Proving Incapacity in Cleveland Probate Disputes
There are numerous types of diminished mental states, some of which do NOT make a person incapacitated or invalidate a will. We know how to prove the validity of a will or trust based on incompetency factors. We are also prepared to protect the authenticity of a will or trust against false incompetency allegations.
Learn How Incapacity is Proven in Probate Disputes
A judge will make the determination as to incapacity or incompetence. Our Cleveland estate dispute lawyers will make the best case possible based on your side of the dispute. We frequently consult industry-leading experts prepared to show if a lack of mental capacity was an issue.
If medical evidence is available as to competence, this will be persuasive. The decedent may have been interviewed and asked questions such as:
- About how much money do you have?
- Who would benefit if you did not execute a will?
The decedent may appear more alert or oriented than he or she actually was. The signer of a will must be able to understand what is in the document, and its effects, at the time he or she signs it. Even though the person can make simple day-to-day living decisions, the person may not be capable of understanding his or her distribution of a complicated estate.
Friends and family can testify that the person was or was not behaving normally, recognizing people, or responding appropriately to questions. Our Cleveland probate dispute attorneys handle these matters constantly. It is not a sideline for us. We are very familiar with the evidence that will persuade a judge.
Proving incapacity is usually easier than proving undue influence. To prove undue influence you must expose wrongdoing — which the wrongdoer has tried to conceal.
PROVING Undue Influence
We have seen this scenario, or something similar, play out many times:
A person comes in to "protect" a loved one who has become incapacitated or simply "needs" or "wants" assistance or companionship. Next, that person then cuts off communication between the loved one and the rest of the family. They put themselves in a position so that the loved one views them as their advocate. Then, they take advantage of that position by exerting undue influence, bringing in a new lawyer and getting themselves written into a will or trust.
If you believe this situation has happened to your family member, our Cleveland undue influence lawyers can help.
Undue Influence is a Nicer Term for Manipulation
When someone exerts undue influence to get included in a will or an estate, they are guilty of manipulation. Often, this manipulation of an elderly person can be very ugly.
We have seen cases where people have been forced to sign legal documents prior to or immediately after surgery. We have seen cases in which elderly people have been told that they will have to go to a nursing home if they do not sign over a life insurance policy. This is exploitation of the elderly. This is wrong.
Our goal is to set things right.
The Challenges of Proving Undue Influence
Proving that undue influence has been exerted can be challenging. Often, the elderly target was still able to think for himself or herself, but was put into a position where the ability to make critical decisions was compromised. Our team knows how to address these matters in pursuit of positive results for you and your family.
Those creating or finalizing wills and trusts are usually doing so as their health is in decline. Sadly, our mental acuity declines also, in our final years. Not only is important communication with loved ones often lacking, but susceptibility to undue influence and confusion about what we are doing are possible.
The contents of a will or trust are not generally known before its drafter has passed on. There is often surprise or even shock at the contents of the documents. Is this really what our loved one meant to do with property and assets?
With the star witness (the decedent) gone, a circumstantial case must be made, for whichever side you find yourself on. There are certain actions of the decedent or those around him or her, or events that may call into question the validity of a will or trust.
- Did a single individual have sole access to the decedent?
- Is there evidence this person attempted to keep others away from the decedent?
- Was there a sudden change of estate planning attorneys?
Sometimes an elderly person is not a victim of undue influence but rather lacked capacity due to disease. This can explain unexpected and otherwise inexplicable decisions expressed in a will or trust.
Our Cleveland undue influence lawyers assess the strength of your case, whether legal action is worth your time and expense, and how we would propose to remedy the injustice.
- Changes to Ohio’s Rules of Civil Procedure Effective July 1, 2020
- Mediation: An Alternative Approach to Estate and Trust Controversies in the Time of Coronavirus
- You Can Count on Reminger During These Uncertain Times
- Ohio’s Response to COVID-19 Impacting Probate/Trust Law and the Courts
- Estate Planning in Light of Coronavirus (COVID-19)
- In re Estate of Shaffer – Does the Voiding Statute Apply to Non-Conforming Wills?
- Adam M. Fried Scheduled to Speak at 2020 The Ohio American College of Trust and Estate Counsel Fellow Meeting
- Timothy Gallagher and Paul Shugar Author Article for January/February 2020 Issue of Probate Law Journal of Ohio
- Attorney Ethics Investigation Uncovers Financial Abuse
- Franklin Malemud Authors Article for November/December 2019 Issue of Probate Law Journal of Ohio