OGH on the "benefit" of a care legacy

Sept 8, 2021 Benn-Ibler Rechtsanwälte

The Supreme Court (OGH) dealt with the question of what is to be understood by a "benefit" in connection with the care legacy according to Section 677 (1) of the General Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB).

In the original case, the life partner of the deceased sued the two heirs for payment of the care legacy (Sec. 677 ABGB). He had lived with the deceased in the same apartment for many years, the running costs of which were borne by the deceased. Since the state of health of the deceased had deteriorated, the plaintiff ran the joint household alone and, after his retirement, also provided extensive assistance with personal hygiene.

According to Sec. 677 of the ABGB, caregiving relatives are entitled to a statutory care legacy "insofar as no benefit or remuneration has been agreed upon." 

The defendants disputed the claim, since the plaintiff had gained an advantage by living in the joint apartment, the fixed costs of which were borne by the deceased. If the deceased had been in third-party care, the plaintiff would have had to bear the housing costs paid by the plaintiff himself.

Before the Supreme Court it was now disputed, among other things, whether the deceased's bearing of these "predominant monthly fixed costs" constituted a "benefit" within the meaning of Sec. 677 (1) ABGB. According to the Supreme Court, however, this is not the case:

The OGH requires that there must be a causal connection between a "benefit” granted and the provision of care services. If all benefits made in the vicinity of the provision of care services were to be taken into account irrespective of the causal connection, this would thwart the obvious purpose of the care legacy, namely the appropriate compensation for valuable care services provided by relatives.

In the original case, there was no evidence that the bearing of the "predominant monthly fixed costs" was causally related to the care services. Consequently, these were also not to be offset against the care legacy.

OGH 2 Ob 54/21m (24.06.2021)