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Special testaments
JUDr. P. Salák jr. Ph.D.

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Why special?
nDifferent legal requirements, than at regular testament
nHigher – in roman law – testament of an blind person (8 witness)
nLower – special situations (epidemy, testamentum ruri conditum,…)
n
nReason
nTo give the posibility of last will in difficult situations, when the regural form of will is
unusefull

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Types of special wills in roman law
nMilitary will
n– Augustus (Caesar), then Titus
nTestamentum pestis tempore conditum
n290 – Diocletian
nNot all witness togother
n„Quod si litteras testator ignoret vel subscribere nequeat“ (Cod. 6.23.21.1)
n439 – Theodosius II, Valentinianus III.
n8 witness
n–530 – Justinian - Testamentum ruri conditum
nOnly 5 witness
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Types of testaments in ABGB
nMilitary testament – was not regulated in ABGB – special military law
nIn case of conflict – soldiers and persons accompanying troops (valid until the end of conflict)
nIn time of peace - only soldiers – valid until the end of their service
nTestament in case of Epidemy (Pests)
nTestament on the ship (on the sea)
nOral form, few witness, the witness may be also person of age 14and more
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Draft 1931 - 1937
nTestament in the time of war
nTestament in the time of epidemy
nTestament in the case of disaster (natural or technlogical)
n
nNo more ship or plane testament
nsailing is safer
nin the event of an airplane disaster, it is doubtful that it would survive not only the testator
but also the witnesses
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Communist time
nObligatory regular form – written
n
nNot special form of testament or epidemy or time of war – the new code (1950) is a code for time
of peace, therefor didn´t need the military testament (in Poland and USSR it was)
n
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Special form of testament in CC 2012
nSpecial form of the testaments in section 1542-1549
n1542 – 3-witness testament (inspiration BGB) – like „general type“
n1543 – Village testament (inspiration BGB)
n1544 – Testament on board of the vessel or the plane (Inspiration – Italian?  Netherland?)
n1545 – Military testament (inspiration in Italian x moderated)
n1546-1549 – „common provisions“
n
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Section 1542
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n (1) A person who is under imminent threat to life due to a contingency has the right to make a
testament orally before  three witnesses present at the same time. A person in a place where usual
social intercourse is paralysed as a result of a contingency and who cannot be reasonably require d
to make a disposition mortis causa in another form has the same right.
n (2) If witnesses do not make a record of the decedent’s last will, the succession of heirs will
be based on a judicial protocol of the examination of witnesses.
n
nSec. 1548
nIf a decedent is alive, a testament made under Section 1542 shall lose its validity after two
weeks,…. months from the date on which it was made
n(inspiration of ZGB – originally was the same at the other forms – 3 month)
n

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Section 1543
nWhere there is a reasonable concern that a decedent would die before he can make a testament in
the form of a public instrument, his last will may be recorded, in the presence of two witnesses,
by a mayor of the municipalit y in whose  territory the decedent is located. A person entitled to
exercise the powers of a mayor under another legal regulation may, un der the same conditions, also
record a decedent’s last will.
n
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Section 1544
n(1) If a decedent has a serious reason, his last will may be recorded in the presence of two
witnesses aboard a naval vessel sailing under the national flag of the Czech Republic or an
aircraft registered in the Czech Republic by the commander of  the naval vessels or aircraft, or by
his representative, unless he is prevented from doing so due to considerations of safety of the
voyage or flight. The validity of a testament may not be denied by claiming that the decedent had
no serious reason to make the testament.
n(2) If a testament has been made under Subsection (1) on board of: a) a naval vessel, the
commander shall record the testament in the logbook and hand it over without undue delay to an
embassy of the Czech Republic closest to the port to which the naval vessel arrives, or to the
public body which maintains the naval register in which the naval vessel is registered, or b) an
aircraft, the commander shall record the testament in the logbook and hand it over without undue
delay to the embassy of  the Czech Republic closest to the place abroad where the plane landed, or
to the public body which maintains the aircraft register in which the aircraft is registered
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Section 1545
n1) When participating in an armed conflict or military operations, the last will of a soldier or
another member of the armed forces may be recorded in the presence of two witnesses by a commander
of a military unit of the Czech Republic or another soldier at the rank of officer or higher. If a
testament is made in this manner, its validity is not to be denied.
n(2) A commander shall, without undue delay, deliver the testament made under Subsection (1) to a
commander of superior command, who shall, without undue delay, hand it over to the Ministry of
Defence of the Czech Republic.
n
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Section 1546 and 1547
n1546
nIf a testament was made under Section 1543, the municipality shall, without undue delay, ensure
that the testament is deposited with a notary. If a testament was made under Sections 1544 or 1545,
the same is provided for by the authority to which the testament was handed over.
n
n1547
n(1) If a decedent has made a disposition mortis causaunder Sections 1543, 1544 or 1545, the person
making the record must also sign it together with both witnesses and read it to the decedent in the
presence of both witnesses, and the decedent must confirm that the record constitutes the
expression of his last will. A testament so made is to be considered a public instrument.
n(2) Where a testament is made under Sections 1543, 1544 or 1545 and the prescribed formalities are
not adhered to, in particular where the instrument lacks the signatures of the witnesses present,
although they are required, but it is nevertheless certain that the instrument reliably records the
decedent’s last will, it does not cause the testament to be invalid; however, such an instrument is
not to be considered a public instrument.
n
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Section 1547
n1547
n(1) If a decedent has made a disposition mortis causaunder Sections 1543, 1544 or 1545, the person
making the record must also sign it together with both witnesses and read it to the decedent in the
presence of both witnesses, and the decedent must confirm that the record constitutes the
expression of his last will. A testament so made is to be considered a public instrument.
n(2) Where a testament is made under Sections 1543, 1544 or 1545 and the prescribed formalities are
not adhered to, in particular where the instrument lacks the signatures of the witnesses present,
although they are required, but it is nevertheless certain that the instrument reliably records the
decedent’s last will, it does not cause the testament to be invalid; however, such an instrument is
not to be considered a public instrument.
n
nInspiration in sec. 2249 (6) of BGB
nIn BGB is it only for village testament
nonly about the formal requirements of the record of the will
nOnly valid/invalid – not „but it is nevertheless certain that the instrument reliably records the
decedent’s last will, it does not cause the testament to be invalid“
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Section 1548 - witness
n(1) Where a testament with relief is made, persons who have reached the age of fifteen and persons
whose legal capacity has been limited may also be witnesses if they have the capacity to credibly
describe facts relev ant to the validity of the  testament.
n(2) Where a testament with concessions is made, its validity shall remain unaffected if it is not
signed by the decedent or a witness because he could not write or due to another serious obstacle
provided that it is explicitly stated in the instrument
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Section 1549 – time limitation
nIf a decedent is alive, a testament made under Section 1542 shall lose its validity after two
weeks, and a testament made under Section 1543, 1544 or 1545 shall lose its validity after three
months from the date on which it was made. However,these periods neither commence nor run until the
decedent can make a testament in the form of a public instrument.
n
n2 weeks – originally was not – inspiration by ZGB
n3 months – BGB (ABGB § 597 after novelization in 2005, § 584 after novelization in 2015)
n
nX
nABGB (1811) – six months
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Thank You for Your attention
P. Salák jr.
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