Not all parties are always satisfied after a will has been probated. If you do not wish to accept the testator's testamentary dispositions, you can contest his will and declare it invalid. The prerequisite for this is that certain grounds for contestation are present.
- Every heir has the right to contest a will if they can benefit from it.
- Contestation is only possible when the will comes into effect as a result of the testator's death.
- The prerequisite for contesting a will is the existence of a ground for contestation.
Why is a will contested?
Under German inheritance law, a last will and testament can contain almost any dispositions. In his will or inheritance contract, the testator can freely administer his estate, suspend legacies, attach conditions to the inheritance and appoint or disinherit heirs at will.
Not everyone has to agree with these dispositions. Heirs often do not receive the inheritance they expected: They feel they have been unfairly compensated, suspect a mistake on the part of the testator, or harbor doubts about the authenticity or validity of the will.
For these reasons, some heirs contest a will before the probate court. By contesting a will, they try to have it declared invalid or to claim the share of the inheritance to which they think they are entitled.
However, contesting a will only has a chance of success if certain conditions are met.
When is there a reason to contest a will??
When contesting a will, two situations must be distinguished: Contestation of the will in the broader sense and contestation of the will in the narrower sense.
Contestation in the broader sense
According to German inheritance law, a contestation of a will in the broader sense occurs when there are doubts about the validity of the will due to formal errors according to § 2247 para. 1 and 2 BGB (German Civil Code) or testamentary incapacity on the part of the testator (section 2229 (2)). 4 BGB) exist. You can also contest a will if you suspect forgery. In this case, a handwriting expert must clarify the authenticity of the handwritten document.
Formal errors in the will
The number of formal requirements for a will according to § 2247 para. 1 and 2 BGB is manageable. A handwritten will must be completely handwritten and signed by the testator. In addition, it must be legible, because illegible handwriting can render the will invalid.
Inability to make a will
According to Section 2229 of the German Civil Code, testamentary incapacity exists if the testator is unable to understand the meaning of the declaration of intent he or she has made and to act accordingly. Reasons for this can be a permanent mental weakness or a temporary disturbance of consciousness.
The following illnesses can trigger testamentary incapacity or. justify:
- Dementia
- Organically caused mental disorders such as z. B. Epilepsy
- Manic-depressive illnesses
- Schizophrenia
- Brain organic changes due to an addictive disease
To prove the incapacity to make a will is the task of the lawyers. If the contesting party or his attorney can prove that the testator was incapable of making a will when the will was made, or if other of the above-mentioned doubts prove to be justified, the entire will becomes invalid as a result.
Contestation in the narrower sense
In inheritance law, a will is contested in the narrower sense if the testator did not intend to draw up his or her last will and testament in the form in which it was drafted or if he or she was inadmissibly influenced. Proof leads to the relevant disposition in the will (but not the entire will) being declared invalid.
Lawyers can state possible grounds for contestation under §§ 2078 and 2079 of the German Civil Code (BGB):
Contestation due to error
- Declaration error:
An error on the part of the testator may exist, for example, if he/she makes a mistake when writing his/her last will and testament. This may be a typo and a slip of the tongue. The will thus does not correctly reflect the will of the testator. - Content error:
There is also grounds for contesting a will if, for example, the testator makes an incorrect assessment of the facts and makes a particular disposition for this reason. - Motivational fallacy:
A mistake of motive occurs when the testator, in writing his will, assumes circumstances that turn out to be wrong after the fact – for example, that the beneficiary would care for him until his death or marry at a later date. An error of motive as a ground for contestation is usually difficult to prove.
Contestation due to threat
A ground for contestation is also given if the testator was threatened by a third party when writing the will – for example, with violence, a criminal complaint or failure to render assistance.
However, the challenge is only justified if the threat was unlawful and actually led to the will being drawn up in accordance with the third party's ideas.
Passing over a beneficiary of a compulsory portion
A further ground for contestation is given if the testator has unknowingly passed over a beneficiary of a compulsory portion. This may be the case, for example, if he is the unknowing father of a (further) child entitled to a compulsory portion or if the child entitled to a compulsory portion had not yet been born when the will was drawn up. This child can contest the will in order to receive his or her share of the inheritance or at least the statutory compulsory share.
