INHERITANCE LAW
Contesting a will in Cologne: grounds, deadlines and limits
Sometimes a will that has been opened says something that does not fit the person who died. Whether anything can be done about it depends on narrow grounds of challenge and a short deadline. I am Dr Hanna Schmidt, a lawyer for inheritance law in Cologne, and I examine both sides, attack and defence. I will also tell you when the compulsory share is the faster route to money in your case.
Contesting a will in Cologne: three routes that are regularly confused
01
A challenge in the legal sense
It requires that the deceased was mistaken when making the will, was threatened, or passed over someone entitled to a compulsory share whom they did not know about (sections 2078 and 2079 German Civil Code). The will is then valid to begin with, and someone has to attack it actively.
02
A defect of form
A will that was not made in one of the permitted forms is invalid from the outset. Nothing is contested here; the invalidity is established, if need be in certificate of inheritance proceedings.
03
Lack of testamentary capacity
Anyone who, when making the will, was unable to grasp the meaning of their declaration and to act on that understanding cannot make a valid will (section 2229(4) German Civil Code). That too is not a challenge but nullity.
04
During the testator's lifetime there is nothing to contest
As long as the testator is alive they can change or revoke their will at any time, for example by destroying the document with the intention of revoking it (section 2255 German Civil Code). Only on death does a disposition become something to litigate about.
The grounds of challenge: mistake, threat, a passed-over claimant
Mistake and unlawful threat (section 2078 German Civil Code)
A testamentary disposition can be challenged to the extent that the testator was mistaken about the content of their declaration or did not want to make a declaration of that content at all, and it is to be assumed that they would not have made it had they known the true position (section 2078(1)).
The same applies where they were induced by a mistaken assumption or expectation about a circumstance, or unlawfully by a threat (section 2078(2)). The second paragraph is the more important in practice. It covers a mistake of motive, that is, the false picture that led the testator to their decision.
What matters is not that the picture was false, but that it caused the disposition. That is precisely where most challenges fail, because the testator's state of mind has to be evidenced from circumstances that are still tangible after their death.
The passed-over claimant (section 2079 German Civil Code)
A testamentary disposition can be challenged where the testator passed over a person entitled to a compulsory share who existed at the time of death, whose existence was unknown to them when making the will, or who was only born or became entitled after it was made (section 2079 sentence 1).
The classic case is the old will that was never adapted after a later marriage: the new spouse becomes entitled to a compulsory share on marrying and does not appear in the disposition.
The challenge is excluded to the extent that it is to be assumed that the testator would have made the disposition even had they known the true position (section 2079 sentence 2). If the challenge succeeds, the disposition is void from the outset. If the will contains no other viable provision, the statutory succession applies, and the challenger becomes an heir rather than a creditor for money.
Who may challenge, and where the declaration goes
Not everyone who is annoyed may challenge. Entitled is the person who would directly benefit from the disposition being set aside (section 2080(1) German Civil Code). Anyone who would receive nothing even if the disposition fell away has no right of challenge. In the case of section 2079, the right of challenge belongs only to the passed-over claimant (section 2080(3)).
The declaration is not sent to the beneficiary. Where the challenge concerns a disposition appointing an heir, excluding a statutory heir from the succession or appointing an executor, it is made by declaration to the probate court (section 2081(1)). An informal message to the co-heirs does not meet the deadline.
The deadline: one year from knowledge of the ground
A challenge can only be made within one year (section 2082(1) German Civil Code). The period begins at the point at which the person entitled to challenge learns of the ground for the challenge (section 2082(2)). Independently of that, a challenge is excluded once 30 years have passed since the death (section 2082(3)).
That period looks more generous than it is. The ground has to be evidenced, and the evidence does not appear in the week before the deadline. Anyone considering a challenge should organise the gathering of evidence within the first six months: inspect the probate file, request medical records, interview witnesses while memories are fresh.
Defects of form make a will invalid without anyone challenging it
A will in ordinary form exists in only two variants: recorded before a notary, or by a declaration made by the testator under section 2247 German Civil Code (section 2231). A handwritten will has to be written and signed entirely in the testator's own hand (section 2247(1)). A text written on a computer and merely signed does not meet that requirement.
