One of the most common questions we hear is, “What makes a will legal?” Sometimes, the person asking is worried that their final wishes won’t be respected. Other times, we hear the question when someone suspects — for one reason or another — that a will shouldn’t hold up in court if challenged.
What does the law say about wills?
In Ohio, the law says that a will is valid if created by anyone over 18 years of age when:
- The testator (or author of the will) is of “sound mind and memory.”
- The testator is not “under restraint.”
In addition, most wills are expected to be written and signed (or signed in the testator’s conscious presence and direction if he or she is physically unable to sign) and witnessed by two or more people. Only in rare cases are oral wills permitted.
Now, let’s look at those first two points more carefully — because those are often the issues that cause the most disputes over a will.
What is sound mind and memory?
Essentially, a will can be invalidated if the person who wrote it was mentally incapable of understanding the significance of his or her actions or even unable to remember creating the will.
For example, imagine that you find out that your aunt had Alzheimer’s. Toward the end of her life, she paid for no less than five wills from five different attorneys, all of which were written within a month or two of each other and say different things. That might very well create a dispute about her “sound mind and memory” at the time.
What does “under restraint” mean?
Basically, this means, “Was the testator forced or coerced into writing the will?” Force need not be physical. People who are elderly, sick or physically declining can sometimes be manipulated or frightened into signing wills that they wouldn’t otherwise sign.
For example, maybe your wealthy uncle’s grandson moved in with him “to help” and quietly took over your uncle’s life in the last year or two. After cutting your uncle off from the rest of his family, he threatens to abandon your uncle unless he’s left everything in a new will.
The best way to avoid problems with a will is to talk to an elder law attorney early — a good relationship with your attorney can often eliminate questions that come up later.