Civil Law and Wills and Testamentary Disputes in Europe

1. Introduction

Wills and testamentary disputes concern disagreements about the validity, interpretation, execution, revocation, or legal effect of a person's testamentary wishes after death. In European civil-law systems, testamentary disputes are particularly significant because the law generally attempts to balance two competing principles:

Testamentary freedom — a person should ordinarily be able to decide who receives his or her property after death; and

Mandatory succession protections — spouses, children and certain close relatives may have legally protected inheritance rights that cannot always be defeated by a will.

European succession law is therefore not based simply on the proposition that "the will controls everything." A will must comply with the applicable rules concerning capacity, form, consent, undue influence, forced heirship/reserved shares, public policy, matrimonial property, and cross-border succession.

Cross-border cases are especially complicated because the deceased may have lived in one country, held assets in several countries, made the will in another country, and chosen the law of yet another country.

At EU level, Regulation (EU) No. 650/2012 is the principal instrument governing international succession. The CJEU has clarified several important questions concerning testamentary dispositions, applicable law and recognition of succession rights. (curia)

2. What is a Testamentary Dispute?

A testamentary dispute may arise where a beneficiary, heir, executor, family member or other interested person challenges:

whether a valid will exists;

whether the document is actually a will;

whether the will was properly executed;

whether the testator had testamentary capacity;

whether the testator understood the contents of the will;

whether the testator was subjected to undue influence;

whether fraud or forgery occurred;

whether the will was revoked;

whether a later will prevails;

how ambiguous provisions should be interpreted;

whether compulsory heirs were unlawfully excluded;

whether a beneficiary is legally disqualified;

whether the will violates public policy;

whether a foreign will must be recognised;

which country's succession law applies;

whether immovable property can be transferred under a foreign testamentary mechanism;

whether a will conflicts with matrimonial-property rights; or

whether an earlier court judgment concerning inheritance can subsequently be contradicted.

3. Main Legal Framework in Europe

A. National succession law

There is no single European civil code governing all wills.

Each country maintains its own substantive succession rules.

Examples include:

France — Code civil;

Germany — Bürgerliches Gesetzbuch (BGB);

Italy — Codice civile;

Spain — Código Civil together with regional succession laws;

Belgium — Belgian Civil Code;

Netherlands — Dutch Civil Code;

Austria — Allgemeines bürgerliches Gesetzbuch;

Portugal — Código Civil.

Consequently, the precise requirements for a valid will differ considerably.

B. EU Succession Regulation 650/2012

For many cross-border European successions, Regulation 650/2012 determines:

jurisdiction;

applicable succession law;

recognition of decisions;

acceptance of authentic instruments;

European Certificates of Succession;

choice of law by the testator.

A particularly important rule is that a person can, subject to the Regulation, choose the law of his or her nationality to govern the succession.

This can have major consequences for a will.

For example, a person habitually resident in Germany but possessing Polish nationality may make a choice of Polish law. The resulting testamentary provisions can then interact with German property law and German rules concerning the physical effects of the disposition.

That issue was central in Kubicka.

4. Major Categories of Testamentary Disputes

4.1 Lack of Testamentary Capacity

A will can be challenged where the testator allegedly lacked the mental capacity to understand:

that he or she was making a will;

the nature and extent of the property;

the persons who might reasonably expect to benefit;

the consequences of the testamentary dispositions.

This frequently arises with elderly testators suffering from cognitive deterioration.

The difficult question is usually not simply whether the testator had a medical condition.

The court must determine whether the condition affected the testator's legal capacity at the time the will was executed.

5. Undue Influence and Coercion

Another important category concerns situations in which a beneficiary allegedly manipulated the testator.

Examples include:

caregiver influencing an elderly person;

child isolating a parent from other relatives;

beneficiary arranging the appointment of the notary;

beneficiary controlling access to medical information;

sudden alteration of a previously stable testamentary plan;

substantial gift shortly before death.

Courts generally distinguish between:

legitimate persuasion and improper domination of testamentary decision-making.

