• Trial court must hold hearing on motion to compel arbitration where the trust asserted the arbitration agreement was not signed by trustees and/or was signed by someone who lacked capacity.
    Feb 9, 2023

    Menter Family Trust v. Menter, 8th Dist. Cuyahoga No. 111405, 2023-Ohio-367

    Therese and Jerome Menter created a trust of which they were trustees. In summer 2020, they created an investment account for their through Mr. Mawby and the investment company One Seven, with the account being housed at TD Ameritrade. Sometime after this, one of their children, Richard, and Mawby met with Therese who allegedly transferred 85% of the investment account (over $500,000) to Richard and Richard’s wife. 

    Subsequently, Therese died and one of their children, Michael, became a co-trustee with Jerome. On behalf of the Trust, Michael sued Richard and his wife, the financial advisor Mawby, and the investment companies for return of funds. As Trustee, Michael alleged Therese lacked capacity to transfer the money and/or that Richard unduly influenced her. 

    Defendants filed a motion to compel arbitration based on the investment advisory agreement. In disputing the requirement to arbitrate, the Trust asserted that the signatures on the investment advisory agreement were not complete and/or were forged and/or were not signed by Jerome and Therese as Trustees and therefore not enforceable against the Trust. Without a hearing, the trial court compelled arbitration. Appellate court reversed finding the trial court's decision did not indicate that the trial court was "satisfied of the arbitrability" of the issue. R.C. 2711.03. The trial court must hold a hearing and its decision must demonstrate that it addressed the Trust’s allegations that the arbitration agreement itself was not enforceable.

  • There is competent, credible evidence for an order of involuntary commitment where the only medical expert at the hearing provides testimony that hospitalization is required to protect the individual and/or others.
    Feb 9, 2023

    In re: E.S., 10th Dist. Franklin No. 22AP-366, 2023-Ohio-382

    E.S. was ‘pink slipped’ to a mental health facility and probate court held a hearing at which an expert testified that E.S. was suffering from an unspecified schizophrenia. There was evidence of previous institutionalizations and E.S. was experiencing two weeks of paranoid behaviors before the recent admission. E.S. was also not taking medication. The doctor at the hearing believed that with in patient care and medication, E.S. could be restored to competency but until that time E.S. was a danger to themself and others. E.S. spoke on their own behalf and requested a continuance to call witnesses. E.S.’s appointed counsel stated 1) that E.S. did not request until then that they be permitted to get witnesses; 2) that any such witnesses would be fact only (not expert); and 3) that E.S. declined an independent medical evaluation. The probate court found E.S. was subject to hospitalizations pursuant to R.C. 5122.01(B)(3). Appellant objected to the magistrate’s decision because E.S. wanted to call witnesses and the probate court held a hearing on the objections, after which the probate court overruled the objections and adopted the magistrate’s decision. E.S. appealed, essentially arguing that the finding of mental illness was against the manifest weight of the evidence.

    To determine involuntary commitment requires clear and convincing evidence of the following: 1) individual suffers from a substantial disorder of thought, mood, perception, orientation, or memory; 2) the disorder grossly impairs their judgments, behavior, capacity to recognize reality, or ability to meet the ordinary demands of life; and, 3) the individual is subject to court order for one of the reasons in R.C. 5122.01(B). The Court is to look at the “totality of the circumstances” to determine whether a person is subject to hospitalization under R.C. 5122.01(B). In this instance, there was only one medical expert testifying at the hearing and they found to a reasonable degree of medical certainty that E.S. required hospitalization. There was sufficient competent credible evidence to commit E.S. and the appellate court affirmed the order for hospitalization.

  • Summary judgment based on issue preclusion is reversed where the prior order was not final and appealable and therefore res judicata does not apply.
    Jan 30, 2023

    Robinholt v. Wilson, 9th Dist. Lorain No. 2CA011782, 2023-Ohio-248

    Brother assumed role of successor Trustee after his parents died. Sister sought Brother’s removal as well as other relief in a suit in Cuyahoga County. Sister publicized documents that had been sealed and Brother filed for sanctions and fees against Sister and her former counsel. Cuyahoga court granted the motion for sanctions and set it for further hearing to determine fees. Before that hearing, Brother and Sister reached a settlement and Brother withdrew is motion.

    After Brother issued final distributions, Sister sued in Lorain County alleging breaches of fiduciary duty and seeking an accounting. Brother filed counterclaims for advancements and loans she took from trust, to declare Sister a vexatious litigator, defamation, intentional interference with inheritance, and other claims. On cross motions for summary judgment, trial court dismissed Sister’s affirmative claims against Brother. The trial court found against Sister under the doctrines of issue preclusion and estoppel – relying heavily on the judgment granting sanctions in the Cuyahoga case. The trial court found that the Cuyahoga case was “remarkably similar” to the case Sister filed in Lorain and that the Cuyahoga County case was resolved by a final, appealable order that Sister did not appeal.

