Will contests do not happen often. In most cases, a will gets probated with no issues, and the decedent’s property passes according to their wishes.
But everyone, including the heirs, designees, executors, and the state of Ohio, is interested in ensuring that they will properly reflect those wishes. Ohio courts can hear a challenge to the will if it was formed under circumstances that call into question the will’s validity.
All parties involved will need a Cleveland contested will lawyer during this challenge. Everyone, including the party contesting the will, the estate’s executor, and any parties who might lose if the contest succeeds, will require legal representation to protect their interests.
Below, learn how will contests work and how you can contest or defend your interests in a will.
A will is a legally enforceable document that transfers the decedent’s property and provides other instructions to be carried out after a decedent’s death. Contrary to popular belief, a will is not simply a list of desires. Instead, interested parties can go to court to ensure that a will’s provisions get carried out exactly as written.
Since wills have a legally binding effect, they must meet certain requirements to be considered to be a will. A valid will must be:
- In writing
- Signed by the testator
- Attested to by two witnesses
The testator must have a sound mind when making the will. The testator must act on their own without undue influence or duress.
After the testator dies, someone, typically the executor named in the will, notifies the court by initiating a probate action and filing a copy of the will. Probate actions get filed in Cleveland in Cuyahoga County Probate Court when:
- The decedent lived in Cuyahoga County
- The decedent lived out of state but had real or personal property in the county
- The Cuyahoga County Probate Court had previously declared the will valid
Usually, the executor hires a lawyer in Cleveland to prepare and file the probate application. A lawyer can ensure the application is prepared correctly and that all deadlines are met.
A will contest happens after the probate application gets filed. After a will gets admitted to probate in Cuyahoga County Probate Court, the applicant or the applicant’s lawyer in Cleveland has two weeks to send out a notice to anyone named in the will.
After sending the notices, the person who sent them will file a certificate with the court attesting that the notices were sent.
Ohio law requires challengers to file a will contest within three months after the certificate was filed. This applies to everyone, including those who did not receive notice of the probate.
Thus, if a will allegedly disinherit you by omitting your name from the list of bequests, you will not receive notice of the probate. But you still only get three months to challenge the alleged will, so you must act quickly by contacting a contested will lawyer.
If someone was legally disabled from when the time expired, they get additional time to file a will contest after the disability ends. But neither the court nor the executor can claw back property from those who received the decedent’s property in good faith under the will.
For example, suppose you were with your significant other when you crashed into a car. Your significant other died, and you survived, but you were comatose. You would get three months after you regained consciousness to hire an attorney for contested wills and file a challenge.
But if the executor already sold your significant other’s house, you cannot force the new owner to return it.
Under Ohio law, anyone interested in a will or codicil can contest a will. As a first matter, a codicil means an amendment to a will. You can contest a will if you are interested in either the main will or any amendment.
Interested parties include anyone who is:
- Named in the will or codicil
- Named in an earlier will
- An heir of the decedent if the will gets invalidated
Interested parties can include natural people or organizations. If a will names or omits a charity, political organization, or business as a devisee, the entity has the standing to challenge the will.
Thus, if a will gives money from the estate to a local church but rescinds that bequest in a codicil, the church can contest the codicil to restore its bequest.
Ohio law uses two systems for distributing a decedent’s property upon death. If the decedent had a valid will, the court would enforce the will’s bequests. Ohio law automatically distributes the property to the heirs according to a predetermined process if the decedent has no valid will.
Some of the reasons you might hire a lawyer for contested wills include the following:
- You received something but not what you expected
- The decedent deleted or changed your bequest in a subsequent will or codicil
- You could inherit something if the will gets invalidated but receive nothing if it gets upheld
In short, you contest a will because you know you will get a better outcome in an earlier will or in the absence of a will.
You must have grounds for filing a will contest. Dissatisfaction with your bequest will not provide valid grounds to challenge a will. Instead, you need evidence of the invalidity of the will.
Some grounds for contesting a will include:
As discussed previously, a valid will must have two witnesses and the testator’s signature. If the witnesses were under 18 years old or lacked the mental competency to understand what they witnessed, the will would not meet the state’s requirements.
Similarly, a Cleveland contested will lawyer could challenge and invalidate the will if the will was unsigned.
The testator must be of sound mind, even briefly, while making the will. If the testator did not understand that they were making a will or the effect that it would have, a contested will attorney can challenge the will.
Ohio law says that a testator must act “without restraint.” This means that the testator must act independently, without undue influence or duress.
The key word is “undue.” Nagging would not qualify as undue influence or duress. Instead, you must show four elements:
- A testator susceptible to duress or influence
- Someone with the opportunity to exert influence
- Facts showing the exertion or attempt to exert influence
- A change in the will due to the influence
Changing a will to show appreciation for a friend who cared for the testator near the end of life will not prove undue influence. Instead, your contested will lawyer must show pressure designed to overcome the testator’s free will.
Fraud or forgery happens when the testator did not intend the will filed for probate to act as their will. Someone might have tricked the testator into signing it. Or someone might have forged the testator’s signature onto the document.
Role of a Cleveland-Contested Will Lawyer
An attorney for contested wills develops legal arguments and evidence to challenge or defend a will. If you were named as the estate executor, you might need a Cleveland probate lawyer to defend the testator’s will from challenges.
If you believe someone has filed a will that fails to honor the testator’s final wishes, you may need a lawyer for contested wills to challenge the document.
A lawyer gathers the evidence to support or invalidate a will. The lawyer then presents that evidence and legal arguments to a probate judge. To discuss what Slater & Zurz can do to help in your contested will case, contact us online or at (440)557-2861 to request a free consultation.
A lawyer will need as much information as you have to challenge a will. Since the lawyer will likely need clear and convincing evidence, you will need:
- Copies of correspondence with the testator and anyone involved in the will
- Medical records showing the testator’s physical and mental state
- Witnesses who can testify about the formation of the will and the testator’s state at the time
Will contests are challenging cases. Courts often require clear and convincing evidence of the invalidity of a will. A court will presume that the will filed with the probate application is valid until someone proves otherwise.
A probate judge can order you to turn over a will. Even without a court order, if you know of a will but intentionally conceal it, Ohio law blocks you from receiving any property from the decedent’s estate.
To discuss the answers to these and more questions you might have about contested wills in Cleveland, Ohio, contact Slater & Zurz online or at (440) 557-2861.