ARTICLES and NOTES - Notarius International

140 T. Antenreiter, National Report Austria Notarius International 3-4/2002
is to one third of the statutory portion of the deceased’s
estate 62 . The compulsory portion is only, however, a pecuniary
claim, so that the person entitled to a compulsory
portion (also known as a forced heir) cannot assert a
claim to particular objects in the estate.
Furthermore, a child’s compulsory portion can be reduced
by half once again if a parent and the child entitled
to a compulsory portion at no time had a close relationship,
as usually exists between parents and children.
As a rule this provision refers to children born out of
wedlock who had no contact whatsoever with their natural
father, but in such cases the compulsory portion cannot
be reduced if the parent refused personal contact with
the child for no reason 63 .
In order to prevent the deceased giving away all his assets
during his lifetime and thereby restricting the rights
of the forced heirs, Austrian law provides that gifts inter
vivos can, under certain conditions, also be brought in as
a basis of assessment for calculating the compulsory portions
of the children and the surviving spouse, but not,
however, the parents (adding back of advancements ) 64 .
If there are insufficient funds in the estate available to
cover the compulsory portions thus calculated, the donees
may even be obliged to give back the gifted item in
favour of the forced heirs or make compensation payments
(setting aside a gift) 65 .
5.5 Substitute succession, legacies and testamentary
obligations
Under Austrian law it is possible to appoint firstly one
person as prior heir and at the same time stipulate that another
person shall receive the inheritance as substitute
heir on the occurrence of a particular event, usually in the
event of the death of the prior heir (fideicommissary
substitution) 66 . In such cases, for the protection of the
substitute heir, it is mandatory for an inventory of the estate
to be drawn up. As such dispositions considerably restrict
the extent to which the items affected may be
passed on, fideicommissary substitution can only be directed
in respect of contemporaries or in favour of a maximum
of two further generations 67 .
The prior heir is in the position of a usufructary 68 and
is thus not permitted to diminish the intrinsic value of the
inheritance and can only dispose of the items affected
with the consent of the substitute heir. Even in the case of
an unequivocal testamentary direction by a testator the
prior heir and the substitute can set aside the fideicommissary
substitution by mutual agreement.
The rules relating to fideicommissary substitution apply
correspondingly in the case of substitute legatees
and in the case where there are directions imposing time
limits, conditions and obligations to be performed (socalled
constructive substitute succession) 69 .
Austrian law distinguishes between the heir, who acquires
his legal status as universal successor of the deceased,
and the recipient of a legacy (also called a legatee),
who merely receives a certain item bequeathed by
the deceased and becomes individual successor only in
relation to this item. Accordingly the legatee only has a
claim under the law of obligations against the heir for
transfer of ownership of the bequeathed object (civil law
legacy – Damnationslegat), which in terms of value,
however, can make up the greater part or even the whole
of the estate 70 .
In the case where testamentary obligations are imposed,
compliance with them is not checked by the probate
court, apart from a few exceptions in the case of testamentary
obligations in the public interest 71 . A person
entitled to performance of a testamentary obligation
(for example, an executor, but not the beneficiary in respect
of performance of the testamentary obligation himself),
can insist upon fulfilment of the testamentary obligation,
if need be enforcing it by recourse to law. Nonfulfilment
of a testamentary obligation operates in principle
as a resolutive condition 72 , but in the case of testamentary
obligations approximate fulfilment is sufficient
for the purposes of the deceased’s testamentary wishes;
in the case of non-fulfilment where there is absence of
fault, the testamentary obligation expires in any event 73 .
5.6. Execution of a will
The legal institution, the executor, does not have any
great significance in Austrian legal practice. Only one
paragraph in the General Civil Code is devoted to this
topic, which leaves a lot of questions on this matter still
open 74 . According to Austrian case law, the testamentary
appointment of an executor by the deceased in principle
does not represent a binding direction to the heir. Thus
the heir can dismiss the person of the executor, except if
the deceased declared his last wishes expressly by means
of a testamentary obligation in such a way that the heir
has to tolerate the executor or lose the bequest.
The rights of the executor under Austrian law include
supervising and carrying out the fulfilment of the deceased’s
testamentary wishes and participation in the
drawing up of the inventory of the estate. Should the case
arise the executor is the person entitled to performance of
a testamentary obligation. In principle, however, he has
no direct representative competence either for the estate
or for its heirs, except if he is entrusted by the probate
court with attending to certain specific matters, such as
an estate guardian or curator.
5.7. Probate proceedings
Estate administration is carried out in Austria by the
local courts (Bezirksgericht), in non-contentious proceedings,
with significant involvement by the notaries
62 Arts. 765 and 766 ABGB (General Civil Code)
63 Art. 773a ABGB (General Civil Code)
64 Art. 785 ABGB (General Civil Code)
65 Arts. 951 and 952 ABGB (General Civil Code)
66 Art. 608 ABGB (General Civil Code)
67 Details in Arts. 611 and 612 ABGB (General Civil Code)
68 Art. 613 ABGB (General Civil Code)
69 Arts. 707 to 709 ABGB (General Civil Code)
70 Art. 690 ABGB (General Civil Code)
71 Art. 161a General Rules on Civil Procedure in Non-contentious Matters
72 Art. 709 ABGB (General Civil Code)
73 Art. 710 ABGB (General Civil Code)
74 Art. 816 ABGB (General Civil Code)