Pursuant to Section 588 para. 1 ABGB, an heir or legatee is not a competent witness with regard to the benefit intended for him/her. Neither are his or her spouse, registered partner or cohabiting partner, parents, children, siblings or the parents, children and siblings of the spouse, registered partner or cohabiting partner of the heir or legatee^.1

So far, so unproblematic. But what about the employees of a solicitor who is to act as a witness when drawing up a will?

An answer can be found if you read a little further in the law. § Section 588 (2) ABGB assumes that a person is incapable of testifying if a certain other close relationship exists. This means that legal representatives, health care proxies, bodies authorized to represent, shareholders, holders of power and employees of persons withlegal capacity or companies with legal capacity (Section 588 para. 2 ABGB) are also incapable of testifying.²

Since 01.01.2017, employees have therefore been excluded as competent witnesses, whereas until 01.01.2017 an employment relationship did not constitute a reason for bias within the meaning of Section 594 aF ABGB, even if there was a strong economic dependency^.3

This (new) regulation means that in the case of testamentary dispositions in favor of natural persons (e.g. lawyers) or legal entities, there is relative incapacity to testify. Relative incapacity to testify means that the aforementioned persons can validly testify to instructions in favor of other persons, which is why the testamentary disposition may be partially effective.

It should be noted that a formally valid part of the will (e.g. a negative will) may no longer correspond to the testator’s wishes if the other disposition is invalid^.4

It is crucial to differentiate who now falls under the definition of an employee under § 588 para. 2 ABGB falls. A lawyer’s employees may, for example, be clerks, secretarial staff or student employees, all of whom may have a different contract.

In any case, an employee within the meaning of Section 588 (2) is someone who has to perform services in personal dependence on the basis of a genuine employment contract. The existence of such a contract is indicated in particular by the employee being bound by instructions, a personal, temporary work obligation and the work being determined by others.

In the literature, Tschugguel examines whether the term “employee” within the meaning of Section 588 para. 2 ABGB should be interpreted more broadly for teleological reasons, so that freelance employees are also covered, or whether the provision should perhaps even be applied analogously to contractors. This approach is justified by the fact that in these cases, too, there is a comparable economic dependency, which could possibly call into question the objectivity as a testamentary witness in the same way.

However, Tschugguel comes to the conclusion that the essential aspect from which the employee’s bias arises lies in his personal dependence and integration into an operational instruction structure. A mere economic dependency, as is the case with a freelance service contract or contract for work and services, is therefore not comparable with the intensive personal attachment of a genuine employee to his employer. The term “employee” in Section 588 para. 2 ABGB must therefore be interpreted narrowly.⁵

From this it can be concluded that a trainee lawyer is to be qualified as an employee of the lawyer within the meaning of Section 588 (2) ABGB, whereas a student employee on a contract for work and services or an employee with a freelance contract is not. Whether persons who work for The question as to whether lawyers acting for a lawyer who is a beneficiary under a will can be competent witnesses to a will therefore depends on their respective contracts.

Sources:

¹ Nemeth in Schwimann/Neumayr (eds.), ABGB ^{Taschenkommentar5} (2020) on Section 588 ABGB para. 2

² J. Reich-Rohrwig, Inheritance Law, 2nd edition (2020), 6.2.2.Third-party will page 96f

³ Mondel/Knechtel in Kletečka/Schauer, ABGB-ON1.0 4 § 588 Rz 4 (as at 1.2.2020, rdb.at)

⁴ Nemeth in Schwimann/Kodek (ed.), ABGB Praxiskommentar Band⁴⁵ (2018) § 588 ABGB Rz 5

⁵ Tschugguel in Fenyves/Kerschner/Vonkilch (eds.), Großkommentar zum ABGB – Klang-Kommentar – §§ 552-646 ABGB Erbrecht ^II3 (2017) on § 594 aF, § 588 nF ABGB Rz 17