Anyone who wants to contest a will (Testamentsanfechtung) in a purely German succession essentially has to clarify two things: the ground for avoidance and the one-year deadline. When a will is contested in a case with a cross-border element, further questions arise. Under which law is the testator’s defect of intention assessed? Which court receives the declaration of avoidance if the testator last lived in Spain, Portugal or Thailand? And what happens to the German certificate of inheritance (Erbschein) if the avoidance succeeds? This article places the avoidance of a will under Sections 2078 et seq. of the German Civil Code (Bürgerliches Gesetzbuch, BGB) within the framework of the European Succession Regulation (EuErbVO) and shows where deadlines and rights are typically lost in cross-border estates.
Which succession law generally applies to an international estate is covered in our overview of international succession law on emigration. This article deals with the narrower question of how an existing will with a cross-border element can be set aside.
Avoidance, Invalidity, Interpretation: Three Different Routes
In practice, three questions that must be examined separately in law are often mixed up. A will can be formally invalid, it can require interpretation, or it is valid but voidable because of a defect of intention. Each route follows its own rules, and in an international case also its own conflict-of-laws rules.
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| Route | What it is about | Applicable law in cross-border cases | Deadline |
|---|---|---|---|
| Formal invalidity | Will violates formal requirements (e.g. not handwritten, missing witnesses) | Article 27 EuErbVO or Hague Convention on the Form of Testamentary Dispositions, several alternative connecting factors | no avoidance deadline, invalidity takes effect automatically |
| Interpretation | The testator’s intention is unclear or incomplete | Law governing the making of the will, Article 26 (1) point (d) EuErbVO | no deadline |
| Avoidance | Will is valid but based on mistake or threat | Law governing the making of the will, Article 26 (1) point (e) EuErbVO | under German law one year from knowledge, Section 2082 BGB |
The order matters: first form, then interpretation, and avoidance last. Anyone who contests prematurely, although interpretation would have been sufficient, risks an intestate succession that nobody wanted. Questions of the form of wills abroad are dealt with in detail in our article on wills with a residence abroad and are not repeated here.
Which Law Decides on the Avoidance?
Law Governing the Making of the Will Instead of the Law Applicable to Succession
The EuErbVO distinguishes between two legal systems that can diverge in the case of a will:
- The law applicable to succession (Erbstatut, Articles 21, 23 EuErbVO) governs the succession as a whole, i.e. who becomes heir, which shares apply, how compulsory shares are calculated and how the estate is divided. The decisive factor is in principle the last habitual residence of the deceased at the time of death, unless a choice of law has been made.
- The law governing the making of the will (Errichtungsstatut, Articles 24, 26 EuErbVO) governs the admissibility and substantive validity of a disposition of property upon death. The decisive law is the law that would have applied to the succession had the testator died on the day the will was made.
Article 26 (1) point (e) EuErbVO expressly assigns fraud, duress, mistake and any other questions relating to the consent or intention of the person making the disposition to substantive validity. Whether a will can be contested because of mistake or threat is therefore governed by the law governing the making of the will, not by the law of the last place of residence.
Example: The fictitious testator Bernd makes a handwritten will in Munich in 2019 and appoints his partner as sole heir. In 2022 he moves permanently to the Algarve and dies there in 2026 without a choice of law. The law applicable to succession is Portuguese law, because Bernd last lived in Portugal. The law governing the making of the will is German law, because Bernd lived in Germany when the will was made. Whether the will can be contested on the ground of mistake is assessed under Sections 2078 et seq. BGB. Who inherits after a successful avoidance and which forced heirship rights exist is, on the other hand, governed by Portuguese law; a local adviser must be consulted on this.
Whether the avoidance deadline, entitlement to contest and the type of declaration of avoidance also belong to the other questions relating to defects of intention, or partly follow the law applicable to succession or procedural law, has not been conclusively settled in the legal literature. Anyone relying on a deadline should therefore base their planning on the shortest deadline that may apply.
A Choice of Law Also Shifts the Law Governing the Making of the Will
If the testator has chosen the law of their nationality under Article 22 EuErbVO, the substantive validity of the choice of law is also governed by the chosen law under Article 22 (3) EuErbVO. In addition, Article 24 (2) EuErbVO allows the testator to choose, only for the admissibility and substantive validity of the will, the law they could have chosen under Article 22. A German who makes a will abroad and chooses German law thereby as a rule also brings Sections 2078, 2079 BGB into play. The choice of law can be made expressly or, under Article 22 (2) EuErbVO, be demonstrated by the terms of the will. Whether a will that uses exclusively German legal terms such as Vorerbe (provisional heir) or Pflichtteil (compulsory share) contains such an implied choice of law is a question of interpretation in the individual case.
