OGH: Nuncupation Not Necessary in the Case of a Notarial Will

Jul 29, 2022 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, OGH) ruled that when a testamentary disposition is drawn up before a notary, no personal nuncupation is required.

The deceased and his wife concluded a 'contract of inheritance together with a will' in the form of a notarial deed. They assigned three quarters to each other in accordance with the inheritance contract, and the remaining quarter to each other in their wills. The notarial deed bears the signature of the deceased and his wife as well as that of the two witnesses, but no handwritten nuncupation (i.e., a handwritten affirmation of an individual’s last will and testament) by the deceased.

The wife made a conditional declaration of acceptance of the inheritance on the strength of the contract of inheritance together with her will. The daughter’s appeal based on the statutory right of inheritance because the contract of inheritance and the will were not formally valid in the sense of Section 579 of the Austrian General Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB) in the absence of a nuncupation. According to Section 67 (1) of the Austrian Notarial Code (Notariatsordnung, NO), when a testamentary disposition is recorded, the 'special provisions of the General Civil Code which govern the validity of such a disposition must be observed', thus also Section 579 of the General Civil Code (ABGB).

The lower courts found in favour of the daughter, but the Supreme Court did not, as follows: 

The Austrian Notarial Code (Notariatsordnung, NO) provides for two possibilities to make a testamentary disposition before a notary, namely by means of a notarial act (Section 67 NO) or a notarial record (Section 70 NO). Section 70 NO entirely lacks any reference to Section 579 of the Austrian Civil Code (ABGB). However, even in referring to the ‘special provisions’ of the Austrian Civil Code on the formal validity of a testamentary disposition, it must be taken into account that since the reform of the Law of Succession in 2015, the Austrian Civil Code also recognises an equivalent form of notarial disposition (Section 583 of the Austrian Civil Code) in addition to the private will (Section 579 of the Austrian Civil Code). On a reasonable reading, however, the general reference in Section 67(1) NO does not contain any such reference to Section 579 ABGB, but rather to Section 583 ABGB. A different interpretation would lead to an objectively unjustified privileging of the notarial record, although both forms are essentially subject to the same requirements in terms of content.

OGH (Austrian Supreme Court) 2 Ob 63/22m (30.05.2022)