If you expected an inheritance from a loved one but did not receive it, or received less than anticipated, you may have a good reason to challenge the deceased person’s last will and testament. Challenging the validity of a will is commonly called a “will contest,” and the person who created the will is called the “testator.”
Who may contest a testator’s will?
Anyone who would have benefited from the testator’s estate if the will in question did not exist. The contestant must prove they would have inherited by either the testator’s prior will, or by Ohio’s intestacy laws if the testator had no prior will. If the contestant would not receive an inheritance from testator’s prior will or from Ohio’s intestacy laws, the contestant does not have standing to proceed with the lawsuit, and it will likely be dismissed.
When does a will contest need to be filed?
Within three months of either 1) the contestant’s receipt of notice that the testator’s will has been admitted to the probate court, or 2) the contestant’s waiving notice that the testator’s will has been admitted to probate. If the contestant didn’t receive notice or waive notice, the time to bring the will contest is less clear. Ohio’s relevant law is silent on this issue.
What does the contestant need to prove?
The contestant must prove that the testator’s will was either 1) improperly witnessed, 2) executed under undue influence, 3) executed without testamentary capacity, or 4) executed without knowledge of its contents.
Note: In Ohio, wills are presumed to be valid upon their admission to probate. The contestant bears the burden of proof in proving the will should not be enforced.
How is a will properly witnessed?
Wills must be “attested to” and “subscribed by” by two competent witnesses. The witnesses must actually observe the testator sign the will (or alternatively, ask the testator to acknowledge their signature), must be disinterested (i.e. the witness should not be a beneficiary of the will), and must sign the will as a witness.
When is a will executed under undue influence?
Undue influence can be found where the testator is taken advantage of, either due to fraud, or duress. In other words, the contestant must prove the testator was pressured to create a will they would not have made otherwise.
When does a testator lack testamentary capacity?
The testator will lack testamentary capacity if they did not understand they were signing a will, if they could not generally describe their family, or if they could not generally describe the nature and extent of their property. Testamentary capacity and competency mean two very different things.
For example, a testator who can identify their wife and only some of their children likely has testamentary capacity. Similarly, a testator who can identify only some of their assets likely has testamentary capacity. These standards are designed to encourage the creation and enforcement of wills.
When does a testator lack knowledge of the will’s contents?
A testator will lack knowledge of the will’s contents if the will distributes their property differently than they believed it did at the time of signing.
Note: Proving the testator’s beliefs at the time of signing is difficult, especially since the testator is likely deceased.
If the testator’s will is found invalid, do I inherit?
It depends. If the testator had previously executed another will, then this older will will describe how the assets will be distributed. If the testator’s only will has been found invalid, Ohio’s laws of intestacy will describe how the assets will be distributed.
What if the will disinherits me if I contest it?
Some wills contain provisions that disinherit individuals who contest its validity (sometimes called in terrorem clauses). Ohio courts generally enforce these clauses.
What if the will is lost?
Lost wills are presumed to be revoked by the testator. Accordingly, a contestant alleging a lost will must prove the testator’s intent NOT to revoke it, and must also prove the lost will’s contents.
How much does a will contest cost?
Attorneys typically charge a contingency fee to pursue will contest actions. In that arrangement, the attorney will typically take 1/3 of the assets the contestant recovers. Alternatively, the attorney may bill a flat fee, or proceed with an hourly rate.