Agreements as to Succession and Joint Wills
Article 25 EuErbVO applies to agreements as to succession (Erbverträge): admissibility, substantive validity and binding effects are subject to the law that would have applied to the succession at the time the agreement was concluded. If the agreement concerns the estate of several persons, it must be admissible under each of these laws; substantive validity and binding effects are then governed by the one of these laws with which it has the closest connection (Article 25 (2) EuErbVO). Under German law, the testator can contest an agreement as to succession during their lifetime themselves (Section 2281 BGB), within one year (Section 2283 BGB). If their right of avoidance had already lapsed at the time of death, third parties can no longer contest it under Section 2285 BGB.
How joint wills, such as the Berlin will (Berliner Testament), are to be classified under the EuErbVO is assessed differently and must be examined separately for emigrated married couples before any avoidance.
Wills Made before 17 August 2015
The EuErbVO applies to successions from 17 August 2015 (Article 83 (1)). For older wills, Article 83 (3) contains a favourable rule: a will made before this date is substantively valid if it either complies with the rules of the Regulation or with the conflict-of-laws rules then in force in the state of habitual residence, a state of nationality or the Member State of the authority dealing with the succession. Article 83 (4) also deems a choice of law to have been made if the will was made in accordance with the law the testator could have chosen. For older wills of German emigrants, German law may therefore be relevant to the question of avoidance, even if the testator last lived abroad.
Grounds for Avoidance under German Law
If German law is the law governing the making of the will, the following grounds may be considered.
Mistake and Threat, Section 2078 BGB
Section 2078 (1) BGB covers mistakes as to content and mistakes in the declaration: the testator did not know what they were declaring, or did not intend to make a declaration with this content at all. Section 2078 (2) BGB goes further. Unlike in general contract law, a mistake as to motive is also relevant in the case of a will, i.e. the erroneous assumption or expectation that a certain circumstance would or would not occur. An unlawful threat is treated in the same way. In each case, it must be established that the testator would not have made the disposition had they known the facts. A claim for damages under Section 122 BGB against the person contesting is excluded (Section 2078 (3) BGB).
Typical constellations with a cross-border element that are discussed as mistakes as to motive:
- The testator assumed that their will would be administered under German law, but because of the move a foreign law applies to the succession with different forced heirship rights.
- The testator appointed a relative in the expectation that this relative would care for them abroad or live there with them.
- The testator expected that a property abroad would be sold or treated differently for tax purposes than later happened.
Whether such a mistake is material and can be proven is a question of fact; a mistake about the applicable law is often initially a question of interpretation.
Omission of a Person Entitled to a Compulsory Share, Section 2079 BGB
Under Section 2079 BGB, a will can be contested if the testator has passed over a person entitled to a compulsory share who exists at the time of the succession, whose existence was unknown to the testator when the will was made, or who was born or became entitled to a compulsory share only after the will was made. Avoidance is excluded to the extent that it can be assumed that the testator would have made the same disposition had they known the facts.
For emigrants, the classic case is a marriage abroad after the will was made: the new spouse becomes entitled to a compulsory share on marriage, and an older will in favour of the children does not take them into account. Likewise, children born after the will, including from a relationship abroad, may be entitled to contest. The prerequisite, however, is that German law is the law governing the making of the will. If foreign law applies, the result may be entirely different. How compulsory share claims are calculated where assets are held in several states is explained in our article on compulsory share rights with assets abroad.
Who May Contest, Section 2080 BGB
Under Section 2080 (1) BGB, only a person who would directly benefit from the setting aside of the disposition is entitled to contest. This is usually the person who would be an intestate heir without the will or who was appointed under an earlier will. If the mistake relates only to a specific person, only that person can contest under Section 2080 (2) BGB. Avoidance under Section 2079 BGB is available only to the person entitled to a compulsory share who was passed over (Section 2080 (3) BGB). In cross-border cases, note: who would be the intestate heir is determined by the law applicable to succession. If the testator last lived abroad, a different person may therefore be entitled to contest than the family expects. The basic principles of intestate succession on emigration are the starting point here.
The Avoidance Deadline under Section 2082 BGB
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| Rule | Content |
|---|---|
| Duration | one year (Section 2082 (1) BGB) |
| Start | Knowledge of the person entitled to contest of the ground for avoidance (Section 2082 (2) sentence 1 BGB) |
| Suspension | Sections 206, 210, 211 BGB apply accordingly, for example in the case of force majeure or lack of representation of persons without full legal capacity, and in estate matters (Section 2082 (2) sentence 2 BGB) |
| Upper limit | Exclusion after 30 years from the succession (Section 2082 (3) BGB) |
| Consequence of expiry | Avoidance excluded; for dispositions creating an obligation to perform, the defence under Section 2083 BGB remains |
The deadline does not begin with the death or the opening of the will, but with knowledge of the facts that constitute the ground for avoidance. The fact that translations and the opening of the will abroad take months does not postpone the start of the deadline: anyone who knows the relevant facts is subject to the running deadline. A mere mistake of law about whether the will can be contested does not, as a rule, suspend the deadline under German law.
