Grounds of unworthiness in an estate: exclusion and evidence

Under section 539 ABGB, a person is unworthy to inherit if they committed a criminal offence against the deceased or the estate which can only be committed intentionally and carries a statutory penalty of more than one year of imprisonment. Several elements must therefore be examined together: the person or estate affected, the intentional nature of the offence and the statutory penalty.

It is not enough to describe conduct as “serious”. The exact criminal offence alleged and its statutory requirements must be identified. Section 539 ABGB also contains an important qualification: the deceased may have indicated that they forgave the person. That issue must be assessed from the circumstances of the particular case.

Criminal complaints, investigation files, judgments, orders, medical records and witness statements do not prove the same thing. The relevant question is whether the material establishes the act, the intention and the connection to the deceased or the estate. An unverified suspicion or file number is not a substitute for that assessment.

A separate ground under section 540 ABGB applies where a person intentionally frustrated, or attempted to frustrate, the true last will of the deceased. The provision gives examples such as coercing or fraudulently inducing the deceased to make a will, preventing a declaration or alteration, or suppressing an already executed will.

The central question is therefore what last will the deceased actually intended to make and implement. Different versions of the will, custody records, conversations and the alleged influence should be placed in chronological order. It can matter whether a document was deliberately withheld or simply not found.

Missing documents should not be replaced by assumptions. Targeted access to the probate file can show which testamentary documents and statements are already on file and where an evidentiary gap actually exists.

An allegation of unworthiness should be broken down into facts: what is said to have happened, when, who was involved and which statutory element it is meant to establish. Only then does it become clear whether a document fits the allegation. Messages may prove contact, a medical record a condition and a judgment a criminal decision; none automatically answers every question.

A chronological evidence file is useful. It should contain the will and later additions, the death certificate, procedural correspondence, criminal documents, messages, medical records and the names of potential witnesses. Add a short note to each item explaining the fact it is intended to support. This makes contradictions and gaps visible early.

Probate proceedings should not be overwhelmed by a general family history. The statutory ground is decisive. Describing estrangement, old grievances or a dispute about distribution does not, by itself, explain why section 539 or 540 ABGB should apply.

Under section 543(1) ABGB, capacity to inherit must exist at the time the inheritance devolves. If, after devolution, a person commits an offence against the estate within the meaning of section 539 or frustrates, or attempts to frustrate, the true last will within the meaning of section 540, section 543(2) ABGB can cause the person to lose capacity retrospectively. The timing of the conduct should therefore be recorded precisely.

In intestate succession, section 542 ABGB provides that the descendants of the unworthy person take their place, even if that person survived the deceased. Exclusion does not therefore necessarily mean that the share simply passes to the remaining heirs. The descendants and the particular succession must be examined.

These consequences show why exclusion should not be alleged hastily. A valid ground can materially change the distribution of the estate. An unsupported allegation can instead complicate the proceedings and create a dispute between several heirs.

Start with a short timeline: date of death, devolution of the inheritance, will and additions, alleged conduct and reactions in the proceedings. Then assign each item of evidence to a specific fact. This preparation remains useful even if it later turns out that a different inheritance issue, rather than unworthiness, is decisive.

If an inheritance dispute about the position of an heir or the compulsory portion is running at the same time, keep those questions in separate files. The ground of unworthiness should not be mixed with the calculation of the compulsory portion or the interpretation of the will.

The legal assessment will usually require the will and additions, the probate file, available criminal documents and evidence of the alleged conduct. Only with these materials can it be assessed whether a statutory ground has been presented in a way that can be pursued in the proceedings.