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"Facilitation" regarding the strict rules for making a last will

06/10/2021 - Reading time: 4 minutes

Author

Nikolaus Krausler

Associate

In order to be valid, the pages of the last will must be so firmly bound together "during" the creation of the last will that it is not possible to exchange individual sheets without damaging the original document. According to the latest decision of the Supreme Court, it is also sufficient if the individual sheets are put together "immediately" after the signature.

The last will has always been subject to rigorous formal requirements. If these rules are not followed, the document is invalid, even if it is certain that its content actually corresponds to the will of the deceased. Therefore, extreme caution is required during the drafting of the last will to ensure that no close relative who has been "passed over" can successfully appeal against it to obtain his or her legal share of the inheritance.

Therefore, special care must be taken to ensure that there is a connection between the content of the individual pages. This is the case if a sentence extends over two pages. If there is no such connection, the last will must have an external unity regarding the document itself. According to the Supreme Court, this is the case if the pages of the last will are so firmly connected to each other that they can only be detached by destroying or damaging the document. Only in this way it can be easily determined whether the last will of the deceased also corresponds to his actual will or whether an attempt at fraud has subsequently been made by replacing individual pages. Staples, for example, are not sufficient due to their easy removability. The numbering of the individual pages is also irrele-vant. According to the Supreme Court, the pages must be joined together before or "during" the creation of the last will.

In the most recent Supreme Court decision on this subject (OGH 29.4.2021, 2 Ob 4/21h), a will was drawn up by a notary who first had his secretary connect the individual sheets. Subsequently, the individual sheets were again removed from another, and the notary discussed the individual pages separately with the testator. After the signature, the pages were finally put together again. In this case, is there still a connection of the pages "during" the creation of the last will, or is it invalid since the connection of the pages happened too late?

The Supreme Court ruled that the connection of the pages must take place "during" the creation of the last will. However, this requirement is also fulfilled "if the connection is established immediately after the signing". Nevertheless, the Supreme Court left open when the limit of this immediacy will be reached. Disputes about the validity of the last will can, therefore, still arise very easily.

From a pragmatic point of view, the current "facilitation" of the formal requirements for making a last will is very positive. However, due to the complexity of these formal requirements, it is advisable for anyone wishing to make a last will not to do so without help. It is much better to consult an experienced legal expert in that matter, so nobody is deprived of his or her last will only because of formalities.
 

Author

Nikolaus Krausler

Associate