What had happened?
The deceased, who died in 2018, is survived by his wife. In a 2015 will, he named his caregiver and her husband as heirs.
Course of the proceedings
The wife did not want to accept the will as it stood and made a declaration of acceptance of the inheritance. In the subsequent court proceedings, however, the first and second instances ruled in favor of the caregiver and her husband and established their right to inherit on the basis of the will. The courts rejected the declaration of acceptance by the deceased’s spouse. The wife of the deceased appealed against the decision of the second instance to the Austrian Supreme Court (Oberster Gerichtshof, OGH). She argued, in essence, that pursuant to Section 1 para. 1 of the Regulation on the Rules of Professional Conduct for Personal Care Services, the acceptance of services as a personal caregiver without equivalent consideration was prohibited and, therefore, pursuant to Section 879 para. 1 of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB), the will or the declaration of acceptance of the inheritance must be deemed invalid.
How did the Supreme Court decide?
The Supreme Court considered that the requirements for the extraordinary appeal were not met and therefore dismissed the appeal.
Regarding the legal arguments, the Supreme Court stated that the argumentation of the court of second instance, namely that the central purpose of the regulation was to protect the person under care, but that this protection was no longer necessary in view of the increase in assets of the caregiver that occurred only after death, did not raise a substantial question of law. In carrying out their activities, caregivers must take into account the welfare of the person to be cared for (Section 1 para. 1 of the Regulation) and the care must be guided by the principles of economy, efficiency, and expediency (Section 1 para. 2 of the Regulation). In the opinion of the Supreme Court, these provisions support the purpose of the law as elaborated by the court of second instance. The same applies to the documentation and information obligations laid down in the Regulation (Section 1 para. 3 Regulation and Section 2 para. 1 Regulation) and the specification of the minimum content of the contract (Section 2 para. 2 Regulation). The prohibition relevant here, namely that a caregiver may not accept any services without corresponding consideration, is also aimed at averting disadvantages from the person under care.
As a result, the will retained its validity and the caregiver and husband could therefore accept the inheritance provided for in the will.
(Decision OGH 2 Ob 15/23d of 21.02.2023)
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