Statements in Lieu of Frequently Asked Questions
Ohio is one of only a few states that provide a procedure for individuals to apply to have their will declared to be valid prior to their death. The process is intended to provide a means by which an individual making the will can assure that the last will and testament cannot be contested after the maker’s (testator’s) death.
Ohio’s statutes (RC 2107.081 to .085) contemplate that a maker of a will may file in the maker’s county of domicile a Complaint (a Petition) for a Declaration of the Validity of the maker’s last will and testament. This filing necessarily places the testator, the next of kin who would inherit under the law if there was not a will, and the beneficiaries named in the will in adversarial positions. Notice of the filing is given to all interested parties and a hearing is held where an examination of made of the testamentary capacity, the compliance with the will formalities statutes, and the presence of undue influence or duress.
Unascertainable beneficiaries are represented by the doctrine of virtual representation by persons with a similar interest or by a guardian ad litem.
At the conclusion of the proceedings the Court issues a declaration determining whether the will is valid. If it is determined to be valid the will is sealed and retained on deposit by the Court until death and is available only to the testator. If the will is removed from the Court by the testator the declaration of validity is a nullity and the will may be contested following death by interested persons.
The process can be disruptive to the family unit. Another potential downside for contesting parties is that the next of kin and prospective heirs must bear the costs of the litigation well prior to receiving any of the benefits. The major benefit is that the determination is being made when the evidence and testimony are available – prior to the testator’s death.
The procedures for modification or revocation of a will that has been previously declared valid through this process are set forth in the applicable statutes.
Under current statutes, the pre-death process is available only to determine the validity of wills.