Form of the last will and testament

Form of the last will and testament
Why is the form crucial?
These are the forms of last will and testament
Validity and transitional provision
Avoid common mistakes
Your Benefits with Legal Assistance
Frequently Asked Questions – FAQ

Form of the Last Will and Testament

Anyone who wants to regulate their estate must comply with certain formal requirements. According to Austrian inheritance law (§§ 577 ff ABGB), a last will and testament, such as a will or a legacy, is only effective if it has been drawn up in due form. Therefore, strict compliance with the statutory formal requirements is of crucial importance. Even minor formal errors can lead to invalidity.

A last will and testament is a person’s written declaration of what should happen to their assets after their death. This includes, for example, a will or a legacy. It replaces or supplements the legal succession.

Learn about the possible forms of a last will and testament. We explain the formal requirements clearly and understandably.

Why is the Form Crucial?

The legal requirements pursue two important goals:

Warning function: They are intended to ensure that you understand the scope of your decision.
Proof function: They serve to avoid later disputes.

Sebastian Riedlmair
Harlander & Partner Attorneys „Ein formungültiges Testament nützt niemandem – am wenigsten den Hinterbliebenen. Die Einhaltung der Form schützt nicht nur den Willen des Verstorbenen, sondern auch den familiären Frieden“

These are the Forms of Last Will and Testament

The Austrian legal system recognizes several equivalent forms:

holographic last will and testament
nuncupative last will and testament
judicial last will and testament
notarial last will and testament

The Holographic Last Will and Testament

This simple form of will is particularly suitable for people who do not want to use notarial or judicial assistance. It must:

be written entirely by hand,
be signed by hand,
and make the testator identifiable (even a nickname or “Your Mother” may suffice).

Place and date should be indicated, but are not mandatory. Important: Only adults and persons with testamentary capacity may draw up such a will.

The Nuncupative Last Will and Testament

In this variant, the text is not written by hand, but is created mechanically or by another person. The testator must:

sign by hand,
add a handwritten addition (“This is my last will”),
and have three witnesses present at the same time, who:
- sign the document,
- write a handwritten addition,
- and the witness status is evident from their details.

The witnesses do not have to know the content. Special regulations apply to testators who cannot write or read. Here too, the following applies: Only adults with testamentary capacity may use this form.

The Judicial Last Will and Testament

A judicial disposition can be made either in writing or orally in court. Any district court is responsible, regardless of the place of residence.

Written Version:

The disposition must be signed by hand and personally handed over.
The court instructs, seals, records and keeps the disposition.

Oral Version:

The declaration is made orally in court,
the court creates a record, which is sealed and deposited.

Only the oral form is open to mature minors

The Notarial Last Will and Testament

It can be done in writing as well as orally before a notary – either before two notaries or one notary and two witnesses. The exact rules can be found in the Notarial Code

Here too, a mature minor can only make a will orally before the notary.

Validity and Transitional Provision

The current formal requirements apply to all last wills and testaments drawn up after December 31, 2016. Older dispositions, on the other hand, are assessed according to the law in force at the time. For this reason, many wills drawn up before this date continue to be valid in practice.

Avoid Common Mistakes

A beer mat will may be valid under certain circumstances if it meets all the requirements. In practice, however, even a small formal error often leads to ineffectiveness, especially in the case of handwritten or nuncupative wills. A timely check by a lawyer protects you and your relatives from later surprises

Your Benefits with Legal Assistance

An experienced lawyer will check whether your disposition meets all requirements and help you avoid pitfalls. This is how you legally secure your last wishes and relieve your relatives.

Sebastian Riedlmair
Harlander & Partner Attorneys „Wer seine letzte Verfügung professionell absichern lässt, verhindert Streitigkeiten und sorgt für klare Verhältnisse, wenn es darauf ankommt“

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Frequently Asked Questions – FAQ

What form does a will need to be valid?

A will must comply with certain legal formal requirements – depending on whether it was drawn up holographically, nuncupatively, judicially or notarially. Even minor formal errors can lead to ineffectiveness.

What is the difference between a holographic and a nuncupative will?

A holographic will must be written and signed entirely by hand. A nuncupative will can be written on a computer or by another person, but also requires three witnesses present at the same time and certain handwritten additions.

Who can make a will?

In principle, any adult with testamentary capacity. Mature minors may only draw up a will orally in court or before a notary.

Does a will have to contain a date?

A date is not mandatory, but is strongly recommended. It helps to determine the last disposition in time in the case of several wills.

Can witnesses also draft the will?

Yes, in the case of a nuncupative will, another person can write the text. However, it is important that the testator signs by hand and that the witnesses meet certain requirements.

Is a beer mat will really valid?

If it is completely handwritten and signed, even a beer mat will can be valid. In practice, however, this form often leads to errors – therefore legal advice is advisable.

How can a lawyer help with the preparation of a will?

A lawyer ensures that all formal requirements are met, advises on the legal protection of your wishes and helps to avoid later challenges.