The mere fact that a beneficiary was close to the testator does not automatically invalidate a will.

6. Forgery and Fraud

Forgery disputes may concern:

false signatures;

fabricated handwritten wills;

altered pages;

manipulated electronic documents;

backdated testamentary documents;

false witnesses;

fraudulent notarial documentation.

Evidence may include:

handwriting analysis;

forensic document examination;

notarial records;

medical records;

witness testimony;

electronic metadata;

correspondence;

financial transactions.

A successful forgery challenge normally results in the purported testamentary document being denied legal effect.

7. Formal Validity of Wills

European legal systems recognize various testamentary forms.

Depending on the country, these may include:

Holographic wills

Written, dated and signed personally by the testator.

Notarial/public wills

Prepared or authenticated before a notary.

Witnessed wills

Executed in the presence of legally required witnesses.

Special/emergency wills

Available under particular exceptional circumstances.

Failure to comply with mandatory formal requirements can lead to invalidity.

However, cross-border succession creates a further question:

Which country's law determines whether the will satisfies the required formalities?

European private international law attempts to prevent unnecessarily harsh invalidation of international wills by providing rules concerning testamentary form.

8. Reserved Shares and Forced Heirship

This is one of the most important differences between many continental European systems and traditional common-law approaches.

In several civil-law jurisdictions, certain close relatives have protected inheritance rights.

These may include:

children;

descendants;

surviving spouses;

sometimes other family members.

The protected portion is commonly described as a reserved share, forced heirship, or legitime/réserve héréditaire, depending on the jurisdiction.

Thus, a person may write:

"I leave everything to my friend and nothing to my children."

That statement does not necessarily mean that the children receive nothing.

The children may have a statutory claim against the estate.

The exact position depends upon the applicable national succession law.

9. Interpretation of Testamentary Language

A will may be valid but ambiguous.

For example:

"I leave my house to my eldest child."

Questions may arise concerning:

which property is meant;

whether the term "house" includes land;

whether the testator meant the eldest biological child or eldest living child;

whether subsequently acquired property is included;

whether debts attached to the property pass to the beneficiary.

Courts therefore frequently have to reconstruct the testator's intention.

This issue was particularly important in Pla and Puncernau v Andorra.

10. Six Important European Case Laws

Case 1 — Pla and Puncernau v Andorra

European Court of Human Rights, Application No. 69498/01, 13 July 2004

Facts

The case concerned the interpretation of a testamentary arrangement under Andorran succession law.

The testamentary scheme contained a condition concerning the future inheritance of family property. A dispute subsequently arose over whether the relevant beneficiary satisfied the condition contained in the will.

The domestic courts interpreted the testamentary provision in a particular way, ultimately excluding the applicant from inheriting.

Legal issue

The central issue concerned the interpretation of testamentary intention and whether the domestic courts' interpretation violated Convention rights.

Principle

The case demonstrates that courts have an important responsibility to determine the meaning and legal effect of testamentary language.

The will cannot simply be interpreted mechanically without considering its legal context and the intention expressed through its wording.

Importance

Pla and Puncernau is particularly relevant to disputes involving:

ambiguous wills;

conditional gifts;

family settlements;

testamentary restrictions;

interpretation of the testator's intention.

The case is also important because it demonstrates that succession disputes can engage Convention rights where property rights are affected.

11. Case 2 — Molla Sali v Greece

European Court of Human Rights, Application No. 20452/14, Grand Chamber, 19 December 2018

This is one of the most important European cases concerning testamentary succession.

Facts

A Greek Muslim man executed a public will under Greek civil law, leaving his estate to his wife.

After his death, relatives challenged the testamentary disposition.

The Greek Court of Cassation ultimately applied Islamic succession rules rather than giving full effect to the civil-law will.

As a result, the widow received substantially less than she would have received if the will had been fully respected.

Legal issue

The ECtHR considered whether applying religious succession rules to the applicant, despite the deceased having made a civil-law will, resulted in discriminatory treatment.

