Estate Disputes & Will Contests
Will contests happen when potential heirs or beneficiaries get little or nothing from a Will.
For example, an infirm elderly family member changes his Will late in life to leave his entire estate to his nurse. This leads to a Will challenge by the man’s eldest daughter, who claims that her father was under the undue influence of the nurse when the Will was changed and it should therefore be invalidated.
A Will contest is filed in probate court.
Wills can be invalidated for a number of reasons, including:
- The Will was not properly drafted, signed or witnessed, according to the formal requirements of Ohio law
- The decedent did not have the necessary mental capacity when the Will was created
- Fraud, force or undue influence was exerted on the decedent when the Will was created
- The Will is a forgery.
If the probate court finds that the Will is invalid, the probate court either invalidates it in its entirety or invalidates particular portions of the Will. When the entire Will is found to be invalid, the proceeds are usually distributed under the Ohio laws of intestacy.
A will is not automatically valid when a person signs it. There are requirements of law; the testator (person making the will) must be over 18 years of age. The will must be in writing and signed at the end by the testator. It must be signed in the presence of at least two competent witnesses who must not be beneficiaries under the will and must also sign in the presence of each other. The testator must, in the presence of the witnesses, declare the instrument to be his or her last will and testament. The testator must be of sound mind and memory, and not under any undue influence.
In order for a person to challenge a will, he must have legal "standing." Generally, standing is available to family members, such as a surviving spouse, children, parent, or other relative who would have inherited if there were no will. An individual named in a prior will would also have standing to challenge its validity.
Caution: There is a very short period of time to file a will contest which is essentially 3 months after a Certificate is filed with the Probate Court that notice has been given to certain interested parties. If you intend to file a will contest, you must act quickly.
