If the testator wishes to draw up a will or other testamentary disposition without the assistance of witnesses, he or she must write it in full in his or her own hand and sign it in his or her own hand (section 578 ABGB).
In this case, such a testament is referred to as a handwritten will. A will written on a typewriter or computer is not a handwritten will. In practice, very significant mistakes are often made when drawing up wills. It should be pointed out once again that a handwritten will must be entirely (!) handwritten.
Example of a handwritten will:
A testament in someone else’s hand (§ 579 ABGB) is written by machine (e.g. by computer printout) or by other persons in handwriting for the testator. In order for such a will to be valid, it must not only be confirmed by the testator’s handwritten signature in the presence of three witnesses who are present at the same time and be accompanied by a handwritten addition stating that the document contains his or her last will and testament, but must also be signed by all three witnesses. The witnesses to the will, whose identity must be evident from the document, must sign with an addition indicating their witness status and written in their own hand. However, it is not necessary that they also know the contents of the will (otherwise applies to the emergency will).
Practice Tip:
The Inheritance Law Amendment Act 2015 (ErbRÄG 2015) brought about significant changes with regard to the formal requirements for wills made by others. In deviation from the previous legal situation, all three witnesses must be present at the same time (as of 1 January 2017) if the testator affirms the deed with his or her own signature and adds a supplement written in his or her own hand that the deed contains his or her last will and testament. This addition could, for example, read “The deed contains my last will”, “My will”, “This is what I want” or “This is how it should be”. A mere “Ok”, on the other hand, would be insufficient as an addition, since it must be clear from this that it is his or her last will and testament (RV 668 BlgNR 25. GP 10).
Furthermore, all three witnesses shall sign the deed with an addition indicating their witness status and written in their own hand.
Die Zeugen müssen jeweils das 18. Lebensjahr vollendet haben, der Sprache des Verstorbenen mächtig sein und es darf ihnen nicht aufgrund einer körperlichen oder geistigen Beeinträchtigung die Fähigkeit fehlen, entsprechend der jeweiligen Testamentsform den letzten Willen des Verstorbenen zu bezeugen. Lediglich bei der Errichtung eines Nottestaments wird das Mindestalter von Zeugen auf 14 Jahre herabgesetzt, sodass mündige Minderjährige (nur) Zeugen eines Nottestaments sein können (§ 587 ABGB).
The witnesses must have reached the age of 18, must speak the language of the deceased and must not lack the ability to testify to the last will and testament of the deceased due to a physical or mental impairment. The minimum age of witnesses is only reduced to 14 years in the case of an emergency will, so that minors of age can (only) be witnesses of an emergency will (§ 587 ABGB).
Furthermore, it must be noted that an heir or legatee is not a capable witness with regard to the donation intended for him or her. In addition, his or her spouse, registered partner or cohabiting partner, parents, children, siblings as well as the parents, children and siblings of the spouse, registered partner or cohabiting partner are also unsuitable as witnesses. Legal representatives, health care proxies, organs authorised to represent, shareholders, persons in power and employees of persons under consideration or companies with legal capacity are also ineligible to testify (§ 588 ABGB).
Example of a will made by another person:
The connection of the leaves of a will is also of particular importance for the validity of wills made by another person. A will consisting of several sheets may – even if they are connected to each other – be considered invalid.
Examples from the case law
OGH 2 Ob 192/17z; Information according to the website of the OGH:
Shortly before her death, during a stay in hospital, the testator signed a will in the hands of another person, which had been prepared by a law firm. It consisted of two loose sheets. The text of the testamentary disposition was on the front and back of the first sheet, on which the testatrix signed. The second sheet was for the signatures of the three witnesses to the will, which they also executed there. Afterwards, the two sheets were joined with a paper clip and kept in the safe of the lawyer’s office.
The Supreme Court clarified that the witnesses have to sign “on the deed”, meaning the testamentary deed as the bearer of the testator’s last will. Several loose sheets must be connected in terms of content. A will made by another person is therefore formally invalid if the witnesses to the will have signed not on the sheet (or sheets) containing the text of the testamentary disposition, but on an additional loose and blank sheet.
OGH 2 Ob 29/22m, Information according to the website of the OGH:
If a will written by another person (not by hand) consists of several loose sheets, the mere continuation of the text is not sufficient to create an internal unity of the document.
The external form and the internal context must therefore also be observed in the case of wills made by a third party. For this reason, it is also recommended to consult a legal advisor.
Since 1 January 2005, oral wills have only been admissible as emergency wills in exceptional cases. It is sufficient that the testator has an impression of an emergency situation based on objective circumstances (RV 668 BlgNR 25. GP 10). However, the drawing up of an emergency will presupposes that the deceased is not able to declare his last will and testament in any other way (in compliance with the ordinary forms of wills) (OGH 17.3.2016, 2 Ob 86/15h). A will declared in this way loses its validity in any case three months after the danger has ceased to exist. For emergency wills made by a third party or orally, only two witnesses are required (although there are also some facilitations with regard to witnesses; sections 584, 587 ABGB).
If the testator is in immediate danger of dying or losing testamentary capacity before he or she can declare his or her last will and testament in another way, he or she may make an emergency will. This can either be made in the presence of two witnesses or orally. An oral testamentary disposition must be confirmed by the concurring statements of the witnesses, otherwise this declaration of the last will and testament is invalid. An emergency will loses its validity three months after the danger has ceased to exist and is deemed not to have been made. Thus, if applicable, a revocation of earlier testamentary dispositions made in an emergency will also lapses.