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WHAT IS INVOLVED IN A WILL CONTEST?

A will contest is usually a legal challenge of a decedent's last will and testament by an heir of the decedent who is not happy with the will which has been filed with the probate court. Most likely because the heir has been left out of the will or received a lesser portion of the estate than the other heirs.

A will prepared by an attorney and properly executed and witnessed is very difficult to challenge. Most attorneys are very aware of family concerns and go out of their way to make sure all the legal bases are covered. The most vulnerable are self-prepared wills as these have more legal flaws.

I had a full trial, which is rare, on a will contest this year and I will explain some of the case facts after I explain the nature of will contests.

A will contest is usually a legal challenge of a decedent's last will and testament by an heir of the decedent who is not happy with the will which has been filed with the probate court. Most likely because the heir has been left out of the will or received a lesser portion of the estate than the other heirs.

The most common allegations are the decedent was not fully aware of their assets or their heirs, or that were not aware of what they were signing. Basically they were not legally competent to effectively sign the will. Most concerns will be heightened when the will was signed very close to the date of death, during a period of grave illness or a self-prepared will.

A will prepared by an attorney and properly executed and witnessed is very difficult to challenge. Most attorneys are very aware of family concerns and go out of their way to make sure all the legal bases are covered. The most vulnerable are self-prepared wills as these have more legal flaws.

In Ohio, the technical legal standard for the trial court to determine is whether the testator had sufficient mind and memory: (1) to understand the nature of the business in which he was engaged; (2) to comprehend generally the nature and extent of his property; (3) to hold in his mind the names and identities of those who have a natural claim on his bounty; and (4) to be able to appreciate his relationship to the members of his family.

In my case the decedent had 4 children all in their 60's. One of the decedent's sons lived with dad for about 10 years prior to his death taking care of his many very serious medical conditions. This was not light work but very demanding care 24/7. Keep in mind that had not the son lived there dad would have been in a nursing home long before his death. Due the care given, dad was able to stay at home without going to a nursing home. Two years before dad died he went to an attorney to do a new will and other estate planning documents. The will favored the caretaker son to the exclusion of the other 3 children. He also went to his brokerage account office and changed the transfer on death designation (TOD) to the caretaker son. Later dad passed away.

Needless to say, the 3 excluded children challenged the will and the TOD. They subpoenaed about 7 years of medical records, 10 years of financial records and dad's attorney's file. Depositions were conducted of all the children, dad's lawyer and dad's treating physician. The court complaint accused the caretaker son of every negative act possible. The litigation went on for a year and a half ending with a 3 day trial. The challenge to the will and TOD failed. Fortunately the caretaker son took dad to regular doctor visits, and audiology visits. The court heard testimony from the doctor, the audiologist, the attorney who prepared the will, the brokerage folks and a good neighbor. In addition, there were no irregularities in the 10 years of financial records. The very expensive challenge failed.

The lesson is, the more documentation and witnesses available the better, do not prepare your own will, make sure there are people willing to verify the above stated legal factors, and perhaps do a brief video just talking with the person to show their level of competence and lack of pressure. Don't do a "legal" oriented video, just a casual conversation. I hope none of you get into this situation because it tears families apart.

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Altick & Corwin Co., L.P.A.
One South Main Street
Suite 1590
Dayton, OH 45402

Toll Free: 888-542-3148
Phone: 937-608-9460
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