    On appeal, the court noted that the entry granting sanctions was not a final appealable order, especially in light of the fact that it set the matter for further hearing, which never went forward. Sister’s further appeal relating to trial court’s refusal to allow her to amend discovery responses was not a final order and thus not subject to appeal. The granting of summary judgment adverse to Sister was reversed and remanded to the trial court.

  • Trial Court properly granted summary judgment against drafting attorney in favor of surviving spouse and deceased client’s estate for damages.
    Jan 27, 2023

    Carpenter v. Carpenter, 7th Dist. Belmont No. 21 BE 0049, 2023-Ohio-274

    Mary Lou and her husband Jerry retained Mr. Tim Jarvis as counsel to help qualify Jerry for Medicaid. On Mr. Jarvis’s advice, Mary Lou transferred a life estate she held into a trust to qualify Jerry for Medicaid. She claims Mr. Jarvis did not advise her that she would not receive the property back after Jerry’s death. Mary Lou further claims that Jerry did not have capacity to create a trust and that he was unduly influenced to do by Mr. Jarvis and/or by his sons. Mary Lou settled some her claims and then won summary judgment on the remaining claims against Mr. Jarvis for intentional interference with expectation of inheritance based on Mr. Jarvis improperly influencing Mary Lou to relinquish the life estate, fraud, and undue influence. Mary Lou as Jerry’s administrator also won summary judgment related to Jerry lacking capacity when he signed the Trust, plus undue influence, and fraud. Mary Lou then moved for damages and he trial court awarded compensatory damages of $147,742.03 and attorney fees of $87,969.17.

    The discovery in the case revealed that Mr. Jarvis was incorrect when he stated that Mary Lou’s life estate ownership would prevent Jerry from qualifying for Medicaid. Further, the facts revealed that Jerry had granted Mary Lou that life estate and that he intended her to have it and enjoy it – which she would have done had it not been for Mr. Jarvis’s interference. Further, Mr. Jarvis had conversations with Mary Lou and one of the sons – Roger – together. This created a conflict because Roger was a beneficiary of the irrevocable trust that would receive the property. There was no question of fact that Mr. Jarvis intentionally interfered to Mary Lou’s expected inheritance (i.e., the life estate) and granting summary judgment was proper.

    As to granting summary judgment with regard to Jerry’s lack of capacity, Mr. Jarvis admitted that he spent only one hour with Jerry – the only time he met him – and that he did not read the trust to Jerry and did not know the reason Jerry was in a nursing facility. The appellate court found that “one hour is an inadequate amount of time to determine Jerry’s capacity to execute the Trust…” and thus summary judgment was appropriate.

    The trial court found – and the appellate court agreed – that both Mary Lou and Jerry were victims of fraud perpetrated by Mr. Jarvis for his misstatement of Ohio law, causing Mary Lou to give up her life estate.

    The trial court awarded attorney fees. The appellate court agreed that Mary Lou established gross or egregious wrongdoing on Mr. Jarvis’s part, thus permitting the award of fees. There was no abuse of discretion is awarding the fees.

  • During the life of the co-owners of an account, a joint and survivor owner does not have rights to the assets beyond what they have contributed.
    Jan 25, 2023

    In re: Estate of Haynes v. Gaines, 6th Dist. Lucas No. L-22-1093, 2023-Ohio-208

    Husband and wife contributed funds to a money market account and then made daughter a joint and survivor owner. Daughter removed $83,000+ from the account without her parents' knowledge or consent. Wife died and husband sued daughter for return of money. Husband died during the pendency of the litigation. Trial court granted summary judgment finding no dispute that daughter never contributed funds so she had no rights to the account funds during her parents' lives. The trial court implemented a constructive trust. The sixth district affirmed finding that Wright v. Bloom, 1994-Ohio-153, did not apply since the money was removed during the co-owners' lives, thus Thompson, 66 Ohio St.2d 433 (1981)) controlled: because daughter had not contributed funds, she had no ownership in the funds during her parents’ lives. A constructive trust was a proper remedy to recoup the funds for dad’s estate.

  • In suit on a rejected probate claim, trial court properly granted summary judgment to plaintiff where estate failed to seek summary judgment on its affirmative defenses of statute of limitations and res judicata.
    Jan 20, 2023

    Budz v. Somerfield, 2nd Dist. Montgomery No. 29550, 2023-Ohio-155

    The parties disputed the ownership of real estate as between Plaintiff and the Estate. The parties litigated exceptions to inventory and accounting and in the meantime, the real estate was damaged resulting in Plaintiff spending funds for repairs. Eventually, the Estate rejected Plaintiff's claim for repairs and money spent on the real estate during decedent’s life. Probate court approved a final account, which did not reflect any payments to Plaintiff. Plaintiff did not appeal this final accounting.

