Legacy exceeds the inheritance share: partition order and valuation

Section 648(1) ABGB permits an heir to receive a legacy as well. In that respect, the heir is treated as a legatee. In case of doubt, the legacy is not credited against the beneficiary's share. It burdens all heirs according to their inheritance shares and is called an advance legacy.

Section 648(2) ABGB addresses the other situation. If crediting against the inheritance share was expressly ordered or follows from interpreting the will, the legacy is a legacy credited against the share. In case of doubt, it is a partition order. The review therefore starts with the testamentary instruction rather than an isolated estimate of the item.

Crediting depends on the wording of the testamentary disposition and on its interpretation. An express statement that the item is to be credited against the inheritance share points towards a legacy credited against the share. If the wording is silent, the crediting may still follow from the context of the will.

The complete disposition, codicils and every passage dealing with shares or specific items should therefore be preserved. The meaning of the entire will matters. Individual words should not be separated from the rest of the disposition.

Under section 648(3) ABGB, the beneficiary's share increases accordingly in case of doubt if the value of the legacy exceeds the inheritance share appointed in the will. The shares of the other appointed heirs are reduced proportionately to the same extent.

This is the statutory default consequence in a case of doubt. A concrete calculation still requires the appointed share, the item concerned and the other appointed heirs to be identified precisely. The review must also ask whether the wording indicates a different consequence.

Section 648(3) ABGB uses, in case of doubt, the value of the legacy at the time the testamentary disposition was made. The statutory starting point is therefore the earlier date of the instruction, rather than automatically the current market value or the value at death.

The date of the relevant disposition must be established first. The item's characteristics and valuation documents from that time can then be organised. The wording of the will may support a different interpretation. The valuation date and the interpretation should therefore be reviewed together.

Under section 648(1) ABGB, an advance legacy is, in case of doubt, not credited against the beneficiary's inheritance share. The burden is distributed according to the shares of all heirs. Under section 648(2), crediting is the starting point for a legacy credited against the share. In case of doubt, the instruction is understood as a partition order.

This distinction affects the distribution of the estate. An item may be intended as an additional benefit beside the share or as a value to be taken into account within the share. The difference must be determined from the will, not from the item's label alone.

The first review needs the original will or a reliable copy, all codicils, the date of execution and a precise description of the item. Documents concerning the estate and the appointed shares should be kept with the same file.

Earlier purchase documents, valuations, market material, financing records or other contemporaneous evidence may help with the relevant valuation date. They show which characteristics and value were in view when the disposition was made. Later changes in value should be recorded separately.

A clear review separates five questions: Is the beneficiary an appointed heir? Was crediting expressly ordered? Does it follow from interpretation? Does the value exceed the appointed share? Which valuation date follows from the will and section 648(3) ABGB?

Assign the relevant document and possible consequence to each question. This shows whether the dispute concerns the meaning of the will, the valuation or the effect on the other shares. A written comparison of the alternatives supports the next legal review and preparation for an agreement.