OGH: Clerical Error Does Not Affect Will’s Validity

Apr 21, 2023 Benn-Ibler Rechtsanwälte

In the decision at hand, the Austrian Supreme Court (Oberster Gerichtshof, OGH) dealt with a clerical error in a third-party will, relating to the witnesses. Due to the drafting date, the legal provisions prior to the Austrian Inheritance Law Amendment Act (Erbrechts-Änderungsgesetz, ErbRÄG 2015) were applicable.

In 2008, the testatrix had a third-party will drawn up by the defendant lawyer, in which she made the plaintiff's mother the sole heir, as well as stipulating a number of legacies. The witnesses to the will who had been called in signed above the typewritten addition ‘requested heirs to the will’. In the probate proceedings, the plaintiff's mother was informed that there was no valid testamentary disposition, as mandatory validity requirements had been violated due to the lack of a correct reference to the witnesses pursuant to Section 579 of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB), previous version. The plaintiff, as the sole heir of his mother who had been appointed sole heir, was now seeking damages based on due diligence violations. The defendant objected that there was sufficient testimony given by the witnesses. The status of the witnesses as such was clearly recognisable, and the clerical error was obvious.

While the court of first instance and the court of appeal upheld the validity of the will, the OGH ruled differently.

Witnesses must attest to a third-party will in a form indicating their status as witnesses. Not all witnesses have to use the phrase ‘being a witness’. According to case law, it is sufficient if one witness affirms their witness status and the other witnesses sign legibly under that signature. It isn’t even required to use the word ‘witness’. In the case at hand, the OGH assumed that the word ‘requested’ already indicates witness status, especially since the witnesses were not favoured by the will. Despite the obvious clerical error, there was no other possible interpretation and the will, therefore, was valid. The plaintiff's claim thus came to nothing.

OGH 2 Ob 3/23i (21.02.2023)