Court fights can get ugly quickly, and some of the most emotionally charged legal battles involve disagreements over wills. The disputes wind up pitting one family member against another in the distribution of money and property that a loved one has left behind.
It’s sad, because one of the reasons for having a will in the first place is to spare the family some of the headaches that inevitably result during such a difficult time. Ideally, the will spells out clearly the intentions of the decedent whose wishes can then be carried out without a lot of drama.
But a will can also be challenged in probate court, so long as the person contesting it has legal standing to do so.
Who Can Contest a Will?
“Standing” is a term of art that refers to a person’s right to make a claim. The law does not permit just anyone to challenge a particular legal action. A person must have a personal stake in the controversy.
In the case of a will, a party is deemed to have standing if they will inherit less under the will than without it.
How is that possible? Well, when a family member dies without a will – known as dying “intestate” – there are laws in place that dictate how the assets will be distributed. A will supersedes those laws.
When someone contests a will, they are essentially saying that they would be better off if the will had never been written and the family member had died intestate.
For example, Ohio law allows parents to write a will that serves to disinherit their children. So if for some reason you don’t want your assets passing to your sons or daughters, you can create a will that cuts them out and directs those assets elsewhere.
But because the children would stand to inherit under Ohio’s intestate succession laws, they would have the legal standing to challenge the will in court.
Grounds For Contesting a Will
A will can be contested on a number of grounds. First, in order to make a will, a person must be of sound mind. An individual may challenge the will by arguing that the decedent did not have sufficient mental capacity to understand the nature and extent of their estate or appreciate the effect the will would have on the distribution of property.
If evidence exists to show that fraud or undue influence played a role in the making of the will, that can also be grounds to have the will thrown out.
In addition, Ohio law sets forth a number of formalities for making a will – the signatures that are required, the qualifications of witnessing parties, and so on. If those formalities are not followed, a will may be deemed invalid.
Often times, families end up in court because of a divorce and subsequent remarriage. The will may still list an old spouse as a recipient of a portion of the estate and may not account for children acquired through a second marriage.
Consult an Expert
Because every family situation is different, it’s important to sit down with an experienced attorney to discuss your options when writing a will or when faced with the possibility of having to contest a will in court.