In the decision 8 Ob 101/20s, the Supreme Court ruled that
- Benefits to the debtor from her position as beneficiary from the opening of insolvency proceedings,
- the debtor’s right to future benefits from her position as beneficiary and
- the debtor’s right to waive its status as beneficiary (in return for payment)
are part of the insolvency estate and are therefore withdrawn from the debtor’s free disposal and are to be collected and utilized by the insolvency administrator.
The daughter and son of one of the founders were beneficiaries of the private foundation in question. Insolvency proceedings were opened against the daughter’s assets. The insolvency administrator wanted to realize the rights of the daughter. According to § 6 para. 8 of the foundation’s supplementary deed, the foundation’s board of directors had to revoke the beneficiary’s status at the request of a beneficiary. In the event of such a revocation, the beneficiary’s share of the distribution was to be transferred pro rata to the other beneficiary or beneficiaries in accordance with § 4 para. 1 of the foundation’s supplementary deed.
The debtor’s half-brother has submitted an offer to the insolvency administrator in the amount of EUR 1,700,000 to waive the debtor’s status as beneficiary.
The debtor subsequently spoke out against the planned realization of the beneficiary position, emphasized the maximum personal nature and non-transferability of the beneficiary position and disputed that the claims belonged to the estate.
In principle, the status of beneficiary is highly personal. According to § 5 PSG, a beneficiary is anyone who has either been designated by name or individually in the foundation declaration or has been determined by the decision of a body appointed by the founder. According to the prevailing opinion, the position of beneficiary is therefore neither inheritable nor transferable to third parties by means of a legal transaction between living persons. It is legally impossible to sell the status of beneficiary because a beneficiary is not in a position to transfer his or her highly personal right to another person with effect for the foundation. According to § 5 PSG, only the foundation declaration, a body appointed by the founder and otherwise the foundation board determine who becomes a beneficiary.
However, the founder is free to include provisions in the foundation declaration that are equivalent to inheritance, such as the entry of certain descendants of beneficiaries after their death. In this case, too, the legal basis for obtaining the beneficiary is not the law of succession, but the designation of the successor in the foundation declaration.
The founder can also give beneficiaries the opportunity to relinquish their position as beneficiary by means of a unilateral decision. In doing so, he can also regulate whether the contributions that would have been made to the waiving beneficiary cease in the future or whether they are to be transferred to a successor to be determined within the meaning of § 5 PSG or – as here – are to accrue to the other current beneficiaries on a pro rata basis. The successors do not acquire their legal position through a legal transaction with the transferor, but acquire their own right based on the founder’s will.
A payment agreement between the previous and subsequent beneficiary for the waiver is not equivalent to a sale, but is made between third parties from the perspective of the foundation and has no legal effect on it. Nor were such payment agreements prohibited as undesirable in the foundation declaration.
The beneficiary (or in this case the insolvency administrator) was therefore at liberty, within the scope of contractual freedom, to enter into a remuneration agreement with someone who would benefit financially from the voluntary departure due to the succession arrangement provided for this case by the founder. The insolvency administrator was therefore entitled to realize this asset component and was able to exercise the necessary declaration in place of the debtor for the benefit of the estate
Before waiving a beneficiary position (for a fee or free of charge), not only legal but also tax advice should be sought.