Condition and Time Limit

Condition and Time Limit

Condition and time limit are legally permissible secondary provisions in a will. They enable the testator to attach the accrual of an inheritance or legacy to certain conditions or to control it in terms of time. While the condition depends on the occurrence of an uncertain event, the time limit specifies a fixed point in time for the start or end of the donation.

Condition and time limit regulate when and under what circumstances an inheritance becomes effective. The condition depends on the “whether”, the time limit only on the “when” of the event.

Condition and Time Limit in the Will

Anyone who wants to structure their estate in a targeted manner can, in addition to the appointment of an heir, also provide for conditions or time limits in a last will and testament. These so-called secondary provisions make it possible to tie the inheritance to certain conditions or to limit it in time.

Definition of Condition

A condition exists if the acquisition or loss of a right depends on a future, uncertain event (§ 696 ABGB). There are different forms:

• Suspensive Condition: The right of inheritance only arises when the event occurs.
• Resolutory Condition: The right of inheritance is lost when the event occurs.
• Positive Condition: The event must occur.
• Negative Condition: The event must not occur.

Example: “My son inherits my house if he completes his medical studies.” The right of inheritance only arises when the condition is fulfilled.

According to § 695 ABGB, a last will and testament can be restricted by a condition or time limit. This gives the testator the opportunity to adapt the legal succession to his or her wishes.

Inadmissible and Ineffective Conditions

Not all conditions are legally permissible. The law sets clear limits:

• Incomprehensible or indefinite conditions are considered not to have been imposed.
• Conditions contrary to public policy or illegal: e.g. prohibitions of marriage or religious coercion are void.
• Impossible suspensive conditions invalidate the order.
• Impossible resolutory conditions are considered not to have been imposed.

According to case law, anyone who invokes a condition bears the burden of proof for its admissibility and fulfillment.

Sebastian Riedlmair
Harlander & Partner Attorneys „In der Gestaltung letztwilliger Verfügungen ist Präzision entscheidend. Schon kleine Unklarheiten bei Bedingungen können die gesamte Regelung zu Fall bringen.“

Definition of Time Limit

In contrast to the condition, the time limit is linked to an event that is certain to occur. Here, too, a distinction is made:

• Suspensive Time Limit: The right only becomes effective from a certain point in time.
• Resolutory Time Limit: The right ends on a fixed date.

Example: “My daughter will receive my condominium from her 30th birthday.” The inheritance is certain. However, the transfer will take place at a later date.

Consequences of Impossible or Incorrect Time Limits

• An impossible start date invalidates the order.
• An impossible end date is considered not to have been imposed.
• If there is a calculation error in the time specification, the true will of the testator must be determined.

Comparison of Condition and Time Limit

Condition and time limit are among the most common secondary provisions in wills. Both shape the law of inheritance according to the will of the testator, but differ fundamentally in their legal effect.

Condition: Uncertainty about the Occurrence

In the case of a condition, it is not certain whether the event will occur at all. It is an uncertain, future event. If the inheritance is placed under a suspensive condition, it will accrue to the beneficiary only upon the occurrence of the event. A typical example would be:
“My daughter will inherit my vacation home if she completes her studies.”

In the case of a resolutory condition, the inheritance initially accrues, but can be lost again upon the occurrence of the event. For example:
“My son will inherit my company provided he does not emigrate.”

Such conditions legally lead to a state of suspension, which is often only legally concluded after the occurrence or non-occurrence of the event.

Time Limit: Certainty about the Event, but not about the Time

In the case of a time limit, it is certain that the event will occur and the testator determines when the right of inheritance should begin or end.

A suspensive time limit postpones the effectiveness of the order to a specific point in time. Example:
“My daughter will receive my condominium from her 30th birthday.”
The daughter is already an heiress, but can only dispose of the apartment from the specified date.

In the case of a resolutory time limit, the right ends automatically on the specified date. For example:
“My nephew receives the right of residence in the house until the year 2035.”
After this period has expired, the right expires without further action.

Essential Distinction

In summary, the difference is:

• The condition regulates, whether a right of inheritance arises or remains in existence.
• The time limit determines when the right of inheritance begins or ends.

While legal uncertainty and questions of evidence are in the foreground in the case of the condition, the time limit offers a clear temporal structure. In practice, it is crucial that both instruments are legally permissible, clearly formulated and sensibly coordinated.

Legal Consequences for Appointed Heirs

Anyone who is appointed as an heir by a suspensive condition must still experience the occurrence of this condition and be capable of inheriting at the time of its occurrence.

In the case of time limits, the right of inheritance is already secured upon the death of the testator and the transfer takes place at a later point in time.

If several persons are designated in the will who are to inherit one after the other, this is referred to as preliminary and subsequent inheritance. In such cases, the first person may use the inheritance, but must preserve it so that it can later be passed on to the subsequent person.

Sebastian Riedlmair
Harlander & Partner Attorneys „Ob Bedingung oder Befristung, entscheidend ist immer, dass der letzte Wille klar,durchdacht und rechtssicher formuliert wird“

The Condition as a Supplementary Provision

The condition is regulated in § 709 ABGB. It obliges the heir or legatee to behave in a certain way without calling the right of inheritance itself into question. In contrast to conditions, the most precise fulfillment possible is sufficient.

Example: “My granddaughter receives the house on the condition that she takes care of my dog.” If the condition is not culpably fulfilled, it can lead to the loss of the inheritance.

The distinction from the condition is made on the basis of the testator’s will.

• If the behavior is a prerequisite for the acquisition, it is a condition.
• If it is only to occur after the acquisition, it is a condition.

Classification under Procedural Law

The enforcement of conditional or time-limited inheritance orders takes place within the framework of the estate proceedings. There are no special judicial responsibilities. The general statutes of limitations apply to any lawsuits.

Your Benefits with Legal Assistance

• Ensure admissibility: We check whether your condition is legally effective.
• Incorporate substitute regulations: We prevent an inheritance from being lost without replacement.
• Optimize formulation: We ensure clarity and avoid disputes.

Frequently Asked Questions – FAQ