You always hope that your family and loved ones will accept and understand your final wishes, but what happens if they don’t? Hurt feelings and family dynamics during a time of grief can result in family members or loved ones contesting a will, but simply being upset with your inheritance is not a legal, valid reason to contest a will in Ohio. A court will not entertain a will contest unless it is based on a valid, provable assertion involving:
- Improper execution,
- Lack of testamentary capacity,
- Errors, or
- Wrongdoing by a third party, such as fraud or undue influence.
Today, we focus on the issue of undue influence. Undue influence can be present when a trusted person influences the testator, the person making the will, to make a will that benefits them (the trusted person). The key to under influence is proving whose overall intent was put into the will: the testator or the trusted person.
In order to successfully contest a will under the premise of undue influence, there must be evidence of coercion. Since the testator is deceased, the courts often have to turn to circumstantial evidence. They will look at the following:
- If the deceased was elderly, in ill health or incapacitated enough to be susceptible to undue influence;
- If the deceased was dependent, emotionally and/or physically, on the trusted person;
- If the person accused of exerting undue influence had the opportunity or motive to do so;
- If the person accused of exerting undue influence played an active role in creating the will; and
- If the will appears to be influenced, such as an estate left entirely to a sole caretaker.
In many cases undue influence is an accusation made by a sibling against another sibling who had a close relationship with a deceased parent. Other cases involve caretakers, charitable organizations or others receiving estates while family members are overlooked.
Working with an estate planning attorney can help avoid later issues when it comes to wills and estates. An estate planning lawyer can not only help avoid any legal technicalities for contesting a will, but be involved with identifying and avoiding other legal issues that may arise when a will is executed.