OGH: On the Delivery of Documents to the Court

Jan 13, 2023 Benn-Ibler Rechtsanwälte GmbH

Government authorities may only be called upon to provide documents to the court if a party is unable to obtain immediate document delivery and states and proves this fact in their application. However, an order for performance may not be issued.

In the present case concerning the right of a second applicant to inherit, the signature of the testator's handwritten will and thus the sole heir status of the second applicant was in dispute. Therefore, the first applicant requested that it be declared that she a) has a legal interest in obtaining more detailed documents held by third parties (including banks and the Austrian Social Insurance Administration) and b) that these documents be served on the court of first instance within 14 days.

The court of first instance found that the authenticity of the deceased's signature was material to the decision. The appellate court stated that the contested ruling was not appealable as there was no mandate to produce the documents.

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) ruled as follows:

According to Section 45 sentence 2 of the Austrian Non-Contentious Proceedings Act (Außerstreitgesetz), procedural decisions can only be challenged by means of an appeal against the decision on the merits. However, it is recognised in case law that in probate proceedings, even before devolution of the estate, decisions which affect the legal position of the parties are independently contestable. The ruling of the court of first instance did not merely result in a simple finding of the obligation to surrender the documents, but rather an order to produce them. Documents that are available from public authorities are primarily to be produced by the party providing the evidence.

If a party is unable to obtain documents without the assistance of the court, the court may arrange for this to be done under Section 301 of the Austrian Code of Civil Procedure (Zivilprozessordnung, hereinafter ZPO). If a document is held by a third party, Section 308(1) ZPO provides that if the document is a multi-party document, it must be produced before the trial court within a certain period of time in accordance with Section 304(2) ZPO. Even though the principle of inquest does not apply in inheritance law, it is possible for the trial court to acquire documents within the framework of Sections 304 and 308 ZPO.

OGH 2 Ob 157/22k (25.10.2022)