Formal Mistake Can Void a Will

Oct 24, 2025 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has held that a will drafted by a notary in accordance with the testator’s directives and executed before witnesses is regarded as a private will.  As such, it must meet only the formal requirements outlined in Sections 579 and, if relevant, 580 of the Austrian Civil Code (Allgemeines bürgerliches Gesetzbuch, hereinafter ABGB).

In 2020, the deceased in the case at hand had created a new will with a notary, cancelling all earlier wills and naming the first applicant as the only heir. Although he suffered from significant hearing loss at that time, he was able to communicate his intentions clearly to the notary.

Multiple legally recognized forms of testamentary dispositions

The ABGB allows various equivalent types of valid testamentary dispositions.

Beyond the private form of a will prepared by a third party pursuant to Section 579 of the ABGB, public forms of wills are also available, which are drawn up by a third party in accordance with Sections 57ff of the ABGB.

Specific formal requirements for individuals who are deaf

In accordance with Section 59 of the Austrian Notarial Code (Notariatsordnung, hereinafter NO), when executing a notarial deed involving a deaf individual, it is required that witnesses be present throughout the reading of the full deed as well as during the parties’ expression of consent and the signing process.

A deaf individual who possesses reading ability must personally review the deed and explicitly confirm that they have read and agree with its contents. This confirmation is required to be incorporated into the deed prior to signing, in accordance with Section 60 of the NO.

It must not be assumed that a will executed before a notary automatically carries a presumption of validity

The will executed in 2020 was not accompanied by a notarial deed or minutes drafted pursuant to Section 73(1) of the NO. As a result, it does not meet the requirements for classification as a notarial will as stipulated in Sections 59 and 60 of the NO.

2 Ob 139/25t (18 September 2025)