Revocation and Annulment of Wills

In Austrian inheritance law, a central principle is that a testamentary disposition is not a final document. The testator can revoke their instructions at any time during their lifetime without providing reasons. If a complete revocation occurs without a new disposition being established, intestate succession automatically takes effect upon death.

Forms of Revocation (§§ 713 et seq. ABGB)

A revocation can occur in various ways. It should be noted that revocation generally requires the same level of testamentary capacity as the creation of the will itself:

• Explicit Revocation: The testator explicitly declares in a new will that the previous disposition is annulled.
• Tacit (Implied) Revocation: By establishing a new testamentary disposition, a previous one is fully or partially revoked, provided it contradicts the new instructions.
• Revocation by Action: The testator destroys the document (e.g., by tearing it up) or crosses out the text by hand. It is essential that the intent to revoke (Animus revocandi) is recognizable. In the case of an allographic will, this process should be handled with particular care.

Statutory Presumption of Revocation (§§ 724 et seq. ABGB)

In certain cases, the law presumes the revocation of a disposition due to changed life circumstances, unless the testator has explicitly ordered otherwise:

• Dissolution of Marriage or Partnership: Dispositions created before a separation that benefit the former spouse, registered partner, or cohabitant are, in case of doubt, deemed revoked.
• Cohabitation (Life Partnerships): The termination of a life partnership can lead to a presumed annulment. The Supreme Court (OGH) has ruled that no excessive requirements should be placed on the existence of such a partnership, especially in cases of significant age differences (OGH 2 Ob 173/21m). Mere phone calls after a separation are not sufficient to assume a resumption of the partnership (OGH 2 Ob 97/22m).
• Adoption and Ancestry: The same applies to the annulment of ancestry or the revocation of an adoption.

The Revival of Previous Dispositions

A significant legal risk is that if a newer disposition is destroyed, previous testamentary dispositions may become effective again (§ 723 ABGB). To avoid unintended results and conflicts regarding compulsory portion rights, clear documentation is indispensable.

Practical Tip: Documentation and Registration

To ensure that a revocation is clearly considered in probate proceedings, it is recommended to:

• Clearly document the revocation of all preceding documents in every new version.
• Update your records in the Central Register of Wills to ensure that only the valid version is found.

Definitions of the legal terms used can be found in our Legal Glossary.