OGH: Right to Information of Heirs

Sept 15, 2023 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has clarified that the requirement to provide certain information is fulfilled when formally complete information has been provided. The fact that an individual involved, such as the beneficiary of a compulsory inheritance portion, considers this list to be incorrect or incomplete is irrelevant.

The applicant in the case at hand is one of two sons of the deceased testator. As a beneficiary of his compulsory portion, he requested from the defendant estate an accounting of its assets and liabilities at the time of death, as well as information on donations relevant to his compulsory portion. The plaintiff asked the administrator of the estate to provide him with the information in question.

The defendant submitted a list of the assets and liabilities of the estate. However, some of the components of the estate were of a disputed nature, possibly having been gifts. The administrator of the estate unsuccessfully sought additional information from the applicant’s brother and the decedent’s second wife.

The plaintiff’s complaint was that the list of assets eventually produced in the course of the proceedings was not in compliance with the plaintiff’s request for information.

According to the OGH, the prerequisite for the right to an exact and complete determination of the estate must be based on a well-founded concern. This means that the beneficiary must have a subjectively justified fear that there may be further assets in the estate of which people are not yet aware. Such a concern may be based, for example, on the unexplained sudden disappearance of assets. An unexplained decrease in assets may also be sufficient grounds for suspicion.

The purpose of the duty to inform is to enable the beneficiary of the compulsory portion to identify and claim their benefits from the debtor.

The possibility that items may be in dispute does not impede the fulfilment of the right to information. The purpose is to prevent the interested party from deciding whether the property belongs to the estate or whether it should be added to the estate.

The OGH came to the conclusion that the plaintiff’s claim for information had already been fully satisfied by the preparation of the list. It could not reasonably be expected of the administrator of the estate to carry out further investigations, and it was not possible to verify the accuracy and completeness of the list. Information, once formally complete, does not subsequently become incomplete if new assets become known in the course of the proceedings. The respondent was therefore in compliance with his duty of disclosure.

OGH 2 Ob 81/23k (27 June 2023)