A will is considered valid until proven otherwise.
Are you wanting to discredit a will?
Do you think someone exerted too much influence?
Or are you worried someone you disinherited will bring this charge?
According to a recent court decision for Young v. Bellamy, the Supreme Court of Ohio demonstrated that overturning a will is no simple process.
What happened in this particular case?
The granddaughter of the willmaker was removed from the estate plan over a five year period.
She said her grandfather lacked the capacity to execute his final will.
The other relative brought in evidence to refute her claim.
Three affidavits from unbiased third party witnesses who were there when the will was signed.
These witnesses stated he was in good health mentally and was not being forced to act.
The court made it clear: invalidating a will would take more than even subtle influence.
In fact, the court gave four criteria for proving undue influence.
What are they?
- The testator must be susceptible
- The opportunity for an individual to exert undue influence must exist.
- An individual must have attempted to or exerted improper influence.
- The effect of the improper influence must be shown.
The granddaughter did not stop fighting.
She submitted an affidavit claiming her grandfather did not remember executing the will and suggested she get it changed.
The Supreme Court found the affidavit from the granddaughter to insufficient to overturn the will and the testimony of the witnesses.
According to the Supreme Court the testator had testamentary capacity.
He had sufficient mental capacity to meet four criteria.
What are they?
- He could understand the nature of what he was doing.
- He understood generally what belonged in his estate.
- He knew the names of his heirs.
- He appreciated his relationship to his family members.
If you are considering bring a case to overturn a will, consider whether your case can address these criteria.
If you do not want your will to be thrown out, work with an experienced estate planning attorney.
He or she will have unbiased witnesses present to confirm your capacity.
So, how do you find an "experienced" estate planning attorney?
First, ask around. Friends, family and other professional advisors are trustworthy sources.
Second, conduct an "organic" search on "Google" for "estate planning" near you (e.g., "Estate Planning Anytown MoKan").
Third, either way, verify! Check out the education, experience, ratings and client reviews of any attorney before you contact him or her.
In fact, I use both of these services to thoroughly vett attorneys before referring members of our "client" family for legal help in other areas of law or for matters in jurisdictions outside Kansas or Missouri.
Remember: “An ounce of prevention is worth a pound of cure.” When making your financial, tax and estate plans, do not go it alone. Be sure to engage competent professional counsel.
For more information about estate planning in Overland Park, KS (and throughout the rest of Kansas and Missouri), visit our estate planning website and be sure to subscribe to our complimentary estate planning e-newsletter while you are there.
Reference: Supreme Court of Ohio (May 24, 2017) “Young v. Bellamy”