Inheritance Law

Contesting (or Challenging) a Will in Germany

Reasons to contest a will in Germany

In Germany, contesting a will is a legally complex process and can only be done under certain conditions.

German inheritance law is governed by the German Civil Code (BGB), which contains clear rules on how to contest a will.

Contesting a will involves proving that the document is legally invalid or that certain irregularities occurred while making a will in Germany.

The grounds for contesting a will in Germany include:

• Lack of testamentary capacity (Testierunfähigkeit)
• Undue influence or duress (Drohung oder Täuschung)
• Error in declaration (Irrtum in der Erklärung)
• Legal formal deficiencies (Formmangel)
• Inheritance rights of compulsory heirs (Pflichtteil)
• Subsequent invalidity of will provisions
• Fraud or forgery

Lack of Testamentary Capacity (Testierunfähigkeit)

One of the main grounds for contesting a will is that the testator (the person making the will) lacks testamentary capacity.

Testamentary capacity refers to the legal and mental ability of a person to make a valid will. Under German law, a person must be of sound mind and fully understand the nature of their actions when making a will.

If it can be shown that the testator was not of sound mind, for example because of mental illness, dementia or intoxication, the will can be challenged.

To challenge a will on these grounds, the burden of proof is on the challenger. Medical records, witness statements and expert reports are often required to prove that the testator lacked capacity at the time of making the will.

Undue Influence or Duress (Drohung oder Täuschung)

Another reason for contesting a will in Germany is if it was made under undue influence, duress or coercion. This occurs when someone pressures the testator to make certain provisions in the will that he or she would not have made of his or her own free will.

This influence could come from family members, carers or others who stand to benefit from the contents of the will. It may also involve threats or manipulation.

To prove undue influence or coercion, it must be shown that the testator’s decisions were not voluntary and that external pressure influenced their judgement. German courts will examine the relationship between the testator and the person accused of exerting influence, as well as any changes in the testator’s behaviour or mental state prior to the making of the will.

Error in Declaration (Irrtum in der Erklärung)

In this context, an ‘error’ means that the testator made a mistake about what he or she intended to say or misunderstood the legal consequences of his or her statement. This could include mistakes in naming beneficiaries, describing assets or misunderstanding the legal terms used in the will. For example, a testator may think they are leaving certain assets to one person, but inadvertently name another.

Challenging a will on the grounds of error is difficult and usually requires the challenger to provide clear evidence of the testator’s misunderstanding or mistake. The German legal system allows ‘Anfechtung wegen Irrtums’, or challenging on the grounds of error, within one year of the discovery of the error.

Legal Formal Deficiencies (Formmangel)

German inheritance law is very particular about the formal requirements for a valid will. If a will does not meet these strict formal requirements, it can be challenged on the grounds of formal defects.

A will may be considered invalid if it is not properly signed, if it is not entirely handwritten by the testator, or if it is not witnessed or notarised where required. Formal defects are often easy to prove and, if successfully established, could invalidate the entire will.

Inheritance Rights of Compulsory Heirs (Pflichtteil)

German intestacy law contains provisions which protect the rights of compulsory heirs (Pflichtteilberechtigte), such as children, spouses and parents of the deceased. Even if a testator excludes a compulsory heir from his will, that heir is still entitled to a compulsory portion of the estate, known as the “Pflichtteil”.

A will that attempts to disinherit a compulsory heir entirely can be challenged by the heir to claim their rightful share. This will not normally invalidate the will itself, but it may result in a redistribution of assets to ensure that the compulsory heir receives their minimum entitlement.

Subsequent Invalidity of Will Provisions

A will can also be challenged if certain provisions in it become invalid after it has been made. This can happen because of major life changes such as marriage, divorce or the birth of new heirs. In Germany, certain events automatically invalidate parts of a will, particularly if the testator fails to update the will after these major life changes. For example, the testator’s divorce may invalidate provisions in favour of the former spouse, unless otherwise stated.

Challenging the will on these grounds would involve proving that the change in circumstances occurred after the will was made and that the testator did not revise their estate plan accordingly.

Fraud or Forgery

A will can also be challenged if it is suspected of being fraudulent or forged. Fraud may involve someone altering the will or inserting provisions that the testator did not authorise. Forgery, on the other hand, refers to situations where the entire will is a sham, for example if someone else forged the testator’s signature or drafted the will without the testator’s knowledge.

Proving fraud or forgery is usually a high bar to clear and requires a thorough investigation, often involving handwriting analysis, witness testimony and other forensic evidence.

Interpretation of the Will

The interpretation of a will (Testamentsauslegung) refers to the process of determining the true intent of the testator when the wording or provisions of the will are unclear, ambiguous, or contradictory.

If the wording of the will is unclear or open to multiple interpretations, the court or the parties involved must try to interpret it in a way that reflects the testator’s true intention. This process is essential to ensure that the testator’s wishes are respected in accordance with German inheritance law.

If disputes arise over the interpretation of a will, the probate court is responsible for resolving these issues. The court will gather evidence from witnesses, documents or experts to understand the testator’s intentions. If necessary, the court may call on notaries, lawyers or others who were involved in drafting or witnessing the will to provide clarity.

