OGH: On the duty of an endowment recipient to provide information

Jul 1, 2022 Benn-Ibler Rechtsanwälte

According to the Austrian Supreme Court (Oberster Gerichtshof, OGH), the right to information under Section 786 of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB) in the version of the Inheritance Law Amendment Act (Erbrechts-Änderungsgesetz) 2015 is limited to the endowments made to a mere endowment recipient.

The plaintiff and first defendant are daughters of the deceased, the second defendant is the widow. The sole heir after the deceased is his son. The plaintiff assumed on the basis of the earnings and the inheritance in favour of the deceased that endowments had been made from the estate. By means of a step-by-step action, the plaintiff sought information from the defendants about the assets that had come to the deceased by way of inheritance and his dispositions of them. In particular, further endowments to persons entitled to a compulsory portion. The defendants stated that they had not received any endowments. The lower courts dismissed the claim. There is no basis in Sec. 786 ABGB for an obligation of the mere endowment recipient to provide information about other endowments than his own.

The OGH stated:

It is disputed whether the duty of the endowment recipient to provide information only relates to endowments received by him or also extends to other endowments relevant to the compulsory portion. In the doctrine, however, there is only one explicit opinion on the duty of an endowment recipient to provide information with regard to third parties. This also only provides for an obligation to inform the recipient of endowments made to him. Even if the mere endowment recipient was closely related to the deceased, there is still no legal basis for the plaintiff's assumption that the endowment recipient could exercise claims for the provision of information that had come to the deceased before his or her death. The "enquiry in the family circle" mentioned in the appeal also does not provide a basis for providing information.

OGH 2 Ob 60/22w (26.04.2022)