Contesting a will in Austria: What grounds, time limits and costs apply?
Author: Mag. Nevena Shotekova-Zöchling, Attorney and insolvency administrator in Vienna · In Austria, a will (Testament) can be challenged for formal defects (§§ 578 ff ABGB), lack of testamentary capacity (Testierunfähigkeit, § 566 ABGB), duress, fraud or material mistake (§ 565 ABGB), and for forgery. The challenge (Anfechtung) must be asserted in court within three years of knowledge, at the latest 30 years after the death (§ 1487a ABGB). In ongoing probate proceedings (Verlassenschaftsverfahren) it is made by filing your own declaration of acceptance of the inheritance (Erbantrittserklärung) and through the proceedings on the right of inheritance (Verfahren über das Erbrecht).
Key facts
- In Austria, a will can be challenged for formal defects (§§ 578 ff ABGB), lack of testamentary capacity (§ 566 ABGB), duress, fraud or material mistake (§ 565 ABGB), and forgery.
- A challenge to a will must be asserted in court within three years of knowledge, at the latest 30 years after the death (§ 1487a ABGB); a letter to the heirs is not sufficient.
- During probate proceedings, a will is challenged by filing one's own declaration of acceptance of the inheritance, followed by proceedings on the right of inheritance (§ 161 AußStrG).
- After the estate has been vested in the heirs (Einantwortung), only an action for recovery of the inheritance remains (§ 823 ABGB).
- Children and spouses are entitled to the compulsory share regardless of whether the will is valid.
The most important grounds for a challenge
Formal defect: A holographic will (eigenhändiges Testament) must be written entirely in the testator's own hand and signed (§ 578 ABGB). A will not written by hand (fremdhändiges Testament) requires the testator's signature, a handwritten addition stating that the document contains their last will, and three witnesses present at the same time, who sign with an addition and are identifiable from the document (§ 579 ABGB). Even small errors can invalidate the will.
Lack of testamentary capacity: Anyone who, when making the will, could not understand the meaning of their disposition, for example due to advanced dementia, could not validly make a will. What matters is their condition at the time of signing.
Duress, fraud, mistake: The last will must be declared free of duress, fraud and material mistake.
Forgery: If there are doubts about the authenticity of the handwriting, a handwriting expert will clarify this.
How does a challenge proceed?
As long as the probate proceedings are ongoing, you file with the court commissioner (Gerichtskommissär, a notary) a declaration of acceptance of the inheritance based on the law or on an earlier will. If declarations of acceptance conflict, the probate court (Verlassenschaftsgericht) decides in the proceedings on the right of inheritance (§ 161 AußStrG). After the estate has been vested in the heirs (Einantwortung), only an action for recovery of the inheritance (Erbschaftsklage, § 823 ABGB) remains.
Typical evidence:
| Ground for challenge | Evidence |
|---|---|
| Lack of testamentary capacity | Medical records, nursing documentation, doctors' letters, psychiatric expert opinion |
| Forgery | Comparison handwriting samples, handwriting expert opinion |
| Formal defect | Original document, witness statements |
| Duress, fraud | Witnesses from the testator's circle, messages, account histories |
Costs and cost risk
In probate proceedings there is in principle no reimbursement of costs, except in the proceedings on the right of inheritance (§ 185 AußStrG). There, reimbursement depends on the outcome: whoever loses must as a rule also bear the other side's legal representation costs. In addition there are expert fees, which often run to four figures.
Important: the outcome of a challenge cannot be reliably predicted. Before starting, the evidence and the cost risk should therefore be assessed soberly.
The alternative: the compulsory share
As a child or spouse you are in any case entitled to the compulsory share (Pflichtteil), i.e. half of the statutory share of the estate (§ 759 ABGB). This claim exists regardless of whether the will is valid. It often makes sense to examine a challenge and at the same time secure the compulsory share within the time limit.
Frequently asked questions
Is a letter to the heirs enough to meet the time limit?
No. § 1487a ABGB requires assertion in court.
What applies if the will is invalid?
Then an earlier valid will or the statutory order of succession (gesetzliche Erbfolge) applies.
Can I inspect medical records?
Relatives and heirs have no automatic right of inspection, because medical confidentiality continues after death. Inspection is granted where there is a specific, legally justified interest – for example to examine testamentary capacity – provided no contrary wish of the deceased is known; if necessary, the court can obtain the records.
Do you have doubts about a will? Book a free first consultation – or use the ErbrechtCheck calculator “What am I entitled to?” to check which compulsory share you are entitled to in any case.
Book a first consultationoffice@advokat-wien.at+43 1 34 601 71Read more
- Inheritance law & probate – overview & services
- How do probate proceedings work in Austria – and what do they cost?
- Inheriting debts in Austria: Should I accept the inheritance conditionally or unconditionally?
- Writing your own will in Austria: Which formal errors make it invalid?
- Who inherits without a will? Statutory succession in Austria
This article gives a general overview of Austrian law and does not replace advice on your individual case.