Stating the time and place is a directory requirement (section 2247(2)). If it is missing, the will is not automatically invalid.
The signature, too, is governed more leniently than many assume. It should contain the first name and surname. If the testator signs differently and that is sufficient to establish authorship and seriousness, it does not prevent validity (section 2247(3)). “Your father” can therefore be enough.
For a joint will by spouses it is sufficient for one of them to make it in the form of section 2247 and for the other to co-sign the joint declaration in their own hand (section 2267).
Lack of testamentary capacity: the gravest allegation and the hardest proof
Anyone who, because of a pathological disturbance of mental activity, mental weakness or a disturbance of consciousness, is unable to grasp the meaning of a declaration they make and to act on that understanding cannot make a will (section 2229(4) German Civil Code). What counts is solely their condition at the time the will was made. A diagnosis of dementia two years later proves nothing.
Anyone relying on a lack of capacity has to prove it. In practice that runs through the complete treatment records, through care reports and medication plans, through the evidence of the recording notary and through an expert report. That is why the first question is which documents exist at all, and not yet whether to sue. If that examination comes out thin, I say so.
Berlin wills and contracts of inheritance: narrower routes
With a joint will by spouses the binding effect comes in as well. On the death of one, the other's right of revocation lapses. As a rule they can only free themselves by disclaiming what was left to them (section 2271(2) German Civil Code). Anyone who realises after their spouse's death that the joint arrangement no longer fits has no easy way out.
For contracts of inheritance: they can be challenged under sections 2078 and 2079 by the testator themselves as well (section 2281(1)). Where a disposition in favour of a third party is to be challenged after the death of the other contracting party, the challenge has to be declared to the probate court (section 2281(2)).
Challenge or compulsory share: the calculation that comes first
The compulsory share is the safe route: it amounts to half the value of the statutory share of the estate and is a claim for money against the heir (section 2303 German Civil Code). It becomes time-barred three years from the end of the year in which you learned of the death and of the disposition (sections 195 and 199(1)).
A challenge is the route with the greater return and the greater risk. If it succeeds, you move up into the statutory succession, as a rule to twice the compulsory-share quota. If it fails, the compulsory share remains, provided its deadline is still running, which is why I pursue both in parallel. Anyone who only challenges and lets the compulsory-share deadline lapse risks losing both.
Why challenges to wills fail
01
The deadline is counted from the wrong day
The one-year period runs from knowledge of the ground for the challenge (section 2082(2) German Civil Code), not from the date of death or the opening of the will. Anyone who already knew at the opening what they would base the challenge on has one year from that point, even if they only instruct a lawyer later.
02
The original is handed over
A handwritten will is a piece of evidence. The handwriting, the paper, changes of ink, later additions and deletions can decide formal validity and sequence. Anyone who passes on the original without a copy and without a note loses the basis for any later examination.
03
The suspicion of incapacity is evidenced too late
Medical records, care documentation and witnesses' memories do not improve, they deteriorate. Anyone who only starts reconstructing the deceased's condition after a year is working with leftovers. What emerges at the end is an expert report that leaves the question open, and the burden of proof lies with the challenger.
04
The challenge replaces the compulsory share instead of securing it
The claim to a compulsory share becomes time-barred under its own rules (sections 195 and 199(1) German Civil Code) and does not wait for a challenge to be decided. The challenge is lost, and the safe claim is by then time-barred. Both deadlines belong in the same calendar from the start.
How I proceed
01
Inspecting the probate file
If you want to attack a will, I first inspect the probate file: the will in the original or in a certified copy, the record of its opening, earlier dispositions, applications for a certificate of inheritance.
02
Classifying the case, calculating the deadlines
Then I assign the case to one of the three routes. In parallel the deadlines are calculated: the one-year period under section 2082 German Civil Code and the limitation period for the compulsory share.
03
Securing evidence, declaring the challenge
Evidence is then secured, medical records requested, witnesses named. Only once that stands is the challenge declared to the probate court. In the meantime I register the compulsory share.
04
If your will is attacked
I first examine whether the other side is entitled to challenge at all (section 2080 German Civil Code) and whether their deadline is still running, and then look at the form. Where incapacity is alleged, I gather the evidence to the contrary.
