OGH on Formal Requirements for Testamentary Dispositions

Sept 8, 2023 Benn-Ibler Rechtsanwälte

Failure to observe proper legal form leads to the invalidity of testamentary dispositions, even if the testator’s intention is clear and can be unequivocally proven. However, the principle of respecting a testator’s true intention has its limits when it comes to formal requirements for testamentary dispositions.

In a will drawn up by another person, the testator in the case at hand had appointed his daughter, the first applicant, as his sole heir. But a few days before his death, the testator made another will drawn up by a notary in which he revoked all previous dispositions, appointing his wife, the second applicant, as his sole heir.

Every notarial deed must contain the handwritten signatures of the parties involved. If one of the parties is unable to write, a handwritten mark or sign must be produced by that person. If such a mark cannot be produced, the person’s inability to use their hands for writing must be expressly stated and confirmed by the witnesses.

Here, the seriously ill testator could neither write with his right hand nor add a mark or sign by hand. This fact was duly noted in the will.

Both women made conditional declarations to inherit the entire estate upon the testator’s death.

The court of first instance established the first applicant’s right to inherit on the basis of the will drawn up by a third party and rejected the second applicant’s declaration of acceptance of the inheritance on the grounds that the later will was invalid for failure to comply with the formal requirements. The testator should have made a mark or sign with his left hand or initialled the will. The court of appeal, however, granted the second applicant her right to inherit on the basis of the notarial will.

The Austrian Supreme Court (Oberster Gerichtshof, OGH) confirmed the decision of the court of first instance. A reference to the testator’s inability to use his hand for writing is not sufficient in this case, since the testator could have added his signature with his left hand. Failure to comply with this formal requirement invalidates the notarial act even though the testamentary disposition may have corresponded to the testator’s true wishes. Proper observance of form must be taken into account in order to prevent legal invalidity.

OGH 2 Ob 106/23m (27 June 2023)