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Interpretation of Testamentary Dispositions

The interpretation of testamentary dispositions refers to the legal procedure by which the true will of the testator is determined if the testator’s will is unclear, ambiguous, or contradictory.

The aim of interpreting testamentary dispositions is to realize the subjective intention of the testator as fully as possible. The wording, personal language, external circumstances, and statutory rules of interpretation are taken into account.

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Objective of the Interpretation

The interpretation of testamentary dispositions differs significantly from the interpretation of contracts. The central aim of the interpretation of testamentary dispositions is to realize the subjective will of the deceased as accurately as possible.

The protection of legitimate expectations plays no role in the interpretation of testamentary dispositions, because there is no recipient of the declaration to be protected. The only thing that matters is what the testator actually wanted. Whether the heirs are satisfied with this is irrelevant.

Linguistically inaccurate or contradictory formulations therefore do not lead to the invalidity of the testamentary disposition. This principle, also known as favor testamenti, runs through the entire Austrian inheritance law.

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Necessity of Interpretation

The interpretation of a will is particularly necessary if:

• Terms were used unusually or ambiguously
• Individual provisions appear contradictory
• The difference between appointment as heir and legacy is not clearly recognizable
• Persons who are not clearly identified (e.g. by first name, nickname or missing data)
• Essential statements were formulated incompletely or misleadingly
• Statutory rules of interpretation must be applied

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The Principles of Interpretation

The legal interpretation follows a clear system, which results both from § 553 ABGB and from numerous special standards:

The Will of the Testator

The focus is on the actual will of the testator. This must at least be hinted at in the text. Since the 2017 reform, the law expressly allows circumstances outside the disposition to be taken into account. These include previous wills, letters or conversations with trusted persons.

Interpretation of Words in Individual Cases

First of all, the literal meaning must be assumed, whereby not only the general meaning counts. What is decisive is how the deceased actually used certain terms. If someone regularly understood only the house, but not his accounts, under “possession”, this personal language is decisive.

Favorable Interpretation (Favor Testamenti)

Wherever possible, the disposition should be interpreted in such a way that it remains effective. Even incomplete or untechnical formulations should lead as far as possible to the result desired by the testator. Complete invalidity is only possible if no sustainable will can be reconstructed from the text.

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Rules of Doubt of the ABGB

If the true will cannot be determined, statutory rules of interpretation apply. These include statutory rules of doubt in the case of unclear wills.

If a will is formulated imprecisely or ambiguously, certain statutory rules help to interpret the content correctly. These so-called rules of doubt only apply if the will of the deceased is not clearly recognizable and no clear interpretation is possible.

Amount of inheritance

Heir Named without Share

If the testator names a person in the will without specifying their share of the inheritance, he assigns them the entire estate in case of doubt. However, if a specific share is mentioned (e.g. one third), the rest goes to the legal heirs.

Several Heirs without Shares

If the testator appoints several persons as heirs without specifying their shares, he treats them equally in case of doubt and assigns each the same share.

Inherited Shares are not Sufficient

If the testator only disposes of part of his assets in the will, he leaves the rest to the legal heirs in case of doubt. If the testator expressly states that the appointed persons are to receive his entire estate, he excludes the legal heirs from the right of inheritance, even if he does not expressly name individual assets.

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Several Persons as a Group

If the testator names several persons who appear as a group, such as the children of his brother, he considers them as a unit in case of doubt and allows them to take over the inheritance share together. If, on the other hand, he gives individual names, he usually wants to assign each of these persons their own share.

Omission of an Heir without Replacement

If an appointed heir does not accept the inheritance and the testator has not appointed a substitute, the remaining heirs take over his share according to their inheritance quotas. Only if this division is not possible does the legal succession apply.

Substitute and Subsequent Inheritance

Avoid Restrictions as much as Possible

If the testator formulates a substitute or subsequent inheritance unclearly, the court interprets the provision in such a way that the appointed heir can dispose of the assets as freely as possible. If there is no express restriction, the will generally allows him free disposal.

Subsequent Heir for Person Capable of Making a Will

If the testator appoints a subsequent heir for a person who is capable of making a will at the time the will is drawn up, the subsequent inheritance has no effect in case of doubt, because this person is allowed to dispose of the inheritance without restriction.

Childless Descendants

If the testator imposes a substitute or subsequent inheritance on his child in the will, although the child does not yet have any children of his own at this time, this regulation loses its validity as soon as the child later leaves behind children of his own.

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Legacies and Division of Debts

Who Has to Fulfill the Legacy?

A legacy is a claim against the estate or the heirs. In case of doubt, all heirs must pay for it together, proportionally according to their share of the inheritance – even if the bequeathed item is actually assigned to a specific co-heir.

Generic Legacies (E.G. “one of My Cars”)

If the testator bequeaths an item that he only describes as a genus, such as a piece of jewelry, he leaves the selection of the specific piece to the heir in case of doubt. The heir should take into account both the last will of the deceased and the needs of the beneficiary.

Item is Missing from the Estate

If the bequeathed item was no longer in the possession of the testator and was expressly intended to come from his property, the legacy loses its effectiveness.

Item should not Come from Own Possession

If the testator does not comment on whether the bequeathed item should come from his own possession, he obliges the heir to procure the item, even if it is not part of the estate. In the case of cash legacies, the heir must pay out the amount mentioned, even if there is no cash in the estate.

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Revocation and Destruction of Wills

Destruction of a Will

If the testator intentionally destroys his testamentary disposition by tearing it up, burning it or crossing it out, he effectively revokes it. If, on the other hand, he only destroys a copy, the original remains valid.

Earlier Disposition Remains Valid

If the testator destroys a later will and leaves an earlier one untouched, he expresses that he wants to return to the earlier disposition. An earlier oral disposition remains ineffective, unless it was made in court or before a notary.

Revocation of a Legacy by Conduct

If the testator collects a bequeathed claim, sells the bequeathed item or changes it so much that it is no longer recognizable, he shows that he no longer wants to maintain the legacy. However, if the change is not based on the will of the testator, the legacy retains its validity.

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Possible Disputes

Unclear dispositions often lead to inheritance disputes. Typical conflicts arise when:

• No clear inheritance regulation has been made
• Compulsory portions have been overlooked or incorrectly calculated
• Certain assets appear to be assigned multiple times
• Older, unrevoked wills contradict the current text

Such disputes not only strain family relationships, but also lead to considerable delays in the estate settlement.

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Avoiding Interpretation Conflicts

Anyone who draws up a will can actively avoid later uncertainties:

• Clarity comes first: Avoid ambiguous terms and unclear descriptions. Every statement should be unambiguous.
• Check rules of doubt: Get an overview of statutory formulation pitfalls before creating a disposition.
• Secure evidence: Personal records, drafts or confidential communications can help to determine your will in the event of a dispute.
• Seek legal advice: A legally reviewed will not only protects your assets, but also your family from disputes and stress.

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Your Benefits with Legal Assistance

A law firm specializing in inheritance law, such as ours, will help you to formulate your last will clearly and legally effectively. In the event of a dispute, we will help you to interpret ambiguous wills in the spirit of the deceased and to enforce claims or defend against unjustified claims.

With legal support you gain:

• Avoidance of costly errors
• Legally secure and clear formulations
• Protection against unnecessary inheritance disputes
• Support in the judicial enforcement of your rights

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Frequently Asked Questions – FAQ

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