Abstract (eng)
Under Austrian law the classification of the testamentary trust as a common law institution is problematic at the following levels: first, at the level of conflict of law, second, at the level of substantive law, since difficulties arise when it comes to the reinterpretation or adoption of the testamentary trust in cases where the testamentary trust or certain legal question in connection with the testamentary trust are governed by Austrian law.
As a basis for finding Austrian legal institutions which are functionally related to the testamentary trust the author (exemplary) analyses the English testamentary trust and the Liechtenstein testamentary trust. The author particularly investigates the Austrian legal institutions of appointment of heirs (Erbeinsetzung), legacy (Vermächtnis), executorship (Testamentsvollstreckung), testamentary instructions to the successor (Auflagen an die Erben), prohibition of encumbrances and sale (Belastungs- und Veräußerungsverbot) according to article § 364 c of Austrian Civil Code (ABGB), post mortem power of attorney (postmortale Vollmacht), fiducia (fiduziarische Treuhandschaft) and the Austrian private foundation (established by will), and compares it with the trust concept.
The doctoral thesis provides views to the following topics: the conflict of law rules governig the testamentary trust, the incompatibility of the trust concept with the Austrian property law concept, the analysis of English trust law, the legal comparison between English and Liechtenstein trust concept, the legal comparison between testamentary trust and the functionally related Austrian instituitons and in particular the analysis of the executorship (Testamentsvollstre-ckung), which is very much unattended in the Austrian legal practice and development of law, as well as the analysis of the Austrian private foundation and it’s comparison with the trust concept.
It becomes clear that in the Austrian legal system a legal tool which allows estate planning over several generations and which at the same time provides effective asset protection against trustee or beneficiaries is missing when it comes to the middle class. Remedy could be found by amending the institution of executorship (Testamentsvollstreckung), potentially based on the German model, or by integrating the trust in the Austrian legal system, potentially based on the Liechtenstein model.