OGH: Will Can Be Signed ‘by Mouth’

May 5, 2023 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has confirmed that a notarial will can be signed ‘by mouth’.

The testator was responsive when making his will in 2019, but could only answer questions by nodding or making eye contact. He made his will before a notary who read the draft will to him. The testator nodded in affirmation that this was his last will and testament and added a written mark with his mouth because he was paralysed and unable to sign with his signature. The witnesses to the will signed their names.

According to the OGH, the will is valid.

Section 68(1)(g) of the Austrian Notarial Act (Notariatsakt, NO) requires, among other things, that a notarial act must contain the signatures of the parties, otherwise it loses its force of a public deed. If a party is incapable of writing, they are required to add a written mark once the will is drawn up on paper. Section 580 of the General Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB) requires a ‘written mark’ to be made on third-party wills if the testator cannot write.

The lower courts found that in the absence of a provision to the contrary, a signature can be given by holding a writing utensil with one’s mouth or even with one’s toes. The OGH did not object to this view.

A written mark fulfils the requirements of a signature: The precondition for a ‘written mark’ is not for the testator to use their hand, but rather to confirm their last will and testament to the outside world in such a way that their intention is reflected in the document containing the testamentary disposition. For this purpose, it is irrelevant with which part of the body the testator uses a writing instrument.

OGH 2 Ob 35/23w (21.03.2023)