Letztwillige Verfügungen – Allgemeines

Wills and Testamentary Dispositions

Austrian inheritance law is governed by the principle of freedom of disposition (Testierfreiheit). This allows the testator to generally arrange the succession according to their own wishes. However, to protect certain close relatives, this freedom is limited by compulsory portion rights.

Wills vs. Other Testamentary Dispositions

Legal distinctions are made based on the content of the document (§ 552 para 2 ABGB):

  • Wills (Testamente): Dispositions that include the appointment of an heir (who shall receive the estate as a universal successor).
  • Other Testamentary Dispositions: Documents that contain other instructions without appointing an heir (formerly known as codicils), such as granting a legacy.

Conditions, Obligations, and Executors

To link the transfer of assets to specific goals, a testator may include conditions (e.g., reaching a certain age or completing a degree). Furthermore, obligations (Auflagen) can be imposed, such as a mandate for grave maintenance.

In complex estates, the appointment of an executor (Testamentsvollstrecker) is highly recommended. The executor monitors compliance with your instructions, clarifies doubts, and assists the heirs in settling the estate.

Testamentary Capacity: Requirements for a Valid Will

To create a legally binding disposition, the testator must possess testamentary capacity. The legal standards depend primarily on age and cognitive health:

Age Requirements (§ 569 ABGB)

  • From Age 18: Full testamentary capacity is granted upon reaching adulthood.
  • Minors aged 14 to 18: They may only testify orally before a court or a notary (except in emergencies).
  • Minors under 14: They lack testamentary capacity entirely. Representation by third parties (e.g., parents) is strictly prohibited (§ 564 ABGB).

Mental Capacity and Awareness

Testamentary capacity exists only if the testator is aware that they are making a will and understands its contents. Jurisdiction applies less stringent standards here than for full legal capacity; the benchmark is the cognitive ability of a 14-year-old child.

Mental illness or a decline in mental strength does not automatically exclude testamentary capacity. According to the Supreme Court (OGH 3 Ob 220/22g), the essential requirement is the awareness of making a will and the understanding of its content; the freedom of will formation must not be annulled, for example, by delusions.

Learn more about formal requirements under Forms of Wills or look up terms in our Legal Glossary.