Wednesday, October 21, 2009

Will Construction Actions

A "Will Construction Action" is very different from a "Will Contest". In the former, the Last Will is accepted as valid; in the later, the validity of the Last Will is being challenged.

There are many different reasons for filing a Will Construction case; however, typically I usually see situations where there is some "inconsistency" within the terms of the Last Will, or a situation where the language used in the Will is confusing or incomplete. In these situations, the Probate Court has to determine what is meant by the language in the Will.

I have handled several Will Construction cases in my office and I am experienced in gathering and presenting the evidence necessary to prove your case.
The Zigray Law Office, LLC is located in Maumee, Ohio (a suburb of Toledo); However, I handle probate litigation matters throughout the State of Ohio. I offer free consultations and in most cases, I am available to talk to you about your case in your home. I handle most of my cases on a "contingency fee" basis, which means I only get paid for my services if I obtain a recovery for you.
You can contact me through my email address at dan@zigraylaw.com or though our website http://www.zigraylaw.com/.

The following case is a recent illustration of a Will Construction case from Clark County, Ohio:

Montford Will v. Rokus, 2009 Ohio App. LEXIS 3368 (2nd Dist. Ct. App., Clark Co. 8/7/2009).

Mary Petticrew died in 2008 with a will that contained 23 specific bequests and a residual clause that left the remaining estate assets to the “STANLEY AND MARY PETTICREW FOUNDATION”, which was to have been created in a separate document. Stan predeceased Mary and neither Stan nor Mary had created the Foundation. The question was where should the residuary estate go? If it was found that the bequest to the Foundation lapsed, it would all go to Mary’s son under Descent and Distribution. The executor asked the court to determine (1) whether the residuary would pass to Mary’s son or (2) if the court can imply/create an entity to carry out the unstated charitable purpose. Because the issue involved a charity, the Ohio Attorney General was made a party to the case. After Motions for Summary Judgment were filed, the trial court found that the residuary clause created a “charitable trust” and Mary’s son appealed.

The sole function in a will construction action is to ascertain the intent of the testator. ORC 5804.05(B) states: “If the terms of a charitable trust do not indicate a particular charitable purpose or beneficiary, the court may select one or more charitable purposes or beneficiaries. The selection must be consistent with the settlor’s intention to the extent it can be ascertained.” The issue became whether Mary indicated a charitable intention in the will’s language even though she did not execute a separate document.

The Court of Appeals found that the intention to create a trust under 5804.02(A) requires the settlor’s present intention to do so. The specification in Mary’s will that the Foundation would be created by an instrument separate from the will operates as a condition precedent to the creation of the trust. Because Mary never executed that instrument, the residuary clause is insufficient to indicate the intention to create that charitable trust.

The Court of Appeals further stated that since Mary’s will said that the separate instrument would identify the charitable uses and purposes of the trust, they were not authorized to select a charitable purpose because Mary failed to state any ascertainable charitable intention (5804.05(B)) The Court of Appeals reversed and remanded.
The Zigray Law Office, LLC
1690 Woodlands Drive
Suite 200, Second Floor
Maumee, Ohio 43537
Phone: 419-897-7999
Facsimile: 419-897-7982

Wednesday, August 15, 2007

"Standing" to contest a Will?

In order for someone to be able to legally challenge the validity of a Will in Ohio, the contestant must have "standing". In short, the contestant must be someone who would inherit from the person if there was no Will, or, the contestant must be someone named in a prior Will. Without this "standing" you do not have the right to contest the validity of a person's Will in Ohio.