If a foreign law governs the making of the will, the deadline, its start and the form of avoidance may differ; in some cases, a court action is required instead of a declaration. This must be clarified by an adviser admitted in the state concerned.
The Declaration of Avoidance: To Whom and in What Form?
Declaration to the Probate Court, Section 2081 BGB
Appointments of heirs, disinheritance, the appointment of an executor and the revocation of such dispositions are contested under Section 2081 (1) BGB by declaration to the probate court (Nachlassgericht). The same applies under Section 2081 (3) BGB to dispositions that do not create a right for another person, in particular a testamentary burden (Auflage). The probate court is to notify the beneficiary of the declaration and grants inspection to anyone who credibly shows a legal interest (Section 2081 (2) BGB). Section 2081 BGB does not prescribe any particular form; for reasons of evidence, the declaration should be submitted in writing, unambiguously and stating the ground for avoidance, and receipt should be documented in a verifiable way.
Legacies: Declaration to the Beneficiary
Legacies (Vermächtnisse) do not fall under Section 2081 BGB. Under Section 143 (4) sentence 1 BGB, they are contested vis-à-vis the person who directly obtains a legal advantage from the disposition, i.e. as a rule vis-à-vis the legatee. If the legatee lives abroad, the declaration must reach them there. Anyone who, in a mixed will with an appointment of heirs and legacies, writes only to the probate court may not have effectively contested the legacy.
Which Probate Court Has Jurisdiction?
Under Section 343 (1) of the Act on Proceedings in Family Matters and in Matters of Non-contentious Jurisdiction (FamFG), the probate court at the last habitual residence of the deceased has local jurisdiction. If the deceased no longer had a habitual residence in Germany, the court of their last habitual residence in Germany has jurisdiction under Section 343 (2) FamFG, and alternatively, under Section 343 (3) FamFG, the Local Court of Schöneberg in Berlin (Amtsgericht Schöneberg), if the deceased was German or estate assets are located in Germany.
This, however, only answers the question of local jurisdiction. Whether German courts have international jurisdiction at all is governed by Articles 4 et seq. EuErbVO: in principle the courts at the last habitual residence, in the case of a choice of law under certain circumstances the courts of the state of nationality (Article 7), and where the habitual residence was outside the EU, subsidiarily the courts of the Member State in which estate assets are located (Article 10). This jurisdiction applies to the entire estate only if the deceased had the nationality of that state at the time of death or had their previous habitual residence there and no more than five years have passed since that habitual residence changed when the court is seised; otherwise it is limited to the assets located there (Article 10 EuErbVO). Details can be found in our article on probate court jurisdiction with a residence abroad.
For the waiver and acceptance of an inheritance, Article 13 EuErbVO and Section 31 of the International Succession Procedure Act (IntErbRVG) contain an express rule under which the probate court at the place of residence of the person making the declaration also has jurisdiction. There is no comparable express provision for contesting a will. Whether the declaration of avoidance under Section 2081 BGB can be validly made to a German probate court if German courts have no international jurisdiction for the succession matter has not been conclusively settled. Where the legal position is open, it is advisable to declare the avoidance as a precaution within the deadline by all routes that may apply: to the German probate court with jurisdiction under Section 343 FamFG and additionally in the form provided for by the law of the foreign state dealing with the estate.
Consequences of Avoidance and the Certificate of Inheritance Procedure
Under Section 142 (1) BGB, an effective avoidance means that the contested disposition is to be regarded as void from the outset. Whether the entire will or only individual dispositions fall away depends on the ground for avoidance and the hypothetical intention of the testator. It is replaced by an earlier will, to the extent that this had been revoked by the contested one, or by intestate succession under the law applicable to succession.
The probate court does not decide on the avoidance in separate proceedings. The effectiveness of the avoidance is regularly examined in the certificate of inheritance procedure when a party applies for a certificate of inheritance that is based on the avoidance or disregards it. The court investigates of its own motion (Section 26 FamFG), but the parties must specifically present and substantiate the facts from which the mistake arises. Letters, e-mails, witnesses from the testator’s circle abroad and documents relating to the move play a major role here. In addition, the status as heir can be established in contentious civil proceedings; here too, the EuErbVO determines international jurisdiction.