A typical situation
01
The old will after a later marriage
Twenty years ago the father appointed his then partner as sole heir. He later remarried but never touched the will. After his death the question is whether he would have made the same disposition had he known of the later marriage (section 2079 German Civil Code).
Office in Cologne, proceedings at the probate court
Appointments take place at Jakordenstrasse 8 in 50668 Cologne, by video or by phone on request. A will is opened where the deceased last had their habitual residence (section 343(1) FamFG): for an estate in Cologne, the probate court at the Cologne Local Court is the address for the record of the opening, the declaration of challenge and the certificate of inheritance.
As a lawyer for inheritance law in Cologne I run such cases for clients from Cologne and the surrounding area, from Bergisch Gladbach to Pulheim, and throughout Germany as well, wherever the court happens to sit. If the deceased last lived abroad, the first question is which inheritance law applies at all. That is covered on the page about international inheritance law.
YOUR QUESTIONS
Frequently asked questions
A will can be contested where the testator was mistaken about the content of their declaration, where they were induced by a false picture or expectation, or where they were unlawfully threatened (section 2078 German Civil Code). The second ground is the passed-over claimant to a compulsory share, of whom the testator knew nothing when making the will or who only became entitled later (section 2079).
One year (section 2082(1) German Civil Code). The period does not begin with the death or with the opening of the will, but at the point at which you learn of the ground for the challenge (section 2082(2)). Independently of that, a challenge is excluded once 30 years have passed since the death (section 2082(3)).
Not necessarily. A handwritten will has to be written and signed entirely in the testator's own hand (section 2247(1) German Civil Code). Stating the time and place, by contrast, is a directory requirement (section 2247(2)). A signature without the full name can also suffice if authorship and seriousness can be established from it (section 2247(3)). Bring the document in the original.
Through documents, not through recollections. What matters is their condition when the will was made: anyone unable to grasp the meaning of their declaration and to act on that understanding lacked testamentary capacity (section 2229(4) German Civil Code). What is needed are the complete treatment records, care reports, medication plans, the recording notary's observations and, regularly, an expert report. The burden of proof lies with whoever relies on the lack of capacity.
More if it succeeds, and nothing if it fails. The compulsory share amounts to half the value of the statutory share of the estate (section 2303 German Civil Code). A successful challenge causes the attacked disposition to fall away, so that, absent any other provision, the statutory succession applies: you become an heir rather than a creditor for money, as a rule with twice the quota. Because the two routes have different deadlines, I pursue them in parallel.
Have the will examined while the deadline is running
The first step is the same on both sides: review the document and the probate file and work out where the deadlines stand. Bring what you have, and the will in the original if possible. Appointments at Jakordenstrasse 8 in Cologne, by video or by phone.
INHERITANCE LAW
Contesting a will in Cologne: grounds, deadlines and limits
Sometimes a will that has been opened says something that does not fit the person who died. Whether anything can be done about it depends on narrow grounds of challenge and a short deadline. I am Dr Hanna Schmidt, a lawyer for inheritance law in Cologne, and I examine both sides, attack and defence. I will also tell you when the compulsory share is the faster route to money in your case.
Contesting a will in Cologne: three routes that are regularly confused
01
A challenge in the legal sense
It requires that the deceased was mistaken when making the will, was threatened, or passed over someone entitled to a compulsory share whom they did not know about (sections 2078 and 2079 German Civil Code). The will is then valid to begin with, and someone has to attack it actively.
02
A defect of form
A will that was not made in one of the permitted forms is invalid from the outset. Nothing is contested here; the invalidity is established, if need be in certificate of inheritance proceedings.
03
Lack of testamentary capacity
Anyone who, when making the will, was unable to grasp the meaning of their declaration and to act on that understanding cannot make a valid will (section 2229(4) German Civil Code). That too is not a challenge but nullity.
04
During the testator's lifetime there is nothing to contest
As long as the testator is alive they can change or revoke their will at any time, for example by destroying the document with the intention of revoking it (section 2255 German Civil Code). Only on death does a disposition become something to litigate about.
