The property of a deceased person is distributed according to a Will or according to state law if the person died without preparing a Will. In legal terms, a deceased person without a Will is “intestate.”
The majority of wills are not contested, but financial and emotional issues may arise which will have to be resolved in court.
The only people who can present a challenge to a Will are “interested parties.” These are parties who have a monetary interest in the matters of the estate. Generally, a challenge to a Will must be made within three months after it is accepted into probate unless disability prevented a contest and then the a person has three months to contest the Will after regaining their ability. Even though a complaint is filed, this does not mean the contest will be successful. In any event, you should not wait until assets are distributed and assert that the Will was not valid or that you deserved a greater portion of the inheritance.
In a Will contest the probate and estate lawyers sometimes represent the beneficiaries of wills and trusts, but the attorneys can also represent the executors or trustees who are defending against the actions of a beneficiary.
A “trustee” is the manager of a trust who oversees it for the person who originally set it up. The “executor” is the person, often named in the will, who is responsible for ensuring that the estate is properly settled according to law. If an executor is not named, the court will appoint an “administrator” who has the same duties and responsibilities.
There are several grounds on which a person can challenge a Will. These are some of the main ones:
- Alleged incapacity of the testator (the person who wrote the Will)
- Undue influence exerted over the testator by a third party
- Problems with intention—the testator did not intend to dispose of the property in the manner set
out in the will
- Fraud or forgery
- Will formalities are not correct—Testator must be 18; Will must be signed by or on behalf of the
testator; Two witnesses must sign in the presence of the testator
- Will presented to probate is not the correct version
If your complaint states that the testator was not of sound mind, memory, or understanding when he or she signed their Will, you will need the evidence to prove this was the case. To support your challenge you may have to call medical doctors as witnesses and psychiatric or psychological experts to comment on the testator’s behavior at the time of signing the document.
If you are making this complaint, you should be aware that according to Ohio law, an incapacitated individual can have “a lucid moment” or “moments of lucidity” when they can sign a Will and temporarily perform other acts in a competent manner. If the testator in your case can be shown to have lucid moments, your contest based on capacity could fail.
If your challenge is based on undue influence, you must show that another person exhibited such control over the testator that he or she wrote the Will to favor that person. Sometimes a neighbor will help care for the testator in the latter’s last days and wind up getting involved with the preparation of the will or somehow having input into what is put into it.
There are four elements you must establish to prove undue influence: 1) a testator that is susceptible 2) another party who has the opportunity to influence the testator 3) an actual imposition of improper influence and 4) a result showing the effect of the imposition of undue influence. If the court finds the testator was improperly influenced, tricked or forced into making the will, it will not enforce the document.
If fraud or forgery is proven in a Will contest, the court can set aside all or part of a Will.
A Will contest is probably not something you would want to venture into without a competent attorney by your side, whether someone is challenging a Will you have put into probate or whether you are disputing a Will on some basis. At Slater & Zurz LLP law firm, they have experienced probate lawyers who are very familiar with the types of challenges generally made in this area. Call them at 1-888-534-4850 and schedule a free initial consultation. or by filling out a Free Case Form, sending an electronic message or taking advantage of their “chat” service available online 24/7/365.