OGH upholds case law on property transfer in the new inheritance law
In a recent decision, the Austrian Supreme Court (Oberster Gerichtshof, OGH) maintains that the granting of a right of usufruct no longer prevents a transfer of assets under the Inheritance Law Amendment Act 2015 (Erbrechtsänderungsgesetz, ErbRÄG 2015).
In the case at hand, the crediting of a gift against the compulsory portion (“Pflichtteil”) to be inherited was disputed. The claimant (granddaughter of the deceased) claimed the crediting of a gift to the heirs with a gift agreement from 2012. The subject matter was the gift of a property, whereby the deceased reserved a life-long and gratuitous right of usufruct and had a prohibition of encumbrance and sale with "strictly obligatory effect" granted to him.
According to the respondent, the gift was not to be credited because the two-year time limit according to Section 782 para 1 of the Austrian General Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB) had expired. However, the plaintiff was of the opinion that the gift was only "really made" at the time of death in the sense of Sec. 782 para 1 ABGB because of the right of usufruct granted.
Both the court of first instance and the Court of Appeal found in favour of the claimant. Although the OGH had already agreed with the respondent’s view that a right of usufruct no longer prevented the property transfer from being made, the Court of Appeal allowed the appeal because it was not convinced by the OGH´s legal opinion.
The OGH made it clear that it would not depart from the recently developed case law on the transfer of property in the new inheritance law. The criticism expressed by the Court of Appeal, in particular that the new case law of the OGH contradicted the legislative materials and critical comments on the doctrine, did not convince the OGH.
The case law of the OGH that a right of usufruct no longer prevents the provision of a property transfer can now be regarded as established.
Efficient Legal Information 
Legal Jobs 
Innovative LegalTech Solutions