Why are German Wills often successfully challenged and voided?
As in most jurisdictions, a German Last Will can be challenged if the testator, at the time of making the Will,
(i) lacked mental capacity (in German: if he or she was “testierunfähig”); or
(ii) was under undue influence, e.g. pressured or threatened (“bedroht”); or
(iii) was under some false impression (“im Irrtum”), i.e. erred about certain circumstances.
These are the most commonly known standard legal reasons based on which a Will can be made void. German inheritance law, however, has a few surprises to offer.
More legal grounds for challenging Wills under German Succession Laws
Under German inheritance law, there are additional grounds for challenging a will which are unknown to most Common Law systems. These are the so called “Anfechtungen wegen Übergehung eines Pflichtteilsberechtigten”, section 2079 German Civil Code (Bürgerliches Gesetzbuch).
These rights to challenge and make void an otherwise perfectly fine German will often surprise and take aback even German beneficiaries and their lawyers. The idea behind these statutes is to protect the interests of the surviving spouse and of children if the Will has been set up at a time when the testator was not yet married to said spouse or the (additional) child has not been born. In these circumstances, if the testator does not amend, i.e. update, his or her “old” will, the spouse or child not mentioned therein can make this will void by appealing to the German probate court (Nachlassgericht), which must be done within certain deadlines.
The details on how to formally challenge a Will in Germany are explained in this blog here. and in the post “Contentious Probate in Germany”
More on litigation and legal costs in Germany:
- Making a Court Claim for Money in Germany: It’s actually quite easy
- Standard of Proof in German Civil Litigation
- German Litigation Experts explain Civil Procedure Rules
- How expensive is a German Lawsuit?
- Expert Reports on German Law
For legal advice on German civil procedure and how to successfully litigate in Germany, contact the international litigation experts and trial lawyers of GrafLegal.
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