The grounds of challenge: mistake, threat, a passed-over claimant
Mistake and unlawful threat (section 2078 German Civil Code)
A testamentary disposition can be challenged to the extent that the testator was mistaken about the content of their declaration or did not want to make a declaration of that content at all, and it is to be assumed that they would not have made it had they known the true position (section 2078(1)).
The same applies where they were induced by a mistaken assumption or expectation about a circumstance, or unlawfully by a threat (section 2078(2)). The second paragraph is the more important in practice. It covers a mistake of motive, that is, the false picture that led the testator to their decision.
What matters is not that the picture was false, but that it caused the disposition. That is precisely where most challenges fail, because the testator's state of mind has to be evidenced from circumstances that are still tangible after their death.
The passed-over claimant (section 2079 German Civil Code)
A testamentary disposition can be challenged where the testator passed over a person entitled to a compulsory share who existed at the time of death, whose existence was unknown to them when making the will, or who was only born or became entitled after it was made (section 2079 sentence 1).
The classic case is the old will that was never adapted after a later marriage: the new spouse becomes entitled to a compulsory share on marrying and does not appear in the disposition.
The challenge is excluded to the extent that it is to be assumed that the testator would have made the disposition even had they known the true position (section 2079 sentence 2). If the challenge succeeds, the disposition is void from the outset. If the will contains no other viable provision, the statutory succession applies, and the challenger becomes an heir rather than a creditor for money.
Who may challenge, and where the declaration goes
Not everyone who is annoyed may challenge. Entitled is the person who would directly benefit from the disposition being set aside (section 2080(1) German Civil Code). Anyone who would receive nothing even if the disposition fell away has no right of challenge. In the case of section 2079, the right of challenge belongs only to the passed-over claimant (section 2080(3)).
The declaration is not sent to the beneficiary. Where the challenge concerns a disposition appointing an heir, excluding a statutory heir from the succession or appointing an executor, it is made by declaration to the probate court (section 2081(1)). An informal message to the co-heirs does not meet the deadline.
The deadline: one year from knowledge of the ground
A challenge can only be made within one year (section 2082(1) German Civil Code). The period begins at the point at which the person entitled to challenge learns of the ground for the challenge (section 2082(2)). Independently of that, a challenge is excluded once 30 years have passed since the death (section 2082(3)).
That period looks more generous than it is. The ground has to be evidenced, and the evidence does not appear in the week before the deadline. Anyone considering a challenge should organise the gathering of evidence within the first six months: inspect the probate file, request medical records, interview witnesses while memories are fresh.
Defects of form make a will invalid without anyone challenging it
A will in ordinary form exists in only two variants: recorded before a notary, or by a declaration made by the testator under section 2247 German Civil Code (section 2231). A handwritten will has to be written and signed entirely in the testator's own hand (section 2247(1)). A text written on a computer and merely signed does not meet that requirement.
Stating the time and place is a directory requirement (section 2247(2)). If it is missing, the will is not automatically invalid.
The signature, too, is governed more leniently than many assume. It should contain the first name and surname. If the testator signs differently and that is sufficient to establish authorship and seriousness, it does not prevent validity (section 2247(3)). “Your father” can therefore be enough.
For a joint will by spouses it is sufficient for one of them to make it in the form of section 2247 and for the other to co-sign the joint declaration in their own hand (section 2267).
Lack of testamentary capacity: the gravest allegation and the hardest proof
Anyone who, because of a pathological disturbance of mental activity, mental weakness or a disturbance of consciousness, is unable to grasp the meaning of a declaration they make and to act on that understanding cannot make a will (section 2229(4) German Civil Code). What counts is solely their condition at the time the will was made. A diagnosis of dementia two years later proves nothing.
Anyone relying on a lack of capacity has to prove it. In practice that runs through the complete treatment records, through care reports and medication plans, through the evidence of the recording notary and through an expert report. That is why the first question is which documents exist at all, and not yet whether to sue. If that examination comes out thin, I say so.
Berlin wills and contracts of inheritance: narrower routes
With a joint will by spouses the binding effect comes in as well. On the death of one, the other's right of revocation lapses. As a rule they can only free themselves by disclaiming what was left to them (section 2271(2) German Civil Code). Anyone who realises after their spouse's death that the joint arrangement no longer fits has no easy way out.
