Three Staples Create External Document Unity

Aug 5, 2022 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, OGH) has ruled that a testamentary disposition made in any form other than hand-written is valid if multiple sheets of paper are physically connected by three staples attached to the sides of the pages.

The deceased had prepared a typewritten will. The will consisted of two separate sheets, the last of which contained a final clause, the deceased's handwritten nuncupation, his signature, and the signatures of the witnesses to the will. The two sheets were ‘joined at the sides’ with three staples.

The First Claimant based his right to inherit on this form of the will. Several cousins of the deceased disputed the formal validity of the will, basing their right to inherit on current legislation. In their opinion, staples can be undone without destroying or damaging a document and therefore no external unity of the deed was given.

The Appeals Court ruled in favour of the First Applicant. Although the Supreme Court has so far rejected the validity of external document unit when two loose sheets of paper are physically connected with a single staple. However, staples per se are not fundamentally unsuitable for producing external document unity. This is because even gluing, binding, or stitching pages of a document together cannot ensure complete protection against forgery. Hence, the use of three staples which, in effect, closely resembles a staple connection does not differ substantially from binding or stitching.

The Supreme Court did not object to this legal view.

In previous rulings, the Supreme Court has held that a paper clip, or the safekeeping of separate sheets of paper in an envelope, or the use of a single staple do not create external document unity. The conclusion that three staples attached to the sides of a document are equivalent to binding, gluing, or stitching with regards to the stability of the achieved physical connection does not exceed the margin of discretion of the appellate court.

The will was therefore declared to be formally valid.

OGH (Austrian Supreme Court) 2 Ob 25/22y (16.03.2022)