Case law on the formal validity of wills (especially multi-page wills) drafted by third parties, i.e., wills that are not handwritten by will-makers themselves, is becoming more and more substantial. Evidently, the Austrian Supreme Court has been following a strict line since the Inheritance Law Amendment Act of 2015.
The most recent reform of Austrian inheritance law has seen an introduction of stricter rules for wills drawn up by third parties. Aim of the lawmakers is to up protection against forgery. However, in a number of cases, the amendments have created some difficulties as the Austrian Supreme Court declared numerous wills to be invalid. Only gradually is case law becoming more solid.
A Quick Reminder Concerning Document Integrity
In order for a testamentary disposition made by a third party and consisting of several pages to be formally valid, case law requires either the internal or external unity (i.e., the integrity) of a document.
External unity of a document is given if its pages are joined together prior to the testator and the witnesses signing the will or during the testation process (uno actu, immediately afterwards). This must be done in such a secure way that the joining of the pages can only be undone by destroying or damaging the actual binding, gluing, or stitching.
As far as internal unity of a document is concerned, in addition to the continuation of the text (only in the case of single-handed, handwritten wills – not in typed wills), a note signed by the testator on an additional sheet with reference to his or her testamentary disposition can be sufficient; however, this reference must be of a substantive nature. It must be completely obvious to which information in the will such a comment refers. Unfortunately, the Austrian Supreme Court has not specified how this fact can be sufficiently established.
External Document Unity: Previous Case Law
External unity of a document means that the paper sheets of a multi-page document are joined together as tightly as possible. However, the point in time at which the pages are joined together is crucial. External document unity is not given in the following cases:
- If several sheets of paper are joined with a paper clip only (2 Ob 192/17z) or if they are kept separately in an envelope (2 Ob 143/19x).
- If several sheets of paper are attached to each other with only one staple (2 Ob 51/20v, 2 Ob 77/20t). However, the Austrian Supreme Court did accept cases where three lateral staples were used (2 Ob 25/22y).
- If the will is drawn up on separate sheets of paper in the course of an out-of-office notarial act and the sheets of paper are only subsequently joined at the notary’s office (2 Ob 218/19a). However, such joining of pages is sufficient if it is carried out immediately after the will is signed (2 Ob 141/20d).
Internal Document Units: Previous Case Law
The Austrian Supreme Court had already commented a number of times on the internal unity of documents. These comments have consistently rendered the same opinion. Specifically, there is no document unity in the case of two loose sheets if
- the second sheet only contains the signatures of the witnesses to the will (2 Ob 192/17z, regarding the prior legal position).
- only the place and date, the handwritten nuncupatio (referring to the testator’s personal affirmation that this will is the last will) and the signatures of the testator and the witnesses are found on the second sheet. Even numbering the pages consecutively is not considered to be sufficient (2 Ob 143/19x).
- the second sheet contains the signatures of the testator and the witnesses to the will (including the confirmation that the testator actually wrote the nuncupatio and signed his or her will in the witnesses’ presence). In this case, the Court saw a lack of substantive connection to the text of the will (2 Ob 145/19s).
- the second sheet only contains the signature of a third witness to the will (2 Ob 218/19a).
- the second sheet only contains the following text: “With this testamentary disposition we, […] and […], revoke any testamentary dispositions made prior to this will”, including the signatures. This is because the above mentioned phrase does not refer to the specific content of the will (2 Ob 77/20t).
- in the case of a non-handwritten (computer-written) will the text is continued on the second page but without containing a statement signed by the testator saying that the contents of their testamentary disposition is provided on the second page. In the case at hand, a sentence was started on the first page and continued on the second page. However, in the case of handwritten wills drafted by a third party, the continuation of the text on the second page may be acceptable because an expert could, if necessary, analyse the handwriting (2 Ob 29/22m).
Additional Cases
- A will/inheritance contract in the form of a notarial deed does not require a handwritten nuncupatio by the testator (2 Ob 63/22m).
- If the testator is not able to read, a witness is required to read the testamentary disposition in the presence of two other witnesses “who have looked at the contents” (Section 580 para 2 ABGB or Section 581 ABGB aF). Such a will is invalid if the two witnesses have not at least read over the contents. The mere possibility of inspecting the will is not sufficient (2 Ob 48/22f).
- The Austrian Supreme Court has ruled as follows on the identifiability of witnesses to a will: If, for example, the notary and two of the notary’s employees are the witnesses to the will, their personal address is not required to be given on the document as long as their identity is obvious from the document. First and last names including the notary’s business address are sufficient (2 Ob 86/21t).
Conclusion
When drafting a third-party will, a considerable number of things can go wrong. Case law is substantial and even small mistakes or carelessness can mean a rude awakening for heirs. Therefore, we strongly recommend to always consult an expert.