A will can look perfect, the person who signed it can seem clearly competent, and the document can still be dragged into court by a disappointed heir. The reason is older than the United States. A will takes effect only when its author is dead, which means the one witness who could say what he meant, and whether anyone pressured him, can no longer testify. English law built a system of strict formalities and open challenges around that problem, and American law inherited most of it. This article traces that history, from medieval scriveners to the Lincoln County War, explains how a will contest works today in Ohio and Missouri, and shows what the modern self-proving affidavit accomplishes and, just as important, what it leaves open. The point is the vulnerability. Once you see it, you can plan around it.
Why the Law Distrusts a Dead Person's Paper
For centuries, wealthy landowners relied on professional scribes, called scriveners, and later solicitors to write their deeds and wills. Illiteracy was common, so the owner often could not check what the scribe wrote. The person holding the pen was often close to the dying owner and sometimes stood to gain. The worry was never abstract: a document that moves property at death is exactly the kind of paper that invites forgery, alteration, and pressure on a failing relative, and the author cannot come back to say it was not what he wanted. Courts still look closely today when the person who arranged or drafted a will receives something under it, and that scrutiny is a direct descendant of the old suspicion.
English law answered with formalities. The Statute of Frauds of 1677 required a devise of land to be witnessed by three or four credible witnesses in the testator's presence, or it was void. The Wills Act of 1837 later set a uniform rule for wills, requiring signature and two witnesses, and applied to wills executed after January 1, 1838. Disputes over attestation kept reaching the highest courts; Hindmarsh v Charlton, decided by the House of Lords in 1861, turned on the Wills Act's attestation requirements. The Thellusson Will Case turned on allegations that the scrivener “unduly influenced” or forged the will. American states adopted this approach, and their statutes still start from the same idea: a will is valid only if the testator signed it and the right people witnessed it properly. A missing witness or a defective acknowledgment can still doom a will, because the law assumes the dead person cannot return to explain the mistake.
By the time America was colonized, English law nearly presumed every written will might be the product of a scrivener’s sleight of hand, hence the strict formalities and low bar for challenges.
Colonial & Early America: The Same Distrust Imported
- 1600s–1700s: In Virginia, Massachusetts, and Pennsylvania, only a handful of men (often the local clergyman or notary) could draft legal documents. Wealthy planters like George Washington used scriveners or attorneys in London. Fraud stories abounded. The rights of women, as widows or heirs, to inherit and manage their fortunes were hard-fought. The issue of slavery, too, played a part in this mistrust, as wealthy landowners sought either to free their slaves upon their death or provide for their safety and comfort, leading to contests and disputes.
- Post-Revolution: States copied English statutes almost verbatim. The Statute of Wills 1837 (still influential) and local laws kept the witness rule and the right of “caveat” (contest) by any heir.
- 19th Century Explosion of Contests: As literacy rose, so did will contests, often over scriveners’ sloppy handwriting, missing commas, or alleged "undue influence" by the draftsman. Courts routinely allowed juries to void wills on the slimmest evidence of irregularity.
The Old West: When a Dead Man's Money Starts a War
You've probably watched a Western movie or read a Western novel that touches on fraudulent land acquisition. The plot is common: a growing rancher acquires property through fraudulent deeds and wills, with the help of corrupt law and local judges, requiring a hero to intercede. These stories are based upon real claims.
The Lincoln County War, which was the backdrop against which 'Billie the Kid," became part of American history, fought from 1878 to 1881, shows how much damage a dispute over a dead man's property can do. It was not a will contest, per se, but it began in the same place: an estate with no one left to settle what the dead man intended. Historians recount that it began with the estate of Emil Fritz, a merchant who died in 1874. His executors hired the attorney Alexander McSween to collect a life insurance policy. McSween held on to the money, the Murphy-Dolan store claimed it was owed a debt, and the quarrel led in February 1878 to a court order to seize McSween's assets, a seizure that mistakenly swept in the property of his partner, John Tunstall. The killing of Tunstall soon followed, and a fight over money in a dead man's estate became a shooting war.
