Contesting a Will - One Day Whose Circumstances the Court Reconstructs Years Later
A will dispute almost always turns on a single day - the day of signing: did the testator understand what they were signing, was their will free, and was the form observed. The court reconstructs that day years later from medical records, the notary's archive, expert examinations and witnesses - and each side either has that material or does not. Wills written in the final months, in hospital, in favour of the one child who was the carer, are the typical subject of these disputes.
This page describes contesting a will from both sides: for the heir the will excludes, who seeks to have it voided, and for the heir the will benefits, who defends it. Which grounds actually work, how the evidence is obtained, what a post-mortem examination shows, what the limitation period is and what happens when a will is voided in part. Drafting a will and the compulsory share have their own pages.
Updated · Practice area: Inheritance lawyer
Five Grounds for Voiding a Will - What Must Be Proven and With What
Most grounds are pleaded in the alternative in one claim, but each has its own evidence and its own probability of success.
Contesting a Will - the Stages From Suspicion to Judgment
Studying the will and its history
A copy of the will from the notary or the inheritance file, an extract from the unified register of all wills (there are often several, and the later one replaces the earlier), the date and place of making (the notary's office, home, hospital), who was present, who brought the testator to the notary. The lawyer starts this history as soon as the estate opens - some material (the notary's video) is kept for a limited time.
Obtaining the medical records
The medical history for the one or two years before death: diagnoses, hospitalisations, prescribed medication, notes by a psychiatrist or neurologist, ambulance call-outs. An heir has the right to obtain these documents from the clinic; on refusal, through the court. This material is the basis of the expert examination, and without it the incapacity ground is empty.
Interim measures and the claim
A claim to declare the will void against the heir under the will, seeking suspension of the certificate of inheritance or voiding of one already issued, and an injunction on the property - an heir under a will often sells quickly. The lawyer frames the claim so that, together with voiding, inheritance by law and the share are also recognised.
Commissioning expert examinations
A post-mortem psychiatric-psychological examination on medical documents and witness statements - answering whether the testator could understand their act on the specific day; a handwriting examination with comparison samples; where needed, a technical examination of the document. The lawyer formulates the questions for the expert precisely, because a general question produces a general answer.
Witnesses and the notary
The notary is questioned as a witness on the circumstances of making the will: who was in the room, how they spoke with the testator, what they asked, whether a video recording exists. Neighbours, doctors, carers, social workers - on the testator's condition in the same weeks. The lawyer builds the witness list against the opposing side's witnesses.
The outcome and its enforcement
Where the will is void, inheritance passes by law or under an earlier will (if one exists and is valid); on partial voiding, the rest remains in force. The judgment is presented to the notary for a new certificate and to the registry to amend the entry; for property already sold, a claim for compensation against the heir under the will.
The Post-Mortem Examination - What It Can and Cannot Do, and How It Is Managed
A post-mortem psychiatric examination does not examine a living person - it reconstructs the testator's condition on a specific day from documents and statements. Its answer depends on the quality of the medical material: a dementia diagnosis recorded months before the signature, cognitive test results, prescriptions for strong painkillers and psychotropic drugs, hospitalisation in the week of signing - these give the expert a specific conclusion. Without a medical history, on relatives' statements alone ("she recognised us, but she was poorly"), the examination usually answers that "no conclusion can be reached", and that works in the will's favour.
A notarised will has an extra layer of protection: the notary must verify the testator's capacity and the freedom of their will, and the notary's record ("the testator explained the content of the will to me and signed of their own free will") strengthens the presumption of capacity. Many notaries record the certification of a will on video, and that recording is decisive for both sides: it shows either a person answering questions sensibly or a person who does not understand the questions. The lawyer first establishes whether a video exists and applies through the court to obtain it.
The examination of a handwritten will works on a different logic: the handwriting expert needs comparison samples from the same period - illness changes handwriting, and a signature from ten years earlier undermines the comparison. The lawyer collects samples from banks, notaries and state bodies where the testator signed in the last years. The expert's conclusion is framed as "probably" or "categorically" - and a categorical conclusion on handwriting is rare, which both sides should know in advance.
What a Will Dispute Rests On
- Presumption of capacity
- The testator is presumed capable until the contrary is proven - the burden of proof lies on the person contesting the will. A court declaration of incapacity before the will settles the matter automatically; without one, an expert examination is needed.
- Standing to sue
- A will may be contested by a person whose right would be restored by its voiding - an heir by law, an heir under an earlier will, a person entitled to a compulsory share. A distant relative who would receive nothing even after voiding has no standing.
- Limitation period
- A claim for voiding is brought after the estate opens, under the general limitation rules from the day the claimant learned or should have learned of the ground; knowledge of the will's content usually coincides with the opening of the inheritance file. Delay is a separate defence argument.
