The text book definition of a will contest is a formal legal objection as to the validity of a will. But in real life, a will contest is much more complicated than just objecting to the validity of a will. A will contest has very specific legal requirements, which are made even more complicated by the inevitable family dynamic that is present when relatives and friends start fighting over a deceased person’s assets and money.
You see, following a person’s death, there may be many people who believe that they have a legitimate claim to that person’s assets. These people may include, a spouse or ex-spouse, children, nieces, nephews, other relatives, or those who may have had a close connection with the decedent, such as long term employee. Often, these claims are based upon promises made by the decedent during their life-time to provide for them in their last will and testament. In situations where there are significant assets are at stake, the chances of a will contest will almost certainly increase.
The act of contesting a will is not necessarily a personal attack on the person who created the will, and does not mean that one does not care about the individual who has died, nor does it mean that one does not respect that individual’s wishes. Certainly, many will contests are motivated by greed, however, a will contest can also be motivated by love and other noble intentions. Many times, whether the motivation is greed or love, it is a matter of perspective.
In order for someone to contest a will, the first thing they must establish is “standing.” In simple terms, standing mean that the individual initiating the will contest will be personally affected or benefited by the outcome of the lawsuit. Generally, in order to having standing you must be a family member, or someone who was named in a prior will.
Once standing has been addressed, the next issue is timing. In an Ohio will contest, the lawsuit must generally be initiated within three months of the executor filing a certificate of service with the probate court. The certificate of service is a document stating that anyone who is impacted by the will has been notified that the will has been admitted to the Ohio probate court. If this three-month window is missed, then the will contest may be time barred.
If you have standing, and the will contest is not time barred, there must still be legal grounds for filing the lawsuit to initiate a will contest. Ohio law generally acknowledges that there are four legitimate grounds for contesting a will. These grounds include: (1) the will is not valid under state law, (2) the individual lacked what is referred to as “testamentary capacity” to sign the will, (3) the decedent was subjected to undue influence, and (4) the decedent was the victim of fraud. An experienced attorney can help to explain each of these legal grounds, and how they may apply to any particular situation.
It is important to understand that not all will contests need to be litigated in court. Many will contests can be settled before a trial becomes necessary. Experienced attorneys are equipped to handle both trial situations and settlement negotiations. Given that will contests tend to be personal and highly emotional processes, it is important to hire an attorney that you can trust with the particulars of your situation.
Paul Kellogg is an attorney in Cincinnati with the Phillips Law Firm, Inc. Paul’s practice focuses on providing comprehensive estate planning and probate services to families and business owners, as well as serving as outside general counsel to entrepreneurs and businesses where he provides guidance and advice on a wide variety of transactions and disputes. He can be reached at (513) 985-2500 or via email at [email protected]. Please explore Paul’s other articles on estate planning and business on the Phillips Law Firm Blog page.
The article is for educational and informational purposes only and does not constitute legal advice. Anyone contemplating taking legal action is urged to obtain proper legal advice from an attorney licensed in your particular jurisdiction.
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