OGH: Graphological assignment sufficient for nuncupatio

Jan 27, 2023 Benn-Ibler Rechtsanwälte GmbH

In the case at hand, the Austrian Supreme Court (Oberster Gerichtshof) dealt with nuncupation according to Section 579 of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB), i.e., the confirmation of an individual’s last will and testament under inheritance law in the case of a handwritten will.

With her will from January 2020, the testator revoked all her previous testamentary dispositions and appointed the first and second applicant as her heirs, one half each. In addition, she wrote a personal addendum: “This is my last will and testament.” In mid-February, the testator made another last will and testament, again revoking all previous wills and appointing the third applicant as her sole heir. The addition in this testamentary disposition, however, read (in faulty German): “Das ich bleib daf ist mein letzter Wille [sic].” When asked by the lawyer about the meaning of this, the testator confirmed said, “I want everything to stay the way it is”.

The first and second applicants argued, referring to the will from January, that the testamentary disposition from February did not contain a valid nuncupation. The addition from February left too much room for interpretation. The third applicant referred to the February will which had been drawn up in a valid form, arguing that the law does not require a specific text for the nuncupation. It only requires that the document be a last will and testament.

While the court of first instance and the appellate court did not uphold the third party applicant, the Austrian Supreme Court ruled differently and upheld the third party applicant, stating:

It suffices if an addition can be graphologically attributed to the testator. To focus only on the written addition would counteract the objective of making wills less error-prone. The crucial point in additions according to Section 579 ABGB is that such additions must demonstrate that the document actually is the testator’s last will and testament. The Austrian Supreme Court also referred to relevant literature which states, for one, that such an addition is a distinct requirement for legal form, and secondly, if the nuncupation is insufficient, it must be assumed that the will is invalid form-wise. The number of words used is not crucial for ensuring compliance with proper legal form.

OGH 2 Ob 167/22f (25.10.2022)