Probate, trust, guardianship and inheritance litigation
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How to Contest a Will in Ohio

By:  Daniel McGowan, Esq.

A will can be contested in an Ohio probate proceeding on the following grounds:

  • Lack of Proper Formalities
  • Undue Influence
  • Lack of Capacity
  • Revocation/Later Will

Lack of Proper Formalities  

A will can be contested in Ohio if it is not executed with the required formalities. In order to make a valid will in Ohio, the will (1) shall be in writing, but may be handwritten or typewritten, (2) shall be signed at the end by the testator or by some other person in the testator’s conscious presence and at the testator’s express direction, and (3) shall be attested and subscribed in the conscious presence of the testator, by two or more competent witnesses, who saw the testator subscribe, or heard the testator acknowledge the testator’s signature.  Section 2107.03 Ohio Code.

“Conscious presence” requires that the subscribing and attesting witnesses be in the testator’s range of vision or that the testator hear and understand that the witnesses are subscribing and attesting the will at the time they are doing so.  Whitacre v. Crowe.

Even if a will is not executed in conformance with section 2107.03, the will might still be considered valid.  If an executed document purports to be a will, but it is not executed as set forth above, the document will still be considered a will if the Ohio probate court, after holding a hearing, finds that the proponent of the document as a will has established that:  (1) the decedent prepared the document or caused the document to be prepared, (2) the decedent signed the document and intended the document to be the decedent’s will, and (3) the document was signed in the conscious presence of two or more witnesses.  2107.24 Ohio Code. 

Undue Influence

A will can be held invalid in Ohio if it is the result of undue influence.  The elements of undue influence as related to a contested will are: “1) a susceptible testator; 2) another’s opportunity to exert undue influence; 3) undue influence actually exerted or attempted; and 4) the resulting effect.”  Golub v. Golub.  Undue influence must be brought to bear directly upon the act of making the will.

In many cases, the undue influencer will upset a long-established estate plan where the bulk of the estate was to pass to the direct descendants or other close relatives of the decedent. Some undue influencers are new friends or acquaintances of the decedent who “befriend” the decedent in the last months or years of life, typically after the decedent has suffered some decline in mental ability. In other situations, one child of the decedent, often a caregiver will coerce the decedent to write the other children out of the will. Undue influencers can also be health care workers or live in aides who implicitly or explicitly threaten to withhold care unless the estate plan is changed in favor of the health care worker.  However, “[t]he fact that the testator …disposes of his property in an unnatural manner, unjustly, or unequally, and however much at variance with expressions by the testator concerning relatives or the natural objects of his bounty, does not invalidate the will, unless undue influence was actually exercised on the testator.” Golub v. Golub. 

Lack of capacity

A will can be contested in Ohio if the testator lacked testamentary capacity.

“Testamentary capacity exists when the testator has sufficient mind and memory: First, to understand the nature of the business in which he is engaged; Second, to comprehend generally the nature and extent of his property; Third, to hold in his mind the names and identity of those who have natural claims upon his bounty; Fourth, to be able to appreciate his relation to the members of his family.” Niemes v. Niemes

Typically, incompetence is established through a prior medical diagnosis of dementia, Alzheimer’s, or psychosis, or through the testimony of witnesses as to the irrational conduct of the deceased around the time the will was executed.   A will in Ohio can be declared void if lack of capacity can be proven.

Revocation / Later Will

A will can be contested in Ohio on the basis that it was revoked.  A will in Ohio can be revoked:

    1. By the testator by tearing, canceling, obliterating, or destroying it with the intention of revoking it;
    2. By some person, at the request of the testator and in the testator’s presence, by tearing, canceling, obliterating, or destroying it with the intention of revoking it;
    3. By some person tearing, canceling, obliterating, or destroying it pursuant to the testator’s express written direction;
    4. By some other written will or codicil, executed as prescribed by this chapter;
    5. By some other writing that is signed, attested, and subscribed in the manner provided by this chapter.  2107.33(A).

Therefore, if someone offers a will for probate, and you have a later, inconsistent will or an instrument declaring the will revoked and properly signed and attested, you have grounds to challenge the earlier will as revoked.

How long do I have to contest a will in Ohio?

The time to contest a will in Ohio can be short.  If you have received or waived the right to receive the notice of the admission of the will to probate, you have three months after the filing of the certificate of giving notice or waiver of notice to file a will contest.  2107.76, Ohio Code.  The exception to this time period is if you suffered a disability during this time period that prevented you from acting. If so, you have three more months to contest the will after you regain the ability to do so.

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