Law Articles

Will Contests; Grounds to Set Aside a Will

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Aunt Effie was very fond of her niece, Penny.  Since she had no children of her own, Aunt Effie treated Penny like her own daughter.  She had carefully drafted a last will and testament with her attorney, naming Penny as the only beneficiary of her considerable estate. 
 
As years went by, Aunt Effie started to show signs of confusion and forgetfulness. Sammy Shyster, Aunt Effie’s neighbor, began helping her with simple chores around her house.  Before long, Sammy was helping her write checks and manage her finances. Aunt Effie appreciated the assistance.  However, Sammy had an eye on Aunt Effie’s money.  He began manipulating Aunt Effie and alienating her from her family.  Penny lived in a different state and was unaware of Sammy’s bad intentions and how quickly Aunt Effie was declining.
 
One day, Penny received a call that Aunt Effie passed away.  It soon came to light that Aunt Effie had updated her last will and testament a month before she died.  The new will was handwritten and named Sammy as the sole beneficiary of her estate.  The witnesses on the will were Sammy’s children.  Penny was not named in the new will at all.   Penny believed that Sammy Shyster manipulated Aunt Effie to sign the new will and that she didn’t understand its contents.  What can Penny do?
 
In Ohio, the validity of a will may be contested through a court procedure known as a will contest. The ultimate issue is whether the writing produced is the valid last will and testament of the decedent.  Any interested party can initiate a will contest.  An interested party is someone who has a direct pecuniary interest in the estate that would be impaired or defeated if the will is found to be valid. 
 
To initiate a will contest, the contestant (the person contesting the will) must file a complaint in the probate court where the will was admitted.  The complaint must be filed within three months after the executor gives notice that he filed the decedent’s will with the probate court.  All of the decedent’s next of kin and the beneficiaries named in the will must be included as parties in the will contest action.  The will contest is treated like a trial.  The facts may be heard by the probate judge or a jury.  The burden of proof is on the contestant to prove that the will is invalid. 
 
There are several ways that Penny may try to set aside Aunt Effie’s new will.  She can argue that the will is invalid because of Sammy’s undue influence.  Penny must prove, by the preponderance of evidence, that: Aunt Effie was susceptible to influence; that Sammy had the opportunity to influence Aunt Effie; that Sammy actually exerted undue influence over Aunt Effie; and, that Penny lost her inheritance as a direct result of Sammy’s influence.  This is easier said than done.  Often, evidence is scarce.  Moreover, a physician’s testimony may be necessary to prove Aunt Effie’s susceptibility.  
 
Penny can also argue that Aunt Effie lacked testamentary capacity when she executed the new will. Testamentary capacity exists when the testator (the person making the will) has sufficient mind and memory to: understand the nature of the business in which he is engaged; to comprehend generally the nature and extent of his property; to hold in his mind the names and identity of those who have natural claims upon his property; and, to be able to appreciate his relation to the members of his family.  Again, Penny will need a physician to testify about Aunt Effie’s mental condition at the time she executed the new will.
 
Penny can also challenge the mechanics of the document.  She could call the witnesses to the will and cross examine them about how and when Aunt Effie executed the will.  Ohio law requires four things to create a valid will: (1) a written document, (2) signed at the end by the testator or the testator's agent, (3) in the presence of two witnesses, (4) who must observe the testator's signature or hear him acknowledge his signature.  If these requirements were not met, then a will contest may be successful.
 
A testator can actually avoid a will contest by submitting her will to a probate court during her lifetime.  If a probate judge declares the will valid, then a will contest after the testator’s death is not permitted.
 
If you have concerns about the validity of a last will and testament, the attorneys at Laribee & Hertrick, LLP can properly guide you.  
 
This article is intended to provide general information about the law. It is not intended to give legal advice.  Readers are urged to seek advice from an attorney regarding their specific issues and rights.
 
 
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