OGH: Position of a beneficiary of a private foundation in bankruptcy
If the possibility of giving up the position as a beneficiary has economic value because there is an interested party willing to pay remuneration, this is an asset which falls into the insolvency estate.
Bankruptcy proceedings were opened against the debtor, who operated a sole proprietorship. The debtor and her half-brother are beneficiaries of a private foundation. The beneficiary expressly and irrevocably agreed to the sale of her position as a beneficiary under certain conditions. The conditions were met by the insolvency administrator, inter alia, by obtaining a legal opinion. The debtor's half-brother made an offer to the insolvency administrator to relinquish the beneficiary status, whereupon the debtor spoke out against the planned sale and disputed the fact that the position as a beneficiary belonged to the insolvency estate.
The court of first instance ruled on the insolvency administrator's application, inter alia, that the debtor's right to waive her beneficiary position against payment was part of the insolvency estate and thus withdrawn from the debtor's free disposal and was to be collected and realized by the insolvency administrator. The Appeals Court disagreed with this ruling point to the effect that the debtor's right to a waiver of the beneficiary position does not belong to the insolvency estate and was not subject to realization by the insolvency administrator.
The Supreme Court stated: The position as a beneficiary is in principle highly personal and neither inheritable nor transferable to third parties by legal transaction of the beneficiary inter vivos.
However, the founder is free to include supplementary provisions in the declaration of foundation. The fact that the supplementary declaration of foundation in the present case expressly provides for the option of a waiver of the beneficiary status for a limited or unlimited period of time could be seen as an indication that agreements and exploitation agreements against payment were to be made possible within the circle of beneficiaries. Thus, if the beneficiary position is liquidated economically, these are asset components which fall into the assets in the bankruptcy and the insolvency administrator is also entitled to liquidate this asset component.
Efficient Legal Information 
Legal Jobs 
Innovative LegalTech Solutions