OGH on Last Wills from Testators Who Are ‘Unable to Read’

Aug 23, 2024 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has clarified the conditions under which the special form of a last will and testament as described in Section 580(2) of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, hereinafter ABGB) must be observed in the case of testators whose ability to read is impaired.

In the case at hand, in 2012, in his holographic will, a testator appointed the second to the eighth applicants as equal heirs. In two third-party wills in June and August 2019, the testator appointed the first applicant as his sole heir and revoked all his previous testamentary dispositions.

By 2019, the testator was suffering from macular degeneration in both eyes. As a result, he was no longer able to read his third-party wills presented to him for his signature.

The first court found that the second to the eighth applicants were each entitled to a seventh of the inheritance on the basis of the 2012 will and rejected the declaration of acceptance of the inheritance by the first applicant. This decision was upheld by the OGH.

Under Section 580(2) of the ABGB, a person ‘who cannot read’ must have their third-party will read to them by a witness in the presence of two other witnesses who have seen the contents of the will. The testator must then confirm that the will is in accordance with the testator’s wishes.

The OGH went on to say that a certain degree of visual impairment, which cannot be compensated for by the use of simple aids, is required in order to qualify as ‘physical disability’. As a general rule, it is not reasonable to expect testators to make use of very specific technical aids not generally used in their everyday life. But if, in an individual case, the testator uses such (special) aids which make it possible for the testator to really read their will, the special form requirement stated in Section 580(2) ABGB do not apply.

In the case at hand, the testator suffered from severe macular degeneration in both eyes and was unable to read his will by using spectacles or a magnifying glass. In view of this, the lower courts had correctly assumed that the testator ‘could not read’ within the meaning of Section 580(2) of the ABGB and that the form requirement of that provision must be observed.

OGH 2 Ob 13/24m (25 June 2024)