When can I contest a will in Austria?

Here is all you need to know on errors and on testamentary incapacity

Inhaltsverzeichnis

Contest a will in Austria – what is it about?

Various mistakes can happen when drawing up wills. When the mistakes are discovered, the drafter of the will has often already died. It is no longer possible to make a new will, nor is it possible to ask the drafter what he or she meant.

Under Austrian inheritance law, some mistakes lead to the invalidity of a will. One can contest the will. This is the case, for example, if the person making the will was not (or no longer) in the mental state to make a will, or if the deceased was mistaken about the facts on the basis of which she made the will.

A man bequeaths everything to his girlfriend because he believes she has always been faithful to him. Should the girlfriend then inherit anyway if she has actually had affairs all the time?

The deceased increasingly suffered from delusions at the end of her life. She was convinced that her son wanted to kill her and was only waiting for the inheritance, which is why she appointed her carer as sole heir. In reality, the son has always lovingly cared for his mother. Shouldn’t he become the heir now?

In Austria, can I contest a will if the deceased made a mistake?

In Austria, can I contest a will if the deceased made a mistake?

Contest a will in Austria due to an error - This is possible.In Austria, an error can already be a reason to contest a will.

An error is a misconception of reality.

An error can also occur in the reproduction of thoughts if the drafter says something other than what he or she thinks to say.

Franz names Nick as his heir because he thinks Nick put in a good word for him and that’s why Franz got his great job. In reality, however, Nick never did.

Olivia only names her two brothers as heirs in her will because she thought they were both entitled to a compulsory portion. In reality, siblings are not entitled to a compulsory portion.

The use of technical words, dialect or accidental transcription can cause the content of the writing to be different from what the deceased actually intended.

In Austria, for you to contest the will, the error must be causal!

This means that the deceased would not have made the will or would have made it differently without the error. If, on the other hand, he or she would have made the will in the same way even without the error, the error is not causal and, in Austria, you cannot contest the will.

If there is only an error about a motive, the motive about which the error is made must be stated and the error must be based “solely” on this motive. The motive does not have to be stated in the will itself, it only has to appear that the deceased was mistaken.

Rainer names his best friend as heir. He tells the notary that the reason for this is that “he has always stood by me and never said anything bad about me”. If it turns out that this is not true, the will can be contested because the motive about which Rainer was mistaken was expressed to the notary.

In Austria, if there is a mistake, can I contest the entire will?

If, without the error, the will had not been made at all, the entire will is invalid after a successful contestation.

If, however, without the error, the maker of the will had merely drafted the will differently, it is only partially destroyed by a challenge. A will can only be limited by a challenge: Parts can be omitted, but no new parts can be added.

Pamela names her niece as sole heir, thinking that this will enable her to continue running the family inn. In reality, the niece has long since leased out the inn. If Pamela had not appointed her niece as heiress at all under these circumstances, the entire will would fall away. If Pamela had only left her a smaller share, only her share of the inheritance is reduced.

If Pamela had appointed her nephew as heir instead of her niece without the error, he cannot become heir by contesting the will unless he is the legal heir. This is because wills can only be restricted by challenges, nothing new can be added.

In Austria, who is entitled to contest the will in the first place?

Only those for whom the omission of the will would be positive are entitled to contest it in Austria. Those who want to contest the will must prove that there was a causal error.

Sophie stipulates in a will that her unmarried partner Tamara is to be her heiress because they have always loved and been faithful to each other. However, unbeknownst to Sophie, Tamara had an affair some years ago.

Even though the motive is stated in the will, Tamara cannot contest it out of remorse because she would not benefit from it. On the contrary, she would even lose the inheritance.

However, if Sophie has a child, he or she can contest the will because he or she would benefit by ceasing to be the legal heir.

Contest a will in Austria: A child was overlooked!

Contest a will in Austria: A child was overlooked!

In Austria, a special rule gives an “overlooked” child the right to contest the will:

In Austria, an overlooked child can contest the will.This situation can arise due to various constellations.

  1. Firstly, the maker of the will may not have known that he or she had a child.
  2. Secondly, a child may have been born after the will was made.

In both cases, the child has not been included in the will, although at the time of the deceased’s death he or she is his or her child and thus the legal heir and entitled to a compulsory portion.

In principle, there is nothing to be said against leaving a child out of a will, i.e. not including it. This is possible due to the freedom to make a will; the child then only receives the compulsory portion. However, if the child was only left out due to an error, the will can be contested. And here the following is quite decisive: In the case of a child of whom the deceased did not know when drawing up the will, the law assumes that the deceased would have drawn up the will differently if he had known about his child.

Uwe does not mention his youngest child in his will because he is convinced that his wife has cheated on him and that he is not the father. After his death, it turns out that he was very much the father.

Viktoria writes a will in which she leaves everything to her nieces and nephews because she herself is childless. Three years later she has a son. Shortly afterwards she dies without having changed her will.

And how much does this overlooked child inherit?

If the child who has been passed over is not the only one of the deceased, the law presumes that the maker of the will would have wanted to provide him or her with as much as the least well-provided child of the children taken into account receives. All other inheritance quotas are reduced proportionately for this.

In Waltraud’s will it says that her eldest child shall receive the compulsory portion, the other three children each receive 1/3. If Waltraud has a fifth child after the will has been drawn up, this child, like the eldest, only receives the compulsory portion.

