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Will contests have been a popular topic in our practice in the last year or so. In the State of Ohio, any individual who is 18 years of age or older is able to create a will if they have a sound mind. A will is a legal document whereby an individual states vital information that is to occur after their death such as who is to receive their property and who is to handle the administration of their estate as well as potential issues pertaining to the guardianship of any minor or special needs children. The will can also provide various powers for individuals to continue to operate assets such as closely held businesses and real estate investments.
In the State of Ohio, in order for a will to be valid, it must be executed by an individual in the presence of two disinterested witnesses. Thus, the first step in order to try to avoid a will contest action is to make sure that the will has been executed with the correct legal formalities.
Another important part of the execution of a will is to make sure that the individual has what is called testamentary capacity to execute the will. Testamentary capacity is a legal term which describes a person’s legal and mental ability to make or alter a valid will. Sometimes this is referred to as the individual having a sound mind and memory. In order to have testamentary capacity, the testator of the will must understand the nature of making a will, have a general idea of what he or she owns as far as assets are concerned and also know who the members of their immediate family are, or sometimes referred to as the natural objects of their bounty. In addition, that individual must also have the ability to resist undue influence on the part of others.
The individual executing the will must not be under undue influence of any other individual. In order to avoid the appearance of any undue influence, it is important not to involve other individuals who will be inheriting in the preparation and drafting of the will. Those individuals should not be present when the will is executed.
Some other items which may be important when executing your will in order to try to avoid a will contest is to insert a no-contest clause in the will. This is formally called an in terrorem clause. This is a clause that provides that if there is an individual who contests the will and loses, that individual will not receive anything from the estate. In order to make this type of provision applicable, an individual will leave that family member a certain minimal amount of assets in the will. If that family member is not happy with what they are to receive, they will need to determine whether to contest the will and risk not receiving anything if they lose the will contest or to contest the will. I have some clients who think they must leave at least $1 to all family members in order to prevent them from contesting the will. That type of provision shows that they know who the natural objects of their bounty are but probably does not prevent someone from contesting the will.
Finally, it is very important that the attorney, who is assisting the individual in making the will, ask questions to determine the person’s capacity and ability to be free from undue influence. In addition, it is always important to understand why an individual has listed certain people in his or her will and the reasoning behind that as well as the reasoning behind why an individual is not listed in someone’s will as well. These are all very important factors after the individual passes away and when loved ones question the terms of the individual’s will. By having this information, a will contest could be avoided.
In order to make sure that you have a properly executed will, please make sure that you see your local estate planning attorney who can assist you with these matters.
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
405 Chauncey Ave. NW, New Philadelphia, Ohio 44663
Phone: (330) 364-3472
Fax: (330) 602-3187
Email: jcontini@kwgd.com