Oberster Gerichtshof; 2024-06-25; 2 Ob 88/24s
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2024:0020OB00088.24S.0625.000
Date: 2024-06-25
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82024AT0625(51)_ENG_SUMJURE
JURE summary
JURE summary
The widow of a deceased person who died in 2019 (hereinafter ‘the plaintiff’) claimed her compulsory portion from the estate (hereinafter ‘the defendant’) in the amount of EUR 8 545 706.19.
The plaintiff argued that she was entitled to pursue its claim under Austrian law. The defendant and the intervening parties disputed both the international jurisdiction of the court seised and the claim to a compulsory portion. They claimed that the deceased had his last habitual residence in Spain, which meant that Spanish inheritance law was applicable. In addition, they declared the plaintiff unworthy of inheritance as she had misappropriated valuable assets and made false statements about gifts. This constituted qualified fraud and embezzlement.
The Landesgericht für Zivilrechtssachen Wien (hereinafter ‘the Court of First Instance’) rejected the plea of international lack of jurisdiction and ruled in an interim judgement that the plaintiff was entitled to a compulsory portion and, in particular, was not unworthy of inheritance.
Based on the defendant's appeal, the Oberlandesgericht Wien (hereinafter ‘the Court of Appeal’) confirmed the decision of the Court of First Instance with the proviso that the judgement should state that the claim was ‘justified on the merits’.
The Oberster Gerichtshof (hereinafter ‘the Supreme Court’) dismissed both the revision and the defendant's extraordinary revision. The defendant could not rely on the fact that the lack of jurisdiction of the Court of First Instance under Article 15 of Regulation (EU) No 650/2012 (1) had to be taken up ex officio at any stage of the proceedings because the decision on lack of jurisdiction was governed by national procedural law. The existence of a final and binding decision therefore also precludes a new review by the Supreme Court within the scope of application of Article 15 of Regulation (EU) No 650/2012.
The lower courts ruled correctly, as the deceased had his habitual centre of life in Austria despite having a house in Spain and spending time there. This conclusion was based on his regular residence in Vienna, the use of an office and his family ties, such as picking up his children from school. The mere possession of a holiday home in Spain is not sufficient to transfer the habitual residence there. In addition, the Supreme Court ruled that there was no unworthiness to inherit as the alleged offences committed by the plaintiff occurred within the family circle and are privileged under criminal law. Such a privileged offence does not lead to unworthiness to inherit pursuant to Section 539 of the ABGB (2).
The Supreme Court dismissed the defendant's revision as inadmissible. The Supreme Court dismissed the extraordinary appeal as inadmissible due to the lack of a significant legal issue.
(1) Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession.
(2) Allgemeines bürgerliches Gesetzbuch (Austrian General Civil Code).