Xaver stipulates in his will that his daughter should receive 1/3, his son 1/6, his wife 1/3 and his two godchildren 1/12 each. Xaver did not know that he still had Armin, another child from a previous relationship. Armin gets as much as the child with the smallest share. Therefore, in the result, the daughter gets 4/14, the son 2/14, Armin 2/14, the wife 4/14 and the godchildren 1/14 each.

To illustrate:

  1. Succession according to the will, i.e. before Armin’s challenge and without taking into account his compulsory portion:

2. After Armin successfully contests the will, however, the inheritance quotas look like this:

If, on the other hand, the testator’s only child was passed over, the entire will is omitted. Instead, there is intestate succession. This is because the legislator assumes that this corresponds to the will of the deceased. This means: the only child inherits 2/3 if the deceased was married at the time of his or her death, otherwise everything.

These presumptions can be rebutted, for example by proving that the deceased would not have considered the child anyway. However, the mere fact that a considerable amount of time has passed since the birth of a subsequently added child without the will having been adapted does not mean that the child would not have been considered anyway.

In Austria, can I contest a will written under threat?

In Austria, can I contest a will written under threat?

Contest will on grounds of threat in Austria.Yes. If the deceased was threatened or made the will under trickery or duress, the will can be contested. Under these circumstances, it says nothing about the true will of the deceased.

However, threats do not include pure flattery, advice or gentle pressure, which can be easily evaded.

The deceased only appointed her daughter as sole heir because she had threatened her that she would otherwise leave her and no longer care for her. Since the mother was dependent on care, this was a threat and the will is contestable.

My mother suffered from dementia. Can I contest the will?

My mother suffered from dementia. Can I contest the will?

In order to make a will effectively, one must be capable of making a will. This means that one must understand the meaning and consequences of the testamentary disposition and be able to act accordingly.

If the will was made in a state that precludes testamentary capacity, it is invalid. However, there are no consequences for the validity of the will if the person making the will becomes incapable of making a will after the will has been made.

Incapacity to make a will can occur in the case of mental illness, in a state of intoxication, under shock, under the influence of drugs, but also as an effect of dementia. Mental disorders can be, for example, pathological jealousy delusion, persecution delusion, paranoia and severe depression.

But: “Dement” does not always mean “incapable of making a will”!

However, not every restriction of cognitive abilities immediately causes testamentary incapacity. It is sufficient if the person making the will acts with the awareness that he or she is making a will and understands its meaning and consequences.

It always depends only on the specific will. Even if the deceased does not know the names of the Federal Chancellor and the Federal President or what day of the week it is at the time of making the will, he or she can understand that he or she is making a will and what the consequences are.

In general, it is said that a 14-year-old person’s capacity of understanding and will is required. A testamentary disposition can also be only partially invalid if the mental impairment causes only partial testamentary incapacity.

Even if the deceased suffers from a mental illness that actually precludes testamentary capacity, a will can be valid if it was made in a lucid moment, a so-called lucidum intervallum. Then the person making the will can understand his or her actions and their consequences at that moment.

If you believe that your mother lacked the necessary testamentary capacity, you must prove it. If you do not provide this proof, the court will assume that your mother was capable of making a will.

How is it proven that someone was incapable of making a will?

How is it proven that someone was incapable of making a will?

The probate court must assess whether someone was capable of making a will or not.

The mental condition at the time the will was drawn up is examined by a court expert in a medical report and the report is then presented to the judge. The assessment is not easy because some time may have passed between the drawing up of the will and the probate proceedings and the expert can no longer talk to and examine the deceased.

Therefore, the expert has to rely on the statements of relatives, contacts, medical findings and the deceased’s own records. In this context, the deceased’s doctors, health care and nursing staff and the staff of old people’s homes are released from their obligation to maintain confidentiality. These persons usually have a good impression of the deceased’s state of mind and can provide helpful information.

For the assessment of testamentary capacity, it makes no difference whether there is a handwritten or a notarial will.

Even if the will was drawn up before a lawyer or notary, this is no guarantee that the deceased was capable of making a will at the time.

Under Austrian inheritance law, can I make a will if I have an adult representative?

Under Austrian inheritance law, can I make a will if I have an adult representative?

Yes, this has been possible since 2017.

The mere fact that you have an elected, legal or judicial adult representative (in German: “Erwachsenenvertreter” or “Sachwalter”) or a lasting power of attorney (in German: “Vorsorgevollmacht”) has come into effect does not automatically render you incapable of making a will. If you understand the meaning and consequences of the testamentary disposition and can act accordingly, you can make a will.

It is therefore always necessary to ask about the concrete testamentary capacity even after the appointment of an adult representative or after the entry into force of a lasting power of attorney.

My father was mentally impaired when he revoked his will.

My father was mentally impaired when he revoked his will.

Does a will that was revoked in a state in which one could not have made a will because one was incapable of making a will apply?

Yes, such a will retains its effectiveness and validity. The revocation has no effect. This is because one must also be capable of making a will in order to revoke it.

Contesting a will - What time limit applies in Austria?

Contesting a will - What time limit applies in Austria?

You may contest a will for three years from the date of knowledge of the facts on the basis of which the right of contestation exists.

The absolute limitation period is 30 years from the death of the deceased. This long period runs irrespective of knowledge of the grounds for avoidance. It therefore runs even if you do not yet know that you can contest the will.

Cover picture (fencer) by Vasyl Shulga

symbolic image (pencil) by Mike Orlov

symbolic image (child with cap) by PublicDomainPictures on Pixabay

symbolic image (fencing – threat) by Littlewitz

×

table of contents