Contesting a Will in Austria: Grounds, Time Limits and Procedure

Anyone who wishes to contest a will in Austria must show and prove that the testamentary disposition is invalid. The law refers to the right to “overturn” a declaration of last will (§ 1487a ABGB). In practice, the outcome almost always depends on the evidence. It is therefore essential to understand the grounds for invalidity, the burden of proof and the applicable time limits from the outset.

Grounds for Contesting a Will

Formal Defects

A testamentary disposition is invalid if a mandatory formal requirement was not observed when it was made (§ 601 ABGB). A person making a holographic will must write the disposition by hand and sign it by hand with his or her name (§ 578 ABGB). An allographic will, i.e. one not written by the testator, must be signed by hand in the presence of three witnesses who are present at the same time, together with a handwritten addition stating that the document contains the testator’s last will; the witnesses, whose identity must be apparent from the document, sign with a handwritten addition indicating their capacity as witnesses (§ 579 ABGB).

The Austrian Supreme Court (OGH) applies these rules strictly. An allographic will is formally invalid if the testator signed a loose sheet that has no physical or textual connection with the sheet containing the text of the disposition (RIS-Justiz RS0132929; most recently OGH December 12, 2024, 2 Ob 197/24w). Where a will consists of several sheets, they must, according to the most recent case law, be firmly connected in the course of signing (OGH September 15, 2026, 2 Ob 141/26p). Further details can be found on our page on Forms of Will.

Lack of Testamentary Capacity

A person has testamentary capacity if he or she can understand the meaning and consequences of the testamentary disposition and act accordingly (§ 566 ABGB). If the deceased made the will in a state excluding testamentary capacity, for example under the influence of a mental illness or while intoxicated, the disposition is invalid (§ 567 ABGB).

The threshold is high. According to settled case law, testamentary capacity is lacking only where the impairment of consciousness is so severe that the normal freedom to form one’s will is eliminated (RIS-Justiz RS0012402; most recently OGH May 28, 2024, 2 Ob 81/24m). Since testamentary capacity is the rule as a matter of experience, whoever alleges its absence must prove it (RIS-Justiz RS0012415; most recently OGH June 26, 2025, 2 Ob 78/25x). Once it is established that the deceased lacked capacity in general, the burden shifts: whoever claims that the will was made during a lucid interval must prove this (§ 568 ABGB).

Proof is usually furnished through medical records and a psychiatric expert opinion. In proceedings on the right of succession, the OGH has considered it appropriate to grant access to specifically identified parts of a former guardianship file, for example those concerning the testator’s state of health (RIS-Justiz RS0130172; most recently OGH November 28, 2019, 2 Ob 197/19p).

Duress, Fraud and Mistake

The last will must be declared with certainty, deliberation and seriousness, and free from duress, fraud and material mistake (§ 565 ABGB). A material mistake renders the disposition invalid; this is the case in particular if the deceased was mistaken as to the beneficiary or the object of the gift (§ 570 ABGB). A merely incorrect name or description does not affect validity (§ 571 ABGB). A mistake as to motive leads to invalidity only if the testator’s intention was based solely on that mistaken motive (§ 572 ABGB).

Forgery

If the authenticity of a holographic will is disputed, the burden of proof in proceedings on the right of succession lies with the testamentary heir who relies on the will (RIS-Justiz RS0131725; OGH September 28, 2017, 2 Ob 78/17k; most recently OGH April 29, 2019, 2 Ob 51/19t). The same applies to the identity of the witnesses to an allographic will if it is disputed (OGH September 28, 2021, 2 Ob 139/20k). In such cases, a handwriting expert regularly examines the authenticity of the handwriting.

How Is a Will Contested?

During the probate proceedings (Verlassenschaftsverfahren), there is no separate “action to contest”. A person who considers the will invalid files his or her own declaration of succession (Erbantrittserklärung), for example on the basis of intestate succession or an earlier will, and disputes the right of the testamentary heir. Where declarations of succession conflict, the court commissioner (Gerichtskommissär) must seek to have the right of succession acknowledged between the parties; if this fails, he submits the file to the court (§ 160 AußStrG). The probate court then determines the right of succession of the entitled persons within the scope of the parties’ submissions and offers of evidence, and dismisses the other declarations of succession (§ 161 para 1 AußStrG). These proceedings require an oral hearing with the participation of all other claimants (RIS-Justiz RS0122476; most recently OGH October 30, 2018, 2 Ob 88/18g).

Once the estate has been distributed (Einantwortung), any person claiming a better or equal right of succession may bring an action for recovery of the inheritance against the person who acquired it (§ 823 para 1 ABGB).

Descendants, spouses and registered partners who have been passed over do not always need to contest the will. The compulsory portion is often the economically more sensible route, since it is due regardless of the validity of the will.

Time Limits for Contesting a Will

The right to overturn a declaration of last will must be asserted in court within three years of becoming aware of the facts relevant to the claim; irrespective of such knowledge, it becomes time-barred thirty years after the death of the deceased (§ 1487a para 1 ABGB). The case law on the knowledge-dependent limitation period of § 1489 ABGB applies accordingly (RIS-Justiz RS0133836; most recently OGH May 28, 2024, 2 Ob 32/24f).

Since the Inheritance Law Amendment Act 2015 (ErbRÄG 2015), the same period expressly applies to the action for recovery of the inheritance by which a better or equal right of succession is asserted after the Einantwortung (§ 1487a para 1 ABGB). The short period is intended to give the testamentary heir certainty as quickly as possible as to whether the last will remains unaffected by a challenge from third parties (RIS-Justiz RS0013139; most recently OGH April 29, 2025, 2 Ob 54/25t). For cases dating from before January 1, 2017, the three-year period began on January 1, 2017 at the latest, provided the claim was not yet time-barred at that date (RIS-Justiz RS0134175; most recently OGH December 18, 2025, 2 Ob 161/25b).

Practical tip: Secure evidence as early as possible: medical records, earlier wills, handwriting samples and the names of persons present when the will was made. In proceedings on the right of succession, the court decides only within the scope of the parties’ submissions and offers of evidence (§ 161 para 1 AußStrG).

Frequently Asked Questions

How long can a will be contested?

As a rule, within three years of becoming aware of the relevant facts and no later than thirty years after the death (§ 1487a ABGB). In pending probate proceedings, the declaration of succession is the decisive step.

Who must prove that the will is invalid?

That depends on the ground. Lack of testamentary capacity must be proven by whoever alleges it (RS0012415). The disputed authenticity of a holographic will, by contrast, must be proven by the testamentary heir (RS0131725).

Do I need to contest the will to receive my compulsory portion?

No. Descendants as well as spouses and registered partners are entitled to the compulsory portion even if the will is valid, provided they have not been validly disinherited (§ 757 ABGB). More on this under Right to a Compulsory Portion.