unternehmensnachfolge-anwalt.at
Mag. Bernhard Brandauer, Rechtsanwalt
How a will and the articles of association interact in Austrian business succession and where a mere testamentary instruction does not steer the company.
For many owners a new will is the first visible step of succession planning. It can be written quickly, revoked later and sends a clear signal to the family. Precisely there lies the misunderstanding: the will governs personal succession, not the articles of association. Anyone who wants to steer both at the same time has to understand and align the two layers; otherwise the testator's wishes end up without a workable implementation in the company.
The articles are the frame within which a shareholder's legal position moves. They govern transferability, succession by heirs, buy-out and consent requirements. Amendments to the articles require a notarised shareholder resolution under section 49 GmbHG and only take effect once entered into the company register. A will cannot unilaterally set aside or amend that structure. It can, however, mirror or contradict the outcome on death.
This article maps the interactions and shows which questions to answer first. It does not cover general testamentary disputes or forced-heirship proceedings and does not replace a detailed review of the actual articles. For the preparation of a first meeting the checklist for the initial succession consultation is a useful starting point.
The check separates will, articles and execution. Its result can be sent to the firm with the key facts.
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Start with a stock-take: shares, roles, family constellation, current obligations. Only then can the will and any amendments to the articles be planned sensibly. The sequence matters so that the testator's wishes actually take effect on death.
Without transfer restrictions, buy-out rights and clear consent requirements, the co-shareholders and the intended beneficiary end up in a suspended state. Will and articles must support the intended person; otherwise the wishes clash with the applicable articles.
Where the articles clearly regulate who receives shares on death, the will supplements only personal succession, legacies, conditions or waivers of attribution. Contradictions are avoided if the will quotes the articles directly and its dispositions build on them.
If buy-out, consent or exclusion clauses are missing, contradictory positions arise on death. The articles should be refined first. The will can then refer to the new version. Otherwise the will runs against an articles regime that does not exist.
Where both layers are outdated, parallel work is appropriate. The articles are aligned with the current family and the reality of the business, the will reacts to the new articles and the forced-heirship structure. Only then does succession planning look coordinated rather than a set of unrelated fixes.
Under section 552 ABGB the will is a revocable statement of an individual's last wishes. It determines who becomes an heir, in which portion and with what conditions. Section 564 ABGB requires the last wishes to be declared personally. Holographic and allographic wills are governed in particular by sections 578 and 579 ABGB; section 601 ABGB makes a disposition invalid when a mandatory formality has not been observed.
The articles of a GmbH are not a testamentary disposition. They arise from a legal act of the shareholders. Under sections 49 and 50 GmbHG an amendment generally requires at least three quarters of the votes cast, a notarised resolution and entry into the company register; the law or the articles may impose further requirements. A will cannot substitute that process. It can, however, influence who is entitled to work on the articles after the death of the shareholder.
In practice this means: first order the articles, then declare the wishes. A will that contradicts an articles clause does not cause the articles to fall away. It creates a competition that is hard to resolve. That is why succession planning that only signs a will at the notary often does not deliver on its promises.
The law of succession determines who becomes an heir on death, who receives legacies, which conditions apply and how the estate is allocated relative to forced heirs. The related matters of forced heirship, attribution of gifts and waiver of inheritance follow their own logic and are addressed in separate articles on this portal.
What a will cannot control is the operational running of the business after death. Who is or will be a managing director, which resolutions must be adopted, which majorities apply and which buy-out rights are triggered depend on the articles. Anyone who wants to bypass the articles will not find an anchor in the will. Conversely, a will can back an intended successor already provided for by the articles by aligning its dispositions with that framework.
The limits of succession law are also the limits of planning certainty. Without a workable set of articles, intentions cannot be stabilised purely through the will. That is not a formal remark but a practical one. After the estate opens, the intended successor otherwise has to defend a new family situation against an old set of articles.
