Testamentary Disposition

A testamentary disposition is a legally binding declaration of a person’s last will. It allows for the individual regulation of the estate and can replace or supplement statutory succession.

Essentially, the testator has three options for regulating their estate:

• Will
• Codicil
• Bequest

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Will

A will is a unilateral, revocable disposition that appoints a person as heir. It is the declaration of the deceased during their lifetime as to whom the assets existing at the time of their death shall pass, either in full or proportionally.

A Legacy – Codicil

A codicil is another testamentary disposition that does not appoint heirs, but rather provides for legacies, conditions, or the appointment of a guardian. It is also unilateral and revocable at any time.

The Legacy – Bequest

A bequest expresses the wish that someone should receive only specific items from the estate, such as a stamp collection. The person designated in this way is called a legatee. Thus, a bequest is a testamentary gift without leaving an inheritance share.

Therefore, unlike through a will, the legatee does not become a universal successor, but merely a singular successor. A bequest can be stipulated in a will, in a disposition without appointing an heir, or in an inheritance contract.

Note: The same regulations apply to bequests, unless otherwise stipulated by law.

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Drafting a Testamentary Disposition

In principle, any person who has reached the age of 18 and is of sound mind can draft a testamentary disposition.

Persons between 14 and 18 years of age can only make a will orally before a court or notarially, whereby the court or notary must be convinced that testamentary capacity exists.

Persons under 14 years of age, those with mental incapacities, the mentally ill, and persons whose free will formation is excluded for any other reason, such as severe intoxication, cannot draft a testamentary disposition.

Forms of Testamentary Dispositions

Testamentary dispositions can be drafted holographically or allographically. In addition, oral and public testamentary dispositions also exist.

Holographic Dispositions

In the case of a holographic disposition, the entire text must be handwritten and signed by the testator, with the signature appearing at the end of the text.

Allographic Disposition

An allographic testamentary disposition can be drafted using a typewriter, a PC, or handwritten by another person. However, the testator’s personal signature is required. Furthermore, the testator must add a handwritten statement confirming that the document contains their last will. The will must be signed in the presence of three witnesses simultaneously present, whose identities must be evident from the document. The witnesses do not need to know the content of the disposition, but they must be aware that it constitutes the last will of the testator. At the end of the will, these witnesses must sign, adding a handwritten note indicating their capacity as witnesses.

Note: Not everyone can be a witness. Persons under 18 years of age, the blind, deaf, mute, biased witnesses, and persons who do not understand the language in which the testamentary disposition was drafted are not eligible as witnesses.

Oral Testamentary Disposition

If there is an immediate danger that the testator will die or lose the capacity to make a will, the last will can be declared orally or allographically before two legally competent witnesses.

Note: A last will declared in this manner is only valid for a period of three months from the cessation of the danger.

Public Testamentary Disposition

Persons between 14 and 18 years of age can only make a will orally before a court or notarially, whereby the court or notary must be convinced that testamentary capacity exists.

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Revocation of a Will

Revocation can occur expressly in the form of a will or through a later will that contradicts the earlier one. Revocation can also occur through conclusive actions such as destroying the document or striking through text passages, but only if these are clearly recognizable as revocation.

Unless the deceased stipulates otherwise in the later testamentary disposition, an earlier will is also revoked in its other provisions by a later valid will.

Note: The safest way is revocation in the form of a will!

Contesting a Testamentary Disposition

A testamentary disposition can be contested or challenged due to an error on the part of the testator.

Those entitled to contest include both relatives who are legal heirs, as well as relatives or survivors who would have been considered heirs by an earlier will, if a demonstrable error occurred on the part of the testator.

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Will Register

After the will is drafted, we register it in the Will Register of Austrian Lawyers. This ensures that in the event of death, the court commissioner is informed of the will and it is executed.

Important: Only the fact of the will’s drafting is registered. The will is not scanned and is not viewable online; instead, it remains confidential with the lawyer.

Your Benefits with Legal Assistance

The legal requirements for a testamentary disposition are strict. Even minor formal errors, unclear formulations, or ill-considered clauses can lead to the last will being wholly or partially invalid. This often results in disputes among survivors or lengthy court proceedings.

An experienced lawyer ensures that your disposition:

• is legally valid and formally effective,
• clearly and unambiguously reflects your actual will,
• and remains enforceable when needed.

This way, you create legal certainty for yourself and your relatives.

Frequently Asked Questions – FAQ