Will interpretation and will contestation are two closely related but distinct legal processes, both of which deal with the administration of a deceased person’s estate. Although both concern the proper execution of a will, they have different purposes and legal bases.

Will interpretation is a legal process that occurs when the wording of a will is ambiguous, unclear or incomplete. The aim is to determine the true intention of the testator (the person who made the will) and to ensure that their wishes are carried out as accurately as possible. Courts or parties involved in the estate will look beyond the literal text of the will and consider the overall context, the testator’s relationships, circumstances and even legal principles to clarify the meaning of the will’s provisions.

Non-contentious German Probate (Erbscheinverfahren)

Non-contentious probate in Germany refers to the legal process of administering the estate of a deceased person when there is no dispute over the distribution of the assets. The German legal system is designed to facilitate the smooth transfer of assets from the deceased to their heirs or beneficiaries, provided there is no dispute as to the validity of the will, the determination of the heirs or the division of the estate.

This process, known as probate, is governed by the rules of inheritance law as set out in the German Civil Code. The probate process ensures that the estate is properly administered, debts are paid and the rightful heirs receive their inheritance, whether the person died testate (with a will) or intestate (without a will).

In Germany, the assets, liabilities and obligations of the deceased are automatically transferred to the heirs by law, often without the need for lengthy probate proceedings. If all the heirs agree and there are no disputes, the probate process can be “non-contentious”.

Contentious Probate in Germany (Erbenfeststellungsklage)

Unlike non-contentious probate, where the estate is administered and distributed without conflict, contentious probate involves legal challenges or disagreements between parties such as heirs, beneficiaries or creditors. These disputes can arise over the validity of a will, the interpretation of its terms, the identification of heirs or the distribution of assets.

In Germany, contentious probate usually involves the Nachlassgericht (probate court), which is responsible for dealing with inheritance disputes. Probate courts in Germany aim to resolve these conflicts, which can sometimes lead to lengthy legal battles, especially when significant assets or complicated family dynamics are involved.

Procedural Routes to contest a will in Germany

The legal process of contesting a will in Germany is governed by clear procedures and time limits to ensure that disputes are resolved fairly and efficiently. It begins with identifying the legal grounds for challenging the will, filing an application with the probate court and providing the necessary evidence to support the challenge.

Here is an outline of the process to follow when challenging a will in Germany:

1. Establishing standing to contest the will: Before contesting a will, a person must establish that they have legal standing to do so. Only certain people can contest a will, usually heirs, beneficiaries of the will who believe the provisions are invalid, and devisees, such as children, spouses or parents who have a right to a compulsory share of the estate. These people must show that they have a direct interest in the will and its outcome.
2. Identify the grounds for contesting the will: The will can only be contested if one of the legal grounds mentioned above applies. Challenging a will without valid grounds will not succeed in court.
3. File the challenge with the probate court: To formally contest a will, the claimant must file a petition to contest the will with the probate court. This application must include identification of the will being contested, a statement of the grounds for the challenge, evidence to support the claim and the desired outcome.

Once the petition is filed, the probate court will conduct a preliminary review of the evidence. The probate court’s role is to assess whether the legal grounds for contesting the will are valid.

If the court finds that the challenge has merit, it may request additional evidence from the parties, appoint experts such as forensic handwriting analysts or medical professionals to evaluate the claim, and hold hearings at which both sides can present their arguments and evidence.

After considering the evidence, the court will make a decision.

The court may decide to:

• Invalidate the entire will if it is found to be defective in law (e.g. the testator lacked testamentary capacity or the will was forged).
• Invalidate only certain provisions: If only part of the will was affected by fraud, undue influence or other invalid conditions, those parts of the will may be declared void, while the remaining valid parts are upheld.
• Uphold the Will in its entirety if the challenge is rejected.

If the court declares the will invalid, the estate will be distributed either in accordance with a previous valid will or, if there is no other will, by intestate succession under German law, which favours close relatives.

If a party is dissatisfied with the probate court’s decision, they can appeal to a higher court. The appellate court will review the probate court’s decision and the evidence presented in the case. Appeals must also be filed within a certain time frame, usually within one month of the probate court’s decision.

Once all disputes have been resolved and the final judgement has been made, the probate court will oversee the proper distribution of the estate, either according to the terms of the will (if it is upheld) or according to statutory intestacy law (if the will is invalidated). The heirs can then administer the estate, pay debts and distribute assets as required by law.

All cases are unique and require expert assessment. If you are considering challenging a will, please contact our inheritance law firm in Berlin, Germany.

Challenge Unfair Wills with Confidence

Do you have doubts about the validity of a will or suspect undue influence or errors?

Contesting a will requires in-depth knowledge of German law and meticulous evidence gathering.

Our firm is dedicated to helping clients challenge unfair or fraudulent wills with precision and professionalism. We will guide you through every step of the process, from building a solid case to representing you in court. Let’s work together to ensure that justice is served in your inheritance dispute.

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