Formal defects can render a will ineffective. Which form requirements apply, which defects are typical and who can contest a will.
Mag. Bernhard Brandauer
Attorney · BRANDAUER Rechtsanwälte, Salzburg
Inheritance matters are handled by Mag. Bernhard Brandauer together with a coordinated team. We examine the will, compulsory portion, gifts and deadlines and tell you clearly where you stand.
A will takes effect only if it meets the statutory form requirements. Even small errors when drawing it up can lead to a last will being ineffective, with statutory succession taking its place instead.
This article explains the form requirements of the will, shows typical formal defects and sets out who can bring a contest. It does not replace advice in an individual case but provides a basis for a first assessment.
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The answer decides which form requirements apply and where typical defects arise.
A holographic will must be written entirely by hand and signed by the testator. If the testator's own handwriting is missing in the essential part or the signature is absent, a formal defect may be present.
Whether contesting has prospects depends on the individual case and on the available evidence.
An allographic will calls for stricter forms, including being made before three witnesses present at the same time and a handwritten addition by the testator. If a witness or the required addition is missing, a formal defect may come into question.
A precise examination of the form requirements is especially important here.
Where the form is doubtful the will should be examined carefully. The testamentary capacity may also play a role where doubts exist beyond the form.
Without clear indications the prospects of contesting cannot be assessed.
The law knows several forms of last will. The holographic will must be written entirely by hand and signed by the testator. Typed parts or parts written by others do not suffice for this form.
The allographic will, for instance drawn up on a computer, calls for stricter forms. Required are, among other things, being made before three witnesses present at the same time and a handwritten addition by the testator confirming that the document contains their last will.
Common formal defects are a missing signature or one not placed at the end of the text, handwriting that is not consistently the testator's own in a holographic will, or too few witnesses in an allographic will. A defect may also be present where witnesses were not present at the same time.
If the form is missed, the disposition may be ineffective. An earlier valid will or statutory succession then applies. The consequences therefore reach far, which is why the form must be examined carefully.
A contest comes into question for persons who would inherit without the contested will, for instance statutory heirs or beneficiaries of an earlier will. They can raise objections in the probate proceedings and assert their claims to the estate.
It is important to raise objections in good time and to secure evidence, for instance the original will, handwriting samples or statements by the witnesses. Because deadlines and evidence requirements are strict, early legal support is advisable. No blanket statement about prospects of success is possible.
In inheritance law, deadlines and evidence decide. Call us directly or send an email, callback within one business day.
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