Perhaps you watched the movie Killers of the Flower Moon, a 2023 Martin Scorsese-directed film adaptation of the David Grann nonfiction book of the same name. It covers the Osage murders in 1920s Oklahoma. The Osage Nation held mineral rights to land that turned out to sit on enormous oil deposits, and individual Osage held “headrights” to the oil income, which made them some of the wealthiest people per capita in the country. A series of murders followed, along with suspicious deaths, including poisonings and bombings, that moved headrights to white relatives by marriage and to others who stood to inherit. The FBI’s investigation was one of its early major cases.
The details in each of these narratives differ from a modern contest, and different writers tell the story differently, but the lesson is the same. When the person who knew the plan is gone, whoever controls the paper tends to control the outcome. Plans that survive are the ones built, from the start, to withstand a challenge. That's why we encourage resilience as a discreet goal of a plan; consider "Resilient Estate Planning- The Critical Difference a Trust Makes."
The Formalities at a Glance
| Era | Law | What It Required or Changed |
| 1677 | Statute of Frauds (England) | A devise of land had to be attested by three or four credible witnesses in the devisor’s presence, or it was void. |
| 1837 | Wills Act (England), applying to wills executed after January 1, 1838 | A uniform rule for wills: signature and two witnesses. |
| Today, Ohio | R.C. 2107.18 and 2107.76 | The court must admit a will whose face shows it was executed in compliance with the law, and witness testimony is discretionary. A contest generally must be filed within three months after the certificate of service of notice of admission is filed. |
| Today, Missouri | RSMo 474.337 and 473.083 | A will may be self-proved by a notarized acknowledgment by the testator and witnesses. A contest must be filed within six months after probate or first publication of notice of letters, whichever is later. |
How a Will Contest Works Today
In both states, a will that is admitted to probate can still be challenged, and the challenge is a lawsuit with a short deadline. In Ohio, the contest generally must be filed within three months after the certificate of service of notice of the will's admission is filed. In Missouri, a contest must be filed within six months after the will is probated or notice of letters is first published, whichever is later, and it may be brought by any person interested in the probate of the will, including heirs and devisees under an earlier will.
The grounds are familiar. A challenger may say the testator lacked capacity, was unduly influenced, was defrauded, or did not sign the will as the law requires. Both states allow a jury, but they divide the roles. In Ohio, each party to a will contest has a statutory right to a jury trial if it makes a timely demand, and in Missouri a party may require a jury. In both states, the judge decides the legal questions and the jury decides disputed facts. The line is not always clean. If there is no real factual dispute, a court can decide a question such as capacity itself, but it may send an underlying factual dispute on which the answer turns, such as whether undue influence occurred, to a jury.
Ohio also applies a presumption in some of the cases that matter most to older clients. Where a beneficiary is a fiduciary, such as an agent under a power of attorney, Ohio courts presume undue influence, which creates a fact question. Courts also look carefully when the person who drafted a will receives something under it, but that is scrutiny, not an automatic rule that voids the will. Fact questions are what make these cases slow and expensive. They are generally not decided on the face of the document.
The Modern Fix: The Self-Proving Affidavit
A will that is not self-proved has a practical problem. When it is offered for probate, the people who watched it signed may have to appear in court years later and swear that the formalities were followed. The witnesses may have moved, forgotten, or died.
Missouri solved this with RSMo § 474.337, which lets a will be self-proved by having the testator and the witnesses acknowledge it before a notary, either when the will is signed or later. The notarized acknowledgment is attached to the will and, in the words of one Missouri practice treatise, it alleviates the need for the witnesses to appear before the court to prove the will. That is the whole point: the will can be admitted without anyone having to find the witnesses.
Ohio gets to a similar place by a different route. Ohio has no statute recognizing self-proving affidavits, and a notary block or a detailed attestation clause does not give a will self-proving effect. Instead, under Ohio Rev. Code § 2107.18, the probate court must admit a will if its face shows that it was executed in compliance with the law. Witness testimony is discretionary, not required, which is the practical counterpart of Missouri's self-proving affidavit. The lesson is the same in both states: proper execution at signing clears the first hurdle.
