Ohio Probate Litigation Law Update

Res Judicata: will contest, will construction, declaratory judgment action

Snell v. Kilburn, 2005 Ohio App. LEXIS 6382, (12/23/2005) 7^th Appellate District, Monroe County.

Decedent was divorced and son went with mom. Son maintained relationship with Decedent. Decedent's will left all property to girlfriend of many years; if girlfriend died (she did), all went to girlfriend's niece, Sharon. Son filed action to construe the will (asking the court to find that he receives the residuary) and contest the will. Sharon's motion for summary judgment was granted. Son appealed and also filed a separate declaratory judgment action asking for the residuary.

Son argued that the probate court could not construe a will in a will contest action, that there had to be a separate action. Court of Appeals found that the probate court had that authority by statute. Court also found that res judicata applied and the declaratory judgment action could not go forward as the same issues had been dealt with in the will contest/construction action.

Son argued that summary judgment was not proper because he had presented evidence that decedent did not know his natural heirs. Son was not named in the will and they had maintained a lifelong relationship. Probate Court and Court of Appeals found that this was not enough to overrule motion for summary judgment.

Last Will and Testatment - validity - signed at the end

The Estate of Richard Metz, 2006 Ohio App. LEXIS 4716, (9/15/2006) 6^th Appellate District, Huron County.

Decedent was survived by a son and a daughter. Son first found a signed document, which appeared to be copied from a form book, titled "Single Person's Will" dated 2002 which contained 2 items, an Executor Clause and a Definitions Clause. Son then found a copy of a Will from 1999. The 1999 Will was admitted to probate without the 2002 document being disclosed. The 1999 Will favored the son and specifically cut out daughter.

The 2002 document had Decedent's signature, an attestation clause, then, preceding the witnesses' signatures, a statement making no provision for daughter. It did not revoke the 1999 Will nor dispose of his assets. The 2002 document was offered for probate as a codicil to the 1999 Will. Daughter argued that the 2002 document was the final Will, it was made with testamentary intent, and since there was no language disposing of assets, the estate should pass by statute - giving daughter half of the estate.

The trial court granted summary judgment for son and daughter appealed. The Court of Appeals held that 2107.03 requires a Will to be "signed at the end". They further found that the clause in the 2002 document containing a declaration of intent to disinherit daughter was dispositive in nature. Because the dispositive clause appears after Decedent's signature, the 2002 document was not signed at the end and is invalid.

Motion to Dismiss / Will Contest

Vaia v. Young, 2004 Ohio App. LEXIS 6022, (12/2/04) 5^th Appellate District, Licking County.

Marlene died with a Will basically leaving her estate to her daughter, Christie Young. Plaintiffs were heirs at law of Lula Vaia. Lula died before Marlene. Plaintiffs alleged that Lula and Marlene were live-in companions and that they had previously made reciprocal Wills under which each left her entire estate to the other, with Plaintiffs and Defendant as residual beneficiaries. Apparently, after Lula died, Marlene changed her Will.

Defendant filed a Motion to Dismiss claiming that: (1)Plaintiffs lacked standing because they were not heirs of Marlene; and, (2) that there was no contract entered to make a will between Marlene and Lula. Trial Court granted Motion to Dismiss

Court of Appeals overturned trial court, accepting all factual allegations of Plaintiffs' complaint as true. Plaintiffs alleged that they would inherit under a prior will. Even though they did not have the Will, allegation is enough. (They did have Marlene's prior Will.) Also, Plaintiffs did not have to attach a contract to make a will, the claim for constructive trust was enough to pursue assets that Defendant obtained under alleged fraud, undue influence or duress.

Deeds - Sufficiency of Notary Acknowledgment

Taylor v. Kemp, 2005 Ohio App. LEXIS 6122, (12/12/2005) 7^th Appellate District, Belmont County.

In 1992, Ralph married second wife, who signed a prenuptial agreement waiving her rights to his estate. In 2000 Ralph signed deed naming wife survivor on his Coshocton County real estate and, 6 months later, he signed a deed naming her survivor on his Belmont County real estate. He died and Son was appointed fiduciary and filed an action to return the Belmont County real estate to the estate. He argued that the Belmont County deed was invalid due to insufficient acknowledgment by the notary. Trial Court found in favor of wife. Son appealed.

