One of the broad issues on this conference's agenda is the prevention of financial fraud, abuse and exploitation.

Financial fraud, abuse and exploitation can be practiced in many ways. One of these ways involves the execution of a Will. This has been most clearly addressed by a former president of the American Academy of Psychiatry and Law (AAPL), Irwin Perr, MD, JD, in an important paper which he delivered to the American Forensic Society (AFS) and published in the Bulletin of the APPL, Vol IX, No. 1 under the title "Wills, Testamentary Capacity and Undue Influence".

The purpose of a Will is well known. This purpose is to avoid any conflict after we die about our wishes for the distribution of our estate. This purpose is defeated when our Will's validity is challenged.

Ohio Revised Code §2107.081 - §2107.085 is reputed to be a means of avoiding a Will contest after we die. More specifically, Ohio Revised Code §2107.081 - §2107.085 sets forth a procedure that we can follow while we are still alive to prove that our Will is valid. (Aside: As part of this procedure, §2107.081 requires that all persons with an expressed or expected interest in our Will be named as parties to these proceedings, thereby ensuring them due process and the opportunity to protect their interests against negligence and wrongdoing.)

So far as Ohio Revised Code §2107.081 - §2107.085 prevents opportunists from challenging a Will which we have proved to be valid, it has merit.

However, Ohio Revised Code §2107.081 - §2107.085 does nothing to prevent opportunists from inducing us to change our Will or execute a new Will when we are least able to resist fraud and undue influence.

In other words, we can use Ohio Revised Code §2107.081 - §2107.085 to prove our Will is valid, but opportunists can subsequently cause us to execute another Will at a time when we might not even realize that we are doing so. When that happens, the last Will we signed will be upheld, unless someone contests it and persuades the court that it is not valid.

In order to be as clear as possible, please note what Paragraph (D) of Ohio Revised Code §2107.084 currently provides regarding any change that we might make to a Will which we have already proved valid. In particular, please note that as a result of Paragraph (D), opportunists can circumvent the Will whose validity we have already established merely by inducing us to sign a new Will which begins (as most Wills do) by revoking all previous Wills.

As a result of Paragraph (D), Ohio Revised Code §2107.081 - §2107.085 fails to do anything to prevent opportunists from inducing us to execute a new Will when we are least able to resist fraud and undue influence.

In order to overcome this serious limitation, it has been proposed that Paragraph (D) be changed from

(D) A testator may also modify a will [which has been declared valid and filed with a probate court pursuant to this section] by any later will or codicil executed according to the laws of this state or any other state and may revoke a will by any method permitted under section 2107.33 of the Revised Code.

to

(D) A testator may stipulate in his will [which has been declared valid and filed with a probate court pursuant to this section] precautions to protect the interests of his heirs against negligence, mistake, fraud and undue influence under some or all circumstances. For example, a testator may stipulate that this will should not be modified or revoked except in accordance with Paragraph (C) under some or all circumstances. If the testator stipulates such precautions, the courts must honor them. If the testator does not stipulate such precautions, then the testator may modify his will by any later will or codicil executed according to the laws of this state or any other state and may revoke it by any method permitted under section 2107.33 of the Revised Code.

In summary, we can build upon Ohio Revised Code §2107.081 - §2107.085 in order to provide all of us the tools that we need to protect our estates against predators. This is important to anyone who has reservations about the reliability of other safeguards, often as a result of their own or someone else's experience. It is also important to anyone who professes to be more concerned about their heirs than themselves, as many seniors do.

It has also been suggested that Ohio Revised Code §2107.081 - §2107.085 be revised and extended in other ways which deserve your consideration.

For example, suppose that everyone concerned agrees to accept the validity of the Will which you submit for proof in accordance Ohio Revised Code §2107.081 - §2107.085. What needs to be done in that situation to prove this Will's validity? How can you prevent protracted and expensive proceedings under such circumstances?

Suppose, in another instance, that you want to exclude a party specified by Ohio Revised Code §2107.081 - §2107.085 from the proceedings. Should you be able to prove this wish at the time you prove your Will valid? In other words, should you be able to establish at the time that you prove your Will valid that you wish to exclude this party from whatever proceeding you next initiate regarding your Will (at which time you might rescind this wish)?

The execution of a Will is only one way in which financial fraud, abuse and exploitation can be practiced. Code analogous to Ohio Revised Code §2107.081 - §2107.085 could provide similar protections against the financial fraud, abuse and exploitation that is practiced by means of other legal instruments, including trusts, deeds, and POAs.