Austrian OGH: Lost Wills Remain Valid

Feb 5, 2026 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has recently explained that, according to Section 722 of the Austrian General Civil Code (Allgemeines bürgerliches Gesetzbuch, hereinafter ABGB), a last will and testament is still valid even if the document is accidentally destroyed or lost.

Proof of loss and content is required

In the case at hand, the defendant made claims based on a missing will belonging to the testator.

The OGH provided the following clarification:

According to Section 722 of the ABGB, documents that have been inadvertently destroyed or lost, along with any testamentary dispositions they contain, remain legally valid, provided both the accidental nature of the destruction or loss and the content of the document can be substantiated.

If a will is lost, anyone claiming benefits from it must demonstrate both what the will contained and that its loss or destruction happened by accident—not because the person who made the will intended this. This requirement also stands if the heir presents a photocopy as evidence of the will’s contents.

Prima facie evidence must not be used for circumvention

The prima facie evidence needed in this context shifts the burden of proof to a fact that is easier to demonstrate. This assumes that common event patterns are more likely than rare ones to have occurred in a given case. However, this should not be used to simply fill gaps in the evidence with unsupported assumptions.

OGH 2 Ob 187/25a (18 November 2025)