Right to Information and Disclosure in Relation to Liechtenstein Foundations - New Case Law
Liechtenstein law offers only very limited means to obtain information about a foundation. A right to information and disclosure generally presupposes a concrete legal relationship between the applicant and the respective foundation. The beneficiaries, for instance, have the right to inspect the foundation deed, the supplementary foundation deed and possible regulations according to Article 552 § 9 PGR. In addition, insofar as their rights are concerned, they are entitled to the disclosure of information, reports and accounts.
The heirs of a deceased founder who are not beneficiaries of the foundation are generally not entitled to any disclosure. The sole exception to this rule is if an heir claims that his right to the compulsory portion has been infringed by asset contributions to the foundation and challenges such a contribution pursuant to Article 552 § 38 PGR. In order to be able to quantify the claim, the mandatory heir is granted a right to disclosure and information, albeit limited to obtaining the information necessary to enforce the claim. Since the heir’s right to challenge the contribution is subject to a limitation period of two years, such a remedy expires with this period.
However, in the recent decision of 7 February 2020 (09 CG.2018.215, LES 2020, 36) the Supreme Court held that the heirs of a deceased founder may, under certain conditions, have a further claim to information and disclosure on the grounds of provisions not specifically relating to foundations, but rooted in a so-called mandate agreement between the deceased founder and a fiduciary who set up the foundation on a fiduciary basis. A mandate agreement is a contract often concluded between the founder and the fiduciary acting as a member of the foundation board, providing the former with a right of instruction towards the latter. Such a mandate agreement obliges the latter to disclose information and accounts and to hand over documents to the founder with regard to the foundation. Notably, in its recent ruling, the Supreme Court qualified the corresponding rights of the founder as hereditary property rights. Thus, after the founder's death those rights are transferred to his heirs.
Unlike the beneficiaries' rights to information and disclosure under Art. 552 § 9 PGR, these founder’s rights do not arise from his legal relationship with the foundation, but from his legal relationship (the mandate agreement) with the fiduciary. Consequently, the corresponding claims – also in contrast to those under Art. 552 § 9 PGR – are not to be made against the foundation, but against the fiduciary.
The fiduciary’s obligation to disclose information and accounts and to hand over documents includes all information and documents that have a factual connection with the object of the mandate agreement, which is usually the administration of the foundation. The recent decision of the Supreme Court thus provides the heirs of a deceased founder with an alternative means for obtaining information regarding the foundation, provided that the founder has concluded a mandate agreement with a member of the foundation board. An appeal against the decision is currently pending before the Constitutional Court (StGH 2020/18).
For further Information, please contact Dominique Marxer