OHIO WILL CONTEST ATTORNEY

You have every right to be shocked and upset after viewing a deceased loved one’s surprising will, possibly even more so if you are being denied from seeing the will all together. It’s quite possible the will in question might not accurately reflect the true wishes and desires of your recently-deceased loved one (i.e., the “decedent”). If you don’t take action by hiring an attorney and pursuing a will contest, the decedent’s true wishes and desires might never be carried out, and you will lose access to assets that are rightfully yours.

BACKGROUND

WHAT IS A PROBATE COURT AND WHAT FUNCTION DOES IT PLAY?

A Probate Court is one of many different types of State Courts. The Probate Court deals with all matters relating to the administration of decedents’ estates, guardianship over a person and their assets when they are unable to manage their affairs, and disputes related to wills and trusts. Each county has its own Probate Court. If you are considering contesting the validity of a will, you will need to familiarize yourself with the Probate Court in the county the decedent resided in at the time of their passing. It will be that Court that will preside over your will contest case. The Probate Court has many different policies and procedures which must be strictly abided by in order to pursue a will contest action. An experienced attorney can help guide you through those policies and procedures to help maximize your chances of success if you challenge a will.

STATUTE OF LIMITATIONS

Before pursing a will contest, it’s important to know the statute of limitations. The statute of limitations serves as a bar to pursuing a will contest action if a lawsuit is not filed within a specified amount of time. The statute of limitations for a will contest is 3 months from the date a document called a “Certificate of Service of Notice of Probate of Will” is filed with the Probate Court. If you fail to file a will contest complaint within three months of the filing of the “Certificate of Service of Notice of Probate of Will”, you will unfourtantely be forever barred from challenging the validity of a will.

If an individual with access to the will is refusing to allow you to view it, the Executor named in the will, or any interested person, may be able to request the Probate Court to compel the person to produce the will. A skilled probate attorney can do this on your behalf.

There are 2 ways to go about proving a will does not reflect what the decedent actually wanted. One way is by proving lack of testamentary capacity, and the other is undue influence, with undue influence being the most common.

LACK OF TESTAMENTARY CAPACITY

As mentioned above, there are two primary ways to challenge a will in Probate Court. The first way to try to prove that a will does not reflect a decedent’s true desires and wishes is by proving Lack of Testamentary Capacity. This means that the decedent had such significant cognitive problems that under Ohio law, the individual is deemed to have lacked the cognitive ability to change their estate plan.

Going about a case this way is extremely difficult, and rarely occurs, because under Ohio law there must be an extreme lack of mental capacity for someone to be deemed to have lacked the cognitive abilities to change their estate plan.

UNDUE INFLUENCE

A second, and much more common, way to challenge a will is by demonstrating that the decedent was under “Undue Influence” at the time the challenged will was executed. In the context of a will contest lawsuit, undue influence exists when someone (we’ll call them ‘the villain’) forces another person (i.e., a “testator”) to change their estate plan in a way that the testator would otherwise not have wanted to, absent the undue influence. Essentially, the “villain” manipulates the testator in such a manner that the desires of the villain are substituted for those of the testator in the will that is being challenged.

HOW TO PROVE THAT THE DECEDENT WAS UNDULY INFLUENCED

It can be difficult to prove to a jury that a decedent was unduly influenced, but with proper evidence and documentation, it can be done. You will need to show that the decedent was susceptible to undue influence at the time the will to be challenged was drafted. You can prove this by gathering evidence, commonly in the form of medical records, that the decedent was in a cognitively and/or physically weak and or susceptible condition at the time the challenged will was executed. An experienced probate litigator can compel medical personnel to release the decedent’s medical records for this purpose. In addition to medical records, evidence needed to prove these types of cases often require obtaining the full and complete file of the attorney who drafted the contested will, interviewing numerous witnesses, looking at financial documentation, and conducting thorough investigations into numerous other matters relevant to your claims.

Now that you have evidence that the decedent was susceptible to undue influence, you need to prove that someone (i.e. ‘the villain’) influenced the susceptible testator to such an extent that the villain essentially took the testator’s free will away. To prove this, you will need to look at the involvement the villain had with the decedent, and specifically with the decedent’s estate plan, during the time the will you want to contest was drafted. An experienced probate litigator can obtain files from the estate planning attorney that drafted the will you want to contest. From here, you can gather evidence that the villain was involved in the decedent’s estate planning process. For example, the villain might have been present in meetings between the estate attorney drafting the will and the testator, made frequent calls to the attorney, paid the attorney’s bills for drafting the contested will, or have another relationship with the attorney in some way. Evidence can also come in the form of affidavits from people that observed activity between ‘the villain’ and the decedent. These people might be home health care aids, neighbors, friends, etc. and they may have important information about how the villain was controlling the testator at times relevant to your claims. They can also serve as added evidence to the cognitive and physical condition of the testator at times relevant to your claims.

Another piece of evidence to look for is any involvement the villain had with the financial affairs of the decedent. The villain might have been actively involved in paying the decedent’s bills or were taking money from the decedent’s accounts for their own purposes. The more involvement the villain had with controlling the decedent, the more likely you will be able to prove that undue influence took place.

WHAT HAPPENS IF YOU WIN?

You ‘win’ your case by proving the challenged will is not a true and accurate reflection of the desires of the testator. The jury will declare the will null and void. A few things can happen after that. It is important to keep in mind what will happen if you win your case, as this might turn you away from pursuing one in the first place.

If there is a will that preceded the will you were contesting, that will would take the place of the contested will that was declared void, and the terms of that will would determine how the estate assets of the decedent are distributed.

If there was no previous will, the assets of the decedent would be distributed according to state law. In Ohio, the Statute of Descent and Distribution (which comes into play when someone dies without a will) is as follows.

(Ohio Revised Code Section 2105.06)

CALL TODAY FOR A CASE EVALUATION

As reflected above, it is important to know what would happen if you successfully challenged a will. Sometimes it is best not to challenge a will even if you could do so successfully because the estate plan that would take the will’s place does not benefit you. An experienced probate litigator can help you think through those issues so you can make an informed decision on what is best for you and your family in terms of whether or not to challenge the will.

The entire probate litigation process can take up to two years. Keep in mind that there is very rarely a smoking gun when it comes to these types of cases. Many small pieces of evidence are put together to form a bigger picture. The more evidence you gather, the better. That is how these types of cases are proven.

If you would like to pursue a will contest action or need help with opening a probate estate in general, we would be happy to help guide you through that process. You can call us at (614) 389-9711 to schedule an appointment.

BRADEN A. BLUMENSTIEL, WILL CONTEST ATTORNEY

The law gives Braden a pragmatic way to solve problems using his background in clinical psychology. He is a talented presenter in the courtroom, as he understands how to effectively question witnesses and relay information. He specializes in vaccine injury, personal injury, probate litigation, and business law, and has been recognized for his work by SuperLawyers.