Inheritance Law · Contesting a Berlin Will

Contesting a Berlin Will: Options for Children and the Surviving Spouse

A Berlin will is binding. After the first spouse dies, the survivor generally can no longer replace the final heirs, and the children must wait until the second death. That is why the question often arises whether such a will can be challenged.

The answer depends on who is asking and what happened. I check whether the will is valid at all, whether a contestation would succeed, or whether another route is faster.

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First: is the Berlin will valid at all?

Only spouses and registered partners can make a joint will (section 2265 German Civil Code). For the handwritten form it is sufficient if one writes the text by hand and both sign (section 2267). A typed text or a missing second signature makes it invalid as a joint will.

After a divorce, or if divorce proceedings were pending and well-founded at the time of death, the dispositions in favour of the spouse are generally void (section 2268 in conjunction with section 2077). An invalid will does not need to be contested and no deadline applies.

Children as final heirs: what applies after the first death

Typically the spouses appoint each other as sole heirs and the children inherit only after the survivor's death (section 2269). At the first death the children are therefore disinherited and may claim their compulsory portion, subject to any forfeiture clause.

With the first spouse's death, mutually dependent dispositions become binding (section 2271 (2)). The survivor can then generally no longer change the final heirs unilaterally.

The survivor made a new will

A later will by the survivor that disadvantages the children as final heirs is often invalid to that extent because of the binding effect. It then does not need to be contested; the question is resolved in certificate of inheritance proceedings after the second death.

Gifts by the survivor at the children's expense

If the survivor gives away assets to undermine the binding appointment without a legitimate interest of their own, the final heirs may reclaim the gift from the recipient after the survivor's death (section 2287, applied by analogy). The claim becomes time-barred three years after the succession.

Contestation by the children or by the surviving spouse

After the testator's death, beneficiaries may contest on grounds of mistake, unlawful threat (section 2078) or an overlooked person entitled to a compulsory portion (section 2079), within one year of learning of the ground (section 2082), by declaration to the probate court.

The surviving spouse may also contest their own binding dispositions, for example after remarriage or the birth of another child. This requires a notarised declaration to the probate court within one year (sections 2282 (3), 2283 applied by analogy).

Deadlines at a glance

Contestation by children

One year from knowledge of the ground (section 2082)

Contestation by the survivor

One year from knowledge, notarial form (sections 2282, 2283)

Compulsory portion after the first death

Three years from the end of the year of knowledge

Reclaiming gifts

Three years from the second death (section 2287 (2))

Invalid will

No deadline, clarified in certificate of inheritance proceedings

Frequently asked questions about contesting a Berlin will

Can a Berlin will be contested?

Yes. Beneficiaries may contest after the testator's death on grounds of mistake, threat or an overlooked person entitled to a compulsory portion. The surviving spouse may contest their own binding dispositions in notarial form, for example after remarriage. Often no contestation is needed because a later will is invalid due to the binding effect.

Can the surviving spouse change a Berlin will?

Generally not, insofar as the dispositions are mutually dependent; they become binding on the first death. A change is possible only with an amendment clause, by disclaiming the inheritance, or by a valid contestation.

How long can a Berlin will be contested?

One year from the time the person entitled learns of the ground for contesting. Contestation is excluded 30 years after the succession at the latest.

Have your Berlin will reviewed.

I tell you whether the will is valid, whether a contestation would succeed and which route is faster in your case.

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