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Contesting Wills

Posted in Wills & Estates. Friday, Aug 19th, 2016

People draft wills in order to arrange for their property to be distributed after their passing.  While this seems like a simple matter, relatively speaking, it is not uncommon for wills to be disputed for various reasons during the probate process.  More often than not it is due to either disagreements within the family over the provisions in the will, the mental capacity of the testator or because of the undue influence on the decedent when the will was drafted or amended.  In cases such as these the will may be contested.

The Basics

Under Ohio law, a person who wishes to contest the validity of a will must do so within three months of the initial filing of the certificate showing service of Notice of filing of will.  A will may only be contested by “interested parties” in the state of Ohio:

  • Heirs-at-law, or people who stand to inherit if the estate was divided up under statutory plans instead of through the action of the will, or who will inherit if the will is held by the court to be invalid.
  • People named in the will.
  • People who were named in a previous will of the deceased.

These people or organizations all have a potential financial interest in the outcome of the will, and in many cases are already in adversarial positions to each other: a party may have been disinherited, or had funds or items that they feel they are “entitled” to instead directed to others.  However, just being dissatisfied with the instructions for property division found in the will is not a legally sufficient reason for the courts to allow a challenge.

Valid Grounds

Instead, grounds for invalidating a will are largely procedurally based, which is why it is recommended that a person consult with legal counsel while drafting a will.  Procedural issues that typically arise involve issues such as the will not being drafted or modified correctly, or not being signed or witnessed correctly.  Due to the fact that wills often involve the division of assets of significant monetary and sentimental value, and that by their nature the person who set out the stipulations in them is not able to clarify any issues that may arise, Ohio law is very specific about the requirements for creating a valid will.  This may seem to be unnecessarily burdensome to the public, but probate laws have evolved over several hundred years to eliminate as many specific issues as possible.

While not a procedural consideration, another common reason why wills are challenged and invalidated is that a more recent one than the one which was filed with the probate court has come to light.  Because of this, after executing a will it is important to make sure that a person’s executor of their estate, as well as friends and family members are informed both that the will exists, and where it can be located.  The entire point of a will is eliminated if surviving parties are unable to execute it.

The other common set of problems that arise with wills involves the mental state of the deceased at the time the will was drafted.  If a person is unduly influenced by someone while drafting a will, through duress or some form of manipulation, or if some form of fraud is suspected, a case can be made for the invalidation of a will.  Similarly, if the drafter was not mentally capable of making legal decisions at the time the will was created, such as people suffering from severe dementia, or other mental illness, the courts may also find that there are grounds to invalidate the will.

Ohio Probate Attorneys

If you are a party of interest to a will and you feel that there may be grounds to petition for it to be invalidated, we encourage you to contact the Law Office of Mike Gertner today to discuss your needs with a representative today. We are eager to assist you immediately.