OGH: Unworthiness to Inherit for Having Caused Mental Suffering

Jun 14, 2024 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, OGH) has considered the question of disqualification from inheritance on the grounds of having inflicted the deceased severe mental suffering (Section 541(2) of the Austrian Civil Code, Allgemeines bürgerliches Gesetzbuch, hereinafter ABGB) and on the grounds of neglect of duties arising from the legal relationship between parents and children (Section 541(3) ABGB).

The parties to the dispute at hand were the siblings and children of the deceased testator, who had passed away in 2020 and had appointed all her children, with the exception of the defendant, as equal heirs. The plaintiff’s application was for a declaration that the defendant had no right to his compulsory portion of the estate on the grounds that he was unworthy of inheritance because in April 2002 an international arrest warrant had been issued against the defendant, accusing him of embezzling more than EUR 1 million from his former employer. On 1 April 2002, the defendant disappeared without having said goodbye to his family. Therefore, he had caused the deceased serious mental distress by having committed a criminal offence and bringing shame on the family.

According to Section 541(2) of the ABGB, a person who has ‘reprehensibly’ caused the testator severe mental suffering – an instance of relative incapacity to inherit. According to the OGH, this requires behaviour that was at least partly intended to cause the testator serious mental distress. ‘Reprehensible’ does not have to mean ‘illegal’, but can also refer to immoral or blameful behaviour.

In the case at hand, the deceased had especially suffered from the media coverage of her son and was therefore ashamed to go out among people. Even if her son’s actions may have caused her severe emotional distress, his actions had lacked any intent to cause his mother such distress. Similarly, the reason why he had cut off any contact was his desire to avoid prosecution. Therefore, the actions taken by the defendant only had a reflexive effect on the deceased. Due to the understandable reason for his cessation of contact, the possibility of disinheritance due to neglect of duties between parents and children (Section 541(3) ABGB) is precluded.

OGH 2 Ob 219/23d (23 April 2024)