Contesting a will

A will can be contested if a person dies and, for example, heirs or potential heirs have doubts as to whether the will corresponds to the true wishes of the testator. The legal basis for contesting a will can be found in Sections 2078 ff of the German Civil Code (BGB).

Invalid will – no contesting the will

In some cases in which people want to contest a will, contesting the will is not necessary: ​​especially if a will contains a formal error (e.g. if a handwritten will is not signed) or the testator was no longer capable of making a will (e.g. due to dementia). In this case, the will itself is not validly drawn up and is therefore void.

If the issue is that a will was not drawn up correctly, or there are doubts about the mental state of the testator when the will was drawn up, contesting the will is not the right way to go. In this case, the probate court must be informed that there are doubts about the validity of the will. The probate court must investigate these doubts ex officio and, if necessary, commission an expert.

Reasons for contesting a will: lack of will on the part of the testator

The reasons for contesting a will – in whole or in part – can be very different. A will is primarily contestable if the testator lacked will when he made his will. The same applies to a marital will or an inheritance contract.

A lack of will exists, for example, if the testator

• the will was drawn up under duress or was threatened (threat),
• was deceived about certain facts (deception) or
• was mistaken about facts (error).

What is important in these cases is that only if coercion, error or deception actually had an impact on the content of the will is this a reason for contesting the will. If the testator would have drawn up the will in exactly the same way without error, coercion or deception, contesting it is excluded.

But contesting a will can also be considered in other cases:

• Challenge due to previous inheritance contracts / spouses’ wills – here the freedom of testamentary making is restricted
• Challenge due to divorce – if the will was forgotten to be amended during a divorce
• Overriding a person entitled to a statutory share
• Immorality

Complete and limited contesting of a will

It is important to know in this context: It is also possible to contest only parts of a will, especially if the person was mistaken about certain facts that were the basis for certain provisions in the will.

In the case of a complete contest, the entire will can be declared invalid if there is a corresponding reason for contesting it. If a will is only partially contested, only the contested part of the will is invalid. However, this only applies if the remaining provisions in the will still correspond to the testator’s wishes even without the contested part being valid.

Who can contest a will?

Who can contest a will is regulated by law: “Those entitled to contest” are basically all persons who “would directly benefit from the annulment of the last will and testament.”

Anyone who would benefit from the invalidity or partial invalidity of a will, such as legal heirs who were disinherited by a will, but also testamentary heirs who, for example, only want to contest a legacy in the will, can contest a will. This basically makes the circle of those entitled to contest relatively large. In the case of specific reasons for contesting, e.g. ignoring a person entitled to a statutory share (§ 2079 BGB), the right then only applies to certain people, in this case, for example, the person entitled to a statutory share.

Declaration of challenge and contesting period

The contesting takes place as a declaration of challenge, which must be submitted to the competent probate court at the testator’s last place of residence. It can be submitted in writing or recorded in court. The contesting does not have to be justified in the first step. However, it is advisable to state the reason for the contesting.

However, there is no time limit for contesting a will. There is a contesting period for contesting a will: the contest must be made within one year of learning about the reason for the contesting.

This means that in case of doubt, a will can also be contested several years after the person’s death if a person entitled to contest the will only learns about a reason for the contesting many years later.