Contesting a will: What you need to know and bear in mind

Wills are always a cause of dispute and anger among relatives of a deceased person. And it is not uncommon for relatives to want to contest a will. The motives for contesting a will are then very different.

However, it is not always possible and/or sensible for a relative to contest a will. In this article, we therefore answer the most important questions on the subject of “contesting a will”.

When is a contestation even necessary?

Contesting a will is only necessary if the will itself is valid, but there are reasons to believe that the will should not be valid in this form, for example because the testamentary disposition does not express the free or true will of the testator.

In this situation, contesting a testamentary disposition – a will, an inheritance contract, etc. – may be the right course of action. Whether the will is a handwritten or notarized will, a spouse’s will or “Berlin will” or an inheritance contract is then irrelevant.

Ineffective will: no contestation necessary

However, a challenge is not the right approach if a testamentary disposition is invalid. A challenge is then simply not necessary: An invalid will has no effect. This may be the case, for example, if the testator

• was no longer capable of making a will (e.g. due to advanced dementia) or
• has not drawn up the will in the legal form (e.g. missing signature).

If there are any doubts about the validity of a will for the reasons mentioned, you should first have these points checked by a lawyer and inform the probate court of any doubts about the validity of a will. The probate court will then investigate these doubts ex officio.

In order to clarify the testator’s state of mind when the will was drawn up, the probate court can also obtain expert opinions, for example. However, the expert’s costs, which can be quite considerable, can be imposed on the parties involved. In this respect, it is important to weigh up the prospects of success and the cost risk in advance.

Contesting a will – not without reason!

What’s more, it is not always possible to contest a will. This is because the German Civil Code (BGB) recognizes many reasons why a will may be invalid. However, the grounds for an effective challenge are limited.

For example, a last will and testament can be contested if the testator

• was threatened or acted under duress,
• was deceived,
• was mistaken about the content of his orders,
• was restricted in the freedom to make a will due to previous inheritance contracts/spousal wills or
• has passed over a person entitled to a compulsory portion,

when he formulated his last will and testament. Last but not least, a “challenge on the grounds of divorce” is also conceivable if the will was not adapted after a divorce.

The principle of “interpretation before contestation” also applies. This means that if the testator’s true will can be determined by interpreting the will, a challenge is neither necessary nor possible. In this respect, it is important to clarify all other possibilities professionally before contesting a will in order to avoid being shipwrecked by an unsuccessful contest.

Who can contest a will and when?

In principle, anyone who would benefit from a successful will contestation can contest a will (Section 2080 BGB). This means that anyone who has an interest in the estate after a successful challenge – e.g. because they then become the legal heir – is entitled to challenge the will. The situation is different, however, in the case of a challenge due to a compulsory portion beneficiary being bypassed (Section 2079 BGB): In this case, only the beneficiary of the compulsory portion concerned can declare the avoidance.

It is also important to know: A testamentary disposition can only be contested once the person has passed away.  

What is the effect of contesting a will?

This depends on the individual case.

If a will is successfully contested as a whole, it is invalid as a whole. This may be the case, for example, if a will is contested because a person entitled to a compulsory portion has been bypassed. As a result, intestate succession applies if there is no older valid will or another older valid testamentary disposition (inheritance contract, etc.).

If a will is only partially contested or if the reason for invalidity (e.g. error) only relates to certain dispositions in the will, only this part of the will is generally invalid. The rest of the will then remains valid. However, the specific consequence of the contestation is a question of the individual case and regularly very contentious.

How (long) can a will be contested?

In principle, it is possible to contest a will within one year of becoming aware of the (possible) grounds for contesting it. As in some cases the testator’s knowledge is taken into account, the deadline can also be significantly shorter in individual cases.

The declaration of avoidance must be received by the competent probate court within the avoidance period. Otherwise the avoidance is no longer possible. If more than 30 years have passed since the inheritance, it is not possible to contest the will even if you have only just learned of the reason for contesting it.

The local court at the last place of residence of the deceased person has jurisdiction. The declaration of contestation must be made either in writing or on record at the probate court registry. The challenge must indicate which testamentary disposition is being challenged and the specific grounds on which the challenge is based.

If a challenge is considered, it is advisable to seek legal advice immediately in order to avoid mistakes that cannot be corrected later.

What does it cost to contest a will?

The court fee for accepting the declaration of avoidance costs only EUR 15.00.

However, the costs for the inheritance certificate proceedings, which regularly follow the contestation, are calculated according to the value of the inheritance. In this respect, it is not possible to make a general statement here.

A remuneration agreement is usually concluded with regard to legal fees. However, lawyers are obliged to charge at least the statutory fees in court proceedings. According to the German Lawyers’ Fees Act (RVG), these in turn depend on the value of the inheritance.