OGH: Does Section 74 NO Apply by Analogy to Judicial Wills?

Aug 9, 2024 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has examined whether a testator can demand the delivery of a will that has been approved by a court.

In 2006, the plaintiff had deposited a testament in writing with the court of first instance, which was the subject of a protocol. In 2023, the husband of the stepdaughter, on behalf of the plaintiff, applied to the court for delivery of the will deposited with the court and submitted a copy of a special power of attorney issued to him with the plaintiff’s signature certified by a notary.

Since the original of a will handed over to the court during the testator's lifetime must be kept permanently, the court of first instance rejected this request, and the court of appeal was in favour of this decision. The OGH presented the following ruling:

Both the notarised will (the notarial record) and the will approved by the court are public testamentary dispositions.

Section 74 of the Austrian Notaries Code (Notariatsordnung, hereinafter NO) allows the testator or an authorised representative with a certified special power of attorney to request that a will be postponed.

There is no comparable provision for a will approved by a court of law. Consistent with the literature, the OGH, given the existing regulatory gap, advocated applying Section 74 of the NO to a court-approved written will by analogy. It would be difficult to see why a testator should be denied access to the last will and testament that they had drawn up during their lifetime.

The personal presence of the testator or his authorised representative, who must present the original of the special power of attorney, is required for the deferment, as a corresponding court record must be prepared.

As a result, the appeal of the plaintiff was granted on points of law.

OGH 2 Ob 80/24i (28 May 2024)