WILL CONTESTS – HOW TO CHALLENGE A WILL IN COURT
Adding to the grief of losing a loved one, close family members sometimes encounter a situation where they find out there had been substantial changes to the loved one’s will in the months before his or her death. Often these changes are drastic and close family members can find themselves disinherited. However, such a will is not always the last word, as wills can be challenged in Ohio.
There are two reasons to contest a will in Ohio. First, a will can be invalidated if it is shown that the person making the will was incompetent at the time the will was created. In this context “incompetent” has a specific meaning. It is not enough that the person making the will was sometimes forgetful or confused. Rather, a person challenging a will must show that the person making the will (called the “testator”) was unable to understand the nature of the business in which he or she engaged or was unable to comprehend the nature and extent of his or her assets. The testator must have been able to hold in mind the names and identities of next‐of‐kin, and appreciate his or her relationship with members of his or her family. If this is not the case, then the testator was not competent to make a will and the will can be found invalid.
The second reason to contest a will is if it was the product of “undue influence” by someone who benefits under the new will. This challenge requires proof that the testator was susceptible to undue influence, that the perpetrator had the opportunity to exert undue influence and actually did so, and that the new will, or provisions of it, was the result of the undue influence.
If a will is successfully challenged then the most recent prior will takes effect. If there is no prior will, then Ohio’s statutes for inheritance will control. Challenging a will is not something a disinherited family member should attempt on his or her own. It is a difficult process that has the potential to disrupt family dynamics but is something that may be necessary to carry out a loved one’s true intent and wishes. At Milligan Pusateri, our attorneys can help. Please contact us today to set up a meeting with one of our experienced probate litigation attorneys.
written by Attorney Jack Cooper