For contracts of inheritance: they can be challenged under sections 2078 and 2079 by the testator themselves as well (section 2281(1)). Where a disposition in favour of a third party is to be challenged after the death of the other contracting party, the challenge has to be declared to the probate court (section 2281(2)).
Challenge or compulsory share: the calculation that comes first
The compulsory share is the safe route: it amounts to half the value of the statutory share of the estate and is a claim for money against the heir (section 2303 German Civil Code). It becomes time-barred three years from the end of the year in which you learned of the death and of the disposition (sections 195 and 199(1)).
A challenge is the route with the greater return and the greater risk. If it succeeds, you move up into the statutory succession, as a rule to twice the compulsory-share quota. If it fails, the compulsory share remains, provided its deadline is still running, which is why I pursue both in parallel. Anyone who only challenges and lets the compulsory-share deadline lapse risks losing both.
Why challenges to wills fail
01
The deadline is counted from the wrong day
The one-year period runs from knowledge of the ground for the challenge (section 2082(2) German Civil Code), not from the date of death or the opening of the will. Anyone who already knew at the opening what they would base the challenge on has one year from that point, even if they only instruct a lawyer later.
02
The original is handed over
A handwritten will is a piece of evidence. The handwriting, the paper, changes of ink, later additions and deletions can decide formal validity and sequence. Anyone who passes on the original without a copy and without a note loses the basis for any later examination.
03
The suspicion of incapacity is evidenced too late
Medical records, care documentation and witnesses' memories do not improve, they deteriorate. Anyone who only starts reconstructing the deceased's condition after a year is working with leftovers. What emerges at the end is an expert report that leaves the question open, and the burden of proof lies with the challenger.
04
The challenge replaces the compulsory share instead of securing it
The claim to a compulsory share becomes time-barred under its own rules (sections 195 and 199(1) German Civil Code) and does not wait for a challenge to be decided. The challenge is lost, and the safe claim is by then time-barred. Both deadlines belong in the same calendar from the start.
How I proceed
01
Inspecting the probate file
If you want to attack a will, I first inspect the probate file: the will in the original or in a certified copy, the record of its opening, earlier dispositions, applications for a certificate of inheritance.
02
Classifying the case, calculating the deadlines
Then I assign the case to one of the three routes. In parallel the deadlines are calculated: the one-year period under section 2082 German Civil Code and the limitation period for the compulsory share.
03
Securing evidence, declaring the challenge
Evidence is then secured, medical records requested, witnesses named. Only once that stands is the challenge declared to the probate court. In the meantime I register the compulsory share.
04
If your will is attacked
I first examine whether the other side is entitled to challenge at all (section 2080 German Civil Code) and whether their deadline is still running, and then look at the form. Where incapacity is alleged, I gather the evidence to the contrary.
A typical situation
01
The old will after a later marriage
Twenty years ago the father appointed his then partner as sole heir. He later remarried but never touched the will. After his death the question is whether he would have made the same disposition had he known of the later marriage (section 2079 German Civil Code).
Office in Cologne, proceedings at the probate court
Appointments take place at Jakordenstrasse 8 in 50668 Cologne, by video or by phone on request. A will is opened where the deceased last had their habitual residence (section 343(1) FamFG): for an estate in Cologne, the probate court at the Cologne Local Court is the address for the record of the opening, the declaration of challenge and the certificate of inheritance.
As a lawyer for inheritance law in Cologne I run such cases for clients from Cologne and the surrounding area, from Bergisch Gladbach to Pulheim, and throughout Germany as well, wherever the court happens to sit. If the deceased last lived abroad, the first question is which inheritance law applies at all. That is covered on the page about international inheritance law.
YOUR QUESTIONS
Frequently asked questions
A will can be contested where the testator was mistaken about the content of their declaration, where they were induced by a false picture or expectation, or where they were unlawfully threatened (section 2078 German Civil Code). The second ground is the passed-over claimant to a compulsory share, of whom the testator knew nothing when making the will or who only became entitled later (section 2079).
