You were disinherited on a false ground: how to strike it down
Last updated 2026-09-01 · Reviewed by Jaime Piñeira Pardo, registered with the ICAM bar, no. 138826
The short answer
Challenge the clause. Article 850 of the Código Civil places the burden of proving the ground true on the testator's heirs, not on you, as soon as you deny it. If they fail to prove it, article 851 voids the appointment of heirs to the extent it harms you and your legítima returns. You sue before the sección civil del Tribunal de Instancia within four years.
Your mother died in March and the will disinherits you in a single line: it says you abandoned her and denied her all help. That is not true. You lived two hundred kilometres away, you called every Sunday, you paid part of the care home and you still have the receipts. Your sister, who did live in the same city, is appointed universal heir to a flat and some savings. You have been told that because the will is notarial there is nothing to be done and that you should sign a renunciation as soon as possible.
The case, in five lines
- What is brought
- Action challenging the disinheritance on the ground that the cause was not proven or not stated, seeking annulment of the appointment of heirs and restoration of your legítima.
- Before which court
- The sección civil del Tribunal de Instancia (the civil section of the first-instance court) of the deceased's last domicile, through ordinary proceedings when the value of the estate so requires.
- Deadline
- Four years, a period case law takes from article 1301 of the Código Civil and which is prudently counted from the opening of the succession. It is a lapse period: a letter or a negotiation between siblings does not stop it.
- Who can bring it
- The disinherited forced heir and, if that person dies, their own heirs. Also anyone harmed by the clause without being named in it, where the disinheritance affects their share.
- Financial risk
- If the heirs manage to prove the ground, the disinheritance stands and costs may be awarded against you under the loser pays rule. The case also forces family life into the open before witnesses who will testify about the relationship with the deceased.
The law does not ask you to prove your innocence: the burden is on the heirs
Article 850 of the Código Civil says in terms that proof that the ground for disinheritance is true falls on the testator's heirs if the disinherited person denies it. That is the piece that changes the whole case. You do not have to show that you cared for your mother: it is enough for you to deny formally in the claim that any abandonment took place, and from then on it is the other side that must prove the facts the will asserts.
In practice this means that a will which merely asserts abandonment, with no support beyond the testator's word, is a fragile document. The other side will have to bring witnesses, messages or reports that sustain the accusation, and that evidence very often does not exist because the clause was drafted in a moment of anger and nobody foresaw that one day it would have to be proved before a court.
A clause with no stated ground is dead on arrival
Before arguing about the facts you have to read the clause with two articles in front of you. Article 848 provides that disinheritance may only take place on one of the grounds the law expressly lays down. Article 849 adds that it may only be done in a will, stating in it the legal ground on which it is based. These are two cumulative requirements and if either one is missing, the case closes in favour of the disinherited person.
That is why the firm's first task is not to line up witnesses but to examine the wording. Formulas such as he disinherits his son for reasons the son knows, or for his behaviour, state no legal ground at all. Nor is an invented ground of any use, however serious it sounds, because article 848 requires it to be one of those the law lays down. Many cases are won at this point without ever arguing about what really happened.
What exactly falls when the ground is not proved
Article 851 sets out three situations with a single consequence: disinheritance made without stating a ground, disinheritance on a ground whose truth is not proved once it is contradicted, and disinheritance on a ground that is not one of those listed in the four following articles. In all three the appointment of heirs is voided in so far as it harms the disinherited person, but legacies, mejoras and the remaining provisions of the will stand in whatever does not harm that legítima.
The annulment is therefore surgical, not total. The will does not collapse as a whole: only the gap needed to cover your legítima is opened and the rest of the deceased's wishes are respected. This has a practical consequence worth understanding from the start: the claim must quantify what part of the estate is needed to satisfy your share, because how far the annulment reaches depends on that.
The case is won with evidence of the relationship, not with declarations of principle
Even though the burden lies with the other side, no case is run trusting only that the other party will fail. The usual strategy is twofold: the ground is denied so as to trigger article 850 and, at the same time, a documented account of the relationship is put forward that makes the accusation implausible. Call logs, messages, transfers, receipts for care home payments and the centre's visitor sheets weigh far more than any submission.
Witness evidence decides many of these cases and it has to be prepared early, because the useful witnesses are elderly people, neighbours or carers who move house or change jobs. The sooner they are identified and their details recorded, the better. Mobile phone messages should also be exported and kept in full with their context: a conversation taken out of context can turn against you at the hearing.
Taking what was left to you just in case can shut the door
It is common for the will to leave the disinherited person a small legacy alongside the disinheritance, or for the heirs to offer a sum in exchange for signing the deed of division. Accepting without an express reservation of the challenge is the move that has ruined most cases in this area, because the other side will present it as agreement with the very clause you later seek to have voided.
The working rule is simple: while the case is being studied nothing is signed, and if money has to be received it is recorded in writing that it is received on account of the legítima being claimed and without waiving any claim. The same caution applies to the renunciation of the estate that is sometimes urged in a hurry: renouncing and then challenging is a contradiction the other side will exploit.
