Status: August 2015
Inheritance Law Amendment Act 2015
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The following presentation is intended to provide a rough overview of the Inheritance Law Amendment Act 2015. One of the legislator’s aims was to adapt the law of succession to modern language. For example, the ABGB no longer speaks of the heir but of the beneficiary of the compulsory portion, no longer of the (joint) fideicommissary substitution but of the substitute or subsequent inheritance and no longer of the legatee but of the bequeather. Some provisions that are no longer up to date have been abolished. The reform of the law of succession comes into force on 1.1.2017, whereby the new regulations are in principle only applicable to deaths from that date onward (see § 1503 para 7).1
The third-party will is the last will that was not written by the testator in his or her own hand, but by means of a computer, printer, etc. The now stricter design is intended to increase protection against forgery: The person making the disposition must confirm the disposition in another’s hand by means of an addition written in his or her own hand on the document (nuncupatio). It must be clearly derivable from this that the deed contains the last will and testament of the person making the disposition. All three witnesses to the will must be present at the same time when the testator signs and affirms the deed. The document shall state the first and last names, date of birth or address of the witnesses. The witnesses must sign the document with their own hand, indicating that they are witnesses. The witnesses do not need to know the content of the order.
In the light of the UN Convention on the Rights of Persons with Disabilities, the previous restriction on the ability to act must be viewed critically. Furthermore, § 568 old ABGB puts people for whom a guardian has been appointed in a worse position than other mentally impaired people for whom no guardian has been appointed, which is not objectively justified. Therefore, in future, persons under guardianship will no longer be restricted to certain forms of wills.
If, from the point of view of the testator, there is an imminent and justified danger that he or she will die or lose testamentary capacity before he or she is able to declare his or her last will and testament by other means, he or she may declare his or her last will and testament orally or in the presence of two witnesses. Such an oral testamentary disposition must be confirmed by the concurring statements of the witnesses. An emergency will can, as before, be made by a third party or orally in front of two witnesses. What is new is that minors of age can also testify to the making of the emergency will according to § 587 new ABGB. The cessation of the validity of the emergency will also cancels the revocation of an earlier testamentary disposition effected thereby.
In addition to the heir and legatee, their spouses, parents, children and siblings as well as persons related by marriage to the same degree are not capable witnesses. This provision is supplemented by the registered partner and significant other.
The newly introduced § 725 para 1 ABGB provides for the presumption of a tacit revocation of a testamentary disposition that was made before the dissolution of the marriage, registered partnership or cohabitation – which took place during the lifetime of the deceased. This means that with the initiation of divorce proceedings, the status of dependant is lost. If the testator wishes to avoid this legal consequence, he or she must expressly provide for this in the will. The same applies to the annulment of filiation and to the annulment of an adoption in lieu of a child.
Strengthening of the statutory right of inheritance, since the spouse or registered partner of the deceased without children or parents now displaces his or her siblings and grandparents and receives the entire estate.
If there is a lack of heirs or legatees and the estate would fall to the Federation, then the cohabitant inherits, provided that he or she has lived together with the deceased in the household for the last 3 years. However, § 748 para. 2 new ABGB must be taken into account, according to which the cohabitant can inherit despite the absence of a community of residence, if a typical special bond existed.
Due to the abolition of the right to a compulsory portion of the ancestors, only the descendants and the spouse of the deceased are entitled to a compulsory portion in the abstract in the future.
The care legacy is in principle due to close persons who cared for the deceased before his or her death. The deceased must have been in need of care and must have been cared for by the person addressing the bequest for at least six months. The carer must have cared for the deceased for an average of more than 20 hours per month. The care legacy is also only entitled if no remuneration has been agreed upon for the services. If a fee was agreed upon, then there is a claim under the law of obligations against the estate. However, insofar as the remuneration does not reach the amount stipulated in section 678 (1) ABG, the care legacy may be payable in the amount of the difference. According to § 677 para 3 ABGB, possible claimants are first of all the legal heirs (such as spouses, registered partners, children and children’s children, parents, siblings, grandparents and uncles and aunts, cousins and great-grandparents), but also their spouses, registered partners, cohabitants and again their children, as well as the cohabitant of the deceased and his children. The amount is determined according to § 678 para. 1 ABGB (Austrian Civil Code), whereby the assessment is primarily based on the benefit provided to the recipient, which often consists of the saving of his or her own expenses. It does not depend on value of the estate. If the estate is not sufficient payment, then it depends on whether a conditional or an unconditional declaration of acceptance of the inheritance has been made. If the care provided or the need for care is disputed, § 174a AußStrG is to be consulted. § Section 678 (2) ABGB clarifies that the care legacy is due in addition to the compulsory portion and other benefits from the estate. In the case of the latter, the deceased may direct otherwise. Offsetting against the compulsory portion is, however, not possible. The beneficiary of a care legacy is exempt from the obligation to contribute under section 764(2) ABGB.
The donation is effective as a contract after the death of the donor if the notarial deed form has been observed and the donor has not reserved a right of revocation. Neither an express waiver of revocation nor the delivery of a corresponding deed to the donee is required any longer. The contract is subject to the donation law according to § 956 ABGB. The limit here is § 1253 ABGB. An effective donation is to be taken into account as a liability and is subject to the rules on additions and imputation under the law on compulsory portions.
The right to the compulsory portion is acquired by the beneficiary of the compulsory portion upon the death of the deceased. From this point in time, his or her right to a compulsory portion is also inheritable; judicial assertion is not a prerequisite for inheritability. The compulsory portion becomes due upon the death of the deceased. The claim to the compulsory portion of the money is asserted one year after the death of the deceased, but interest (4% p.a.) accrues. This mere deferral only postpones the assertion but not the due date. The testator has the possibility to order a deferral or payment by instalments of the compulsory portion for a maximum of 5 years. The court can extend this to a maximum of 10 years. The order shall be made at the request of the debtor of the compulsory portion.
All claims under inheritance law are subject to a uniform limitation period of 3 years. The time limit begins to run with the knowledge of the beneficiary of the facts relevant to the claim. Note the absolute 30-year time limit, which begins to run upon the death of the deceased.
1 All remarks are based on the explanations of the Parliament