Contesting a Will in Ohio
Contesting A Will In Ohio
It is a common misperception that if you leave someone one dollar in your will, they cannot contest the will after you die. That is incorrect. The proper manner to exclude a family member in a will is to include clear language that they are intentionally and specifically excluding that person from inheriting anything in the will. This is because anyone with standing can contest the will, whether included or excluded. Who has standing? Anyone who is the decedent’s next of kin (closest blood relatives) has standing to contest a will because if there were no will, they would inherit: also, anyone named in the decedent’s prior will has standing because if the current will is deemed invalid, the prior will becomes the decedent’s Last Will and Testament.
What does it mean to contest a will? You cannot contest a will just because you don’t like it or believe it to be unfair. An individual can leave his or her assets to whomever he or she wants. To successfully contest a will, the individual must prove that the person was not competent when executing the will or was under such extreme coercion or duress that the execution of the will was not of the decedent’s own free will. Theoretically, even someone under a guardianship may be able to execute a valid will if he or she was lucid at the time and fully understood the magnitude of his or her assets and his or her next of kin.
Contesting a will in Ohio begins by filing a Complaint with the Probate Court. Once a will is admitted to the court and an executor or administrator is appointed, all beneficiaries of the will and next of kin must be notified by the administrator or executor and a certificate must be filed with the court by the executor or administrator with proof of such notice. This must be done within two months of the appointment of the administrator or executor. After this certificate is filed with the court, any will contest must be filed within three months or the right to contest the will is lost forever. Successfully contesting a will can be proven by direct or indirect evidence.
Proving that an individual was incompetent usually requires medical records and the testimony of the decedent’s physician or some other medical provider. Proving undue influence usually involves the totality of the circumstances, where a person possibly lived with the decedent, took the decedent to an attorney to change the will, told the attorney what the decedent, wanted, possibly had a domineering or threatening influence on the decedent and any other factors that might show that the decedent was not making an independent decision. An individual changing his or her will shortly before death may raise a red flag. Also, an individual suddenly appearing in an elderly person’s will when he or she had never been mentioned in any prior wills can raise concerns. These may lead one to want to investigate more thorough the circumstances of the execution of the will.
If an elderly person is newly befriended by someone who helps with errands or chores, the person may want suddenly to add this new friend to the will. If the elderly person is lonely or has little family, this is more likely to occur. Regardless, of the new friend’s motives, if the person is competent and freely makes this decision, the will is likely to be honored by the court. There is no presumption under the law that a person’s assets should pass to his/her family members. With people living longer and with dementia becoming a more common condition of the elderly, elder financial abuse can certainly occur. If you feel that a family member or friend has been taken advantage of by someone with primarily monetary motives, it is important to discuss these issues with an estate planning/elder law attorney to talk about your concerns and what can be done about it.
Contesting a Will in Ohio? Discuss Your Case WIth A Certified Specialist
The majority of the will contest litigation at Holzfaster, Cecil, McKnight & Mues is overseen by Attorney Joseph E. Balmer, who is one of only 20 Dayton area lawyers certified by The Ohio State Bar Association as a specialist in estate planning, trusts and probate administration Click here to read Joe’s biography page. Please don’t hesitate to call us at (937) 293-2141 or email us by using our form below if you want to discuss a possible will contest or elder financial abuse issue. Additionally, we have an emergency phone number, (937) 760-4357, that is answered by one of our lawyers around-the-clock. Contact us so that we can help protect your legal rights or those of a loved one.