    Plaintiff sued on the rejected claim and sought payment for money Plaintiff claims they spent on the property. In the general division litigation, the Estate asserted affirmative defenses of statute of limitations and res judicata and a claim for damages for frivolous conduct. The parties filed cross-motions for summary judgment on their claims, but the estate did NOT move for summary judgment on its affirmative defense of res judicata nor did it oppose Plaintiff’s MSJ. The trial court granted Plaintiff's MSJ and awarded damages from the Estate to Plaintiff for funds spent on the property. The appellate court affirmed. The Estate was required to seek summary judgment for statute of limitations and res judicata; absent evidence of the defenses, the court properly found no question of fact as to Plaintiff's claim for damages.

  • Court properly found evidence of neglect of senior warranting protective services and placement in nursing care.
    Jan 17, 2023

    In re: Adult Protective Services of Devanan, 12th Dist. Warren No. CA2022-06-039, 2023-Ohio-121

    Adult Protective Services petitioned under R.C. 5101.68 for protective services for Neta Devanan after her husband pushed her, breaking Neta's hip, and she had lack of proper care at home during her recovery. There was clear and convincing evidence that Neta required placement outside her home for proper care and the appellate court affirmed the probate court's decision of placement. The case sets forth some good background on APS process.


  • A POA cannot be the basis of a fiduciary relationship giving rise to a presumption of undue influence where the deed was signed before the POA.
    Dec 29, 2022

    Bernholtz v. Bernholtz, 6th Dist. Fulton No. F-22-002, 2022-Ohio-4764

    Lois and Calvin were in a car accident in 2016 and Lois thereafter allegedly asked her daughter, Deborah, to become her and Calvin’s guardian. Calvin went on hospice and Brian allegedly prevent Deborah from visiting. Deborah contacted APS, concerned about her mother’s appearance and care. In 2016 and 2017, Lois and Calvin made Brian their POA and transferred real estate to Brian (in addition to land that the parents had given to each of their children many years before). Calvin died in October 2017.

    In 2019, Lois moved in with Deborah and was doing “much better,” and had gained weight. Around this time, Lois learned that her home had been transferred to Brian back in 2017 – she had apparently forgotten that she and Calvin signed a deed to this effect. Lois’s accounts were also missing about $111,000 from 2017-2019, some charges for makeup, iTunes, and video games a,nd other transfers done online or via phone – neither of which Lois ever did herself. At one point, Brian’s wife was a co-owner of Lois’s account.

    Lois later sued Brian and his wife alleging that they exerted undue influence over and breached duties owed to Lois and Calvin, resulting in Brian receiving land and money. At a trial, Lois gave conflicting testimony, including at times stating she did not remember signing deeds and letters and at one point doubting that Brian unduly influenced her. The court found Brian had a fiduciary relationship with Calvin and Lois and thus the transfers of real estate were presumed invalid. It also awarded $111,000 to Lois from the defendants.

    The appellate court reversed in part. As to the transfer of the real property, one such transfer was done before the POA was in place, thus there was not sufficient evidence of a confidential relationship. The other transfer of real estate was done after the POA, but the presumption of undue influence was rebutted by two pieces of evidence: 1) the attestation clause on the deed, notarized by an attorney, stated the signatures were the signers' own free will and 2) Lois’s testimony was that she did not think Brian was trying to influence her. With the presumption either not existing or being rebutted, Lois failed to prove the undue influence by clear and convincing evidence. With regard to the expenditures and transfers, there was clear and convincing evidence that Lois was susceptible to undue influence and that Brian or his wife did unduly influence her to spend this money mainly for their benefit, including spending for online transactions that Lois did not even conduct herself.

  • Probate court can deny felon a name change where change would frustrate ability of parole board and prejudice victim’s families.
    Dec 28, 2022

    Name Change of Blevins, 4th Dist. Ross No. 22CA7, 2022-Ohio-4812

    Applicant for name change was an imprisoned felon awaiting possible parole in 2023. The probate court did not abuse its discretion in denying name change for public policy considerations and potential fraud including affecting victim's family and ability of Parole board to monitor appellant.

  • Guardian of beneficiary and grantor can exercise rights of ward under a trust where trust allowed the beneficiary to remove a trustee without notice and guardian sought court approval to exercise such right.
    Dec 2, 2022

    Robert J. Pond Living Trust, 5th Dist. Delaware No. 22 CAF 06 0046 2022-Ohio-4301

    Ward was the sole beneficiary and a co-trustee of her deceased husband's trust. Upon her incompetency, son became trustee. Guardian applied to probate court to exercise ward's rights as beneficiary under the trust to remove son and demand distributions. The trust permitted its beneficiary to remove the trustee without notice, so the probate court properly permitted the guardian to apply for the exercise of that power.

