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Wills and Will Contest

09.01.11 written by

A number of movies exist that have various scenes showing the reading of a person’s will after that individual dies. My favorite is called “The Ultimate Gift”. I recommend it as a must-watch, especially if you are looking for options on how to uniquely write your own will. Even though the reading of a will in a movie is great entertainment, in Ohio, no formal reading of a will is required with family present after a person dies. However, there are certain things which must be done concerning a will.

After an individual dies, the family needs to try to locate the original will. The original will may be in the decedent’s safe deposit box, a safe at the decedent’s residence where other valuable papers are kept or at the decedent’s attorney’s office. After the original of the will is located, the executor needs to schedule an appointment with the estate attorney to discuss the estate administration process.

The administration process begins with the estate attorney having the individual named as the executor in the will appointed at the probate court in the county where the decedent was domiciled. After the executor is appointed, the executor usually sends a copy of the will to all of the beneficiaries named in the will as well as to anyone who would have inherited from the decedent’s estate if the decedent did not have a will.

After an individual receives a copy of the will, that individual has three months to contest the validity of the will. Only certain people can contest wills. Winning a will contest action is very difficult but can be accomplished under the right set of circumstances. Three main theories exist under which one can contest a will. Those theories are as follows:

  1. Formality. In Ohio, in order to make a will valid, a person must have been at least 18 years old, be of sound mind and memory, and not under any restraint at the time they executed the will. The will must also be executed with the correct formalities. The State of Ohio requires that a will be executed by an individual and that there be two independent witnesses. If these formalities are not followed, then the will can be declared invalid.
  2. Testamentary Capacity. An individual may contest a will if they believe that the decedent did not have the testamentary capacity to execute the will. Testamentary capacity exists if the testator has sufficient mind and memory to understand that he or she is making a will, is able to comprehend the nature and extent of his property, is able to remember the names of those who have a natural claim upon his property, and can appreciate his relationship with his family members. If you believe that the decedent did not have the testamentary capacity, then a will contest may be appropriate. This usually occurs by obtaining expert medical testimony concerning the mental capacity of the decedent at the time he executed the will. Also, medical records and other witnesses will be necessary to prove lack of testamentary capacity.
  3. Undue Influence. If an individual believes that the decedent was unduly influenced to execute a will a certain way, then that individual can contest the will based on undue influence. The legal elements of an undue influence case are that there must be a susceptible testator, an individual must have an opportunity to exert undue influence, that individual must have exercised undue influence, and that individual must have benefited himself or herself to the detriment of someone else as a result of the undue influence. If these elements exist, the will can be found to be invalid.
  4. After the death of a loved one, please understand that there is no formal reading of the will required. However, if you suspect that a will contest may be appropriate, please contact an attorney as soon as possible after the death of a loved one because you only have three months after receiving notice of the filing of the will to contest it.

NOTE: This general summary of the law should not be used to solve individual problems since slight changes in the fact situation may require a material variance in the applicable legal advice.

James F. Contini II, Esq.
Certified Specialist in Estate Planning,
Trust & Probate Law by the OSBA
Krugliak, Wilkins, Griffiths & Dougherty Co., LPA
158 North Broadway
New Philadelphia, Ohio 44663
Phone: 330-364-3472
Fax: 330-602-3187