When is a will invalid and how to contest it?

Quick overview

A will must be in the prescribed form. A holographic will must be written in full and signed in your own hand. A testator who has not written a will in his own hand must sign it in his own handwriting and expressly declare before two witnesses present at the same time that the document contains his last will. In addition, the witness may not, for example, be an incapable person, a person who does not know the language, an heir, a legatee or persons close to them to the extent prohibited by law. A will may also be invalid if it was made by a person without the necessary capacity, if there is a material mistake, or if the date is not clear and there are multiple conflicting wills. The intestate heir then usually does not contest the will because it is automatically invalid in its entirety, but claims his or her obligatory share.

What types of wills are involved

The two most common forms in practice are.

• The first is a private deed. If the testator wants to make a will without witnesses, he must write the whole will in his own hand and sign it in his own handwriting. This is the classic holographic will. If he does not write it in his own hand, he may make it in another way, but he must sign it in his own hand and expressly confirm before two witnesses present at the same time that the instrument contains his last will.
• The second option is to make a will in the form of a public deed, i.e. a notarial deed. For the latter, the law expressly provides that the person drawing up the public deed shall verify that the expression of the last will is made with discretion, in good earnest and without compulsion. This is why a notarial will is usually the safest in practice.

There are also special forms of wills with relief for emergency situations, for example in the event of an imminent threat to life or in certain specific crisis situations. However, these are more for exceptional cases and have a limited duration.

When a will is invalid

The invalidity of a will is not based on one general list in the Civil Code. A specific defect must always be examined.

1. Defective form of will

This is the most common problem with wills made at home. If the holographic will is not entirely written in one’s own hand, it does not meet the legal form. If an allographer’s will is not properly signed or lacks the simultaneous presence of two witnesses and an explicit statement by the testator that it is his or her last will, there is a serious problem with its validity.

A practical example: a father prints out a will on a computer, signs it at home and puts it in a drawer. No one is present at the signature. Such a document does not meet the rules for an allographic will and may cause a major problem in the succession proceedings.

2. Illegal or unsuitable witnesses

Witnesses cannot be just anyone. The law specifically excludes, for example, persons who are incapacitated or who do not know the language or mode of communication in which the will is expressed. There are also restrictions on heirs, legatees, persons close to them and certain other persons involved in making a will. A provision in favour of such a person may be valid only under special conditions, for example if the testator wrote it in his own hand or if three witnesses attested it.

Practical example: a mother makes a will on a computer and calls her son and his wife as witnesses, while the son is also to inherit the flat. This is precisely the type of situation that can give rise to a dispute about the validity of part of the will.

3. The date of the will is not clear

The law expressly provides that if it is not clear on which day, month and year the will was made and the testator has made multiple wills at the same time which contradict each other, or otherwise the legal effect of the will depends on determining the time of its making, the will is invalid. Thus, the absence of a date alone may not always automatically invalidate a will, but it may be decisive in a disputed situation.

Practical example: a testator leaves two different wills, each bequeathing a house to someone else. One of them is undated. This is where an unclear date can lead to invalidity.

4. The testator did not have the capacity to acquire

An incapacitated person generally does not have capacity to make a will, except in cases expressly provided for by law. A person who has reached the age of 15 and has not acquired full legal capacity may make a deed by way of a public deed. Those who have been limited in their capacity may, to the extent of the limitation, normally acquire only by way of a public deed, with exceptions provided for by law.

In practice, however, the formal limitation of legal capacity is not the main dispute. More often, the issue is whether the testator was capable of expressing his or her own will at a particular time. If, for example, he suffered from severe dementia or was in such a state of health that he did not understand the meaning of his actions, the will may be contested.

5. Material mistake or mistaken motive

A material mistake by the testator invalidates the provision of the will to which it relates. The law considers a material mistake to be, for example, a mistake as to the person to whom something is left or as to the share or thing left. A mistaken motive may also cause invalidity if the testator’s will was based on it.

Practical example: the testator left the cottage to “his grandson Peter”, but in fact he had two grandchildren of the same name and the will does not make it possible to determine with certainty to whom it was to go. Or he bequeathed the property to someone in the belief that he had taken care of it for a long time, and later it turns out that this was not the case and it was a fundamental mistake.

