Challenging a Will Overseas: A Brief How-To Guide

If you are the beneficiary of an overseas estate, you may have a reason to celebrate. If no one challenges the Will, you can proceed with the non-contentious process of obtaining probate in Germany – aka Erbscheinsverfahren, which is usually conducted at the German Circuit Court (Amtsgericht) in the decedent’s last place of residence. But what if you are disappointed with the contents of the Will and decide that you want to challenge it? In this case, below is a brief how-to guide for challenging a Will overseas. 

Contentious Probate in German

Any person of interest in the inheritance can contest the Will if they have a legitimate claim of foul play. This can be done by informing the probate court about your concerns regarding the validity of the Will. Persons of interest refer to those named as beneficiaries in the Will and anyone else who might benefit under German intestacy laws (e.g. a former spouse or certain relatives). 

If you decide to challenge the Will, however, you assume the financial risk of paying for the legal costs of the proceedings. You may also incur additional fees for compensating certain experts, such as psychiatrists for providing medical reports assessing the mental capacity of the testator when drafting the Will. With that in mind, there are two ways you can go about it. You could:

  • Inform the probate court that you simply wish to bring certain facts to light, and then let them decide whether to pursue the matter. 
  • Proceed to actively fight the probate process, that is, petition for the court not to issue a certificate of inheritance until the issue has been resolved. 

Grounds for challenging a German Will 

The following are some of the grounds on which you can challenge a German Will: 

  • Lack of testamentary capacity 
  • Failure to observe formal requirements for creating a Will
  • Other legal grounds such as undue influence from a third party when creating the Will

Two Procedural Routes 

There are two ways through which you can proceed with the case. You could decide to leave the matter with the probate court, at least for now, or you could file a civil lawsuit at the High Court (Landgericht level) via an Erbenfeststellungsklage (petition to declare the heir of the estate). The two procedural routes use completely different rules regarding issues such as costs and evidence presentation, and both have their own merits and demerits. Some lawyers recommend jumping straight to the Landgericht level since any judgment made by the probate court is not binding and can be easily appealed later on. 

The feeling of being left out of the Will of an important person in your life can be gut-wrenching. The good news is that there are certain steps you can take if you have reasons to suspect the validity of the will. To learn more about challenging a Will overseas or to speak with an estate planning attorney, kindly contact us here.

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International Probate by Graf Legal

The team at Graf & Partners, LLP offers extensive experience in many areas of international law, putting them in a unique position to help American clients who own property in multiple countries or inherit property from loved ones abroad.

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