The easy situation is if you are a family member, you have a better chance of having standing, although, not all family members will have standing to challenge a particular family member's Will. Here is a situation where a family member would NOT have standing:

Husband and Wife have Wills leaving everything to the other.
Wife changes her Will leaving Husband 50% and Daughter 50%.
Wife changes her Will again, leaving Husband nothing, Daughter 50% and Son 50%.
Under the above scenario, Husband has standing because he would inherit if there were no Will.
Daughter would also have standing because she is named in a prior Will.
Son has no standing and cannot challenge the Will for his father.
It is more difficult if you are not a family member because you may not know of the contents of the prior Will and may not know if you were named in the prior Will.
I have experience with, and have dealt with, these situations many times and I have a vast amount of experience in challenging the validity of Wills in Ohio. If you have questions about contesting an estate, or challenging the terms of a Will in Ohio, you may contact me at dan@zigraylaw.com or through the website: http://www.zigraylaw.com.
The Zigray Law Office, LLC
1690 Woodlands Drive
Suite 200, Second Floor
Maumee, Ohio 43537

Phone: 419-897-7999
Facsimile: 419-897-7982

Tuesday, August 14, 2007

Inheritance Disputes - Bank Account Changes

Sometimes, a dispute over an inheritance is something other than a Will Contest. It may be along the lines of someone using a Power of Attorney to change mom's account into a joint account with themselves. If that occurs and mom dies without changing that account designation, the survivor's name remains on the account and they then become the account owner. The asset will not be divided according to the terms of the Will.

I am an attorney licensed in Ohio and I handle these kinds of cases throughout the State of Ohio. I have the necessary experience for obtaining the information on the accounts, (such as bank statements or copies of checks), and using that information in Court to reverse the improper transfer.

If you have experienced a situation such as this, contact me at
dan@zigraylaw.com or through the website at: http://www.zigraylaw.com/.
The Zigray Law Office, LLC
1690 Woodlands Drive
Suite 200, Second Floor
Maumee, Ohio 43537
Phone: 419-897-7999
Facsimile: 419-897-7982
Email:
dan@zigraylaw.com
Website: www.zigraylaw.com

Wednesday, September 20, 2006

Will Contests in Ohio

Will Contests
(authored by Attorney Daniel F. Zigray)

The typical situation when a person's Last Will & Testament is challenged is when one of the children is "cut out" from their parent's estate, leaving the entire estate to only one child.

There are procedures in the probate court which allow a person to "contest" that Last Will. The typical issues presented to accomplish that are to allege that the person who signed the Last Will ("the Decedent") was "not legally competent" or was subjected to "undue influence" by another.
- "Not Legally Competent"
The Decedent could be found to be "not legally competent" by reason of a physical ailment or disease, such as Alzheimer's Disease, or by reason of a mental illness such as schizophrenia or severe depression. These types of conditions can impair a persons mental functioning and memory. In all of our cases we obtain and review the Decedent's medical records, looking for the evidence that we know will help us to prove this claim.
- "Undue Influence"
Almost all of our cases which challenge the validity of a Last Will involve the allegation that the Decedent signed the Will while being subjected to "undue influence" by another. Typically the person who is doing the "influencing" attempts to isolate the Decedent from the other family memebrs who have been cut out from the Will. We have devloped several different methods for "flushing out" evidence to prove this claim and have had great success in doing so.

The Law Zigray Law Office, LLC, principal member Attorney Daniel F. Zigray, exclusively handles these types of cases. We have extensive experience in this area, having litigated many different matters in the various probate courts in Ohio including Will Contests, Trust Contests, abuses of Powers of Attorney, and many other types of inheritance disputes.

Often, these are emotionally charged matters, invloving litigation between family members. We have the experience necessary to obtain a recovery for our clients and guide them through these difficult cases.

Our office is located in Maumee, Ohio,(a suburb of Toledo); However, I travel to all parts of Ohio to represent clients in all areas of this State. Our phone number is 419-897-7999 and I offer free consultations and case investigations. In most cases, I am available to meet with you in your home to discuss your case. For more information please contact me at
dan@zigraylaw.com or through the web site at www.zigraylaw.com.
The Zigray Law Office, LLC
1690 Woodlands Drive
Suite 200, Second Floor
Maumee, Ohio 43537
Phone : 419-897-7999
Facsimile: 419-897-7982