OGH on the Applicability of the Inheritance Act

May 3, 2024 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has ruled on the analogous applicability of the Austrian Inheritance Act (Anerbengesetz; hereinafter AnerbenG) in favour of persons who do not belong to the group of legal heirs.

The testator, who died in 2019, appointed his two nephews (the defendants) as half heirs in his will in 2018. With the transfer agreement of 21 March 2019, the second defendant received a farm that met the requirements of an ‘Erbhof’ (in Austria, this is an inherited farm that must have been in the property of the family for at least 200 years) pursuant to Section 1 of the AnerbenG. It was in the testator’s interest to continue farming and to keep the property in the family. The testator left other assets to the first defendant. The testator excluded his daughter (the plaintiff) from the inheritance, as she had not taken care of him.

Since the second defendant was not a legal heir of the testator, the plaintiff was of the opinion that an analogous application of the principle of best interests under inheritance law was inadmissible. If the AnerbenG does not apply, the plaintiff’s claim to a compulsory inheritance portion is calculated according to the market value at the time of the sacrifice of the assets. The second defendant argued that if the amount claimed were paid, the estate would not exist.

The lower courts dismissed the plaintiff’s case. The OGH, however, upheld the decisions and reached the following conclusion:

The AnerbenG cannot be directly applied because the defendant was the testator’s nephew. In the absence of statutory succession, the scope of application does not apply. However, if legislation has overlooked a situation that requires regulation, this loophole can be filled by analogy.

The AnerbenG was created to avoid the fragmentation of farms through the division of inheritances. It can be assumed that the testator intended the transfer to ensure the undivided continuation of the farm and that the economic purpose of the transfer was not merely a sale with deferral of the purchase price. Consequently, the legal similarity of the transfer agreement with the provisions of the AnerbenG must be affirmed. In determining the compulsory portion, the analogous applicability of the principle of the best interests of the heirs under inheritance law must be taken into account.

OGH 2 Ob 9/24y (21 March 2024)