Mistake of Law Does Not Establish Unworthiness to Inherit

Sept 10, 2026 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) recently addressed the circumstances under which a person may be excluded from succession on the grounds of unworthiness to inherit. The case focused on the interpretation of Section 541(3) of the Austrian General Civil Code (Allgemeines bürgerliches Gesetzbuch, hereinafter ABGB), and in particular on whether a mere mistake of law constitutes ‘lack of knowledge’ within the meaning of that provision.

The proceedings involved the estate of a 26-year-old unmarried man who died intestate in 2024 without children. Under the applicable laws of intestate succession, each parent was entitled to one-half of the estate. Although the entire estate was initially distributed to the mother, the father later filed a claim seeking his statutory share. The mother opposed the claim on the ground that the father was legally disqualified from inheriting.

The father had failed to meet his support obligations toward his son and had consequently been convicted on three separate occasions of violating those obligations under Section 198 of the Austrian Criminal Code (Strafgesetzbuch, StGB). The son was aware of these circumstances and understood that he could determine the succession to his estate by executing a will. However, he did not know that, in the absence of a will, the parents of an unmarried person who has no children generally inherit by operation of law.

The lower courts held that the mistake constituted ‘lack of knowledge’ within the meaning of Section 541(3) of the ABGB and, accordingly, determined that the father was unworthy to inherit.

The OGH, however, rejected this interpretation. It held that relative (unlike absolute) unworthiness to inherit arises only when the deceased was unable to prevent a particular individual from becoming an heir due to testamentary incapacity or factual circumstances.

A mere error of law is insufficient. Where the deceased was aware of the relevant facts but unaware of the legal consequences arising from them, this does not establish relative unworthiness to inherit.

Accordingly, the OGH set aside the decisions of the lower courts.

OGH 2 Ob 77/26a, 28 July 2026