OGH again on the discernibility of witnesses in a will

Oct 27, 2021 Benn-Ibler Rechtsanwälte

The Supreme Court (Oberster Gerichtshof, OGH) once again commented on the question of which information on witnesses to a will is sufficient to ensure their identifiability under the new inheritance law (Erbrechtsänderungsgesetz 2015, ErbRÄG 2015).

In the case at hand, the deceased was undergoing inpatient treatment before his death. He ordered his notary to come to him in order to draw up a will. The will was drawn up by the notary using a computer printout and signed by the deceased. In addition, the notary and two of her employees signed their pre-printed names as witnesses to the will. The addresses and dates of birth of the witnesses were not given.

In the probate proceedings, the fifth and sixth claimants each made conditional declarations of acceptance of the inheritance and relied on the statutory right of inheritance because, in their opinion, the will was invalid as the witnesses could not be identified.

The court of first instance found in their favour, but not the Court of Appeal. Ultimately, the OGH had to decide:

According to Section 579 para 2 sentence 1 of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB, as amended by the ErbRÄG 2015), in the case of a will made by a third party, the witnesses, whose identity must be evident from the document, must sign the document with an addition indicating their capability as witnesses and written in their own hand.

In the will in question, no further identity markings were added in addition to the name and signature. However, this was sufficient for the OGH: First of all, according to the ErbRÄG 2015, the identity of the witnesses to the will must be evident from the document itself. It is not (any longer) sufficient if their identity can only be ascertained from the accompanying circumstances.

However, it is also possible to identify a witness to a will solely from his or her legible signature or from an illegible signature in connection with a legible name. In both cases, the signature is an identity feature that emerges from the document itself and enables a witness to be identified by comparing the handwriting.

OGH 2 Ob 139/20k (28.09.2021)