- Several wills
- A later will revokes an earlier one to the extent they conflict; where the later one is void, the earlier one revives if it is itself valid. The unified register shows all notarised wills - a handwritten one may be in a drawer.
- Partial voiding
- An individual disposition in a will (one item to one person, for example) may be void while the rest stands, if the rest makes sense without it. Breach of the compulsory share does not void the will - it only limits it to the extent of the share.
- Interpretation of a will
- A vague will ("the flat to the children") is not void - it is interpreted by the court according to the testator's presumed intention; an interpretation dispute differs from a voiding dispute and often runs alongside it.
What to Gather Before Contesting a Will - the Lawyer's Checklist
- A full copy of the will and an extract from the unified register of all wills with dates - which one replaces which.
- The medical history for the last one or two years: diagnoses, hospitalisations, prescribed medication, neurologist's and psychiatrist's notes, ambulance records.
- The notary's records and video of the certification of the will - confirm they exist and request them before the retention period expires.
- For a handwritten will: samples of the testator's handwriting from the same period (bank, notary, state bodies, personal letters).
- Witnesses to the testator's condition and circumstances in the weeks of signing: who lived with them, who isolated them, who brought them to the notary.
- Evidence of the testator's earlier intentions: an earlier will, letters, correspondence, gifts - to show how "unexpected" the will's content is.
Three Will Disputes
A will in hospital, nine days before death
A father left a flat to one child by a will made in an oncology ward with a notary called to the bedside. The other child contested it. The lawyer: the medical history (high-dose morphine-group drugs, "disorientation" recorded the day before signing), and the post-mortem examination concluded that understanding of the act was materially impaired; the notary had no video. The will was declared void and the flat was divided between the two children by law.
A "handwritten" will in typed text
After the death a niece produced a "handwritten will" - text printed from a computer with the grandmother's signature. The lawyer for the children: a handwritten will must be written entirely in the testator's own hand, and typed text with a signature does not meet that form - voiding on the ground of form, without any expert examination. The court granted the claim at the first hearing.
A will that survived
A mother left the house to the daughter who had cared for her for ten years; the brother contested the will for undue influence and incapacity. The lawyer for the daughter: the notary's video, in which the mother explains the will's content in her own words and answers a question about the brother; the family doctor's evidence on her cognitive state; the mother's letters showing the intention years earlier. The claim was dismissed, the will stood, and the brother received only the compulsory share.
Questions About Contesting a Will
The will is notarised. Can that be contested too?
It can - the notarised form strengthens the presumption of capacity but does not rule out voiding for incapacity, undue influence or fraud; a notary is not a doctor and cannot recognise early-stage dementia. Contesting a notarised will is harder and requires stronger medical material - the lawyer assesses the chances after seeing the medical history, not before.
In his last year my father behaved "differently", but he did not see doctors. Can incapacity be proven?
Without medical documents - with great difficulty: the expert needs objective material, and relatives' statements alone usually produce "no conclusion possible". The lawyer looks for whatever exists: ambulance call-outs, pharmacy prescriptions, social service visits, bank records of unusual transactions, statements from neighbours and non-family witnesses. If there is nothing, the form and undue influence grounds are examined in parallel.
The heir under the will has already sold the flat. Will I get the flat back after voiding?
If the buyer acted in good faith and relied on the registry, the flat usually stays with them, and your claim against the heir under the will becomes monetary compensation. That is why a request for an injunction is filed with the claim on the first day - an injunction on the flat rules out a sale. If the sale has already happened, the lawyer tests the buyer's good faith (a relative, a price below market, a sale after the claim was filed) - a buyer in bad faith returns the flat.
Only one item in the will is disputed, the rest is fair. Do I have to contest the whole will?
No - an individual disposition can be voided while the rest stands, if the rest makes sense without it and matches the testator's intention. This is also tactically better: a partial claim is more convincing to the court and reduces conflict with the other heirs. The lawyer builds the claim around the specific disposition, with full voiding as the alternative.
I am the heir under the will and my brother is threatening to contest it. What can I do now?
Preserve and gather evidence before the dispute starts: the notary's video and records (request them now, before they are deleted), the testator's doctor's evidence on their condition, letters and correspondence showing the intention, witnesses. Obtain the certificate of inheritance and register it without delay - that does not rule out voiding, but it strengthens your position. The lawyer builds this "defence file" the way a claim is built - before the claim arrives.
Lawyers for Contesting a Will
A will dispute is won with medical material, the notary's archive and precisely framed questions to the expert - on either side. Within 15 minutes the coordinator connects you with a lawyer who has been through court cases both voiding and defending wills.
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