Judgment

The Grand Chamber found a violation of Article 14 taken together with Article 1 of Protocol No. 1.

The Court emphasized the discriminatory effect of depriving the applicant of rights under a civil-law will because of the testator's religious status. (HUDOC)

Importance

The case establishes an important principle:

Testamentary succession must operate consistently with fundamental equality and non-discrimination principles.

It is especially relevant where inheritance law intersects with:

religion;

minority status;

personal autonomy;

property rights;

civil-law wills.

12. Case 3 — Kubicka

CJEU, Case C-218/16, Aleksandra Kubicka, judgment of 12 October 2017

Facts

A Polish national lived in Germany and wanted to make a will choosing Polish succession law.

She wished to use a Polish testamentary mechanism known as a legacy by vindication (legatum per vindicationem).

Under that mechanism, ownership of the relevant property could pass directly to the beneficiary upon death.

The problem was that German law did not recognize that particular material effect of the testamentary disposition.

Legal issue

Could the German authorities refuse to give effect to the testamentary disposition because German property law did not recognize the same type of legacy?

CJEU's approach

The Court interpreted Regulation 650/2012 in favour of preserving the effectiveness of the testator's chosen succession law.

The case distinguished between:

succession law, and

certain property-law effects of succession.

Importance

Kubicka is extremely important for international wills.

It establishes that a Member State cannot simply neutralize a testamentary disposition governed by another Member State's succession law merely because its own domestic law does not recognize an identical testamentary mechanism.

The case therefore supports:

testamentary autonomy;

cross-border recognition;

effectiveness of a choice of succession law;

uniform application of EU succession law.

The CJEU itself describes Kubicka as its first significant interpretation of Regulation 650/2012 concerning this type of cross-border testamentary legacy. (InfoCuria)

13. Case 4 — E.E.

CJEU, Case C-80/19, judgment of 16 July 2020

Background

The case concerned international succession and the application of Regulation 650/2012.

The proceedings involved questions concerning the determination of the applicable succession framework and the role of authorities dealing with inheritance matters.

Legal significance

The Court clarified important aspects of the Regulation concerning:

international succession;

habitual residence;

jurisdiction;

succession authorities;

recognition of succession-related acts.

Importance for wills

A testamentary dispute may begin with a seemingly simple question:

"Is this will valid?"

But in an international estate, an earlier question may be:

"Which country's courts and succession law have jurisdiction?"

E.E. demonstrates why determining the international connecting factors is essential before the substantive validity of the will can be determined.

14. Case 5 — Mahnkopf

CJEU, Case C-558/16, judgment of 1 March 2018

Facts

The dispute concerned the interaction between matrimonial property rights and succession.

This distinction is crucial in testamentary disputes because the surviving spouse may receive property for two different reasons:

because of matrimonial-property rules; and

because of succession.

Legal issue

The CJEU had to determine whether a national rule increasing the surviving spouse's share after the death of the other spouse fell within the concept of succession under Regulation 650/2012.

Principle

The Court emphasized the need to distinguish:

rights arising because of the marital relationship, from

rights arising because of the death and succession of the deceased.

Importance

This matters greatly where a surviving spouse challenges a will.

Suppose a deceased person leaves most property to a third party.

The spouse may argue that:

"The will cannot dispose of all of this property because some of it already belongs to me under matrimonial-property law."

That is a fundamentally different argument from claiming an inheritance under the will.

Mahnkopf is therefore important in separating the deceased's estate from property that belongs independently to the surviving spouse.

15. Case 6 — Breznik v Slovenia

ECtHR, Application No. 72093/01, 22 May 2012

Facts

The proceedings involved inheritance disputes concerning the validity of a will and lengthy domestic litigation.

The validity of testamentary dispositions had to be determined through contentious civil proceedings before the inheritance proceedings could be completed.

The domestic litigation continued for many years. (HUDOC)

Legal significance

The case demonstrates an important procedural dimension of testamentary disputes:

A dispute about the validity of a will can substantially delay the administration and distribution of an estate.

