Mental Incapacity and Will Contests in Germany

Will contests in Germany typically concern issues regarding the capacity to make a will. This article explores the most common arguments used to attack the validity of wills in Germany based on capacity. 

Mental Incapacity under German law

A person who lacks the mental capacity to comprehend and exercise judgment cannot make a (valid) will (see Section 2229 (4) of the German Civil Code). In other words, the testator must have the ability to understand the implications of the material clauses included in the will. Will contests often concern allegations of incapacity due to

  • dementia; or
  • temporary mental disorder (delusions, hallucinations, paranoia)

Mental imcapacity due to dementia

German courts have held that the following are factors to be considered in determining capacity of a person suffering from dementia:

  1. Severity of the dementia;
  2. the length of time in which the testator suffered from dementia;
  3. development of the dementia;
  4. Capacity to remember new facts;
  5. additional psychological issues (e.g. depression); and
  6. susceptibility to external influences. 

In practice, a determination of incapacity due to dementia necessitates the expert opinion of a physiatrist or other medical professional. 

Please note: Even when a testator are found to have lacked testamentary capacity due to dementia, courts will sometimes rule that the testator had a "temporary period of lucidity" or a "lucid moment" at the time of the execution of the wll. However, German courts have ruled that a lucid moment is impossible, if the testator suffered from certain types of dementia.

Delusions, Hallucinations, Paranoia

Hallucinations are false perception of something they see, hear or feel that cannot be corrected by someone telling them it is not real. Causes of hallucinations can be:

  • Medications
  • Physical problems, such as dehydration and kidney or bladder infections
  • Schizophrenia
  • Alcohol or drug abuse

Delusions are a fixed false belief not supported by reality. Delusions often result from memory problems.  

Paranoia is a centered around suspiciousness (e.g. deriving from schizophrenia)

In order for that delusion, hallucinations or paranoia to render a person incapable of making a will, it must influence the testator in the making of the will. In other words, the delusion must relate to the assets disposed by the will and the persons receiving a benefit under the will. 

Burden of Proof  for Incapacity 

A fundamental aspect of German probate law is the presumption that an individual has the capacity to make a will. Thus, the party contesting the capacity of the testator has the burden of proof of presenting evidence showing incapacity at the time at which the will was executed.

However, once incapacity is found an individual who argues that such a will was executed during a period of lucidity has the burden of proof of proving such lucidity.

Procedure: Will Contest Litigation in Germany

An individual seeking acknowledgement as an heir typically applies for a Certificate of Inheritance from a competent probate court (Nachlassgericht). All concerned persons, including those who would inherit should the will be found invalid, can present arguments in front of the competent probate court. Such persons may also file a caveat. This caveat carries significant weight and should be drafted with great care. The probate court will only examine the mental capacity of the testator if sufficient proof is provided in the caveat indicating that the testator was incapacitated at the time the will was executed. Should the court find that there is sufficient evidence of incapacity it will generally request an opinion from a court nominated expert, hear witnesses and review all other available evidence (e.g. letters from the testator).

If the person named in the will does not apply for a certificate of inheritance (e.g. because there is a will notarized by a German notary or he has a power of attorney that does not end with the death of the principle/testator), the person who seeks to contest the will can personally apply for a certificate of inheritance. Alternatively, such a person may sue the individual named in the contested will demanding that the will be recognized as invalid.  Additionally, such a person may request an injunction order from the court to prevent the person named in the will from seizing estate assets.


Veit Klinger
Letzte Aktualisierung: 17.02.2014