Whether a will holds is usually decided by form, testamentary capacity and free will. Which conflict points are typical and which evidence can support a challenge.
Mag. Bernhard Brandauer
Attorney · BRANDAUER Rechtsanwälte, Salzburg
Inheritance matters are handled by Mag. Bernhard Brandauer together with a coordinated team. We examine the will, compulsory portion, gifts and deadlines and tell you clearly where you stand.
A will seems final, but it is not so in every case. Anyone who was passed over or has doubts about the circumstances of its creation can have its validity reviewed. A challenge succeeds, however, only if a concrete defect exists and can be proven.
This article sets out the typical conflict points and shows what really matters when contesting a will. At the centre is almost always the question of evidence.
Answer one or two questions about your suspicion and the evidence. You will receive a first assessment of the possible point of attack.
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Form, testamentary capacity and free will are the most common points of attack.
A holographic will must be entirely handwritten and signed, a will written by another hand requires three witnesses present at the same time and a confirmatory note. Even small breaches of form can bring the will down.
Checking the observed form quickly clarifies whether there is a basis.
If testamentary capacity is absent at the time of creation, the will is invalid. The court relies on medical experts, medical findings and witnesses. The more contemporaneous the documents, the more reliable the assessment.
A first assessment clarifies the prospects before proceedings are brought.
If the will was affected by threat, deception or a material error, the provision can be invalid. What matters is that the influence was causal for the disposition and can be proven.
Secure correspondence and witnesses that show the influence and have the situation reviewed.
Without reliable documents a challenge is hard to bring. Secure medical findings, care documentation, witnesses and earlier wills early. After the estate has been settled these sources are often hard to access.
A sober assessment of the evidence shows whether proceedings are worthwhile.
A holographic will must be written entirely by hand and signed. A will written by another hand, for instance on a computer, requires three witnesses present at the same time and an express confirmatory note. Even small breaches of these forms can bring the will down.
Defects of form are common precisely with self-drafted wills. Anyone who challenges therefore first checks whether the applicable form was observed at all, because this often yields the clearest point of attack.
Whoever makes a will must have testamentary capacity, that is, be able to understand the meaning of their declaration and act freely on it. With advanced dementia or under strong medication this capacity may be lacking. This is one of the most frequent grounds for a challenge.
A will can also be challenged if the testator’s will was affected by threat, deception or a material error. If the testator was misled about a fact that was decisive for the disposition, the provision can be invalid.
Whoever disputes the validity of a will must in principle prove the defect. On testamentary capacity the court regularly relies on medical experts who assess the condition at the time of creation. Contemporaneous medical findings, care documentation and witnesses who experienced the testator at the time are particularly telling.
Because the state of the evidence decides between success and failure, a sober assessment is worthwhile before proceedings are brought. Some conflicts can be resolved out of court with a solid evidential basis, others can hardly be won without it.
In inheritance law, deadlines and evidence decide. Call us directly or send an email, callback within one business day.
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