6. Invalid occupation of certain persons

A special rule applies to situations where the testator made an estate while in the care of a health or social services institution and called as heir or legatee a person who manages, is employed or otherwise works in that institution. Such an appointment shall be void unless made by will in the form of a public deed.

This is very important in practice, for example, in the case of elderly people in homes, hospitals or social service facilities.

Is a will always invalid in its entirety?

No. A common mistake is to think that any problem will “throw off” the entire document. In fact , only a specific provision of the will may be invalid. This is typically the case with a mistake or with some problematic bequests.

In addition, the law specifically says that the will must be interpreted to give effect to the testator’s wishes as far as possible. Thus, courts and notaries first try to preserve the meaning of the acquisition if they can.

The immutable heir: it is not always a question of “invalidity of the will”

When a will omits a non-nominal heir, it is not typically a situation where the whole will is automatically invalid. The Civil Code says that the acquisition on death cannot reduce the obligatory share of a non-minor heir who has not renounced the right to the obligatory share and has not been disinherited. If the will contradicts this, he is entitled to the mandatory share. Moreover, the non-probate heir is not entitled to a share of the estate as such but to a sum of money corresponding to the value of the obligatory share.

The practical implication is crucial: the child of the testator often does not “contest the will” in order to annul everything, but claims his or her obligatory share. Only in some cases will the nullity of the disinheritance or other provisions also be addressed.

How to contest a will in practice

Most often, it is not the case that someone files a separate lawsuit immediately after the funeral. The dispute usually arises only in the probate proceedings, when the notary submits the will and one of the heirs argues that it is invalid or disputable.

In practice, there are usually three main ways:

• The first is an objection in the probate proceedings. The heir points out a specific problem, such as a missing signature, invalid witnesses or doubts about the testator’s state of mind.
• The second is a succession dispute. If the notary encounters disputed factual issues that he cannot decide himself, he will refer the party to file a lawsuit. Typically, these cases deal with the authenticity of the signature, duress, manipulation or the state of health of the testator at the time the will was made.
• The third is the assertion of the right of a non-nominee heir to a mandatory share. This is not primarily a case of “dropping the will”, but of financial compensation for what the law guarantees him.

What is usually most important in contesting a will

When there are doubts about mental state, medical records, witness testimony and sometimes expert testimony are key. If forgery is suspected, expert examination of handwriting and signatures is crucial. If there is a reasonable doubt of duress or manipulation, it is usually crucial who was present when the will was made, who prepared the will, who benefited and in what situation the testator acted. In the case of formal defects, it is primarily the document itself that is at issue: the signatures, the date, the presence of witnesses and their competence.

Practical example: if a lonely senior bequeathed all his property to a neighbour shortly after his hospitalisation, while leaving the children out, this may not in itself be invalid. But if it turns out that he signed the will at a time of severe cognitive decline or under circumstances that call free will into question, litigation can be very real.

How to avoid probate problems

A notarial deed is the most reliable. Firstly, the risk of formal errors is minimised and secondly, it is much more difficult to claim later that the testator did not know what he or she was signing. In addition, the law provides that the person drawing up the public deed will check that the testator is acting sensibly, seriously and without compulsion.

If someone still wants to make a will at home, he or she should at least keep these points in mind:

• for a holographic will, write the entire text in your own hand and sign it in your own handwriting,
• indicate the exact date,
• clearly identify heirs and assets or shares,
• in the case of an allographic will, to ensure that two competent witnesses are present at the same time,
• not to use as witnesses persons who have a vested interest in the will,
• to think of the heirs at law and their obligatory share.

Summary

A will may be invalid for several reasons: defective form, missing signature, unsuitable witnesses, unclear date in conflict with another will, lack of capacity to make a will, material mistake or specific statutory prohibition against calling certain persons. However, not every mistake invalidates the entire will. Often, it is only the invalidity of a single provision or the claim of a non-minor heir to a compulsory share. A will can typically be challenged in probate proceedings or in a subsequent succession dispute. In practice, it is mainly evidence, not mere suspicion, that decides. Those who want to significantly reduce the risk of litigation should opt for a will in the form of a public deed.