The starting point is section 76 subsection 1 GmbHG: shares are inheritable. The transition takes effect by operation of law without a notarial deed between the participants. The notarial deed under section 76 subsection 2 GmbHG applies to transfers among the living and the obligation to transfer. For succession on death it is not the basis of acquisition; succession itself is governed by the articles and the law of succession.
The articles can regulate inheritability, buy-out, continuation clauses and transfer restrictions. They can provide that specific persons take the shares while other heirs receive only a compensation claim. They can require consent from co-shareholders, define majorities and install blocking minorities or veto rights. All of this is not neutral: it shapes the legal position of the heirs and the room for manoeuvre of the intended successor.
The article on the articles of association with several children describes typical drafting fields. For will-and-articles alignment the simple takeaway is: without knowing the articles clauses no will can be drafted that actually reflects the succession.
If the articles do not support the intended path, the amendment precedes the will. Under sections 49 and 50 GmbHG an amendment generally requires a three-quarters majority, a notarised shareholder resolution and entry into the company register; further requirements may apply. This sequence gives succession a durable structure. It protects against situations in which the testator's wishes are recorded but cannot be enforced in the company.
In practice, amendments are not an end in themselves. The articles must fit the family, the roles and the economic situation. Amendments frequently concern succession clauses, buy-out, voting rights, veto rights, information rights, compensation rules and provisions for spouses or minor heirs. The article on minor heirs and business shares shows why family-law consents do not replace the contractual order.
In terms of timing, an amendment is rarely completed in a week. It requires competence, agreement, notarial assistance and register entry. Anyone who signs the will first still gains a lot if the will refers to the intended new version. What matters is that both layers emerge deliberately from the same target picture.
The form of the will is governed in particular by sections 578, 579 and 601 ABGB. A holographic will must be entirely handwritten and signed. Under section 579 ABGB an allographic will requires three witnesses who are present at the same time and the handwritten additions and signatures specified there. If a mandatory formality is missing, section 601 ABGB makes the disposition invalid.
Under section 552 ABGB the will can generally be revoked freely. That freedom is both an advantage and a risk in a family business. It permits adjustments when the family situation changes. It also means that a picture once agreed jointly can later be changed unilaterally. The articles remain the stable frame in these cases; they cannot be revoked by a testamentary declaration.
Notarial wills provide evidentiary weight and structured safekeeping. They can be worked on together with the corporate environment. The article on the transferor's pension or right of residence shows how additional security strands can be arranged so that the will and the transfer agreement do not compete.
The first step is to read and record the articles: who is a shareholder, which clauses cover buy-out, transfer restrictions and succession, which majorities apply? Then the family is given a realistic picture of the possible roles on death. On that basis the succession idea emerges, not the other way round. This sequence sounds sober but avoids the most common misunderstandings.
In drafting, clauses are formulated to align with the transferor's wishes without blocking the company. Buy-out and transfer restrictions serve operational capability, not disputes. Anyone who names an heir in the will should check whether that heir can also take shares under the articles and how the relationship with balancing payments to forced heirs looks.
Finally, will and articles are technically interlocked. The will refers to the applicable version of the articles, defines legacies with respect to the type of share and makes clear who is to take which role. On the articles side, the same cases are covered structurally. The article on the gift of GmbH shares and family attribution shows how lifetime dispositions can complement this picture without undermining the testamentary order.
No. A will governs succession but does not amend the articles. Under sections 49 and 50 GmbHG, amendments generally require a three-quarters majority, a notarised shareholder resolution and entry into the company register; further requirements may apply.
The articles remain in force. The will operates at the inheritance level. Contradictions frequently cause disputes about succession clauses, buy-out, balancing payments and the actual ability to act in the business. Aligning the two layers is therefore not a detail but the core of the planning.
Not always. If the articles support the intended path, the will can complement the personal layer. If they do not, amending the articles is usually the priority so that the will does not lead into a void.
Section 578 ABGB governs a holographic will. An allographic will must meet section 579 ABGB, including three witnesses present at the same time. A breach of mandatory formalities makes the disposition invalid under section 601 ABGB.
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