One year (section 2082(1) German Civil Code). The period does not begin with the death or with the opening of the will, but at the point at which you learn of the ground for the challenge (section 2082(2)). Independently of that, a challenge is excluded once 30 years have passed since the death (section 2082(3)).
Not necessarily. A handwritten will has to be written and signed entirely in the testator's own hand (section 2247(1) German Civil Code). Stating the time and place, by contrast, is a directory requirement (section 2247(2)). A signature without the full name can also suffice if authorship and seriousness can be established from it (section 2247(3)). Bring the document in the original.
Through documents, not through recollections. What matters is their condition when the will was made: anyone unable to grasp the meaning of their declaration and to act on that understanding lacked testamentary capacity (section 2229(4) German Civil Code). What is needed are the complete treatment records, care reports, medication plans, the recording notary's observations and, regularly, an expert report. The burden of proof lies with whoever relies on the lack of capacity.
More if it succeeds, and nothing if it fails. The compulsory share amounts to half the value of the statutory share of the estate (section 2303 German Civil Code). A successful challenge causes the attacked disposition to fall away, so that, absent any other provision, the statutory succession applies: you become an heir rather than a creditor for money, as a rule with twice the quota. Because the two routes have different deadlines, I pursue them in parallel.
Have the will examined while the deadline is running
The first step is the same on both sides: review the document and the probate file and work out where the deadlines stand. Bring what you have, and the will in the original if possible. Appointments at Jakordenstrasse 8 in Cologne, by video or by phone.
INHERITANCE LAW
Contesting a will in Cologne: grounds, deadlines and limits
Sometimes a will that has been opened says something that does not fit the person who died. Whether anything can be done about it depends on narrow grounds of challenge and a short deadline. I am Dr Hanna Schmidt, a lawyer for inheritance law in Cologne, and I examine both sides, attack and defence. I will also tell you when the compulsory share is the faster route to money in your case.
Contesting a will in Cologne: three routes that are regularly confused
01
A challenge in the legal sense
It requires that the deceased was mistaken when making the will, was threatened, or passed over someone entitled to a compulsory share whom they did not know about (sections 2078 and 2079 German Civil Code). The will is then valid to begin with, and someone has to attack it actively.
02
A defect of form
A will that was not made in one of the permitted forms is invalid from the outset. Nothing is contested here; the invalidity is established, if need be in certificate of inheritance proceedings.
03
Lack of testamentary capacity
Anyone who, when making the will, was unable to grasp the meaning of their declaration and to act on that understanding cannot make a valid will (section 2229(4) German Civil Code). That too is not a challenge but nullity.
04
During the testator's lifetime there is nothing to contest
As long as the testator is alive they can change or revoke their will at any time, for example by destroying the document with the intention of revoking it (section 2255 German Civil Code). Only on death does a disposition become something to litigate about.
The grounds of challenge: mistake, threat, a passed-over claimant
Mistake and unlawful threat (section 2078 German Civil Code)
A testamentary disposition can be challenged to the extent that the testator was mistaken about the content of their declaration or did not want to make a declaration of that content at all, and it is to be assumed that they would not have made it had they known the true position (section 2078(1)).
The same applies where they were induced by a mistaken assumption or expectation about a circumstance, or unlawfully by a threat (section 2078(2)). The second paragraph is the more important in practice. It covers a mistake of motive, that is, the false picture that led the testator to their decision.
What matters is not that the picture was false, but that it caused the disposition. That is precisely where most challenges fail, because the testator's state of mind has to be evidenced from circumstances that are still tangible after their death.
The passed-over claimant (section 2079 German Civil Code)
A testamentary disposition can be challenged where the testator passed over a person entitled to a compulsory share who existed at the time of death, whose existence was unknown to them when making the will, or who was only born or became entitled after it was made (section 2079 sentence 1).
The classic case is the old will that was never adapted after a later marriage: the new spouse becomes entitled to a compulsory share on marrying and does not appear in the disposition.
The challenge is excluded to the extent that it is to be assumed that the testator would have made the disposition even had they known the true position (section 2079 sentence 2). If the challenge succeeds, the disposition is void from the outset. If the will contains no other viable provision, the statutory succession applies, and the challenger becomes an heir rather than a creditor for money.
