25. May 16

Grounds for challenging a will

Heirs who are disappointed with the content of a will may under certain circumstances be able to challenge the will if they have good cause to do so.

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: A will can give rise to disputes among the heirs, particularly if legal heirs feel they have been overlooked or not adequately taken into consideration. If they have good cause to do so, they can challenge the will. Following a successful challenge, the will becomes invalid and the rules of intestate succession kick in.

Having said that, it is not always the case that the entire will becomes invalid automatically. Certain individual passages need not necessarily be affected by the will becoming null and void. Generally speaking, these are the instructions that the testator has issued wholly independently of the void declarations.

A will can only be challenged by those who are entitled to do so. This normally includes the legal heirs, the preliminary heirs or the revisionary heirs. The challenge needs to be declared vis-à-vis the probate court within a period of one year after becoming aware of the grounds for challenge. The will must be contested no later than 30 years after the inheritance has accrued.

One good cause for challenging a will is an error relating to its content, i.e. the testator has made a mistake regarding the content of the testamentary disposition or did not want to issue a disposition with this content in the first place, and it is probable that he would not in full knowledge of the facts have made such a declaration. Ultimately, the aim is to determine and implement what is believed to be the testator’s actual intentions. Other grounds for challenging a will may include a mistake pertaining to a declaration or a mistake in motive. In the case of the former, the testator might simply have made a mistake in writing, for example; in the case of the latter, he will have proceeded on the basis of incorrect assumptions. Of course, it is also possible to challenge a will in the event that the testator made the dispositions under duress.

Testators should make sure when preparing a will that the dispositions are clearly and unambiguously worded and that none of the relevant legal provisions are overlooked, e.g. those concerning claims to a compulsory portion. In this way, subsequent disputes among the heirs can be avoided. Lawyers who are versed in the field of succession law can advise on all matters pertaining to wills or contracts of inheritance.

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