Prominent General Litigation Attorneys

What are some good reasons to challenge a will?

If one of your relatives dies in Ohio leaving you nothing or less than you expected to receive in his or her will, is this a sufficient reason to challenge that will? Per FindLaw, the answer is no. Instead, you must have other far more important grounds to successfully challenge a will.

What might those grounds be? Lack of testamentary capacity and undue influence represent the two most successful will challenge grounds.

Lack of testamentary capacity

When someone makes his or her last will and testament in Ohio or any other state, (s)he must have the mental capacity to do so. General mental capacity and testamentary capacity are not synonymous. Rather, testamentary capacity consists of the following five things:

  1. The testator’s general understanding of the nature, extent and value of his or her property.
  2. The testator’s understanding of his or her natural heirs such as spouse, children, grandchildren, etc.
  3. The testator’s understanding of what (s)he is giving to each of the people (s)he names in his or her will.
  4. The testator’s understanding that (s)he is, in fact, making his or her last will and testament.
  5. The testator’s understanding of how his or her will affects his or her heirs, both those mentioned in the will and those that are not.

Undue influence

Even if the testator has the requisite testamentary capacity to make his or her last will and testament, this still may not be enough. The bequests (s)he makes must reflect that (s)he made them because (s)he herself wanted to, not because someone else told him or her that (s)he must or should. In other words, (s)he must not have been under someone’s undue influence at the time (s)he made her will.

Depending on the age and physical or mental condition of the person whose will you wish to challenge, you may have valid reason to claim undue influence if (s)he was under the care of a live-in caregiver or relied heavily on someone else to help him or her with his or her financial and other decisions at the time (s)he made his or her will. An unusually large bequest to a caregiver, advisor or other person who exerted great influence over him or her often is a huge red flag when determining undue influence.

Bottom line, before engaging in the acrimony and family distress that a will challenge inevitably will cause, make sure you carefully assess your grounds to determine what proof you have that will allow you to prevail in your challenge.

This is general educational information and not intended to provide legal advice.