Supreme Court case law: Important facilitation of proof of the intention to make a gift in the right to a compulsory portion

Legal disputes surrounding the estate of a deceased person are not uncommon, especially when relatives feel that they have not been given sufficient consideration. In such cases, mandatory inheritance claims come into play. The amount of mandatory inheritance claims often depends on the addition and inclusion of gifts made by the deceased prior to their death. Successful proof of such gifts can result in significantly higher mandatory inheritance claims. Current case law (OGH 19.11.2024, 2 Ob 248/23v) should make it easier to provide such evidence in future.

In the underlying case, the deceased testator and his wife had transferred their wine-growing business to the gift recipient by means of a transfer agreement. In return, the latter undertook to provide various services in return, such as the assumption of loan liabilities or the payment of a monthly pension.

As the estate was therefore no longer able to cover the compulsory portions, the deceased's children entitled to a compulsory portion sued the recipient of the gift for payment of the shortfall. In their opinion, the legal transaction constituted a mixed gift.

While the lower courts dismissed the claim due to a lack of evidence of an intention to make a gift, the Supreme Court overturned the previous rulings and clarified: In the event of a blatant disproportion between performance and consideration, a gift is not to be considered a gift. Prima facie evidence admissible to prove the intention to make a gift .

Relevance of the decision for compulsory portion proceedings

Pursuant to Sections 781 et seq. Of the Austrian Civil Code, gifts made by the deceased must be added to the estate at the request of the beneficiaries of the compulsory portion, thereby increasing the compulsory portion to be paid to the beneficiaries of the compulsory portion. If the assets in the estate are not sufficient to cover the compulsory portions, those entitled to a compulsory portion can also hold the recipient of the gift liable for payment of the shortfall (Section 789 of the Austrian Civil Code).

It is therefore in the interest of the person entitled to a compulsory portion to prove a gift increasing the compulsory portion during their lifetime in order to ultimately be able to enforce the statutory mandatory inheritance claims (in court). This requires proof of the general requirements of a gift: the objective enrichment of the gift recipient, the absence of an obligation to perform on the part of the gift giver (voluntariness) and the gift giver's intention to make a gift (voluntariness) (see RIS-Justiz, RS0018795, RS0018833). This also applies to the case of the so-called mixed gift relevant in the present judgment (RIS-Justiz, RS0019356), i. e. When a contract is composed of paid and unpaid parts.

Until now, in cases of mixed gifts, the courts have (often and not uniformly) assumed that the disproportion between the benefits is only an indication of the intention to make a gift and is not sufficient to actually prove this. The intention to make a gift had to be explicitly proven. The present decision of the Supreme Court, on the other hand, expressly allows the Prima facie evidence as a simplification of evidence for third parties worthy of protection (in particular those entitled to a compulsory portion) if there is a blatant disproportion between performance and consideration. The prima facie evidence makes it possible to infer the existence of an intention to make a gift from typical empirical values.

Conclusion and practical outlook

In legal practice, proving the intention to make a gift has regularly represented a considerable burden of proof, which could make it difficult to successfully enforce mandatory inheritance claims. This was also due to the strict case law of the Supreme Court to date, which made it practically impossible to establish the subjective intention to make a gift in individual cases.

The recent decision by the Supreme Court makes it easier for those entitled to a compulsory portion to provide evidence, taking into account the actual possibilities of evidence in everyday life. Accordingly, prima facie evidence is now permitted to establish the required intent to make a gift if there is a striking disproportion between performance and consideration. This line of case law can help to make it easier to prove the existence of gifts and help those entitled to a compulsory portion to successfully assert their claims.

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