4. Oktober 2018 / Mag. Markus PEIER

The Supreme Court ruled in its decision of 26 June 2018 that a foreign will is invalid if the witnesses of the will have not signed on the sheet (or sheets) with the text of the last will, i. e. on the “deed itself”, so that the affixing of signatures on an additional loose and blank sheet of paper is not valid for the purposes of the document. compliance with the formal requirements is insufficient.

The Supreme Court’s decision was based on the following, much abbreviated facts:

Die Erblasserin setzte in ihrem fremdhändigen Testament eine Freundin zur Alleinerbin ein, ihre Tochter setze sie auf den Pflichtteil. Die Tochter behauptete die Formungültigkeit dieses Testaments, da die Zeugen ihre Unterschrift auf ein gesondertes, mit dem Testament nicht verbundenes Blatt gesetzt hatten.

If several loose pages are available, a link between the content of the loose pages must be expressed, in particular if the text is continued on the next page and if references are made to it.

Decision: OGH 2 Ob 192/17 z of 26. 6. 2018.

Formal requirements for last-intentional dispositions:

A final disposition (will with inheritance or other final disposition) may be made out of court or court, in writing or orally and in writing with or without witnesses, subject to specific formal requirements, depending on the type of disposition, to be observed. The final will can only be expressed orally before a court or notary and in an emergency under strict conditions. As the final disposition is invalid in the event of non-compliance with mandatory formal requirements, it is strongly recommended that legal counsel be sought in the event of a final disposition.

Here we shall only briefly go into two types of establishment, namely the own-handed and the alien’s last-will disposition.

The personal final disposition is to be written and signed by the tester himself. On the other hand, if the text of the final disposition is not written by the testator himself, for example because the disposition is written on the computer and then printed out or handwritten by another person, the person making the disposition must sign the final disposition by hand in the presence of three witnesses present at the same time and include a handwritten addition stating that the original disposition must be which contains his last will. Witnesses whose identity must be shown in the document shall sign the document with an additional handwritten reference to their status as witnesses. Witnesses don’t need to know the content of the final order.

We are happy to assist you in the establishment of your last will and offer safe custody and registration of the last will in the Central Register of Wills.

The first consultation with the notary is free of charge.