Third parties, such as contractual partners of the decedent, creditors or legatees, are in principle not parties in probate proceedings and therefore not entitled to lodge appeals. If the rights of third parties are infringed by a court decision, the opposite applies.

In the present case, the list of assets of the decedent - in addition to, among other things, credit balances on an Austrian account and a securities account – was later extended to include credit balances on Swiss bank accounts. The granddaughter of the testator was also listed as a beneficiary of these accounts by means of a notation.

The Supreme Court (Oberster Gerichtshof, OGH) stated that the mere inclusion of items in an inventory or statement of assets did not yet affect the legal sphere of persons claiming rights to these items, since this had no impact or effect outside the probate proceedings. If the rights of third parties are directly interfered with, the situation is different. This applies in particular if the court informs a bank that the heir is entitled to dispose over savings books which are actually in the hands of a third party.

This must also apply if the court states in a decision that solely the heir is entitled to dispose over bank balances which according to the file belonged to the testator and a third party. On the basis of such a decision, there was a risk that the bank, contrary to the factual and legal situation existing prior to the devolution, would refuse to allow the third party to dispose over the assets or would allow the heir to dispose over the assets without the required consent of the third party. The granddaughter's rights as co-owner of the joint account would be clearly violated if the heir were granted the sole right of disposal. There was therefore no doubt as to the granddaughter's right to appeal and her status as a party.

OGH 2 Ob 14/21d, (25.03.2021)