Two months after filing for divorce, Larry King signed a handwritten will leaving his entire estate to his children. Although he had been married to his wife Shawn for 22 years, King left her absolutely nothing, preferring to split his estate between his children equally.
In our first two posts, we considered ways Shawn could have protected herself. For example, she could have signed a prenuptial agreement guaranteeing her certain property on Larry’s death. Alternatively, if she lived in Ohio, she could have made a claim for an elective share of his estate even if she was cut out of the will.
In this third post, we consider another option: Shawn could challenge the will’s validity in probate court, called contesting a will. Every state has certain requirements that a will must satisfy, and any defect can render it invalid. This would mean Shawn could then inherit under the terms of a previous will or under the state’s intestacy laws.
What Are the Requirements for a Will?
Each state sets its own. Ohio has several laws that layout our requirements, which you can find in Ohio Revised Code §§ 2107.02-2107.15:
- The testator (the person creating the will) must be at least 18
- The testator must have had the capacity and not been unduly influenced
- The will must be in writing and signed by the testator
- Two people must witness the testator sign and sign in the testator’s presence
- The two witnesses must be at least 18 years old
Generally, the testator cannot leave a gift to a witness, unless the witness would receive a share if the testator died without a will.
Interestingly, Ohio law allows for handwritten wills. See ORC 2107.03. So Larry King’s handwritten will could have been valid if submitted to an Ohio probate court.
What Does Capacity Mean?
A testator needs the capacity to draft a valid will. In Ohio, the language is being “of sound mind.” Generally, a testator will have capacity when they understand the extent of their estate and that they are creating a will.
They also should know their family and the identities of who they are leaving their estate to. If the testator suffered from dementia or Alzheimer’s, then the will could be invalid.
At the time he drafted his handwritten will, Larry King was in his 80s. However, that alone does not mean he lacked capacity, so we are not sure his widow can challenge the will on this ground.
What Is Undue Influence?
For a will to reflect the testator’s intent, he or she cannot be coerced or unduly influenced to create a will. For this reason, our statutes require that the testator not be “under restraint” at the time of the will’s creation. Contesting a will is possible if this requirement is not met.
As Ohio courts have held, “under restraint” incorporates the concept of undue influence. Essentially, this means that a person substitutes their own desires for the testator’s, so the will is invalid. An Ohio court would look to the following factors:
- Whether the testator was susceptible to being influenced, such as being in ill health
- Whether someone had the opportunity to exert undue influence on the testator
- Whether this person did, in fact, exert improper influence or attempt to
- Whether the will actually show the effect of this influence
Are There Other Grounds for Contesting a Will?
Yes, there are several grounds for contesting a will. You might allege that the will was fraudulent or that a later, valid will exists that has not been submitted to the probate court. You could also submit evidence that the will before the probate court was revoked.
Ohio’s Intestacy Laws
When a will is invalid, then one of two things can happen. Either a prior, valid will gets admitted to probate, or the estate passes according to the state’s intestacy laws because there is no will.
To die “intestate” is to die without a will. Ohio outlines who inherits the probated estate in that situation, and it depends on if the decedent was married and had children:
- A spouse is left behind but there are no children: the spouse receives everything.
- A spouse is left behind and the only children left behind are those the spouse had with the deceased: the spouse still inherits everything. The reasoning is that the spouse will look after the couple’s children and leave them assets when he or she dies.
- A spouse has left behind along with children the deceased had with someone else: the surviving spouse gets roughly a third or a half of the estate, depending on the number of children. The children get the rest. The reasoning is that the surviving spouse will not look after step-children or necessarily leave them anything.
Don’t Leave Anything to Chance
Lawrence Law Office encourages people to take the example of Mrs. King to heart and to protect themselves. Contact us today to schedule a time to meet.