LEXIKON

In its decision of March 26, 2026, 2 Ob 115/25p, (https://www.ris.bka.gv.at/Jus/), the Austrian Supreme Court (OGH) strengthens the legal position of beneficiaries of a compulsory share vis-à-vis a private foundation (co-)established by the decedent.

As the donee, the private foundation is obligated to provide all information necessary to determine the value of the assets that the decedent dedicated to the foundation. The decisive factor here is the date on which the transfer actually took place (the so-called “transfer of assets”). If the testator and founder are granted a comprehensive right to make changes in the foundation deed—with the authority to exercise this right alone during their lifetime—the transfer of assets does not take effect until the testator’s death.

Furthermore, the Supreme Court recognizes an unintended loophole in the law regarding information about beneficiaries and the distributions made to them. It will be virtually impossible for the heirs and the estate to obtain the information relevant to the statutory share beneficiary from the private foundation. Thus, if no beneficiary is known, the statutory share beneficiary’s right to information would generally come to naught. According to the Supreme Court, the private foundation must therefore provide information both regarding the testator’s asset transfers and regarding the granting of beneficiary status.