OGH on the Validity of Inheritance Acceptance Declarations

Sept 24, 2026 Benn-Ibler Rechtsanwälte

In the present decision, the Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has recently clarified that declarations of acceptance of inheritance which are legally inconclusive must be dismissed under the legal regime of the Non-Contentious Proceedings Act 2003 (Außerstreitgesetz 2003, hereinafter AußStrG 2003). It is not necessary for proceedings concerning the right of inheritance pursuant to Sections 160 et seq. AußStrG 2003 to have been instituted beforehand.

In the case at hand, following the deceased’s death in 2024, a relative belonging to the second parental line had submitted a declaration of acceptance of inheritance. He relied on his statutory right of inheritance and on his biological relationship with the deceased. However, no legally established relationship existed, nor was any such relationship alleged.

The declaration of acceptance of inheritance was rejected by the courts below. The appellate court granted leave for an extraordinary appeal on points of law, as it had not yet been conclusively determined whether, under the AußStrG 2003, a declaration of acceptance of inheritance may be rejected in such circumstances.

The OGH upheld the decision in its result but held that the declaration of acceptance of inheritance ought to be dismissed rather than rejected.

For the purposes of the statutory right of inheritance, the decisive factor is not biological kinship with the deceased, but a legally established relationship. The applicant was unable to furnish proof of his right of inheritance pursuant to Section 799 of the Austrian General Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB), since he lacked a sufficient basis for his asserted statutory right of inheritance. The declaration of acceptance of inheritance was therefore legally inconclusive.

In the OGH’s view, proceedings pursuant to Sections 160 et seq AußStrG 2003 are not to be instituted in such a case. Even if another claimant to the inheritance had acknowledged the applicant’s asserted statutory right of inheritance, this would not have resulted in the grant of probate to him. The conduct of fee-incurring proceedings concerning the right of inheritance, in which only a limited duty of examination applies (Section 161 (1) AußStrG 2003), would not be justified in these circumstances.

The OGH has therefore restricted the scope of application of Section 160 AußStrG 2003. Although the wording of that provision also refers to ‘conflicting declarations of acceptance of inheritance’ and could therefore encompass inconclusive declarations as well, such an interpretation would, in light of the limited duty of examination, go beyond the procedural purpose pursued and beyond the procedure’s capacity to determine the right of inheritance. The provision must therefore be reduced teleologically: proceedings pursuant to Sections 160 et seq. AußStrG 2003 accordingly presuppose conflicting declarations of acceptance of inheritance which are, in each case, at least conclusive. A legally inconclusive declaration of acceptance of inheritance must therefore be excluded at the preliminary stage.

OGH 2 Ob 98/26i (28 July 2026)