Years ago I signed a waiver of inheritance because my father gave me money at the time. Am I out?
Your co-pilot in inheritance law
Mag. Nevena Shotekova-Zöchling
Attorney in Vienna · 16 years of legal practice · Inheritance law
A waiver is only as strong as the moment in which it was signed.
The suspicion
The father is convinced: his son cheated him in the family business. He wants his son to waive his inheritance. The son receives a sum of money and signs a waiver of his inheritance and compulsory share. He signs under pressure.
Years later the father dies. By now the estate has grown. The son has only the sum from back then. Does this contract hold?
That the estate had grown hardly mattered legally. What mattered was why he had signed.
A waiver in exchange for money is always a bet on the future. If the assets later become worth more, that alone is no reason to set the contract aside. But this waiver stood on two shaky legs: the father assumed a fraud that never happened. And the son had not decided freely but signed under pressure.
We represented the son and challenged the waiver. In the end there was a settlement.
The lesson: whether a waiver holds is decided not by the value of the estate, but by the circumstances under which it was signed.
What the law says
- Form: a waiver of inheritance is a contract with the future testator. It requires a notarial deed or a court record (section 551 of the Austrian Civil Code, ABGB). Without this form it is ineffective.
- Scope: you can waive the entire right of inheritance or only the compulsory share. Unless agreed otherwise, the waiver also applies to your own children.
- Increase in value: the fact that the assets are later worth more does not make the waiver invalid. You accept this risk with the settlement payment.
- Challenge: like any contract, a waiver can be challenged for defects of consent, for example unjust and well-founded fear (duress, section 870 ABGB), fraud or mistake (section 871 ABGB). The person challenging must prove it.
- Time limits: they are short and depend on the ground. In the case of pressure, they usually only start once the coercive situation has ended. This is exactly where many cases are decided.
- If the waiver falls, the payment received back then is taken into account. You do not get both.
You waived and now have doubts?
- Get the contract and have it checked: form, scope, payment.
- Secure the circumstances of back then: messages, letters, witnesses. Who applied what pressure, and how?
- Act quickly. Time limits are running, and they are often the real sticking point.
You want a waiver to hold later?
- No signature under time pressure. Allow time to think.
- Independent advice for the person waiving. Someone who was independently advised can hardly claim pressure or mistake later.
- A fair payment, clearly documented. And a clear rule on whether the waiver also applies to the children.
How lifetime gifts are taken into account: Gift to my sister – is 50:50 really fair? →
A waiver of inheritance from years ago?
We check whether it holds and what you can do. Or we draft it so that it holds later. Initial assessment within 48 hours on working days; the first consultation is free of charge.
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