Avoidance due to unworthiness to inherit
The action for rescission on the grounds of unworthiness to inherit is directed against a co-heir. If a co-heir can be proven to have committed serious misconduct towards the testator or other heirs, you can bring an action for annulment against him on the grounds of unworthiness to inherit. As a result, the co-heir may retroactively lose his inheritance status.
One ground for contesting an inheritance under § 2339 of the German Civil Code (BGB) is, among others,
- When the heir has committed murder or attempted murder on the testator or has otherwise placed him or her in a condition that has made it impossible for the testator to make or revoke a will,
- if the heir has induced or prevented the testator from making a will by threat or fraudulent misrepresentation, or. to appoint the heir by will
- Or if the heir has falsified or misappropriated the testator's testamentary dispositions.
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Who may contest a will?
A challenge to a will in the broader sense is open to anyone: if you have doubts about the authenticity or validity of a will, you can challenge the will before the competent probate court and, if necessary, have it declared invalid.
According to Section 2080 of the German Civil Code, contesting a will in the narrow sense is limited to persons who benefit directly from a contest:
- If a non-family heir is appointed in the will, for example, the legal heirs can benefit from a challenge.
- A substitute or subsequent heir may also entitle the heir to rescission. The beneficiary in this way can contest the will in order not to have to wait for his inheritance.
- Heirs from an earlier will who were not subsequently included in the will are still entitled to challenge the regulation. These can benefit from contesting the subsequent will.
Contesting a will: This is how it works
Contesting a will is an informal declaration that you make in writing or on the record of the probate court. The competent probate court for a declaration of contestation is usually the local court of the place in which the decedent had his last domicile.
When contesting a will in the narrower sense, it is important that you do not contest the will as a whole, but rather certain individual dispositions. Depending on what is at issue, you declare the contestation to the probate court or to the opponent of the contestation.
Who accepts the contestation?
According to § 2081 para. 1 and 2 of the German Civil Code, the probate court will accept your declaration of contestation if the following points are at issue:
- Claiming or contesting an inheritance or disinheritance
- Claiming or contesting the appointment of an executor
- Claiming or contesting deprivation of a compulsory portion
If, on the other hand, you wish to contest a bequest, you must make the declaration of contestation in accordance with section 143 para. 4 BGB directly to the opponent of the challenge – this is the heir who is the beneficiary of the disposition in question.
Deadline for contesting a will
A contestation of a will is only possible after the will has come into force – i.e. after the death of the testator. You cannot contest the will during his or her lifetime, even if you should already be aware of its contents.
According to § 2082 BGB (German Civil Code), you have one year after the reading of the will to declare the contestation to the probate court. If you only become aware of the grounds for contestation after the expiry of this period, you then have a further year to declare the contestation. This is possible for up to 30 years after the date of inheritance.
Regulation after successful contestation
If individual dispositions are successfully contested, the remainder of the will continues to be valid. If the entire will is declared invalid, an earlier will may apply or intestate succession may apply.
Costs of contesting a will
The costs of contesting a will according to the German Law on Court and Notary Costs (Gerichts- und Notarkostengesetz, GNotKG) are not very high; they depend on the value of the estate. In principle, the contesting party must bear the costs first. However, if the contestation is successful, the costs may be deducted from the estate assets. In this case the contesting party bears the costs only proportionally or not at all.
Draw up a will with a lawyer or notary
Surely it is not in your interest that the dispositions from your last will be contested or even declared invalid. Therefore, seek the advice of an estate planning attorney or a notary public on how to make an incontestable will.
Good reasons for precaution
Record your own will in the event of your death and protect yourself and your family financially.
- You protect your own interests
- You avoid stress and worries in your family
- You protect your family from financial burden
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Since November is not allowed to give legally binding information, all information on this page is non-binding, does not constitute legal advice and cannot be understood as conclusive with regard to all matters related to the law of succession. We recommend that you contact a lawyer for inheritance law for advice.