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Imagine that before he passed away, your father had a new girlfriend. Shortly after they started dating, you saw less and less of him. Every time you called to check in, she answered the phone and provided some excuse for why he couldn’t talk. After he passed, the probate attorney called you about the will and you found out that your father had recently written a new one that did not include you or your siblings. Instead, he left everything to his girlfriend.
If you find yourself in a situation similar to the above scenario, you might be able to successfully challenge your loved one’s will based on the existence of undue influence. To find out more about undue influence and probate law, read below.
In general, courts do not overturn the directives specified in a last will and testament. Even in Ohio, the probate court considers the final will be to indicative of the last wishes of the decedent. Also, courts usually take the stand that the departed had the right to transfer his or her property however he or she wished. However, a court will take into consideration the mental state of the decedent at the time he wrote the will and if any undue influence existed. In order to successfully challenge a will by claiming undue influence, you must be able to prove that the will heavily favors the person exerting the influence and that the decedent would not have made such changes without the influence.
Usually, there is not a witness to undue influence, so finding another individual to testify about its existence is essentially impossible. This means that you must prove its existence through circumstantial evidence. However, this evidence must still be substantial in the eyes of the court. The factors that must be present include unrelated parties or the exclusion of other heirs, the opportunity to exercise undue influence, the susceptibility of the decedent, and the actions the beneficiaries took to obtain the will.
If you have concerns about a loved one’s will and suspect that undue influence was the primary cause of any changes, you may be able to successfully challenge the will in probate court. Keep in mind that the process could be very long and difficult.
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