Civil actions are filed when litigation is required to determine the outcome or interpretation of specific facts.
A complaint for will construction is filed when the language of a will does not clearly and definitely express or convey the testator’s intent or where the intention is obscured by virtue of inconsistencies in the use of words. Deficient grammar and poor expression do not raise the necessity to construe unless the intent of the testator is thereby in doubt.
Despite all of the possible questions that can be raised in the interpretation of the language of a will, the only true issues are intent, and effecting the intended result.
The function of the court in a will construction case is to determine and apply the testator’s intention, as expressed in the language of the whole will, read in the light of the circumstances surrounding its execution.
- In the construction of a will, the sole purpose of the court should be to ascertain and carry out the intention of the testator.
- Such intention must be ascertained from the words contained in the will.
- The words contained in the will, if technical, must be taken in their technical sense, and if not technical, in their ordinary sense, unless it appears from the context that they were used by the testator in some secondary sense.
- All the parts of the will must be construed together, and effect, if possible, given to every word contained in it.
- If a dispute arises as to the identity of any person or thing named in the will, extrinsic facts may be resorted to, in so far as they can be made ancillary to the right interpretations of the testator’s words, but for no other purpose
The validity of a will may be contested through a procedure authorized by O.R.C. Section 2107.71, et seq. This statutory scheme is the only permissible method of setting aside a last will and testament and no other procedure will be allowed. The statute specifically provides for a civil action to be brought in the county in which the will was admitted to probate.
A will contest action may be brought to challenge a will or codicil admitted to probate, so long as it was not declared valid upon being submitted by the maker during his or her lifetime and thereafter retained by the judge in the judge’s possession.
An action to contest a will must be brought within three months after the filing of the certificate required by O.R.C. Section. 2107.19 (stating that the appropriate persons have received notice that a will was admitted to probate)
Sell Real Estate
If the power to sell is not clearly set forth in the will and if there is any doubt that the power can be “implied”, the fiduciary may wish to proceed with a statutory “sales case” under O.R.C. Sec. 2127.01. This statute establishes a procedure which ensures proper transfer of title and eliminates any question of the fiduciary’s authority to sell.
A declaratory judgment action is instituted by the filing of a complaint to establish the legal status or interpretation of a law or instrument. In some instances, the probate division has jurisdiction in this type of suit that is concurrent to that of the general division of the common pleas court.
Whenever property passes by the laws of intestate succession, or under a will to a beneficiary not named in such will, proceedings may be filed to determine the persons entitled to such property. The surviving spouse and heirs of the decedent including those whose names are unknown shall be made party defendants. After service of summons and hearing if all parties do not sign waivers, the court will find and adjudge who are or were the heirs or next of kin of the decedent, and entitled by the laws of this state to inherit the estate of the deceased, or the devisees or legatees named or unnamed in the will.
The Revised Code provides a special statutory procedure (O.R.C. Sec. 2109.50 to 2109.56) summary in nature, to discover concealed or embezzled assets of an estate, not limited to a decedent’s estate, but applying to all estates within the jurisdiction of the Probate Court. The specific statutory requirements must be followed to obtain a judgment under O.R.C. 2109.52 relating to concealed or embezzled assets of an estate.
The proceeding is initiated by filing a complaint with the Probate Court having jurisdiction over the administration of the estate. “Complaint” is used in the sense of an application for the issuance of a citation and not in the sense of a Civil Rule pleading. The complaint may be filed by any person interested in the estate, which would include the fiduciary, devisee, legatee, heir, or creditor. The Probate Court may also initiate the proceeding on its own motion. The complaint may be filed against any person suspected of concealing, embezzling, conveying away, or being or having been in possession of any moneys, chattels, or choses in action belonging to the estate. The complaint may be filed against a financial institution that conveys estate property to an unauthorized individual without the consent of the customer or the customer’s estate. A complaint may be made against the fiduciary by one interested in the estate.
Other complaints including but not limited to Quiet Title Actions, Presumption of Death, Actions on Sureties on Bonds, Continuation or Withdrawal of Life-Sustaining Treatment, or Termination of Trust.