The board of directors of the private foundation must — especially if the factual or legal situation is unclear — be able to appeal to the court as the decision-making body appointed to dismiss members of the Advisory Board of Trustees. Commissioning a cost-related legal opinion to interpret the foundation certificates is also very careful.
The prerequisite for the dismissal of members of the Foundation Board due to gross breach of duty within the meaning of Section 27 (2) (2) PSG is their gross negligence and their temporary or permanent nature.
Supreme Court 20.12.2023, 6 Ob 204/23b
Two subject areas are decisive for assessing the legal consequences of a spouse's disadvantaging transfer of property to a private foundation:
Does a spouse as a founder have the right to amend the foundation declaration and the right to revoke the private foundation not reserved And if he is therefore not entitled to influence and dispose of the assets of the private foundation, then — if he had brought marital assets into the private foundation without the consent of the other spouse — the two-year period of Section 91 EheG must be observed: If the founder has made a change that is disadvantageous to the (former) spouse within this two-year period, a compensation payment must be paid to him to compensate for the transfer of assets to the private foundation lay down. If the disadvantaging financial contribution was made more than two years earlier, this does not result in any compensation claims from the other spouse.
If, on the other hand, the founder has reserved the right of amendment or revocation in the foundation declaration and as a result continues to have rights of influence and disposal, Section 91 (1) of the EheG applies without the consent of the other spouse without the other spouse's two-year period.
In division proceedings, the obligation to provide information (disclosure obligation) vis-à-vis the other spouse can only relate to assets that still exist at the time of division — the date of dissolution of the marital partnership — or whose value is to be included in the distribution in accordance with Section 91 (1) of the EheG. The prerequisite is also that the opponent is presumably aware of the concealment or concealment of the declared assets (OGH 8 Ob 255/99d, SZ 73/45) and therefore there is a specific suspicion of concealment or concealment of assets (RS0034823). If one spouse asserts the obligation to provide information, the latter must specify that part of the apportionment estate that the other spouse has presumably stated incorrectly, incomplete or not at all, to the extent that the requested property statement does not contain mere evidence of discovery.
OGH 9.2.2024, 1 Ob 180/23m
remark: In my opinion, this case law is excessive and as a result means that the person who is dependent on the information because he is not aware of the other spouse's property transfers has no enforceable claim to information. If, on the other hand, he had more detailed knowledge and could therefore specify the transferred assets, he would generally no longer need the claim for information at all in order to be able to assert the claim for division.
.avif)