Practical consequences

Such litigation can create:

prolonged uncertainty over ownership;

inability to sell estate property;

disputes concerning possession;

increased legal costs;

deterioration of family relationships;

difficulty administering businesses or companies belonging to the estate.

It therefore illustrates that procedural efficiency is an important part of effective succession justice.

16. Case 7 — Roşca and Others v Republic of Moldova

European Court of Human Rights, recent succession litigation

This case illustrates another important problem: inconsistent judicial determinations concerning the same estate.

Background

The dispute concerned property not covered by a will and competing claims by potential heirs.

Domestic courts reached conflicting conclusions about who had accepted the succession within the statutory period.

The later proceedings effectively contradicted findings made in earlier final proceedings. (HUDOC)

Principle

Inheritance litigation must respect:

finality of judgments;

legal certainty;

consistency of judicial decisions.

Importance

This is particularly important where an estate generates multiple proceedings concerning:

probate;

inheritance certificates;

acceptance of succession;

ownership;

distribution of assets.

A court should not ordinarily allow subsequent proceedings to undermine a definitive judicial determination without an adequate legal basis.

17. Case 8 — Estate and Testamentary Property Rights under the ECHR

The ECtHR has repeatedly recognized that inheritance-related property interests can fall within the protection of Article 1 of Protocol No. 1, particularly where a person has a sufficiently established property entitlement.

At the same time, the Convention does not create a general right to inherit from another person.

This distinction is crucial.

A person generally cannot argue:

"I expected my parent to leave me the house, therefore the Convention guarantees me the house."

But once domestic law or a valid testamentary arrangement creates a sufficiently established property interest, Convention property protections may become relevant.

This distinction can be seen in the ECtHR's succession jurisprudence, including Molla Sali.

18. Capacity Disputes

A typical challenge may state:

"The testator was suffering from dementia and therefore could not validly execute the will."

Courts usually examine:

Medical evidence

diagnosis;

cognitive assessments;

medication;

medical records.

Evidence surrounding execution

who arranged the appointment;

who accompanied the testator;

whether the will was read aloud;

whether the testator explained the dispositions;

whether the notary assessed capacity.

Behaviour

whether the testator managed finances;

whether the testator communicated normally;

whether the testamentary decision was consistent with earlier wishes.

The important temporal principle is:

capacity must generally be assessed at or around the time the will was executed.

19. Undue Influence — Typical Indicators

Courts may regard the following circumstances as relevant:

None of these automatically proves undue influence.

The evidence must normally be assessed collectively.

20. Revocation of Wills

A later will can frequently revoke an earlier will.

Disputes therefore arise concerning:

whether the later document is genuine;

whether it expressly revoked the earlier will;

whether the later will is legally valid;

whether both wills can coexist;

whether the later will concerns only part of the estate.

For example:

2018 will: everything to Child A.

2024 will: house to Child B, remainder to Child A.

The second will may partially modify rather than completely revoke the first.

21. Joint Wills and Mutual Wills

Some European jurisdictions recognize special arrangements involving spouses or partners.

A dispute may arise where:

spouses made reciprocal testamentary arrangements;

one spouse subsequently attempted to revoke the arrangement;

a family member claims that the deceased was contractually bound.

The legal effect depends heavily on national law.

Therefore, courts must distinguish:

ordinary unilateral will

from

testamentary contract / inheritance agreement / mutual will, where recognized.

22. Cross-Border Wills

Cross-border succession creates a particularly complicated structure.

Imagine:

testator is French;

resident in Spain;

owns a house in Italy;

has children in Germany;

makes a will before a Spanish notary;

chooses French law.

A dispute may potentially involve:

French succession law;

Spanish jurisdiction;

Italian property rules;

German family/inheritance interests;

EU Succession Regulation;

recognition of the testamentary document.

The first task is therefore not simply interpreting the will.

The first task is determining:

Which law governs the succession?

23. Testamentary Choice of Law

Under the EU Succession Regulation, a person can, under specified conditions, choose the law of his or her nationality to govern the succession.

