Testamentary capacity is an essential legal tenant under Ohio law. In Ohio, any person who has attained the age of 18 and who has the capacity to make a will can execute the document. A person who lacks testamentary capacity at the time the will is executed cannot make the gifts recited in the will. Therefore, it is vitally important to make certain the person executing the will can do so. Otherwise, the will could be contested in an Ohio probate court and be tied up in litigation for years before the court allows disposition of the assets.
Columbus estate planning attorney Shannon Dawes, Esq. and her estate planning team at Dawes Legal, LLC possesses a keen understanding of the laws in Ohio that apply to execute a last will and testament. You and your family can trust Attorney Dawes and her staff to make certain all of the procedural requirements are satisfied when you execute, that is sign your will. You can be assured that the court will distribute your estate per your wishes if the event that someone challenges in an Ohio court your testamentary capacity to execute your last will and testament.
Ohio law presumes that a will duly executed is valid and the testator, or the person making the will, had the testamentary capacity to make the will and was also of the sound mind to do so. Anyone challenging the capacity of the person making the will bears the burden of proving any irregularity, including that the testator lacked the ability to make a will. Ohio law is stringent in this area. Ohio courts have ruled that a person who is mentally ill can still have the testamentary capacity necessary to satisfy Ohio law.
Ohio courts look for four signs, which if present when the testator executed the will, proves the testator had testamentary capacity. Those signs are:
- The testator shows that he or she understands and is aware of the fact that he or she is executing a last will and testament,
- The testator understands the extent of his or her estate and the property included therein,
- The testator knows the names and identities of the people to whom he or she is leaving gifts and those people who might reasonably expect to receive a gift under the will, and
- The testator knows his or her family.
Any contest to the will based on a lack of testamentary capacity must concentrate on the time the testator executed the contested will. Ohio courts permit the will contestant to look at evidence of testamentary capacity within a reasonable time before and after the testator executes the will. The meaning of reasonable time is subject to judicial interpretation and will depend on the facts of the case presented.
Columbus Estate Planning Attorney Shannon Dawes, Esq. will Help Protect Your Testamentary Intent
Shannon Dawes, Esq. for Dawes Legal, LLC has significant experience drafting wills for Ohio residents. She will ensure that all of the formalities required by Ohio law are observed, including making sure that her clients have the testamentary capacity to make their last will and testament. Call Attorney Dawes at 614-733-9999 to make an appointment to discuss your Columbus will and estate plan today.