Interpretation of Wills: Understanding the True Intent of the Deceased

Under Austrian inheritance law, it is a statutory principle that words are generally to be interpreted according to their ordinary meaning. An exception exists only if it can be proven that the deceased associated a particular sense or special meaning with certain expressions.

Foundations of Interpretation according to § 553 ABGB

The ultimate goal of any interpretation is to determine the true intent of the deceased. For this intent to be legally valid, it must at least be “hinted at” in the wording of the testamentary disposition. According to § 553 ABGB, interpretation must be carried out in such a way that:

the objective pursued by the deceased is achieved.
the disposition remains valid, at least in part, whenever possible (Favor Testamenti).

Good to know: So-called misdescriptions (Fehlbezeichnungen) are generally irrelevant (§ 571 ABGB). This means that a will is to be understood as the deceased actually intended, even if they used a technically incorrect term (falsa demonstratio non nocet).

Interpretation must aim to achieve the result the testator sought. Words are to be construed according to their ordinary meaning, unless the testator attached a special sense to particular expressions (Section 553 sentence 1 ABGB).

A recent decision of the Supreme Court (OGH) demonstrates how decisive the testator’s personal use of language can be. A testator had bequeathed a legacy of “cash” held at two named banks to a beneficiary. The OGH confirmed that, on the basis of the established facts regarding the testator’s intention and his personal use of language, this term encompassed the balances held in accounts and savings books at those banks – irrespective of how a lawyer drafting the will might have understood the word “cash”. The testator’s intention remains the decisive criterion, not the technical or legal meaning of a term (OGH 3 June 2025, 2 Ob 73/25m).

Contesting a Will: Deceit, Duress, or Mistake

Not every will is untouchable. Certain circumstances can lead to a disposition being contestable (voidable). This is particularly the case in the event of:

Deceit or Duress: If the deceased was coerced or deceived into creating the disposition.
Material Mistakes: A mistake in motivation (Motivirrtum, §§ 570 et seq. ABGB) can also lead to invalidity.

If a challenge is successful, intestate succession usually takes effect in place of the contested will.

Appointment of Heir or Legacy?

Whether a testator intended to appoint an heir or to create a legacy is a matter of interpretation. The question is whether the testator intended to make the beneficiary a universal successor or a specific successor, whether the beneficiary was to be exposed to claims from estate creditors, and whether the beneficiary was to have direct access to the estate assets. Where a testator leaves all or substantially all of his assets to one or more specific persons, a disposition in favour of an heir is presumed in cases of doubt – with the date of the testamentary disposition being the relevant point in time for this assessment. Where several persons are named, the courts additionally require the testator’s intention to express a proportionate division of the estate. The mere designation of a document as a “testament” is not decisive, though it may serve as an indication of an appointment of heirs. By contrast, the enumeration of individual items points towards a legacy.

A recent OGH decision illustrates the practical significance of this distinction. The testator had, in a holographic will containing the verb “inherit” and referencing the greater part of his estate, assigned individual items to a large number of persons without specifying any proportionate division. The OGH upheld the lower courts’ finding that these dispositions constituted legacies rather than appointments of heirs. The assignment of individual items to multiple persons and the absence of any intention to order a proportionate division of the estate point towards legacies even where the word “inherit” appears in the text (OGH 3 June 2025, 2 Ob 69/25y).

Practical note:

Anyone who assigns individual assets to several persons in a will should state explicitly whether the intention is to appoint heirs with a division of the estate or merely to create legacies. In the absence of a clear allocation of shares, the disposition will in cases of doubt be treated as a legacy – with significant consequences for liability towards estate creditors and access to estate assets. Having a will professionally drafted avoids such ambiguities from the outset.

Supplementary Interpretation and Conversion

Where a testamentary disposition contains a gap because the testator did not address a particular situation, supplementary interpretation may be considered. The question then becomes what the testator would have intended had he been aware of the situation. Where a disposition cannot take effect in the intended form, it may in certain circumstances be upheld as a less extensive disposition (conversion).

Special Case: Mutual Wills of Spouses

A particularly relevant question of interpretation arises with joint or mutual wills of spouses. If the partners stipulate that upon the death of the last survivor, the remaining assets shall pass to the common children, this often constitutes a reversionary inheritance of the residue (Nacherbschaft auf den Überrest, § 609 ABGB).

The Consequences of Succession to the Residue

The surviving spouse, as the “provisional heir” (Vorerbe), can generally dispose of the assets during their lifetime. Only the residue actually remaining at the time of their death passes to the children (cf. OGH 2 Ob 229/22y). Details on the claims of close relatives can also be found under Compulsory Portion Rights in Austria.

For an explanation of further legal terms, please refer to our Legal Glossary.