Requirements For A Valid Will In Ohio
Everyone who owns any type of property—a house, car, boat, bicycle, dog, bank account, etc.—should have a will. In Ohio, a will must meet certain requirements to be valid:
The testator (the person making the will) must be at least 18 years old;
The testator must be of sound mind;
The testator must not be under restraint or undue influence by another person;
The will must be in writing, either typed or handwritten;
The testator must sign their name at the end of the will; and
Two or more competent witnesses must also sign at the end of the will.
Adult of Sound Mind
First and foremost, the testator must be at least 18 years old and of sound mind. To be of sound mind, the testator must understand what it means to make a will. The testator also must understand the nature and extent of their own property, the objects of their bounty (typically who their spouse and children or grandchildren are), and how they intend to leave their property via their will.
Having dementia or Alzheimer’s does not necessarily mean that a person is no longer of sound enough mind to make a will. What it does mean is that an experienced estate planning attorney should help to determine whether the person has the capacity to make and sign their will.
Restraint and Undue Influence
Another essential requirement for a valid will is that the testator not be under restraint or undue influence. Courts decide whether undue influence exists on a case-by-case basis by considering factors such as whether:
The testator was susceptible to undue influence;
Another person had the opportunity to exert undue influence;
The undue influence was in fact exerted; and
The result shows the effect of such influence.
Signing the Will
It is important to follow the formal requirements for signing a will closely, or risk invalidating it. The testator must sign at the very end of the will. An Ohio court determined that a will was not valid because the testator included language disinheriting his daughter after his signature. In re Estate of Metz, 2006-Ohio-4809 (6th Dist.).
The testator must sign a hard copy of the will. Ohio does not currently allow electronic signing of wills. If a person is physically unable to sign their will, they may direct someone else to sign it for them, but that signature still needs to be in ink and not over a computer.
Witnesses to the Will
Ensuring that the will is properly witnessed is also critical. The witnesses should be 18 years of age or older and disinterested, meaning that the witnesses should not be anyone who would receive property through the will. If an interested witness signs a will, that witness forfeits whatever property they would have received under the will.
Just as a testator cannot sign a will electronically, the witnesses cannot attend the signing electronically. Witnesses cannot call or Zoom in when the testator signs the will. They must be physically present. An Ohio court invalidated a will in 2012 because the witnesses watched from downstairs over a baby monitor as the testator signed her will in an upstairs bedroom of the same house. The fact that the witnesses were not physically present with the testator when she signed invalidated the will. Whitacre v. Crowe, 2012-Ohio-2981, 972 N.E.2d 659 (9th Dist.).
Wills in Writing v. Oral Wills
Typically a will must be written in order to be valid, but there is an exception. An oral will can be valid when the testator is dying and cannot write the will by hand. Two competent witnesses must hear the testator’s oral will and must sign a hard copy of that will as witnesses within 10 days of hearing the testator speak their will.
The consequence of an invalid will is that Ohio’s statute of descent and distribution (not the person’s will) controls who gets the deceased person’s property. That property may go to different people entirely than the person intended.
If you have questions about how to make a valid will or whether your current will is valid in Ohio, talk to a local estate planning attorney. For questions about estate planning in Northeast Ohio, Lewis Legal, LLC is here to help.