During a stay in hospital, the testator appointed a friend as her sole heir and limited her daughter’s inheritance rights to the statutory compulsory portion. At that time, she was not mentally impaired and therefore capable of making a will. However, the testator’s daughter contested the formal validity of the will in the probate proceedings.

The will in question had previously been drawn up electronically by a law firm and consisted of two loose sheets. The text of the testamentary disposition was on the first sheet – front and back. On the reverse of the first sheet, there were dotted lines for the date, the addition “This document contains my last will and testament” and the testator’s signature. On sheet two, the same lines were provided for the three witnesses to the will. The three witnesses signed the will together with their address, date of birth and the addition “as witness to the will”. The original was finally “stapled” with a paper clip and archived in the law firm’s safe.

Both the court of first instance and the court of appeal ruled that the will was formally valid. There was no violation of the formal requirements within the meaning of § 579 ABGB.

In accordance with Section 579 ABGB, a will written by a third party – not by the testator – must contain the signature of the testator (together with an addendum) and the signature of three witnesses (together with an addendum). It is not necessary for the witnesses to know the contents of the will.

In its decision, the Supreme Court stated that the signature of the witnesses must be signed “either internally or externally, but always on the document itself and not on an envelope” with an addition indicating their capacity as witnesses. The “document itself” was to be understood as the text of the will. Although it is possible that the signatures are placed on a new page due to a lack of space, in this case there must be a connection between the content of the signature page and the text of the will. The required contextual connection could be achieved by a note by the testator on the last page or by continuing the text of the will.

In the opinion of the Supreme Court, in this specific case there was a lack of the necessary substantive connection between the text of the will and the signature page of the witnesses, which is why it declared the will to be formally invalid and the daughter’s right to inherit the entire estate was established.

The consequence of this decision is that numerous wills in Austria could be formally invalid if the witnesses have not signed directly on the document. It is therefore advisable to check existing wills drawn up by third parties.

_{Source: Supreme Court of 26.06.2018, 2 Ob 192/17z}