Sections 657 and 658 ABGB distinguish a generic legacy tied to the deceased’s property from the heir’s duty to procure missing items.
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.
A generic legacy may cover several items of the same kind. The legal consequence depends on whether the will expressly requires those items to come from the deceased’s property. If individual items are missing, the legatee cannot automatically turn the shortfall into a procurement claim against the heir.
Section 657 ABGB limits an expressly property-bound legacy to the items found when the estate contains fewer items than the will names. Section 658(1) ABGB leads to a procurement duty where the legacy is not expressly tied to the deceased’s property. The wording and the inventory must therefore be reviewed together. The articles on cash legacies and charitable legacies address different legacy questions.
A short orientation separates the property restriction, the procurement duty and unclear wording.
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The key question is whether the items are expressly meant to come from the deceased’s property.
Check which items of the named class are in the estate and whether the will requires them to come from the deceased’s property. Under Section 657 ABGB, a smaller number means that the legatee is limited to the items found.
The article on returning estate items helps organise the individual items.
If the will does not expressly require the items to come from the deceased’s property and the items are absent from the estate, Section 658(1) ABGB requires the heir to procure them in a quality corresponding to the legatee’s needs.
The article on charitable legacies addresses a different interpretation question in the performance of a legacy.
Where the wording is open, the heading of the legacy is not enough. Secure the will, later additions, inventory and evidence about the deceased’s ownership before demanding procurement or delivery.
The legacy glossary entry explains the basic terms for an initial classification.
A generic legacy describes items by their kind or class. The decisive addition concerns their origin. If the legacy is meant to come from the deceased’s property, Section 657 ABGB is the relevant starting point. The wording may refer to a collection, household items or other property belonging to the deceased.
If the property restriction is absent, Section 658(1) ABGB provides the other consequence. Where items of the named class are absent from the estate, the heir must procure them in a quality corresponding to the legatee’s needs. The origin of the items must therefore be classified before the claim is formulated.
Section 657 ABGB distinguishes between the complete absence of property-bound items and a smaller number. If none of the required items is in the estate, the legacy is invalid under that provision. If some items are found, the legatee must accept the items available.
The inventory must therefore be compared with the will and the actual estate. For each item, record its precise description, location and information showing whether it belonged to the deceased. The quantity question remains separate from an express right to choose between specified items.
The procurement duty in Section 658(1) ABGB requires that the will does not expressly make the items part of the deceased’s property and that the items are absent from the estate. The heir then owes an item of the named class in a quality corresponding to the legatee’s needs.
The practical review must describe the class, the required quality and the need in a traceable way. A phrase such as “several items” does not by itself answer which quality or version is owed. The request should connect the testamentary wording, the missing quantity and the required quality.
The claim starts with a quantity comparison. Record the number named in the will, the items present in the estate and whether the wording ties the legacy to the deceased’s property. This shows whether Section 657 ABGB limits the legacy to items found or Section 658(1) ABGB requires procurement.
Under Section 657 ABGB, the legatee’s statement should address the items found and their delivery. Under Section 658(1) ABGB, the request may demand procurement of the missing items in the quality required by the legatee’s needs. The article on returning estate items deals with the classification and evidence of individual assets.
Place all wills, later additions and supplementary statements in a chronological file. Add the inventory, photographs, invoices, insurance documents, purchase records and evidence about ownership. The documents should show what was ordered, which quantity was intended and which items were found in the estate.
Arrange the evidence by item and quantity. Mark differences between the will, the inventory and the actual holdings. The probate proceedings focus explains the estate process. The inheritance dispute focus leads to further questions about claims, evidence and procedure.
Due date, estate position and security when heirs do not pay a cash legacy.
Interpretation, beneficiary and performance of a gift to an organisation.
Classification and evidence concerning individual assets in an inheritance dispute.
Basic terms for a testamentary gift.
Estate administration, documents and further review steps.
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