OGH Rules on Access to Deceased’s Guardianship Records

Nov 8, 2024 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has ruled on the conditions under which access to a guardianship file and, in particular to the medical information of the records, must be granted.

The applicant in the case at hand is the niece of the deceased, who died in September 2023 and who had been under guardianship. The entire estate of the deceased was devolved to the applicant by a legally binding devolution order of February 2024.

The plaintiff requested access to the guardianship file. A provisional will, which regulated the distribution of assets in the form of legacies, had been found after the death of the person concerned and had been deposited with a notary. In order to obtain information on the testator’s capacity to make a will, a request was made for access to the guardianship file, in particular the medical records of the file.

The court granted the request concerning information in the documents related to the deceased’s income and financial situation. However, the application was dismissed in so far as access to information relating to the deceased’s health was concerned. The court of appeal confirmed this decision, holding that the plaintiff had not provided sufficient evidence to cast doubt on the validity of the will and on the existence of a different, true testament of the deceased.

The OGH has now provided the following decision:

The requesting party must explain why the part of the records they wish to inspect is likely to help establish the true will of the testator.

On the basis of a handwriting expert’s report which the applicant had obtained, she was of the opinion that the will had been signed only after the appointment of the curator. She therefore expressed doubts as to whether the testator was still competent at the time of signing the will. The request also indicated that the purpose of inspecting the health-related information in the file was to gain insight into the deceased’s mental state and therefore testamentary capacity.

Thus, the applicant has sufficiently explained the purpose for which the inspection is to be carried out and that the true will of the person in question is to be examined and ultimately enforced in this way.

OGH 3 Ob 130/24z (11 October 2024)