One ground to challenge a will in Ohio is undue influence. Challenges to a will based on undue influence are often alleged in situations involving sick or elderly individuals because these individuals may be more vulnerable to being influenced by another person. Undue influence is alleged against a caregiver, a trusted advisor, or a relative who the testator (i.e. creator of the will) trusted. If you believe that a loved one’s will reflects the wishes of someone other than your loved one, a Columbus probate attorney can help you decide whether to challenge the will based on undue influence.
Proving Undue Influence
In a case decided in 1962, the Ohio Supreme Court described that to invalidate a will based on undue influence, “undue influence must be present or operative at the time of the execution of the will,” and must have resulted in decisions that the testator would not have made if it were not for the undue influence. West v. Henry (1962) 173 Ohio St. 498. In short, the influencer must have made the testator do something that he or she would not have done without the undue influence.
Proving undue influence can be very difficult. It is not enough just to show improper influence. In Ohio, to invalidate a will based on undue influence, the challenger must prove the following four conditions occurred:
- The party was susceptible to undue influence;
- The party accused of undue influence had the opportunity to influence the susceptible party;
- There was actually undue influence; and
- A result showing the effect of the undue influence.
Usually, the challenger to the will must prove the four elements above; however, if the challenger shows that a ‘confidential relationship’ existed, the burden of proof shifts to the accused influencer to prove that there was no undue influence. A confidential relationship exists in situations where the testator places trust in another party because of the testator’s weakness or limitations and in situations where trust arises naturally, like in the attorney-client relationship.
Each case of alleged undue influence is different and each case is decided based on its unique facts. Generally, the outcome is based on circumstantial evidence such as:
- Medical records;
- Statements from family and friends;
- Specific actions of the influencer regarding the will (e.g., making an appointment with an attorney to revise the will, transporting the testator to revise a will); and
- Changes to the will shortly before the testator’s death.
How an Ohio Probate Attorney Can Help
We understand how difficult it is to believe that someone your loved one trusted may have taken advantage of their situation for personal gain. From our office in Columbus, the respected staff at the Law Office of Mike Gertner can help you determine whether to challenge a will. We will provide an honest assessment of your case to help you decide whether the costs of challenging a will are worth it in your particular case. Contact us today for a free consultation with an experienced probate attorney at 877-772-1011 or online via our contact form.