Son argued that notary testified she didn't ask Ralph if he signed "voluntarily"; (However, nothing requires the notary to ask if grantor signed voluntarily.) Appellate Court cited ORC 147.541(C)(1) which requires that the grantor "execute the instrument for the purposes stated therein". There was no evidence whether or not the notary asked Ralph if he signed the deed "for the purposes stated". Since Ralph signed in front of the notary and witness and stated he was now ready to sign the deed, the acknowledgment was sufficient. Some "evidence to the contrary" is required to prove insufficient acknowledgment because one who signs his signature to a document in the presence of another thereby acknowledges his signing to the other. Had the Son alleged Ralph signed because of fraud or undue influence, that would constitute "some evidence to the contrary" but Son only argued insufficient acknowledgment. Affirmed Trial Court decision.

Concealment Actions: Jurisdiction, Inter vivos transactions

Burwell v. Rains, 2005 Ohio App. LEXIS 1802, (4/22/05) 11^th Appellate District, Trumbull County.

Thelma's health was declining, she was approaching 90 years of age, and needed 24 hour-a-day care. She entered into a contract with an in-home nursing service. Shortly after the contract was signed, the care provider, and vice president of the care company (Martha), began to withdraw funds from Thelma's accounts, was named on j&s bank accounts, and was named as Thelma's attorney-in-fact. Thelma died and the executor filed an action against Martha. Trial court found Appellant guilty of concealing money from Thelma's estate. On appeal Martha argued that the probate court did not have jurisdiction under 2109.50: (1) over inter vivos transfers by a POA during Decedent's lifetime; and, (2) to consider transfers based upon contracts for services.

Court of Appeals affirmed. These actions are based upon ORC 2109.50, and proceedings under this section are quasi-criminal. This statute vests a probate court with jurisdiction to discover and retrieve assets that belong to an estate. Further, 2109.50 focuses on "ownership" and whether the asset is being impermissibly withheld from the estate. In this case the legal "ownership" was being challenged and so the court had jurisdiction. Court of Appeals found no difference if the transfer was under a contract for services.

Will Contest - No Contest Clause - “Good Faith” Exception

Modie v. Andrews, 2002 Ohio App. LEXIS 5624 (October 23, 2002).9^th App. Dist., Summit County.

Decedent’s will had a “no contest” clause. Plaintiff brought will contest arguing it was brought in good faith so the “no contest” clause would not apply. Trial court agreed. On appeal the Plaintiff argued Uniform Probate Code (“UPC”) contains an exception that states a “no contact” clause is unenforceable if probable cause exists to bring the action. Appellate Court disagreed and reversed, holding that Ohio does not follow the UPC and therefore no “good faith” exception exists.

Guardianship - Preference for Next of Kin

In the Matter of the Guardianship of Dorothy Lee, 2002 Ohio App. 02-LW-4580 (Nov. 15, 2002) 2^nd App. Dist., Miami County. .

Appeal by ward’s next of kin of Probate Court order appointing attorney as guardian. There was no dispute that the elderly ward was incompetent. Next of kin argued they have preference to be appointed guardian, similar to preference of appointing next of kin to administer estate. The trial court found that the person appointed need only be an “interested party” and that the attorney who filed the application, as an officer of the court, and at the urging of ward’s brother, satisfied that rule. Thus, there is no preference for the next of kin to be appointed guardian.

Will Contest - Testimony of Witnesses to Will

In the Estate of Ruth Lovett, 2002 Ohio App. 02-LW-4686 (Nov. 8, 2002) 6^th App. Dist., Erie County.

The Decedent’s will bequeathed all assets to the Erie County Humane Society and specifically to care for her cat, “Sinbad”. The Will stated that the rest of the family needed no financial assistance. Family filed a will contest and jury upheld the validity of the Will. On appeal family argued, that the will witnesses had to be satisfied that the Decedent was of sound mind and memory when the will was executed. Appellate court found that the statute simply requires that Decedent acknowledge before the witnesses that she knows she is signing a will and sign in their presence. Thus, the witnesses to the will are not required to determine testamentary capacity of the testator.