The OGH founder-rights judgment: a procedural dismissal

analysisThe administrator in René Benko’s personal insolvency sought a declaration that parts of amendments to a private foundation’s deed and supplementary deed were void as sham transactions. The primary challenge concerned 24 March 2010 amendments, especially the exercise of reserved founder rights; an alternative challenge concerned amendments of 8 August 2013. OGH’s public release anonymises the foundation as L***-Privatstiftung and the defendant as a co-founder. The identification with Laura and Ingeborg comes from separate retained accounts, not the anonymised court release alone. ^{1 2 3 4 5 6}

analysisOGH explained that a declaration about the effectiveness of a foundation-deed change directly affects several parties: those changing the deed, the foundation whose legal basis changes, and those whose rights and obligations change. The court required all directly affected parties to participate so they would be bound by the result. The administrator sued the co-founder but did not direct the claim against the foundation itself. OGH therefore found the necessary declaratory interest absent and, on 15 December 2025, refused the appeal in 17 Ob 13/25y. ^{1 2 3 4 5}

analysisThe court’s 16 January 2026 explanation is explicit about scope: this was exclusively a procedural result. It did not decide whether the amendments were sham transactions, whether a relative acted as a nominee or whether another route could reach foundation assets in a founder’s insolvency. Describing the result as a merits victory on all foundation-control allegations would go beyond the judgment; describing the alleged arrangement as judicially proven would do so as well. ^{1 2 3 4 5}

analysisThe Austrian judgment also differs from the June 2026 Liechtenstein outcome involving INGBE. The latter lifted an interim asset/founder-right restriction and allowed further recourse. Benko’s side argued INGBE’s money was not his, while the administrator disputed it. The two proceedings involved different foundations and procedural measures, so neither outcome supplies a universal answer about every family foundation. ^{5 1 6 3 4}