Landmark Supreme Court decision on a forced heir's right to information against a private foundation.
Background:
In 1998, the main founder, together with his then first wife and their three sons, established a private foundation. While the main founder did not reserve the right to revoke the foundation in the foundation deed, he did reserve the unrestricted right to amend it. With the lawsuit – now decided by the Supreme Court – the widow (second wife) asserted against the foundation the right to information, both
The Supreme Court largely granted the claim but also dismissed individual partial claims.
From the Supreme Court's reasoning:
Since the 2015 inheritance law reform, the question of when a gift (contribution) to a donee – in this case, the foundation – is "actually made" is governed by the "asset sacrifice theory".
If the founder reserves the revocation of the private foundation or the Right to comprehensively amend the foundation deed if this is the case, he has not truly made the "asset sacrifice" of his asset contributions to the foundation during his lifetime; this only takes effect upon his death.1
Accordingly, the two-year period for gifts to "third parties" – as would be the case for a contribution to a private foundation – (Section 782 ABGB) has not yet expired at the time of death. In this case, the foundation can itself be liable for the forced heirship share, and the foundation must therefore have the value of all contributions from its main founder added and taken into account for the calculation of the widow's forced heirship claims.
Specifically, the OGH (Supreme Court) states (in extracts):
The statutory right to information of the forced heirship claimant (Section 786 ABGB) aims to enable the forced heirship claimant, through information about gifts, to quantify his forced heirship claim in terms of amount and/or at least roughly estimate it, and thereby enable him to assert it by legal action against the obligated party.
For this purpose, it is necessary to know both the subject of the gift and its timing.
For monetary gifts, the gifted amount must be quantified. For gifts in kind, the party obliged to provide information does not have to undertake an (own) or even expert valuation; rather, it is up to the claimant to estimate the value of the gifted item themselves.2
The right to information covers all gifts to be added.
A donee who is not also an heir only has to provide information about the contributions made to them personally by the deceased.
In contrast, the claim for information against the estate or the heirs covers, in addition to information about the existing estate assets, also all gifts relevant to forced heirship.3
To fulfill this, the estate and the heirs also have reasonable inquiries (such as reviewing documents related to the deceased's accounts and portfolios, making information requests to banks and potential beneficiaries, etc.).4
Regarding gifts, which the deceased made to third parties in a manner attributable to him via the private foundation to third parties (granting of a beneficiary position and distributions to them), the Supreme Court rules that it is undisputed that the third party (= recipient of the gift – here the foundation) must provide the forced heir with information about the beneficiary status granted to them, which is based on the deceased's will.5
The same will apply to distributions made to beneficiaries during the deceased's lifetime, based on the deceased's will. The question, discussed in legal literature with differing opinions, as to whether the private foundation must also provide information in this regard, has now been decided by the Supreme Court to the effect that the statutory right to information of the forced heir is to be interpreted broadly and also extended to the private foundation, in order to close the legal loophole not considered by the legislator in this way. The information must also be confirmed under oath.
The Supreme Court decision also contains many other interesting details; however, reproducing them would go beyond the scope of this brief report.
OGH 26.3.2026 2 Ob 115/25p
1 Reference to OGH RIS-Justiz 0135236; 2 Ob 115/25p.
2 OGH 2 Ob 220/21y [Rz 16]; RS0134043; 2 Ob 115/25p.
3 OGH 2 Ob 81/23k [Rz 20].
4 OGH 2 Ob 39/21f [Rz 31].
5 For the right to information, see § 30 PSG.
