Every state (including Ohio) has statutory formalities that any will must comply with in order to be enforceable in court. A will that is presented for admission to probate that fails to comply with these formalities is subject to legal attack. This can result in the probate court refusing to admit the will and treating the decedent’s estate and assets as if the decedent died without ever having created a will. One of the most basic and universal of all formalities is the requirement that a will be witnessed by two “disinterested” witnesses.
But why do state laws require a will to be witnessed, and why is it important that the witnesses be disinterested?
Who Can Be a Disinterested Witness?
In Ohio, any individual of sound mind who is over the age of 18 years old and who is not an heir or a beneficiary under the terms of a particular will may serve as a witness to that will. The requirement that a witness be “disinterested” is designed to protect the integrity of the witness and the will: whereas a witness who is a beneficiary under the terms of a will has an interest in making sure the will is admitted to probate, it is believed by courts that a disinterested witness will provide more reliable and honest testimony.
What Is a Witness Actually Witnessing?
If a will is admitted to probate without objection or challenge, the witnesses to that will may feel as if their role is unimportant or a waste of their time. But witnesses are necessary in the event there is a challenge to a will: the will’s witnesses will need to be able to testify about:
- The decedent’s intentions: A person creating a will must have an intention to do so in order for the will to be valid. A will is subject to attack if there is evidence the will’s author believed he or she was signing a contract or giving an asset to a family member while the author was still alive.
- The decedent’s mental state: A will is only valid if the testator (the person creating the will) had a general understanding of (a) the nature and extent of his or her assets and property; (b) the people or entities he or she wanted to benefit through a will; and (c) the nature of what he or she was accomplishing by creating a will, i.e., how he or she wanted his or her assets distributed upon death.
- The voluntariness of the will’s execution: A will is not valid if the testator signed under duress or threat of force.
As one can see, the witnesses to a will play a vital role in helping ensure the decedent’s final wishes are in fact carried out.
The Law Office of John C. Grundy is a Cortland-area law firm providing estate-planning services to Ohioans needing to protect themselves, their assets, and their families. We serve clients in the Akron, Youngstown, Aurora, and Warren areas. We strive to make complex or foreign legal terms and concepts understandable for you so that you understand precisely what legal actions you need to take and why they are important. Contact us for a no-cost consultation to discuss your need for a will or trust. We can also assist you if it has been several years since your will or trust was last updated. Contact us at (330) 637-9030 or contact us online today.