Unworthiness to inherit arises by operation of law, while disinheritance must be ordered in the will. What sets them apart and what matters for the compulsory portion.
Mag. Bernhard Brandauer
Attorney · BRANDAUER Rechtsanwälte, Salzburg
Inheritance matters are handled by Mag. Bernhard Brandauer together with a coordinated team. We examine the will, compulsory portion, gifts and deadlines and tell you clearly where you stand.
Unworthiness to inherit and disinheritance are often confused. Both lead to a person not inheriting. The route there, however, is fundamentally different. Unworthiness takes effect by operation of law on serious grounds, while disinheritance must be ordered by the deceased during their lifetime in the will.
This article explains the difference between the two routes, sets out the effect on the compulsory portion and clears up widespread misconceptions. It does not replace advice in an individual case but provides the basis for a realistic assessment.
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The answer shows whether unworthiness to inherit applies by operation of law or whether an effective disinheritance is needed.
Unworthiness to inherit takes effect by operation of law where a statutory ground exists. It requires no order in the will. Whoever invokes it, however, bears the burden of proving the serious ground.
Careful gathering of evidence is therefore the first step before the exclusion is raised in the proceedings.
A disinheritance withdraws the compulsory portion. It is effective only where it is ordered by will and rests on a legally permissible ground. If the ground or the order is missing, the compulsory portion claim remains.
The form and reasoning of the order decide its effectiveness and must be drafted with care.
Mere displeasure at behaviour suffices for no exclusion. Without a statutory ground for unworthiness to inherit and without an effective disinheritance, the right to inherit and the compulsory portion remain untouched.
A sober examination of the facts protects against hopeless steps in the proceedings.
Unworthiness to inherit takes effect automatically under the ABGB on serious grounds. These include, for instance, an intentional crime against the deceased or the frustration of their last will. No order in the will is needed, because the statute itself attaches the consequence.
Anyone who relies on unworthiness must, however, prove the ground in the probate proceedings. The burden of proof lies with the party asserting the exclusion. Without sound evidence the objection has no effect.
Disinheritance withdraws the compulsory portion from a person entitled to it. It is effective only where the deceased ordered it by will and based it on a legally permissible ground. Examples are gross misconduct against the deceased or a persistent way of life contrary to good morals.
If the permissible ground or the order in proper form is missing, the disinheritance is ineffective and the compulsory portion claim remains. The testamentary capacity of the deceased at the time of the order is a precondition.
Both unworthiness to inherit and an effective disinheritance lead to the compulsory portion lapsing. A widespread misconception is that a broken relationship already suffices for an exclusion. That is not the case. A statutory ground or an effective testamentary order is required.
A further misconception concerns evidence. A mere assertion does not carry. Serious grounds must be proven, for instance by documents, witnesses or criminal decisions. Anyone seeking or defending against an exclusion should order the evidence early.
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