How we run the case, step by step
- 1
Read the clause and isolate the ground relied on
We obtain the authorised copy of the will and check whether a ground is stated and whether that ground is one the law lays down, under articles 848 and 849. Many cases are resolved here, before any argument about facts.
- 2
Formally deny the ground so as to trigger article 850
The appointed heirs are told in writing, with a date, that the truth of the ground is denied and are required to prove it. That denial shifts onto them the burden of proof the law places on them.
- 3
Build the counter-evidence about the relationship
Messages and call logs are exported, receipts for payments and care are gathered and witnesses are identified with their current details. Where appropriate, the visitor sheet from the centre where the deceased lived is also requested.
- 4
Sue and quantify the legítima
The claim is filed before the sección civil del Tribunal de Instancia, seeks annulment of the appointment of heirs in so far as it harms the disinherited person under article 851 and fixes the value of the estate with a valuation report.
- 5
Hearing, judgment and fresh division
At the hearing the witness evidence is taken and the documents are tested. Once the judgment is final, the division is redone to include your share, and if the co-heirs still refuse to sign, judicial division of the estate is requested.
The evidence that decides the case
- The authorised copy of the will, with the disinheritance clause and the exact ground it states.
- The call log and the messages exchanged with the deceased during the years the clause describes as years of abandonment.
- Receipts for care home fees, medication, works on the home or any expense you took on.
- Evidence from neighbours, carers or centre staff about how often you actually visited.
- The visitor register from the care home or hospital where the deceased was admitted.
- The certificate of last wills and copies of earlier wills, which show when the clause first appeared.
What closes the door
- Setting out to prove you were a good child, taking on a burden the law does not place on you. Formally denying the ground comes first, and puts the proof on the other side.
- Taking the legacy the will leaves to the disinherited person, or signing the division without expressly reserving the challenge.
- Trusting that a formal notice stops the clock. It is a four year lapse period and only the claim stops it.
- Renouncing the estate on the family's advice and then trying to challenge the very clause you have just accepted.
The law that applies
- Art. 850 CC. Proof that the ground for disinheritance is true falls on the testator's heirs if the disinherited person denies it. This is the rule that reverses the burden of proof and underpins the whole strategy. BOE-A-1889-4763
- Art. 848 CC. Disinheritance may only take place on one of the grounds the law expressly lays down, so no reason outside the legal list works, however serious it may seem. BOE-A-1889-4763
- Art. 849 CC. Disinheritance may only be made in a will and by stating in it the legal ground on which it is based: it requires testamentary form and written reasons. BOE-A-1889-4763
- Art. 851 CC. With no stated ground, with a ground not proved once contradicted, or with a ground outside those in the four following articles, the appointment of heirs is voided in so far as it harms the disinherited person, and legacies and mejoras stand in whatever does not harm that legítima. BOE-A-1889-4763
- Art. 1301 CC. Sets the lapse period for the annulment action at four years and lists the starting day in cases of intimidation or violence, mistake, fraud or false cause, contracts by minors, persons with disabilities acting without support and acts by one spouse without the other's consent. BOE-A-1889-4763
Each article checked against the consolidated text published in the BOE (the Spanish official gazette).
Frequently asked questions
The will is notarial. Is that not enough for the disinheritance to hold?
No. The notary attests that the testator said what he said, not that the facts asserted are true. Article 850 still places on the heirs the proof that the ground is true once the disinherited person denies it, and no notarial assessment replaces that proof. A disinheritance that is impeccable in form still falls if nobody proves the abandonment it relies on.
If I win, do I get the whole estate or only my legítima?
With whatever is needed to cover your legítima. Article 851 voids the appointment of heirs only in so far as it harms the disinherited person, and leaves legacies, mejoras and the other provisions standing in whatever does not harm that share. It is a measured annulment, not a reversal of the will, which is why the claim must value the estate properly: how much is opened up depends on that figure.
My sister says she has very harsh messages I sent our mother. Does that prove abandonment?
An isolated message does not establish a legal ground for disinheritance, but it is exactly the material the other side will use to try to meet the burden article 850 places on it. That is why the case is prepared by producing the full conversation and its context, rather than denying that arguments took place. A tense relationship with episodes of anger is not, by itself, the same as the ground the will relies on.
Can I challenge if the disinherited person was my father and he has died?
The claim is not extinguished by the death of the disinherited person: it passes to that person's heirs, who may bring it in his place. What does keep running is the four year period, and an intervening death does not reopen it. It is therefore wise to review the dates of both successions at once, because in these cases the calendar is usually far more advanced than the family believes.
What if the will does not say why it disinherits me?
Then the case is markedly simpler. Article 849 requires the legal ground to be stated in the will itself, and article 851 expressly penalises disinheritance made without stating a ground by voiding the appointment of heirs in so far as it harms you. There is no need to argue facts or bring witnesses: the defect is in the document and can be seen by reading it.
This guide explains how the action works in general. It does not replace the study of your own case: deadlines depend on when things happened and on what you have done since.