One of the major requirements for making a will in Ohio is to be of “sound mind and memory.” When close family members or friends are left out of a will, this requirement is often questioned. However, being of sound mind and memory, according to rules for making a will, does not mean what most people think. On the contrary, a person can be disabled due to age, illness, or pain and still be of sound mind and memory. They could also have a mental illness or be mentally deficient to an extent and still fulfill the requirement for creating their will. The true definition of the description “sound mind and memory” means simply that the testator is aware of who their family members are, what they own in terms of property, and that they are making a will.
Clearing up Misconceptions About Wills
Often, family members or close friends find the terms of the will unfair, whether property is distributed unequally or someone who seemed likely to be a beneficiary of the will was completely left out. This is not grounds to deem the testator not of sound mind and memory and the will invalid. However, if the testator was forced or coerced to create the will under duress, with pressure from friends or family to distribute property in a specific manner, that would be a good reason to challenge the will’s validity. Unfortunately, proving the invalidity of a will is extremely difficult.
In order to dispute, or challenge, or contest, the validity of a will, you have to have some kind of stake – financial interest – in the outcome of the will. You should be a direct heir, or someone who, had there not been a will, would have received something (for instance, if you are the deceased’s daughter and all of your brothers and sisters were included in the will, but you were left out or you were left a significant amount less than the others).
In a Timely Manner
You do not have a lot of time to dispute a will in Ohio, because the property and assets need to be divided and allocated in a timely manner. Once a will is accepted into probate, you have to act fast, as wills must be contested within three months of the filing of the certificate of service of notice. There is one exception to this rule: if you are suffering from a disability while the will is accepted into probate, you may be granted another three months to challenge the will once you are able to do so. Be prepared to prove your disability, however.
You also have to have “grounds” for disputing the will, which would be your reason for challenging it. If the testator was not of sound mind or was coerced into making the will, a procedural error was made during the creation of the will, or the testator was manipulated by an outside domination, these are potential grounds for a dispute. Alternatively, if the will was forged or faked, or the will that was accepted into probate was revoked, you may have a reason to challenge it. Be prepared to prove your reason for contesting the will.
The court assumes that the will is valid, therefore anyone contesting a will bears the burden of proof. As you can see, Ohio has very rigorous laws regarding contesting wills, therefore you will want to secure a knowledge and successful probate lawyer to ensure that you get your fair share of the will. Contact the Law Office of Mike Gertner to deliberate the details of your dispute today.