right of inheritance. Austria. Right to information of the person entitled to a compulsory portion
Regarding the compulsory portion in general:
I have commented in detail on the content and calculation of the amount of the compulsory portion claim in Austria in several articles. In summary, it should therefore only be stated here that the claim to a compulsory share is a monetary claim of the descendants (children and children’s children) and the spouse or the registered partner, which corresponds to half of the statutory share of the inheritance.
Addition of lifetime advance donations of the legacy:
When calculating the claim to a compulsory portion, Austrian inheritance law stipulates that not only the (active and passive) assets available at the time of the deceased’s death are to be taken into account, but also that, under certain conditions, lifetime donations made by the deceased are to be taken into account. In this respect, one speaks of the added account, which results in an increased calculation basis, from which the compulsory portion is then to be determined, whereby the person entitled to the compulsory portion must have their own donations deducted by the testator, in this respect one speaks of crediting. For more information, I ask you to take a closer look at my posts on this topic.
Problem calculation process:
It is now the case that the person entitled to a compulsory portion often has no or only insufficient information about advance donations from the legacy as a gift, which can be the case in particular if there was only one loser contact between the testator and the person entitled to a compulsory portion, which is usually the emotional basis for this IS that a species is “put on the compulsory part”.
Statutory right to information:
The Austrian inheritance law in the version of the Inheritance Law Amendment Act 2015 applies the following regulation: “Anyone who is entitled to demand the addition of certain gifts has a right to information about this against the estate, the heirs and the recipient of the gift”.
Against whom is the right to information directed? Who is entitled to the right to information?
Until the alleged responsibility, i.e. the formal end of the probate proceedings, there is a right to information from the probate, which until then has represented a separate legal personality as a so-called “dormant probate” and as such can also be sued.
With the assignment, the assets of the deceased merge with the assets of the heir(s) who have been handed in and the right to information is therefore only available to them, because the dormant estate as such no longer exists.
What has been new since 2015 is that the recipient of the gift also has a right to information, which is also a person who, during the lifetime of the testator, received something of this kind from the testator without consideration or at least without equivalent consideration (mixed gift).
What are the (further) requirements for this right to information?
The law itself says nothing about this. According to the spirit and purpose of the regulation – the Supreme Court explains – the regulation cannot mean that the person seeking information must first determine the donations about which he is requesting information. Overall, uninvolved persons should not be able to be prosecuted with requests for information. The person requesting information must therefore be asserted at least under circumstances that indicate donations of the testament that are relevant to the compulsory portion.
In the case of a claim against the estate or heirs, an otherwise inexplicable reduction in assets may be sufficient, even without naming the recipient. In the case of a claim against an authorized third party as the recipient of the gift, evidence is required that the testator gave the person concerned a gift. No high demands are to be made within the immediate family circle, especially since donations within the family are probably common. If it has been proven that a person has already received gifts that are to be added, this is sufficient evidence that other such gifts have also been made to this person. Only if it is established (positive determination by the court!) that a person has not received any donations would there be no right to information.
In any case, the right to information of the person entitled to a compulsory portion includes all donations that are to be added according to the law. By virtue of an exclusive exception, this does not include gifts made by the deceased from income from the original assets, i.e. for charitable purposes, in evasion of a moral obligation or for reasons of decency, unless otherwise agreed between the deceased and the recipient of the gift. However, the purpose of the norm excludes the possibility that the person concerned in doubtful cases – for example in the calculation of the question as to whether there was a moral obligation to make a gift – decides for himself whether a gift has been added or not. In this respect, he has to provide information in this regard. In the compulsory portion process (request for payment of money), the court then has to resolve the legal question as to whether or not a donation is made in accordance with a moral obligation.
Now to the content or scope of the right to information:
If the conditions listed in the previous paragraph for the affirmation of the right to information of the person entitled to a compulsory portion or the obligation to provide information of the heirs or a gift recipient are met, i.e. a relevant claim IS given on the merits, the question arises as to which information will be provided or asked for differently which information an heir or gift recipient must provide in order to comply with their legal obligation.
According to a decision of the Supreme Court of June 27, 2022, the right to information is fulfilled if a “formal full invoice“was laid. A truthful Accounting cannot be enforced. In this regard – assuming appropriate proof – only claims for damages by the person entitled to a compulsory portion can arise. In addition, there is a right to take an oath, which can also be asserted by means of a lawsuit. This obliges the person required to provide information to take the oath in court with the corresponding criminal sanction for false oath.
What is a “formally completed invoice”? The Supreme Court understands this to be a complete listing of benefits received. The following applies: according to the purpose of the accounting obligation, which is to enable the entitled party to determine the amount against the obligated party, to estimate the amount, at least to estimate it approximately and to be able to assert it through legal action, the invoice must be so detailed , as is customary in traffic. In any case, they must not exhaust themselves in the provision of receipts. It is the object, the time and, in the case of monetary gifts, the amount donated to be announced. In the case of donations in kind, the person required to provide information does not have to apply a (own or expert) assessment, it is up to the entitled person himself to assess the value of the gifted item.
summary:
According to this judicature, significant difficulties and risks can arise for a person claiming a compulsory portion, particularly in the area of property donations, which are often the subject of disputes in this context.
He often has the data of a property given away during his lifetime because this was disclosed by the heir or recipient of the gift or because the family found out about it in some way or by looking at a so-called historical extract from the land register (this is an electronic directory of deleted entries in the land register, therefore the preferred owner) contains can determine. However, he does not know the value of the property and – in contrast to the owner – he does not have the opportunity to determine it by means of an expert report, for example, because he lacks the necessary documents (plans, building description) and access options (findings, on-site inspection).
In such a case, the person entitled to a compulsory portion has no choice but to determine the value of the property given away based on the information available to him. It is more likely to start at the lower limit and to assert the compulsory portion claim in court, subject to extension. In the compulsory portion process, an expert opinion can be requested to determine the value of the property concerned.
According to Austrian civil procedural law, suing, which is understood to mean the judicial assertion of a higher amount of money than was finally won, entails costs insofar as such a claim leads to a partial loss of the lawsuit (action dismissed) and thus also to the loss of full reimbursement of costs or even the partial reimbursement of costs . However, this cost consequence is somewhat mitigated by a special provision (§ 43 Paragraph 2 ZPO), as in cases in which a claim for legal action depends on the mediation by an expert (such as the valuation of a property given away), even if a plaintiff with his Complaint is not fully accepted (wins), full reimbursement of costs can be awarded on the basis of the lower amount won, provided the complaint is not blatant (100% complaint).
I hope that with this post I can contribute something to your better orientation. If you have further questions, call me.