Most Ohioans understand the effect of a valid will: the decedent’s assets will be distributed according to the terms of the will. Occasionally, however, one or more potential beneficiaries are unpleasantly surprised by the terms of the will when they are revealed to the heirs.
When a person discovers that they have been deprived of an expected inheritance, they may discover that they are faced with a time-sensitive situation that may involve the investment of significant legal fees.
In Ohio and most other states, the only possible strategy to right the perceived wrong is a lawsuit challenging the will’s validity. Such a lawsuit is called a will contest.
Only certain persons may start a will contest in Ohio. This group includes any person who is named in the will, an heir with a potential claim as an heir of the deceased, and any person with some claim against the decedent’s assets.
Any person considering a will contest must serve a certificate on the persons identified in the preceding sentence and actually begin the lawsuit within 60 days thereafter.
The grounds for success
Prevailing in a will contest is not easy. The person challenging the will may invalidate the will by proving that the testator did not follow the legal requirements for making a valid will.
In Ohio, a will is not valid unless the person making the will was at least 18 years of age, the will was signed by the testator, and the signature was witnessed by two competent persons who also signed the will.
Because most wills are drafted by experienced estate planning attorneys, these formalities are almost always followed and rarely provide grounds for invalidating the will.
The most common reasons that will contests succeed involve proof that the testator lacked sufficient mental capacity, was misled by fraud, or was the victim of undue influence.
Lack of mental capacity is usually proved by the expert testimony of a mental health professional or neurologist.
Fraud can be proved by showing that one of the heirs who benefited from the will many false statements to the testator shortly before the will was signed. This argument must also rest on evidence that the testator relied on the fraudulent statements in drafting the will.
Undue influence is usually proved by showing that one of the beneficiaries had an unusually close relationship with the testator and that this heir used the relationship to modify the terms of the will accordingly.
The complexities of most will contests make professional legal advice and representation essential. Before commencing a will contest, seeking the advice of an experienced probate attorney can significantly increase the odds of a favorable outcome.