What a Self-Proving Affidavit Does Not Do
A self-proving affidavit helps a will clear the initial hurdle of proof. It does not make the will immune from challenge. It speaks to how the will was signed, not to whether the testator understood what he was signing or whether someone overpowered his judgment. Everything that matters in a serious contest- capacity, undue influence, and fraud- is still open, and any interested person who files within the deadline can still raise it.
The risk is real but should be sized correctly. Most wills are never contested, and a self-proved will is easier to admit and harder to attack on the formalities. But a will that leaves an unequal share to the child who helped the most, or cuts out a child, or was signed shortly before death, is the will that gets challenged, and the affidavit does nothing to protect it from the arguments that will actually be made. The affidavit removes a technical weapon. It does not remove the fight.
Where Trusts Fit
A funded revocable trust avoids the probate admission step, but it is not exempt from challenge. A challenger can still allege that the settlor lacked capacity or was unduly influenced. The practical differences are different procedure and, usually, a different clock. In Ohio, a challenge to a revocable trust must be brought by the earlier of two years after the settlor's death or six months after the trustee sends the challenger a copy of the trust and a notice. Missouri's rule is the earliest of three deadlines.
One Ohio wrinkle every planner should know. In Gehrke v. Senkiw, applying a prior Ohio Supreme Court decision, a Second District Court of Appeals held that where the settlor's will incorporated the revocable trust by reference, the trust could not be challenged without also challenging the will, and the three-month will-contest deadline applied. The General Assembly then responded with H.B. 595, which added Ohio Rev. Code § 2107.05(C): a will incorporates a trust instrument only if it shows that intent with words such as "incorporate" or "made a part of," and merely identifying a trust is not enough. According to the bill's notes, as summarized by one practitioner, the amendment abrogates the looser approach of Hageman and Gehrke. It applies to testators who die on or after its effective date. The practical result is a choice, not a trap. A will that clearly incorporates the trust still brings the trust within the three-month will-contest window, but the trust must be deposited with the probate court, which makes it part of the probate file. A pour-over will that merely names the trust no longer incorporates it, so the trust's own deadlines apply. Older documents and ambiguous pour-over language remain a wrinkle, so how a pour-over will is worded can still change how the trust is attacked..
The Contest Windows Compared
| Document | Ohio | Missouri |
| Will | Three months after the certificate of service of notice of admission is filed (R.C. 2107.76). | Six months after the will is probated or notice of letters is first published, whichever is later (RSMo 473.083). |
| Revocable trust | The earlier of two years after the settlor’s death or six months after the trustee sends a copy of the trust and a notice (R.C. 5806.04). | The earliest of two years after the settlor’s death, six months after the trustee sends a copy and a notice, or, for a trust receiving a distribution under the will, the date a will contest is barred, if the trust instrument was filed with the probate division within 90 days after first publication of notice of letters (RSMo 456.6-604). |
What Clients Can Do
- Get the Signing Right: Follow every formality in your state, and in Missouri add the self-proving notarization at the signing.
- Document Capacity: If anyone might later question your capacity, such as an older client or a client with a recent diagnosis, ask your physician for a contemporaneous letter close to the signing.
- Keep Beneficiaries Out of the Process: A beneficiary who finds the lawyer, attends the meeting, or helps with the draft hands a challenger the argument, and an agent under a power of attorney who also benefits raises the presumption of undue influence.
- Explain Unequal Treatment: If a child receives less, or nothing, say why in the document or in a separate signed letter, so the explanation is yours and not a rumor.
- Consider a Funded Revocable Trust: It avoids the probate admission step and brings different deadlines, but it is not immune. Review older pour-over wills for incorporation language, and use words that say what you intend.
Conclusion
A will is vulnerable to challenge because its author cannot speak for it. That vulnerability comes from centuries of experience with documents that move property after the person who could explain them is gone, from the scrivener's pen to the frontier courthouse. The self-proving affidavit, where it is available, solves a real and common problem by getting the will past the proof of execution. It does not answer the questions a contest is actually about. The best protection is a will, or a trust, that is signed correctly, supported by evidence of capacity, free of the beneficiary's fingerprints, and clear about why the plan treats people differently. For state-specific advice, please consult an Ohio or Missouri elder law attorney.
