My father’s will puts me at a disadvantage – but it was made before a notary. Can I still do anything?
Your co-pilot in inheritance law
Mag. Nevena Shotekova-Zöchling
Attorney in Vienna · 16 years of legal practice · Inheritance law
A will is only as strong as what is actually on the paper.
Three names. No signature.
A father, two sons. The elder one has done well in life. The younger one, in his father’s eyes, is a good-for-nothing – his lifestyle is, in the father’s words, “absurd”.
So the father goes to a notary. A will is drawn up that limits the younger son to his compulsory share: instead of the half of the estate he would receive by law, he is to get only a quarter – in cash. Everything looks flawless: neatly typed, made in the presence of the notary, who co-signs it himself. Three witnesses are present and write their names on it by hand.
When the father dies, the younger son comes to us. He does not expect much. “After all, a notary did this.”
We obtain the original and read it line by line. And then we see it: the three witnesses neatly wrote down their names. But none of them signed.
A name is not a signature.
What sounds like a technicality is decisive in law. The witnesses must sign the will – even when a notary is present. If they do not, the will is formally invalid, no matter who drew it up. Statutory succession then applies: with no surviving wife, the two sons inherit half each.
The other side understood this quickly. Instead of years of litigation, the matter was settled. The younger son received his full statutory share – twice what the will had left him.
The lesson: a notary is no guarantee. What counts is what is actually on the paper.
When a will made before a notary can be challenged
1. Formal defects
Austrian law prescribes exactly who must sign what and when. Typical mistakes: witnesses did not sign, or did not add the required note identifying them as witnesses; they were not present at the same time; or a witness was biased – for example a close relative of the beneficiary (sections 579 and 588 of the Austrian Civil Code, ABGB). Formal defects cannot be “repaired” after death.
2. Lack of testamentary capacity – the state of mind on that very day
A will is only valid if the deceased understood, at the moment of signing, what he was doing and what the consequences would be (section 566 ABGB). What matters is not the condition a year earlier or a week later, but that very day, that very hour. Causes that can impair mental capacity:
- Dementia and Alzheimer’s disease – often gradual, with good days and bad days
- Medication: strong painkillers such as morphine or other opioids, sedatives and sleeping pills, psychiatric drugs – especially in combination and in older people
- Acute confusion (delirium) after surgery, with infections, fever or dehydration – often in hospital
- Stroke, brain haemorrhage, tumours
- Alcohol and withdrawal states
- Severe depression or delusions, for instance if the deceased believed a child wanted to harm him
Important: a diagnosis alone does not make a will invalid. Even with dementia there are lucid moments. What is decisive is proof for that specific day. The strongest evidence is the medical record, nursing documentation, the medication plan, statements from doctors, carers and relatives, and a psychiatric expert opinion assessing the condition retrospectively. Incidentally, the notary assesses capacity only from his impression in conversation – not medically.
3. Pressure, deception, mistake
A will must reflect the testator’s free will. If the deceased was put under pressure, isolated, turned against a child with false claims, or was mistaken about an essential fact, the will may be wholly or partly ineffective.
4. The compulsory share always remains
Even if the will holds in every respect, children and spouses are entitled at least to the compulsory share – half of the statutory share, in cash. Gifts the deceased made to other children during his lifetime are added in. The compulsory share is often considerably higher than the heirs initially claim.
What you should do now
- Do not sign anything hastily. Do not make any declaration in the probate proceedings before the will has been checked.
- Request a copy of the original from the court commissioner, i.e. the notary conducting the probate proceedings. We need the original document, not just a transcript.
- Secure evidence while it still exists: doctors’ letters, hospital reports, medication lists, names of carers. Medical records are not kept forever.
- Keep an eye on deadlines. In probate proceedings the course is often set within a few weeks. Compulsory share claims generally become time-barred three years after you learn of them.
Is the will really as solid as it looks?
Send us a copy. You will receive an initial assessment within 48 hours on working days. The first consultation is free of charge.
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