Protect Your Will and Trust From Challenges

A court challenge to a will or trust is something no one wants, but few people actively try to avoid. If your last will and testament, or your trust, are challenged after your death, it can be devastating on many levels. As you might expect, such a challenge is usually time-consuming and costly. But even more important to many people, will and trust contests can lead to permanent rifts in a family. Even if the financial outcome is what the person making the will or trust intended, the personal fallout may not be able to be repaired. Fortunately, Ohio now offers a new tool to protect your will and trust from challenges.

In March 2019, testators (creators of wills) and settlors (creators of trusts) will have the opportunity to have their wills and trusts declared valid before their deaths, a process called ante-mortem procedure. This process is not entirely new; Ohio residents have had the ability to have their wills declared valid during their lifetimes for years. However, the prior statute did not include the opportunity to validate trusts before a settlor's death. With the increasing popularity of living trusts as a tool for probate avoidance, it was time for an update to Ohio law.

Major Provisions of the New Law

With the new law taking effect, Ohio becomes one of only five states that allows for pre-death validation of both wills and trusts. The law provides that a will and trust that are related must be submitted together for the validation process. In many estate plans, the will "pours over" assets into a client's trust, so it makes sense that one document cannot be validated without validating the other.

In order to have an ante-mortem procedure, the testator or settlor needs to file a document waiving physician-patient privilege, in order for the doctor to provide evidence that the patient was of sound mind when creating his or her estate plan.

The new law gives the probate court jurisdiction over ante-mortem procedures. However, the probate court may transfer a case to the general division of common pleas if a party to the proceedings or the probate court judge requests it.

An ante-mortem procedure is a lawsuit, and, as such, is started by filing a complaint with the court. Who is eligible to file a complaint in an ante-mortem procedure? Only the testator or settlor—no one else. Even if the testator or settlor has a legal guardian or an agent under a durable power of attorney, those individuals may not file a complaint on the settlor's behalf.

Helpfully, the new law offers guidance as to how the complaint should be drafted. This includes statements that may be set forth by a testator or settlor in the complaint. So long as these statements are true, they provide a foundation on which the court can declare a trust or will legally valid.

Like all lawsuits, a complaint for an ante-mortem procedure must be served on defendants to the legal action. "Defendants" includes the spouse and children of the testator and settlor, as well as any other heirs under the law; the beneficiaries under the current will or trust as well as those under the most recent prior will or trust; and, if the ante-mortem procedure relates to a trust, any trustees of that trust. If the will or trust names a charitable beneficiary, the Ohio Attorney general is also a necessary defendant to an ante-mortem procedure.

Some of the people who must be named in a complaint in an ante-mortem procedure may be unable to represent themselves, such as minors, legally incapacitated people, or individuals who cannot be located for one reason or other. These people may be represented by another person, so long as there is no conflict between the person being represented and their representative. For instance, a parent may represent his or her minor child or unborn child.

Hearing in Ante-Mortem Procedure

Even if a complaint in ante-mortem procedure is not contested, the court must schedule a hearing, although there is no right to a jury trial in the probate court in these cases.

In the case of a will, the court will determine the will to be valid if it finds all of the following to be true:

• The will was properly executed according to ORC 2107.03;
• The testator had the legal capacity to make the will and the will was not made under duress or under undue influence;
• The will was not executed as a result of fraud or mistake.

A trust will be found to be valid if the court finds all of the following:

• The trust meets the legal requirements of ORC 5804.02;
• The settlor had legal capacity to create the trust and the trust was not created under duress or undue influence;
• The trust was not executed as a result of fraud or mistake.

If a court finds that a will or trust is valid in an ante-mortem procedure, the decision is binding on all defendants except for a person who should have been a party, but was not properly served or named in the case. If a validated will or trust is amended, the document that has been validated will still be protected by the previous declaration of validity. However, the portion that has been added or changed will not.

If you are interested in having your will or trust validated in an ante-mortem procedure, contact an experienced Ohio estate planning and probate attorney.

You may also be interested in:

• Ohio HB 595: What's New in Ohio Probate Law
• What is a "No-Contest" Clause?