OGH: On the Inherent Unity of Testamentary Dispositions

Jul 22, 2022 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, OGH) has ruled that in the case of a testamentary disposition that was not handwritten, the mere continuing of text on another page is not sufficient to establish the internal unity of a document.

In the original case, a testamentary disposition had been made. The will was drawn up during a visit by the notary to the deceased's home. The draft consisted of two separate sheets of paper printed with computer-generated text. The last paragraph of the first page read: ‘[...] I have fully executed my last will and testament accord-‘. On the second page, the text continued as follows: ‘ingly, and have acknowledged and thereupon signed it in my own hand before them and under their co-signature.’ At the time of signing, the will consisted of two separate sheets. After signing the will, the testators went directly back to the notary's office, where the two separate sheets of the original will were then joined together.

It was disputed whether this was a formally valid testamentary disposition.

The lower courts ruled against the external unity of the deed because the two sheets had not been joined uno actu, i.e. during the testamentary procedure. On the other hand, the lower courts affirmed the internal unity of the document because there was a sufficiently tight contextual connection of the continuous text.

The Austrian Supreme Court, conversely, negated the internal unity of the deed.

Although the Austrian Supreme Court had already referred to continuation of a text as a criterion for the internal unity of a deed in an earlier decision, the Court nevertheless based its current ruling on the case law on handwritten dispositions. In the case of handwritten dispositions, an expert can check the handwriting, a process much more suitable for establishing the coherence of content than with computer-written texts. From the point of view of forgery protection, the continuation of text in computer-written dispositions would be particularly questionable as a criterion. In addition, it would depend on happenstance whether the first separate sheet would end with a complete sentence or whether the sentence would overlap across the separate sheets.

In the case of computer-written wills, the internal unity of documents requires a notice signed by the testator on the additional sheet with reference to the document being the testator's last will and testament.

OGH 2 Ob 29/22m (26 June 2022)