Forced heirship and private foundations: information after OGH 2 Ob 115/25p

Section 781(2)(4) ABGB treats a dedication of assets to a private foundation as a gift for addition and attribution in forced heirship law. Under paragraph 5, granting beneficiary status can also be relevant to the extent that the deceased dedicated assets to the foundation. This does not automatically establish a payment claim against the foundation. The gift, value and calculation basis must first be established.

Under section 786 ABGB, a person entitled to demand the addition of particular gifts has an information claim against the estate, heirs and gift recipient. For a dedication of assets, the private foundation is the recipient. It must therefore provide the information needed to determine the value of the dedicated or otherwise gratuitously transferred assets at the relevant time.

Our topic page on family wealth and succession explains the interface between foundations and generational change. Disputes concerning reserved shares and estates are also covered on erbschaftsstreit.at.

Under 2 Ob 115/25p, the foundation must give information about asset dedications and other gratuitous transfers made by the deceased where they are relevant to the forced heirship calculation. This includes the date and subject of each transfer. Cash amounts must be stated, while information on other assets must enable a valuation.

The time at which the deceased made the economic sacrifice is particularly important. If the deceased retained a right of revocation or a comprehensive amendment right until death, the sacrifice may occur only at death. In that situation, the foundation must in any event disclose the status and composition of its assets at that time. In particular circumstances, third party transfers may also be relevant to separating the values.

In the case decided, the foundation also had to provide the parts of the supplementary deed relating to transfers made to the foundation. Other passages could be redacted. The judgment therefore accommodates both the claimant’s need for information and the protection of unrelated material.

A request should identify the asserted forced heirship position, the deceased, the foundation and each category of information sought. A general demand for every foundation record is less robust than a request that connects each item with the possible addition of a gift.

The Supreme Court also accepted an information duty concerning beneficiary status and actual distributions in defined circumstances. This part of the claim is derived by analogy from section 786 ABGB where the estate and heirs have no corresponding information right against the foundation and the beneficiary designation or distribution rests on the will of the deceased.

Where the deceased retained a right of revocation or comprehensive amendment until death, the foundation may need to identify the persons who were beneficiaries at that time and the distributions made up to that date. For distributions to persons who are not within the abstract class of forced heirs, the Supreme Court referred to the final two years before death for this category.

The decision does not permit unlimited inspection. The request for seven years of financial statements and management reports was rejected. Information about distributions that could theoretically have been made but were not actually made was not owed either. Parts of the claims concerning beneficiaries and distributions were remitted for further findings.

A request should therefore distinguish actual transfers, an existing beneficiary position and hypothetical possibilities. The portal guide to beneficiary information rights and the beneficiary information check concern the separate internal role under the PSG.

The forced heir’s initial file should contain the death certificate, evidence of marriage or family relationship, records from the estate proceedings, available foundation deeds, commercial register extracts and indications of asset transfers. Information on retained amendment and revocation rights is equally important because those rights can affect the time of the economic sacrifice.

The foundation should organise the history of asset dedications, the asset position at the relevant date, beneficiary registers, actual distributions and the basis showing the deceased’s will. Protected information relating to third parties cannot simply be ignored, but it also need not be disclosed without a connection to the claim. Redactions and limited extracts may provide the appropriate solution.

Before proceedings begin, the information objective should be separated from any later payment claim. Liability of a gift recipient under sections 789 and following ABGB requires additional conditions, including the actual forced heirship shortfall. In 2 Ob 115/25p, the declaratory claim presented in that case was dismissed as not yet sustainable. The result of the information process cannot be assumed in advance.

Our guide to founder rights, amendment and revocation assists with retained powers. The forced heirship file must additionally cover the estate, family relationships and relevant gifts.