When a loved one passes away, it’s a profound loss. This loss can reverberate through your life and the lives of family members. As you grieve this passing, the loved one’s estate is often distributed. You may expect that their directives and wishes will be faithfully executed in the last testament and will.
But that is not always the case. Your loved one’s will may have been rewritten or altered to unfairly or inappropriately benefit others. These amendments to the will may have diminished your inheritance or possibly excluded you. When these or similar circumstances arise, you may dispute the validity of the will and question if someone exerted undue influence over the estate holder. Under Ohio law, you can challenge the will in probate court.
Factors that indicate undue influence
In cases of undue influence, someone has coerced the testator. Either motivated by greed or spite, this person has manipulated the testator to either gain property or exclude another family member. The following factors typically constitute undue influence:
· The estate holder was in a vulnerable mental or physical state
· Evidence of improper influence over the testator
· A slanted will that is not fair or equitable
Illnesses, dementia and many other issues can make elderly testators vulnerable. Unscrupulous people often recognize these deficits and take advantage of an opportunity for their personal benefit.
Challenging the will in probate court
In most cases, family members do not contest a will in probate court. However, under certain circumstances, wills have been unfairly and unduly altered. If this is the case, the will does not contain the testator’s actual instructions and wishes.
Under Ohio law, you can contest the will but you should be prepared to establish proof your loved one was under undue influence. You need to gather all documents, letters, emails, text messages and any other correspondence to support your claim. An attorney can often help identify evidence that the court will accept.
What is the meaning of testamentary capacity?
For a person to have testamentary capacity in the eyes of the law, they need to understand the extent of the property that they own, and what the consequences of disposing of their property or leaving it to another person will be.
The question of whether a person had a testamentary capacity to make their will in an informed way can be a very subjective one. This is because we are dealing with the nature of a person’s mental faculties at a certain point in time.
What can complicate things further is the fact that people suffering with conditions such as dementia can change quite dramatically in their mental faculties from day to day. For example, on one day they may be lucid and able to function completely normally, whereas on the next day they could be feeling confused.
Why are elderly people particularly vulnerable when making a will?
When a person has a lack of testamentary capacity, they can be influenced easily. This might mean that they will fall under the influence of manipulative and fraudulent people, and, as a result, they may change the instructions in their will.
If you believe that your loved one created a will when they did not have testamentary capacity to do so, it is important that you take action.