If a certificate of inheritance has already been issued and the avoidance later succeeds, it is withdrawn under Section 2361 BGB. A European Certificate of Succession for assets in other EU states must also reflect the position after the avoidance.
Do Not Overlook the Tax Consequences
The avoidance changes who acquires upon death and thus the tax class, the allowance and possibly the scope of German inheritance tax liability. Foreign inheritance tax and its crediting follow their own rules, see our article on inheritance tax and double tax treaties. Where the tax treatment is unclear, a binding ruling (verbindliche Auskunft) from the tax office under Section 89 (2) of the Fiscal Code (AO) can be obtained before a settlement between the parties, and in cross-border cases, where appropriate, an equivalent ruling in the other state.
Typical Mistakes When Contesting a Will with a Cross-Border Element
- Deadline calculated from the opening of the will: The decisive factor is knowledge of the ground for avoidance, for example a marriage abroad already known during the testator’s lifetime.
- Law of the last place of residence examined instead of the law governing the making of the will.
- Wrong addressee: appointment of heirs vis-à-vis the probate court, legacy vis-à-vis the beneficiary.
- Only one forum used, although international jurisdiction is open.
- Evidence not secured: witnesses abroad move away, messages are deleted.
- Heirs not fully identified: It must be established who becomes the intestate heir after a successful avoidance; for family members abroad, a structured tracing of heirs in cross-border cases helps.
Checklist before the Declaration of Avoidance
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| Step | Question |
|---|---|
| 1 | Is the will formally valid (Article 27 EuErbVO, Hague Convention)? |
| 2 | Where did the testator have their habitual residence when the will was made, and did they make a choice of law? |
| 3 | Was the will made before 17.08.2015 (Article 83 EuErbVO)? |
| 4 | Can the objective already be achieved through interpretation? |
| 5 | What ground for avoidance exists, and how will it be proven? |
| 6 | Am I entitled to contest under the law governing the making of the will, and who would be heir under the law applicable to succession? |
| 7 | When did I learn of the ground for avoidance, and when does the deadline expire? |
| 8 | To whom do I address the declaration, and in which states do I make it as a precaution? |
| 9 | What consequences does the avoidance have for the certificate of inheritance, the European Certificate of Succession and inheritance tax? |
Conclusion
Contesting a will with a cross-border element does not simply follow the law of the last place of residence. For defects of intention, the law governing the making of the will is decisive under Article 26 EuErbVO; if this is German law, Sections 2078, 2079 BGB and the one-year deadline of Section 2082 BGB from knowledge apply. Who inherits after the avoidance is determined by the law applicable to succession. The greatest risks lie in the deadline, in the correct addressee and in the open question of the court to which the declaration must be made. Precautionary declarations in several states and early securing of evidence reduce these risks.
Frequently Asked Questions
Under which law is a will contested if the testator died abroad?
Mistake and threat are assessed under the law governing the making of the will (Article 26 (1) point (e) EuErbVO), i.e. under the law that would have applied to the succession when the will was made, or under the chosen law. The last place of residence decides who inherits after the avoidance.
How much time do I have to contest a will with a cross-border element?
If German law applies, the deadline is one year from knowledge of the ground for avoidance, at most 30 years from the succession (Section 2082 BGB). If foreign law applies, other deadlines may apply. In case of doubt, the shortest deadline that may apply should be observed.
At which court do I file the avoidance if the testator last lived abroad?
Where there was no habitual residence in Germany, local jurisdiction lies with the probate court of the last habitual residence in Germany or the Local Court of Schöneberg (Section 343 FamFG). As international jurisdiction for the declaration of avoidance has not been conclusively settled, a precautionary declaration in the state dealing with the estate is also advisable.
Can I contest because the testator married abroad after making the will?
If German law is the law governing the making of the will, the new spouse can contest under Section 2079 BGB if they were passed over in the will and only became entitled to a compulsory share through the marriage. The right of avoidance then belongs to them alone. Avoidance is excluded if the testator would have made the same disposition in knowledge of the marriage.
What happens to the German certificate of inheritance if the avoidance succeeds?
The contested disposition is deemed void from the outset (Section 142 (1) BGB). A certificate of inheritance already issued on the basis of the will is incorrect and is withdrawn under Section 2361 BGB. In the new certificate of inheritance procedure, the probate court examines the effectiveness of the avoidance.
Attorney Dr. Johannes Fiala and the Munich-based firm, which focuses on international succession law, tax law and asset protection, advise heirs and relatives on contesting wills with a cross-border element, from determining the applicable law and making the declaration of avoidance in time to the certificate of inheritance procedure. Dr. Fiala has published extensively on questions of emigration and asset protection. Please get in touch with the firm without obligation to discuss your individual situation in an initial consultation.
