Nichole Y. Shafer
Guest Columnist
It is common knowledge that when a person passes away, a will is used to dispose of their assets how they wish. Further, it is common knowledge that in order to make a will, you must be an adult. (Some states actually allow minors to create a will in certain circumstances.)
But, in Ohio, anyone who is at least 18 years old can make a will.
Nowadays, the person who is creating the will to distribute their assets and pay off their debts after they die is called the “testator.” The term testator used to be used to identify a male who has made a will, while the term “testatrix” was used to reference a female who has made a will. However, now the term testator is used regardless of gender identity.
Not only do you have to be 18 years old in Ohio to make a will, but Ohio law also states you must be of sound mind. While common jokes people say about this element are: 1) that they are never of sound mind, or 2) you have to have a mind to be able to have a sound one. But luckily the law imposes a standard of what “sound mind” means. The law defines sound mind as being a state when a testator is able to understand the nature of their assets.
Therefore, when executing a will, it is common for the attorney who drafted the will to pose questions to the testator. These questions may be things like, “What property do you have?” “Do you have any bank accounts?” “Do you own any collectibles?” “Who should get your property when you pass?”
Additionally, when looking at if a person has a sound mind, the law states you must consider if the testator knows the consequences of making a will and if they are able to make reasonable judgments about the matters the will controls.
Finally, the last element to look at to make a will in Ohio is if the person is under restraint.
Specifically, in Ohio if someone is not under restraint, they are deemed to have executed their will free and voluntarily. This means that the testator’s decision to make the will must have been free and voluntary and not the result of coercion or improper persuasion.
If a testator had a literal gun to their head when executing a new will, Ohio law would find that will was not executed voluntarily.
However, if a person threatens a spouse to execute a will or else they will file a divorce, or an argument would result, or a separation, or some other negative outcome, these are not necessarily examples of a lack of a will being executed freely and voluntarily. This is because a person could have said “no.” However, to the contrary, if there is a history of abuse, and it is proven quite convincingly, then it could be used to prove that a will was not executed voluntarily.
To make a will in Ohio you must be 18 years old, of sound mind and must do so voluntarily.
Nichole Y. Shafer is an Ohio-licensed attorney at Schroeder Law LTD in Putnam County. She limits her practice to business, real estate, estate planning and agriculture issues in northwest Ohio. She can be reached at [email protected] or at 419-659-2058. This article is not intended to serve as legal advice, and specific advice should be sought from the licensed attorney of your choice based upon the specific facts and circumstances that you face.
