Austria: Inheriting correctly – a testamentary disposition made by someone else

 

In most cases, a will or other testamentary disposition is not handwritten by the disposing party. In order to ensure the protection against forgery of testamentary dispositions, case law requires compliance with special formal requirements in the case of testamentary dispositions that are not handwritten. In recent years, the Supreme Court (OGH) has repeatedly dealt with the external or internal document unity of third-party wills. According to the case law of the Supreme Court, a testamentary disposition drawn up by means of a word processing program is formally invalid if the text of the disposition and the signatures of the testator or the witnesses to the will are on different sheets of paper and the different sheets are not connected to each other by external or internal unity of the document.

In any case, according to established case law, a mere connection of loose sheets by means of a staple does not create an external document unit. If, due to the lack of sufficient connection of the sheets, there is no external unit, there must be a sufficient "bracket" in terms of content of the text of the ruling.

In April 2022, the Supreme Court ruled that the mere continuation of the text on the next page in the case of a non-handwritten testamentary disposition is not sufficient to establish an internal document unity, since it is not possible to check the typeface - unlike in the case of handwritten disposition texts (OGH, 26.04.2022, 2 Ob 29/22m).

Sequential paragraph numbering and the existence of further dispositions on the second sheet of a disposition text is also not sufficient to establish a document unity between the first sheet on which the appointment of succession was executed and the second sheet on which the testator and the witnesses signed (OGH 30.5.2022, 2 Ob 82/22f).

In its current decision on 2 Ob 239/22v of 21.2.2023, the Supreme Court clarifies once again that the internal unity of the document can only be established by a substantive note by the testator on the other sheets. This note on the additional sheet must be designed in such a way that it refers to the content of the testamentary disposition. It must be recognizable to which the content of the note refers and the note must also be so clear that it comes close to an actual connection of the sheets.

As described above, the case law is particularly strict with regard to the unity of documents of third-party testamentary dispositions in order to ensure the forgery protection of such documents. In the case of testamentary dispositions produced by means of a word processing program, it is therefore advisable to print the entire text on a sheet of paper and thus already produce an external document unit.

It should be noted that, in addition to the unity of documents, other formal requirements must be observed. For example, the disposing party must sign the deed in his own hand and provide the deed with a handwritten addition stating that it is the testator's last will. When the testator signs, three witnesses must be present at the same time, who also sign the documents and also enter a handwritten addition in the document stating that they are witnesses. In addition, the identity of the witnesses must be evident from the document.

 

For further information, please contact:

Franziska Eckerstorfer, Lawyer

Zumtobel & Kronberger, Salburg

e: office@eulaw.at

t: +43 662 624500

 

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