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The Risk of Challenging a Will in Ohio

By Adam Landon

September 17, 2019

A no-contest clause is a provision commonly found in wills which sets forth that a party who institutes a challenge to set aside a will forfeits his or her right to any share of the estate. While a large number of states have adopted the Uniform Probate Code, including rules governing the enforcement of no-contest clauses in wills, Ohio continues to strictly enforce such clauses that can strip a challenging beneficiary of a proposed bequeath should he or she fail in an attempt to set aside a will.   

Pursuant to Sections 2-517 and 3-905 of the Uniform Probate Code, a provision in a will purporting to penalize an interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable if probable cause exists for instituting proceedings.  This standard allows a party to challenge a will without danger of forfeiture so long as the challenger can provide evidence that probable cause existed to bring the challenge. While states that have adopted a probable cause exception to the enforcement of no-contest clauses vary on what is required to establish probable cause, generally the challenger would have to provide evidence that the facts known by the challenger would cause a reasonable person to believe that there is a likelihood that the requested relief will be granted after further investigation or discovery.   

Ohio has not adopted the probable cause exception and instead courts have consistently ruled that no-contest clauses are valid and strictly enforced.  In 1869, the Ohio Supreme Court determined that no-contest clauses are valid and subsequent Ohio courts have specifically rejected attempts by parties to apply a probable cause or good faith exception to limit enforcement against challenging parties.  In Bender v. Bateman, the Fifth District Court of Appeals held that though it has been strenuously insisted that there is an exception to the general forfeiture rule when the legatee, upon probable cause, and in good faith, contests the will, such an exception would in fact destroy the rule itself.  More recent decisions have continued to follow this reasoning in upholding no-contest clauses without consideration as to whether such was initiated with probable cause and good faith.

Given how Ohio courts address no-contest provisions in a will, a potential challenger must be made aware of the risks associated with such a challenge as even those initiated in good faith and with some supporting facts may result in a total forfeiture of the challenger’s right to share in the estate. 

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