Preventing Will Contests in Ohio: What is Pre-Mortem Validation?

Preventing will contests is something most people making a will don't think much about, but probably should. Picture a scenario in which the matriarch of a family dies and leaves behind two heirs: a daughter, and a granddaughter, child of the matriarch's late son. Now imagine that she left her granddaughter the great majority of her estate. The granddaughter claims that her grandmother did this of her own free will. The daughter with the reduced inheritance claims the granddaughter exerted undue influence on her grandmother, who was not of sound mind, to get her to change her will.

A lengthy and contentious will contest ensues, in which accusations are hurled, relationships are destroyed, and much of the estate is consumed in legal battles, rather than going to the heirs. In the end, the court makes a decision as to whether the matriarch's will was valid or procured by undue influence, and the heirs take the assets to which they are entitled, but with a sense of bitterness and loss.

Similar scenarios play out in probate courts in Ohio, and throughout the country, every day. The players may be different, but the story is the same: a will is challenged, heirs fight, assets are dissipated, and relationships are broken. And, of course, the deceased isn't around to make their wishes and intentions known.

Now, in Ohio and a few other states, there may be a way to prevent this outcome: pre-mortem validation of a will.

What is Pre-Mortem Validation of a Will?

In the great majority of states, only post-mortem probate of a will is available. The mental capacity of the person who made a will (also known as the testator), may only be considered by the probate court after their death. Of course, at this point, the best possible evidence as to whether the testator had the capacity to make a valid will has vanished: the testator is no longer alive, and cannot give testimony as to their intentions or their soundness of mind. Consequently, will contests are often long and contentious, and lack certainty as to whether the litigated outcome is really the right one from the testator's standpoint.

However, Ohio now offers pre-mortem validation of wills. This process allows a testator to file a complaint in the probate court for the Ohio county in which they are domiciled (or in which they own real property if their domicile is in another state), requesting a judgment on the validity of their will. All of the beneficiaries named in the will are named and all heirs who would inherit if the testator had no will are named as defendants in the case.

The court conducts a hearing on the validity of the will, and issues a binding judgment as to whether the will is valid. The will may be revoked or modified by the testator, and the testator can file a similar complaint requesting a judgment as to the validity of the revocation or modification.

Should You Have Your Will Validated Before You Die?

It's important to know that Ohio law does not make any presumptions about the intentions of a testator who did not seek a pre-mortem validation of their will; in other words, it is not assumed that your will is less valid for some reason because you did not go through this process.

That said, if you have any reason to believe that one or more heirs might challenge your will after you die, you might want to give some thought to filing a complaint before your death to have your will declared valid.

When might a will challenge be likely? Of course, will contests are more likely in situations where there is more at stake; an estate worth millions of dollars is more likely to involve a contest than one worth only a few thousand. If your intended heirs are at odds with each other before your death, they might also be more likely to fight over your will (though even relatives who are on good terms might find themselves fighting over an inheritance). If you are leaving your heirs unequal shares in your will, a will contest is more likely than if everyone is treated equally. And if you intend to leave property, especially of great value, to anyone outside the family, consider whether your relatives might consider that gift the result of undue influence.

Of course, if you wish to keep the contents of your will private until after your death, pre-mortem validation of your will necessarily makes that impossible. Consider whether it would be worse to have your intended beneficiaries know what's in your will, or have them fight about it after your death. Then consult your estate planning attorney to discuss whether you should pursue pre-mortem validation.

You may also be interested in:

• How and When to Contest a Will
• How Can I Prove Undue Influence in Making a Will?
• Estate Planning for Blended Families