OGH on the waiver of an inheritance
The Austrian Supreme Court (Oberster Gerichtshof, OGH) ruled that the granting of a right to use a dwelling constitutes a consideration and not a motive for a gratuitous waiver of an inheritance.
The subject matter of the case was a family inheritance dispute concerning several properties. The plaintiff claimed that he had waived the inheritance on the condition that he would receive the right to use a house as well as the donation of a plot of land that was yet to be converted into building land. Due to the inadmissible condition, the waiver was invalid. He therefore demanded his share of the inheritance from the heirs.
The OGH stated that a renunciation of inheritance is a unilateral declaration of the parties to be made to the probate court (court commissioner) in probate proceedings and also has effects under substantive law. The renunciation of the inheritance must be made unconditionally, which is why a condition is inadmissible. It is disputed whether a contestation of the declaration of inheritance is possible due to a lack of will.
According to case law, a challenge on the grounds of a lack of will is admissible in the case of a declaration on the waiver of the inheritance in contentious proceedings. On the other hand, the case law is of the opinion that Sections 869 ff of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB), which is intended for legal transactions, does not apply to the declaration of renunciation of the inheritance as a procedural declaration. This is mainly due to the fact that the requirements for avoidance according to Sec. 871 ABGB are - according to their approach - unsuitable for the declaration of acceptance of the inheritance as a procedural declaration made to the court. Defects of will were in any case irrelevant in this context.
The OGH left open whether the same assessment also applied to the declaration of acceptance of inheritance.
In the original case, the Court of Appeal wrongly assumed that the bequest was gratuitous and that the right to use the flat was only a motive and not a consideration. According to the OGH, however, the right to use the flat was to be qualified as remuneration. Therefore, there was no gratuitous waiver, for which an error of motive (Sec. 901 ABGB) would be relevant.
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