This can provide significant estate-planning flexibility.

However, a choice of law does not necessarily mean that every question concerning the estate is governed by that law.

Certain issues can fall outside succession law, including aspects of:

matrimonial property;

corporate law;

property law;

registration;

tax law.

This is why Kubicka and Mahnkopf are especially important.

24. Forced Heirship versus Testamentary Freedom

This is one of the fundamental tensions in European succession law.

Testamentary freedom

The testator argues:

"It is my property and I should decide who receives it."

Forced heirship

The family argues:

"The law protects certain close relatives and the testator cannot deprive us of the statutory reserved portion."

European civil-law systems frequently attempt to reconcile the two.

A will can therefore be valid in form but still be reduced because it exceeds the disposable portion of the estate.

25. Example of a Reserved-Share Dispute

Assume an estate is worth €900,000.

The deceased leaves:

€100,000 to Child A;

€800,000 to a friend.

There are two children.

Under a jurisdiction with mandatory reserved shares, the friend may not necessarily receive the entire €800,000.

The children may bring an action seeking:

reduction of excessive testamentary dispositions;

restoration of their reserved shares;

recovery from the beneficiary.

The precise calculation depends entirely upon the applicable national succession law.

26. Fraudulent or Suspicious Wills

A court may examine whether:

the testator was isolated;

the beneficiary controlled finances;

the will was prepared unusually quickly;

the beneficiary benefited disproportionately;

the testator's previous wishes were radically different;

medical evidence conflicts with the apparent testamentary decision;

signatures appear irregular.

However:

An unequal will is not automatically a fraudulent will.

A testator can legitimately favour one child, a spouse, a friend, a charity, or another beneficiary where national law permits that disposition.

27. Digital and Electronic Wills

Modern European succession disputes increasingly raise questions concerning:

electronic documents;

scanned wills;

digital signatures;

cloud-stored testamentary instructions;

encrypted digital records;

electronic communications;

digital assets;

cryptocurrency;

online accounts.

The major issue is whether the relevant jurisdiction recognizes the particular electronic form as a legally valid testamentary instrument.

A WhatsApp message saying:

"When I die, everything goes to my daughter"

may constitute important evidence of intention, but it does not automatically constitute a legally valid will.

Formal succession law remains crucial.

28. Digital Assets and Wills

A modern will may need to address:

cryptocurrency;

online investment accounts;

intellectual property;

social-media accounts;

domain names;

digital photographs;

cloud storage;

online businesses.

But ownership and succession are different questions.

For example, a cryptocurrency wallet may pass through succession, while access credentials may create a separate practical problem.

A testamentary clause must therefore be coordinated with:

ownership;

inheritance law;

data protection;

contractual terms;

digital-access rules.

29. Notaries and Professional Liability

European notaries can play an important role in preventing testamentary disputes.

Potential allegations against a professional may include:

failure to verify identity;

failure to assess capacity adequately;

failure to explain the legal effect;

failure to comply with formalities;

failure to preserve the testamentary document;

failure to record relevant declarations correctly.

However, professional liability is governed principally by national law.

The existence of an invalid will does not automatically mean that a notary is liable.

The claimant generally needs to establish:

professional duty + breach + causation + legally recoverable damage.

30. Family Settlement and Litigation

Many testamentary disputes are not really about the legal validity of the will.

They concern competing economic interests.

For example:

Child A wants the family home.

Child B wants the family company.

Spouse wants lifetime residence.

Charity wants the testamentary gift.

Creditors want access to the estate.

The court may therefore need to distinguish:

validity of the will;

interpretation of the will;

inheritance entitlement;

ownership;

possession;

estate debts;

reserved shares.

31. Remedies in Testamentary Litigation

Depending on national law, courts may grant:

1. Declaration of invalidity

The will is declared wholly invalid.

2. Partial invalidity

Only a particular clause is invalid.

3. Reduction of excessive dispositions

A testamentary gift exceeding the disposable portion is reduced.

