15.11.2019
A mistake in motive (an error is made about the motives that led to the conclusion of a contract, but not about the content of the contract itself) is generally not relevant. However, the legislator stipulates otherwise in § 572 ABGB for testamentary dispositions. § 572 ABGB states: "Even if the motive stated by the deceased turns out to be incorrect, the disposition remains valid unless his will was based solely and exclusively on this erroneous motive." In other words: in the case of a will, it can be essential that the deceased was mistaken about his motive, and the will can be successfully contested on this basis (usually by overlooked heirs).
In a recently published decision (OGH 2 Ob 41/19x), the Supreme Court had to deal with an error of motive that had led to a new last will and testament and, furthermore, with the validity of this last will and testament.
The facts to be assessed can be described as follows: A wife had a will drawn up by a notary and also informed the notary of the reason for doing so: she named her niece as sole heir because she thought that her husband was having an affair with the neighbor. The wife therefore wanted to prevent the neighbor from inheriting her assets. However, she wrongly assumed that her husband's relationship with the neighbor was so intense that he would make the neighbor his heir. In fact, the relationship with the neighbor was purely friendly during the wife's lifetime.
The husband cared for and looked after his wife until her death and remained the center of her life. The will that disinherited the husband contained no indication that it had only been drawn up because of the alleged affair. In the probate proceedings for the wife, both the husband's estate and the niece made an unconditional declaration of acceptance of inheritance as sole heir to the entire estate. The Supreme Court had to decide whether the will was invalid due to an error of motive according to Section 572 of the Austrian Civil Code (in which case an older will that had named the husband as sole heir would have been revived).
The materials for § 572 ABGB state: "This provision regulates the relevance of the error of motive. Based on the results of the assessment procedure, the current draft largely adheres to the previous law. However, it should be made clear that the motive must be 'stated' in the order in order to be relevant (different from OGH 10 Ob 2/06a). Furthermore, it should be important that the will of the deceased was based 'solely and solely' on an erroneous motive; simple causality should not be sufficient. The other changes are of a linguistic nature."
The Supreme Court noted that the materials were incomprehensible in that the content of the norm had remained unchanged by the inheritance law amendment, so it was not clear how it should have been made clear that the motive had to be stated in the disposition. Based on the wording of the law, this understanding was not mandatory in either the old or the new version. In addition, the legislative materials were not law and did not interpret it authentically (OGH 6 Ob 4/08v). According to the clear wording of Section 8 ABGB and case law, the authentic interpretation of a law can only be made by a declaration by the legislature that is presented as law and has also been promulgated as law (OGH 1 Ob 222/05m). The previous case law (OGH 6 Ob 168/13v mwN; see also 10 Ob 2/06a) on § 572 ABGB states that an error of motive is also significant if it was not expressly stated in the relevant last will and testament. The OGH saw no reason to deviate from this case law: the case law does not contradict the wording of the law, because it only requires that the testator has "stated" the motive. The law does not say that this must be done in the last will and testament. The testator can also "state" his motives elsewhere, for example (as here) at the notary or in other conversations or even in written records. In inheritance law, the true last will of the testator should generally be given priority ("will theory" (OGH 2 Ob 190/08t)). The existing case law (OGH 6 Ob 66/73; 6 Ob 659/77; 6 Ob 722/78; 2 Ob 572/85; 1 Ob 656/87 et al.) is more likely to achieve this goal because the error of motive must be taken into account even if the motive is not mentioned in the order.
In order for an error of motive within the meaning of Section 572 ABGB (both in the version before the ErbRÄG 2015 and in the version of the ErbRÄG 2015) to be taken into account, even according to new case law, it is still not necessary for the deceased to have "stated" his motive in the last will and testament. An error of motive can still lead to a more recent will being contested.