Who may challenge, and where the declaration goes
Not everyone who is annoyed may challenge. Entitled is the person who would directly benefit from the disposition being set aside (section 2080(1) German Civil Code). Anyone who would receive nothing even if the disposition fell away has no right of challenge. In the case of section 2079, the right of challenge belongs only to the passed-over claimant (section 2080(3)).
The declaration is not sent to the beneficiary. Where the challenge concerns a disposition appointing an heir, excluding a statutory heir from the succession or appointing an executor, it is made by declaration to the probate court (section 2081(1)). An informal message to the co-heirs does not meet the deadline.
The deadline: one year from knowledge of the ground
A challenge can only be made within one year (section 2082(1) German Civil Code). The period begins at the point at which the person entitled to challenge learns of the ground for the challenge (section 2082(2)). Independently of that, a challenge is excluded once 30 years have passed since the death (section 2082(3)).
That period looks more generous than it is. The ground has to be evidenced, and the evidence does not appear in the week before the deadline. Anyone considering a challenge should organise the gathering of evidence within the first six months: inspect the probate file, request medical records, interview witnesses while memories are fresh.
Defects of form make a will invalid without anyone challenging it
A will in ordinary form exists in only two variants: recorded before a notary, or by a declaration made by the testator under section 2247 German Civil Code (section 2231). A handwritten will has to be written and signed entirely in the testator's own hand (section 2247(1)). A text written on a computer and merely signed does not meet that requirement.
Stating the time and place is a directory requirement (section 2247(2)). If it is missing, the will is not automatically invalid.
The signature, too, is governed more leniently than many assume. It should contain the first name and surname. If the testator signs differently and that is sufficient to establish authorship and seriousness, it does not prevent validity (section 2247(3)). “Your father” can therefore be enough.
For a joint will by spouses it is sufficient for one of them to make it in the form of section 2247 and for the other to co-sign the joint declaration in their own hand (section 2267).
Lack of testamentary capacity: the gravest allegation and the hardest proof
Anyone who, because of a pathological disturbance of mental activity, mental weakness or a disturbance of consciousness, is unable to grasp the meaning of a declaration they make and to act on that understanding cannot make a will (section 2229(4) German Civil Code). What counts is solely their condition at the time the will was made. A diagnosis of dementia two years later proves nothing.
Anyone relying on a lack of capacity has to prove it. In practice that runs through the complete treatment records, through care reports and medication plans, through the evidence of the recording notary and through an expert report. That is why the first question is which documents exist at all, and not yet whether to sue. If that examination comes out thin, I say so.
Berlin wills and contracts of inheritance: narrower routes
With a joint will by spouses the binding effect comes in as well. On the death of one, the other's right of revocation lapses. As a rule they can only free themselves by disclaiming what was left to them (section 2271(2) German Civil Code). Anyone who realises after their spouse's death that the joint arrangement no longer fits has no easy way out.
For contracts of inheritance: they can be challenged under sections 2078 and 2079 by the testator themselves as well (section 2281(1)). Where a disposition in favour of a third party is to be challenged after the death of the other contracting party, the challenge has to be declared to the probate court (section 2281(2)).
Challenge or compulsory share: the calculation that comes first
The compulsory share is the safe route: it amounts to half the value of the statutory share of the estate and is a claim for money against the heir (section 2303 German Civil Code). It becomes time-barred three years from the end of the year in which you learned of the death and of the disposition (sections 195 and 199(1)).
A challenge is the route with the greater return and the greater risk. If it succeeds, you move up into the statutory succession, as a rule to twice the compulsory-share quota. If it fails, the compulsory share remains, provided its deadline is still running, which is why I pursue both in parallel. Anyone who only challenges and lets the compulsory-share deadline lapse risks losing both.
Why challenges to wills fail
01
The deadline is counted from the wrong day
The one-year period runs from knowledge of the ground for the challenge (section 2082(2) German Civil Code), not from the date of death or the opening of the will. Anyone who already knew at the opening what they would base the challenge on has one year from that point, even if they only instruct a lawyer later.
02
The original is handed over
A handwritten will is a piece of evidence. The handwriting, the paper, changes of ink, later additions and deletions can decide formal validity and sequence. Anyone who passes on the original without a copy and without a note loses the basis for any later examination.
