In the decision 2 Ob 106/23m, the following finding is decisive. When drawing up a notarial testamentary disposition within the meaning of Section 583 ABGB, particular caution must be exercised if the testator declares that it is not possible for him to sign or declare by hand.

The fact is that a testamentary disposition drawn up directly as a notarial deed must contain the testator’s signature pursuant to Section 68 (1) NO. A testator who was seriously ill when the will was drawn up had stated that he could neither write nor make a hand mark, although he could have made a paraphe or a hand mark with his left (healthier) hand. It is not possible to ascertain why he stated that he was also unable to make a hand sign. If a person is unable to sign, this can be replaced by a hand sign; if this is not possible, this must be expressly mentioned and confirmed in the notarial deed (§68 para. 1 lit g NO). The result is that a justified waiver cannot be based on the information provided by the testator to the notary, but rather his objective ability to sign or sign by hand must be taken into account. Writing incapacity exists if the testator would only be able to sign with unreasonable effort. The testator has no freedom of choice as to whether to sign by hand or not.

In summary, despite the testator’s objective ability to at least make a hand sign with his left hand, this hand sign was omitted. The consequence of this is the invalidity of the notarial testamentary disposition due to a violation of §68 para. 1 lit g NO, even if this would have corresponded to the actual will of the testator.

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Sources:

Supreme Court | 2 Ob 106/23m | 27.06.2023 |

https://www.ris.bka.gv.at/Dokumente/Justiz/JJT_20230627_OGH0002_0020OB00106_23M0000_000/JJT_20230627_OGH0002_0020OB00106_23M0000_000.pdfhttps://www.ogh.gv.at/entscheidungen/entscheidungen-ogh/handzeichen-beim-testament-in-form-eines-notariatsakts/