No matter your age or health condition, you never know what life may throw your way. Having a will can ensure that your property and interests that are in your possession upon your death are distributed according to your preferences. In order to have an effective will, the creator (commonly known as the testator) must (1) be 18 or older, (2) have the mental capacity to create a will, and (3) properly execute the will.
A properly executed will is (1) written, (2) signed by the testator, and (3) signed by two competent, disinterested witnesses, who have witnessed each other as well as the testator signing the will, and are not beneficiaries of it.
Wills can become contested for several reasons. While the following list describes some of the most common grounds, it is by no means exhaustive. If you think that you have been left out of a will (or any other instrument), because the maker was tricked, under duress, or incapacitated, we can help. A list of our successful probate cases where we were able to successfully obtain money for our clients in precisely these situations can be found here.
- Mistakes: there are countless possibilities for mistakes to occur-a testator may not realize that the document that he or she is signing is a will, the testator does not actually have ownership of an item included in the will, the testator leaves a potential beneficiary out of the will under an incorrect assumption that the individual is dead, etc.
- Ambiguities: these can occur on the face of the will (e.g., “A gets one-third-quarter of my estate”) or due to circumstance (e.g., “A who lives in Westerville gets my car and B who lives in Powell gets my house” when A actually lives in Powell and B lives in Westerville). In this circumstance, extrinsic evidence can generally be used to show the testator’s actual intent. However, you should always have a lawyer, who is well-versed in the rules of evidence, present your case to the probate court.
- Capacity: Generally, if the testator understands that the document he is signing is a will, knows that the effect of the document is to distribute his property upon death, knows the extent and nature of the property being subject to distribution, and knows the natural objects of his property (usually spouses, children, siblings, etc.), the testator possesses the requisite capacity. However, for someone who may have Alzheimer’s or dementia, this question becomes far less clear. Because the law generally presumes that a will is valid, the burden is on the challenger to prove by clear and convincing evidence that incapacity existed . An attorney can help you obtain medical records and disinterested witnesses to make your case.
- Undue Influence: this occurs when an individual improperly influences a testator to draft or change a will in a way to the point where it is not under the testator’s free will. Undue influence can manifest itself through threats, physical coercion, emotional coercion, and more.
- Fraud: even if an individual is competent, a testator may nevertheless transfer assets or modify estate-planning documents based on someone’s false material representation of facts. Upon a successful showing of fraud, the transactions or documents can be invalidated.
- Improper modifications and revocations: while a testator can change or revoke a will anytime before death, Ohio law contains several methods and formalities that govern this process. Revocations and codicils (additions or amendments to a will) must be properly executed with the same formalities as a will. Changed life circumstances (such as marriage, birth/adoption, or death) can partially revoke affected will provisions. Questions of what is properly revoked or revived can arise when a testator has made multiple amendments or revocations to the same will
- Improper administration of an estate (with or without a will):even if a will is properly created and executed, the risk of improper administration of an estate may still occur. Possible scenarios here include failure to include all of the assets, an administrator wrongfully withholding assets from its beneficiaries, or excluding a beneficiary and/or assets from the estate administration. Mike has brought lawsuits on behalf of our clients in all of these scenarios.
The laws in this area often change, and contain many nuances that are too extensive to discuss in a blog entry. When it comes to drafting, modifying, or contesting a will, we recommend enlisting the assistance of a lawyer to reduce the risk of mistakes, make sure that your actions are brought within the proper statute of limitations, and file all the appropriate paperwork with the court. With our record of success in probate litigation, we can thoroughly examine your will contests, advise you through every step of your dispute, and fight for what is rightfully yours.