03
The suspicion of incapacity is evidenced too late
Medical records, care documentation and witnesses' memories do not improve, they deteriorate. Anyone who only starts reconstructing the deceased's condition after a year is working with leftovers. What emerges at the end is an expert report that leaves the question open, and the burden of proof lies with the challenger.
04
The challenge replaces the compulsory share instead of securing it
The claim to a compulsory share becomes time-barred under its own rules (sections 195 and 199(1) German Civil Code) and does not wait for a challenge to be decided. The challenge is lost, and the safe claim is by then time-barred. Both deadlines belong in the same calendar from the start.
How I proceed
01
Inspecting the probate file
If you want to attack a will, I first inspect the probate file: the will in the original or in a certified copy, the record of its opening, earlier dispositions, applications for a certificate of inheritance.
02
Classifying the case, calculating the deadlines
Then I assign the case to one of the three routes. In parallel the deadlines are calculated: the one-year period under section 2082 German Civil Code and the limitation period for the compulsory share.
03
Securing evidence, declaring the challenge
Evidence is then secured, medical records requested, witnesses named. Only once that stands is the challenge declared to the probate court. In the meantime I register the compulsory share.
04
If your will is attacked
I first examine whether the other side is entitled to challenge at all (section 2080 German Civil Code) and whether their deadline is still running, and then look at the form. Where incapacity is alleged, I gather the evidence to the contrary.
A typical situation
01
The old will after a later marriage
Twenty years ago the father appointed his then partner as sole heir. He later remarried but never touched the will. After his death the question is whether he would have made the same disposition had he known of the later marriage (section 2079 German Civil Code).
Office in Cologne, proceedings at the probate court
Appointments take place at Jakordenstrasse 8 in 50668 Cologne, by video or by phone on request. A will is opened where the deceased last had their habitual residence (section 343(1) FamFG): for an estate in Cologne, the probate court at the Cologne Local Court is the address for the record of the opening, the declaration of challenge and the certificate of inheritance.
As a lawyer for inheritance law in Cologne I run such cases for clients from Cologne and the surrounding area, from Bergisch Gladbach to Pulheim, and throughout Germany as well, wherever the court happens to sit. If the deceased last lived abroad, the first question is which inheritance law applies at all. That is covered on the page about international inheritance law.
YOUR QUESTIONS
Frequently asked questions
A will can be contested where the testator was mistaken about the content of their declaration, where they were induced by a false picture or expectation, or where they were unlawfully threatened (section 2078 German Civil Code). The second ground is the passed-over claimant to a compulsory share, of whom the testator knew nothing when making the will or who only became entitled later (section 2079).
One year (section 2082(1) German Civil Code). The period does not begin with the death or with the opening of the will, but at the point at which you learn of the ground for the challenge (section 2082(2)). Independently of that, a challenge is excluded once 30 years have passed since the death (section 2082(3)).
Not necessarily. A handwritten will has to be written and signed entirely in the testator's own hand (section 2247(1) German Civil Code). Stating the time and place, by contrast, is a directory requirement (section 2247(2)). A signature without the full name can also suffice if authorship and seriousness can be established from it (section 2247(3)). Bring the document in the original.
Through documents, not through recollections. What matters is their condition when the will was made: anyone unable to grasp the meaning of their declaration and to act on that understanding lacked testamentary capacity (section 2229(4) German Civil Code). What is needed are the complete treatment records, care reports, medication plans, the recording notary's observations and, regularly, an expert report. The burden of proof lies with whoever relies on the lack of capacity.
More if it succeeds, and nothing if it fails. The compulsory share amounts to half the value of the statutory share of the estate (section 2303 German Civil Code). A successful challenge causes the attacked disposition to fall away, so that, absent any other provision, the statutory succession applies: you become an heir rather than a creditor for money, as a rule with twice the quota. Because the two routes have different deadlines, I pursue them in parallel.
Have the will examined while the deadline is running
The first step is the same on both sides: review the document and the probate file and work out where the deadlines stand. Bring what you have, and the will in the original if possible. Appointments at Jakordenstrasse 8 in Cologne, by video or by phone.