Is it permissible to sign a will with a pen guided by the mouth?
What had happened?
At the time the will is drawn up, the testator can only respond to questions with a nod or eye contact. The notary therefore reads the draft will to him and explains the consequences of the will to the testator. When asked whether this was also his last will and testament, the testator nods in the affirmative and then adds a character with his mouth, as he is unable to sign by hand due to his paralysis. The notary present and two witnesses who are also present also sign the will.
The testator’s legal heir, who was not included in the will, contests the validity of the will in the proceedings to determine the right to inherit. The lower courts held that the will was valid because, in the absence of any provision to the contrary, the signature could also be made by holding the writing instrument with the mouth or with the toes, especially since there was no doubt about the identity of the testator.
How did the Supreme Court decide?
The Supreme Court (Oberster Gerichtshof, OGH) dismissed the heir’s appeal for lack of a substantial question of law, essentially stating that even if the decedent were considered incapable of crying due to his physical disability, his writing would meet the requirements of a hand sign. Notwithstanding the expression "hand sign", what matters is not that the testator acts with his hand, but that he confirms his last will and testament to the outside world in a meaningful way, so that it finds expression on the document in question. In this regard, it is irrelevant with which part of the body the testator wields the writing instrument.
(Decision 2 Ob 35/23w of 21.03.2023)