4. Interpretation

The court determines what the will means.

5. Revocation

A later valid will may replace the earlier instrument.

6. Restitution

Property transferred under an invalid testamentary disposition may have to be returned.

7. Damages

Potentially available for professional negligence, fraud or other actionable conduct.

8. Possession or transfer orders

The court may order delivery or transfer of estate property.

9. Costs

The unsuccessful party may be ordered to bear litigation costs, depending on domestic procedural rules.

32. Comparative Overview

33. Six Core Legal Principles

Principle 1 — Testamentary freedom is not absolute

The testator's wishes are important, but mandatory succession rules can restrict testamentary freedom.

Principle 2 — A valid will requires legal capacity

A person must satisfy the applicable capacity requirements when making the will.

Principle 3 — Formal validity matters

Failure to comply with mandatory formalities can invalidate a testamentary document.

Principle 4 — Intention matters in interpretation

Courts generally seek to determine what the testator intended, while remaining within the permissible limits of the legal system.

Principle 5 — Cross-border estates require conflict-of-laws analysis

The nationality, habitual residence, location of assets and choice of law can materially affect the outcome.

Principle 6 — Inheritance disputes can engage fundamental rights

Molla Sali demonstrates that succession disputes can raise issues under European human-rights law, particularly where discriminatory treatment affects testamentary property rights. (HUDOC)

34. Practical Hypothetical

Assume Mr A, a German national, lives in France and owns:

a €1 million French house;

€500,000 in German investments;

a Spanish holiday property worth €400,000.

He has two children and a second spouse.

He executes a French notarial will leaving everything to his second spouse.

After his death:

Child 1 argues that the will was made when Mr A lacked capacity.

Child 2 argues that the spouse exercised undue influence.

The spouse argues that French law was validly chosen.

The children claim protected inheritance rights.

A dispute arises over the Spanish property.

The German investment institution refuses to transfer the securities until inheritance documentation is produced.

The litigation could therefore involve at least five separate questions:

Was the will formally valid?

Did Mr A possess testamentary capacity?

Was there undue influence?

Which succession law applies?

What reserved rights do the children possess?

A sixth question may then arise:

Which country's authorities have jurisdiction?

This illustrates why modern European testamentary litigation is both succession law and private international law.

35. Important Distinction Between Direct and Analogous Authorities

Not every European case concerning inheritance is a direct "will validity" case.

The authorities above can be classified as follows:

The CJEU cases are particularly useful for cross-border European succession, while the ECtHR authorities are especially useful where a succession dispute also involves property rights, discrimination, legal certainty or procedural fairness.

36. Overall Legal Test

A European testamentary dispute can broadly be analysed through the following sequence:

1. Is there a genuine testamentary instrument?

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2. Was the will formally valid?

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3. Did the testator possess testamentary capacity?

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4. Was the will freely made?

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5. Was there fraud, forgery or undue influence?

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6. Which country's succession law applies?

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7. Are there protected heirs or reserved shares?

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8. How should the testamentary language be interpreted?

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9. Does the disposition conflict with matrimonial-property or property-law rules?

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10. What remedies and estate-distribution orders should follow?

Conclusion

Wills and testamentary disputes in Europe sit at the intersection of succession law, property law, family law, private international law and human-rights law.

The central European tension is between testamentary autonomy and family protection. A person generally has significant freedom to decide how his or her estate should be distributed, but that freedom may be restricted by forced-heirship rules, formal requirements, capacity requirements and public-policy limitations.

The most significant European authorities include Pla and Puncernau v Andorra, Molla Sali v Greece, Kubicka, E.E., Mahnkopf, Breznik v Slovenia, and Roşca and Others v Moldova. Together, they demonstrate that testamentary litigation is not merely about determining "who gets the property"; it can involve the validity and interpretation of the will, international jurisdiction, applicable law, protected family rights, property rights, equality and legal certainty.

For a cross-border European estate, the most important preliminary question is often not whether the will appears fair, but which legal system governs the succession and what that legal system permits the testator to dispose of.