Do wills lapse why or why not

Challenging a will: you need to know that

A real rain of money will rain down on some citizens in the next few years. After all, they can count on lavish inheritances worth EUR 3.1 trillion over the next ten years. This is shown by a study commissioned by the German Institute for Retirement Provision (DIA). However, the study also indicates that these inheritances will be very unevenly distributed among citizens.

It is not an isolated case that testators do not consider their heirs immediately. It is not uncommon for such decisions to trigger bitter disputes in families.

Some heirs try to resolve these conflicts in their favor by attempting to contest a will. Successful avoidance can mean that a will becomes ineffective and the estate has to be redistributed. But there is often a long way to go before belligerent heirs have to observe a few rules.

Who can dispute an inheritance?

Heirs can only challenge a last will after the death of the testator. The succession must have already occurred. In addition: "The German Civil Code (BGB) only allows certain heirs to contest wills," says the Berlin lawyer Dr. Dietmar Kurz from the Working Group on Inheritance Law in the German Lawyers' Association. "It must be heirs who take advantage of the challenge."

For example, if a testator bequeaths his house to a non-profit organization instead of his children, the children can try to obtain a testamentary challenge. They must be able to provide a good reason for this (see below). Because the children would benefit if the last will of their father were declared ineffective. In that case, they would inherit the house.

This legal requirement reduces the number of people who can do something against a will: On the one hand, there are people who would actually be legal heirs. Mostly children and spouses, on the other hand the people who would benefit from another, earlier will because they were considered there.

When is it possible to contest a will?

From a legal point of view, it is not enough to be one of those people who are entitled to contest a last will. You need good reasons to justify this step. Because testators can initially decide freely about their inheritance to whom to bequeath their property. You can therefore only leave the statutory compulsory portion to your relatives and otherwise consider other heirs in your inheritance.

To annul this so-called testamentary freedom of a testator and to have a will declared ineffective is not easy. To do this, one of the grounds for contestation specified in the German Civil Code (BGB) must exist.

“After that, it is conceivable to contest a will if it is passed on to a person entitled to a compulsory portion. For example, because this did not exist at the time of the inheritance or its existence was not known to the testator ”, says lawyer Dr. Dietmar Kurz. “For example, when a testator has given consideration to the children from his first marriage. But did not think that a second or third marriage would result in more children. "

Even if a testator has been threatened and thus forced to appoint someone as sole heir, a will can be challenged. This also applies if the testator made an error in writing his last will.

In such a case, the will could either be completely or at least partially invalid. But, and that is the big problem in practice: heirs have to prove that the inheritance distribution arose under dubious circumstances. To do this, you have to produce witnesses and evidence and present them to the court.

How can you dispute a will?

Anyone who wants to rely on the legal grounds for avoidance must submit a declaration to the probate court, which must be done within one year of becoming aware of the grounds for avoidance. In the declaration you have to say that you are challenging the last will, you do not have to justify this. The declaration does not have to meet any special formal criteria.

The declaration then plays a role if someone applies to the probate court for a certificate of inheritance for this case of inheritance. Then the challenge of the inheritance becomes public. The contestant must make plausible and substantiate in court how justified the contestation is. The court examines the evidence and then indirectly declares the will ineffective or not by issuing or denying the certificate of inheritance. In one case - the will is invalid - an earlier written will or the legal succession, which favors the contestant, apply.

Incidentally, the period in which you can contest a will expires 30 years after the inheritance, regardless of the knowledge of the reason for the objection.

Avoiding wills due to dementia or old age: is that possible?

Avoiding a will is not only spoken of when the legal grounds for avoidance apply. In everyday language one speaks of contestation when heirs want to take action against a will written by a testator who is suffering from dementia and incapable of making a will. In these cases, the following applies: "Only the diagnosis of dementia is not legally recognized as a reason for contestation," says Dr. Dietmar Kurz, "The dementia must have been so pronounced that the testator was unable to make a testimony."

In this case, heirs can only try to prove the testator's incapacity to make a will and to have the last will about it declared ineffective. But here too the problem of proof arises, especially after the death of the testator. "In practice, it is rarely possible to prove that someone was incapable of making a will when he wrote the will," says Dr. Brief to consider.

Berlin Testament: is it possible to contest it?

In principle, it is also possible to contest a joint will, also known as the Berlin Testament. In this form, for example, the remarriage of a surviving spouse particularly often leads to a challenge, as this means that persons entitled to a compulsory portion can be overlooked. The birth of a child after the death of the first deceased can also be a reason for contestation.

Anyone who wants to contest a Berlin will, or a contract of inheritance, must know that in these cases the testator himself has a right of contestation. Disadvantaged persons entitled to appeal may then challenge the disposition in the event of inheritance. However, only if the testator's right of avoidance has not already expired during his lifetime by expiry of a one-year period or by confirmation (§ 2284 BGB).

Why you should contact a lawyer to challenge a will

  1. A lawyer can provide you with comprehensive advice on inheritance law. He or she can tell you what ways there are to contest a will and whether you are entitled to do so.
  2. A lawyer can also give you advice on how the procedure is going. He or she can advise you below on what steps you need to take to carry out a dispute and can also represent you if necessary.

If you want to contest a will, you can find lawyers who specialize in inheritance law in our large search - also in your area.