No "relative unworthiness to inherit" for a father who grossly neglected his maintenance obligations toward his deceased son if the son simply forgets to disinherit the father in his will
The Supreme Court recently addressed the question of whether the so-called relative unworthiness to inherit under Section 541 of the Austrian Civil Code (ABGB) also applies if the testator, due to a legal error regarding the laws of intestate succession, fails to draw up a last will and testament or simply forgets to do so.
The Supreme Court clarified: A mere legal error on the part of the testator is not sufficient for relative unworthiness to inherit. Furthermore, simply forgetting to draw up a last will and testament to disinherit a statutory heir—in this case, the father—does not result in the father being excluded from the inheritance due to unworthiness.
OGH 28.7.2026, 2 Ob 77/26a
The testator passed away in 2024 at the age of 26. He was single, had no children, and left no last will and testament. Under the laws of intestate succession, his parents were therefore generally entitled to inherit in equal shares.
In the past, the father had fulfilled his maintenance obligations toward his son, the testator, only to a very limited extent over a long period. Consequently, he was convicted in criminal court three times for violating maintenance obligations under Section 198 of the Criminal Code (StGB).
The son (the testator) was aware of his father's years of inadequate fulfillment of maintenance obligations. He was also aware that the succession could be regulated by a will. He was, in fact, capable of drawing up a will. However, what he was not aware of was the specific legal succession applicable to a single person without children. Had he known that his father could become a statutory heir in the absence of a will, he would have drawn up a will and excluded his father.
After the testator's death, the estate was assigned to the mother. The father subsequently asserted his claim to half of the estate via an inheritance lawsuit. The mother, in turn, argued that the father was unworthy of inheriting.
At the heart of the decision is Section 541 ABGB, which governs relative unworthiness to inherit .
According to this, a person is unworthy of inheriting if they
Such a breach of duty alone does not generally result in unworthiness to inherit; rather, the testator must take this as a reason to exclude the unworthy person in their last will and testament.
The grounds for relative unworthiness to inherit only apply in the absence of a testamentary provision by the testator if the testator was unable to disinherit the person in question due to a lack of testamentary capacity, ignorance, or other reasons, and provided that they had not indicated that they had forgiven the person.
It was precisely this additional requirement that was the subject of the Supreme Court's decision:
The central question was therefore whether a legal error regarding the statutory order of succession constitutes a case of "ignorance" or "other reasons" within the meaning of Section 541 of the Austrian Civil Code (ABGB), thereby preventing the testator from disinheriting the heir.
According to the legislative materials cited by the Supreme Court (OGH), relative unworthiness to inherit generally presupposes that the testator had the opportunity to disinherit the heir through an active measure.
Conversely, the legislature regularly concludes from the testator's passivity that they did not wish to disinherit the heir, despite the existence of a ground for relative unworthiness.
According to the OGH, the legislature clearly assumes that both the possibility of drawing up a last will and testament and the statutory order of succession in the absence of such a document are generally known.
On this basis, the OGH interprets the phrase "unable due to lack of testamentary capacity, ignorance, or other reasons." The term testamentary capacity is defined in more detail in Section 566 ABGB. The terms "ignorance" and "other reasons," however, require interpretation.
The OGH clearly distinguishes between ignorance of relevant facts and an error regarding the legal situation.
TheIgnorance of facts can, in principle, lead to a situation where the testator was unable to disinherit a person. If, for example, the testator is unaware of conduct by a potentially unworthy heir that fulfills one of the grounds for unworthiness, they may lack the factual basis for a corresponding last will and testament.
The situation is different in the case of a mere legal error: In the specific case, the testator knew that his father had violated his maintenance obligations. He therefore did not lack knowledge of the relevant facts. Rather, he was mistaken about the legal consequences of failing to draw up a last will and testament.
In the opinion of the OGH, this legal error is not sufficient to prevent the father in question from inheriting:
According to the OGH, the terms "ignorance" and "other reasons" cover only those circumstances that objectively prevented the testator from taking the active action required for disinheritance.
This can include, for example, a lack of knowledge regarding the grounds for unworthiness. A mere legal error regarding the necessity of disinheritance to prevent a person's statutory heir status, however, is not sufficient.
The same applies, in the view of the OGH, to simply forgetting to draw up a last will and testament.
The OGH also justifies this narrow interpretation with the requirement of legal certainty. If a legal error or simply forgetting were sufficient, it would regularly be necessary after the testator's death to investigate what they would have done had they been correctly informed of the legal situation or remembered the possibility of drawing up a last will and testament.
In the view of the OGH, the fact that the irrelevance of a legal error may result in outcomes not intended by the testator in individual cases is outweighed by the legal certainty created by a narrow interpretation of the terms.
