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COMPARING FLORIDA AND OHIO WILL CONTESTS

Written by on Oct 25, 2013| Posted in: Probate Litigation

Ohio and Florida share many characteristics:  love of college football and family values, among others.  But when it comes to the procedures to evaluate the validity of testamentary instruments, Ohio and Florida part ways significantly.  The most glaring difference is the availability of pre-death will contests in Ohio, a statutory animal that does not exist in Florida, and is available in only four other states in the country.

The Ohio Statute allows a testator or testatrix of a will executed in accordance with Ohio law, to file a lawsuit seeking the court to declare during their life that the will is valid.  The statute requires the testator or testatrix in Ohio to name as defendants all people who would be entitled to an inheritance under the laws of intestacy as well as all of the beneficiaries specifically named in the will.  The court then conducts a hearing and if the court finds that the will was properly executed and the testator or testatrix possessed testamentary capacity at the time the will was executed, the will is declared valid.  See Ohio Revised Code, §2107.081 et seq.  The court’s decision as to the validity of the will if valid is placed in a sealed envelope and filed with the court.  Assessable only by the testator or testatrix (if testator or testatrix removes the filed will from the court’s file, the court’s judgment as to the validity of the will is nullified.)   Further, the testator or testatrix can commence additional legal proceedings in order to modify or revoke a will that has been declared valid and filed with the court, this process and procedure is identical to the original validation proceedings.

Under the Ohio law, following the testator’s or testatrix’s death, a judgment that declares a will valid during the testator’s life no subject to attack by an Ohio probate lawyer representing an interested person in the estate.

The advantages of the Ohio Statute allowing pre-death will contests are significant.  In the will contest handled by our firm the initial issues permeating all of the cases involve mental ability, intentions, and state of mind of the testator and whether the testator possesses sufficient mental capacity to make the will.  Also, issues as to whether or not the will was the product of undue influence or a mistake are typical issues arising in will contests.  Following the death of the testator, these factual issues are determined by looking at certain circumstantial evidence since the testator is not available to testify.  The advantage of the Ohio proceeding is that the court has the ability to evaluate and examine the testator’s intentions in a proceeding conducted while he or she is still alive.  This would include live testimony from the testator as to his or her intentions as well as the court’s ability to require a medical or psychiatric evaluation of the testator to determine the issue of whether or not the testator possesses the required testamentary capacity.  To some legal commentaries, the advantages all of a pre-death will contest procedure also include reducing the number of will contests and eliminating will contests that do not have any merit.  Further, it is possible that the pre-death will contest procedure would eliminate expensive will contests and ultimately save the already overcrowded judicial system from having to resolve additional issues after the death of the testator.

Florida will lawsuit and will and trust lawsuits challenging the validity of the will or trust do not occur during the lifetime of the testator, settlor, or testatrix, except in very limited circumstances.  Generally, these types of contests only occur after death for a variety of reasons including the obvious fact that having a pre-death determination by a court really resolves nothing since the testator or settlor may modify or revoke the instrument at any time prior to their death.  Further, these types of pre-death legal proceedings involving the issues of the issues surrounding the validity of a testamentary instrument necessarily create a high risk of damage to the testator’s personal relationships which are frequently not necessary to have during the lifetime of the testator.

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