  • Attorney suspended 1 year (stayed) and ordered to pay restitution for failing to create a QIT and delaying client’s approval for Medicaid.
    Nov 30, 2022

    Disciplinary Counsel v. Ferfolia, 2022-Ohio-4220

    Attorney failed to provide the requested documents to ODJFS and failed to timely create a QIT. When Medicaid was finally approved it was about 1 year after the initial application date, resulting in over $85k of additional nursing home expenses. In malpractice action, attorney did not respond, lost on default judgment, and did not appear at debtor's examination. Attorney eventually cooperated with disciplinary proceedings, began payment on the judgment, and provided evidence of good character. Suspended or 1 year, with the entire suspension stayed pending no further violations, payment of $95k restitution, and OLAP evaluation.

  • Probate court is required to have concealment hearing reduced to written transcript.
    Nov 30, 2022

    Lucarell v. Sait, 11th Dist. Trumbull No. 2022-T-0014, 2022-Ohio-4279

    Probate court is required by R.C. 2109.50 to have a transcript made of the concealment hearing. Because no transcript was made, the appellate court can presume there was an error below. The finding by the probate court that appellant was guilty of concealment was reversed.

  • A POA cannot rely solely on their affidavit to obtain summary judgment and to rebut a resumption of undue influence, even if the POA allowed for self-gifting.
    Nov 28, 2022

    Thomas v. Delgado, 3rd Dist. Putnam No. 12-22-06, 2022-Ohio-4235

    Where power of attorney allowed gifts, including to the agent, the agent must still provide credible evidence to rebut the presumption of undue influence. Granting of summary judgment in favor of defendants on IIEI claim is reversed where POA relied on his own broad denials via affidavit. Plaintiff did not have standing to prosecute fraud where the alleged injury was to decedent, so any fraud claim belongs to the estate.

  • Where father provided evidence that funds of account were previously deemed marital property, daughter cannot prove the account was UTMA and cannot prove she is entitled to funds.
    Nov 28, 2022

    Daughter alleges her father held a UTMA account for her benefit but converted the funds for himself. Trial court found daughter deposited $392 of her own money in the account and was entitled to that, but that she failed to prove the account was UTMA. Although some language of UTMA existed on the signature card, it was inconsistent and did not meet preponderance of the evidence and the father credibly testified that the funds he deposited were never intended a gift to his daughter. Further, the father proved the funds in the account were divided as marital property in 2019, which means they could not have been UTMA funds.

  • Rules of evidence apply to will contest as an adversarial proceeding and trial court properly admitted testimony under hearsay exception 804(B)(5).
    Nov 17, 2022

    Haddad v. Maalouf-Masek, 8th Dist. Cuyahoga No. 111409, 2022-Ohio-4085

    Appellant-plaintiff in will contest failed to show how jury was confused by instruction, especially after trial court gave appellant the correction she requested to the instructions. Jury's response to interrogatory indicated they understood their charge. A will contest is an adversarial proceeding, to which the rules of evidence apply; trial court properly applied Evid.R. 804(B)(5) to allow the Estate to admit statements of decedent in rebuttal. In contest of 2004 will, probate court properly limited timeline of evidence to 2003-2005.

  • Court properly forced medication on Ezeh to restore his competency in order to stand trial.
    Nov 14, 2022

    In re: Ezeh, 1st Dist., Hamilton Nos. C-220081, C-220084 2022-Ohio-4033

    After an arrest for aggravated menacing and trespass, Ezeh was found not competent to stand trial and ordered for treatment. While being treated, Ezeh refused medication, was irrational, had a mood disorder, and endangered himself and others. At the hearing, the court ordered him to be medicated. Ezeh appealed and before the decision, Ezeh was restored to competency, released, and placed on outpatient court-ordered care. The appellate court found the appeal was not moot and that the trial court decision was based on competent, credible evidence.

  • The existence of a power of attorney does not preclude a guardianship, especially where the less restrictive means are not adequately protecting the proposed ward.
    Nov 11, 2022

    In re: Guardianship of Pond, 5th Dist. Delaware No. 22 CAF 06 0045, 2022-Ohio-4023

    The mere existence of POAs does not preclude guardianship and is not necessarily an adequate less restrictive means. Where the applicant had POA but did not use it to protect the potential ward and where all parties agreed the ward was incompetent, the probate court did not abuse its discretion to appoint attorneys as guardians. It is not a violation of fourth amendment rights against search and seizure for an emergency guardian to speak to a ward without their family present

  • An Option to Purchase Violated the Rule Against Perpetuities and the Trial Court Must Determine Whether the Option Could be Severed from the Remainder of the Agreement
    Oct 28, 2022

    Hanahan v. DPA Dev., L.L.C., 2nd Dist. Montgomery No. 29486, 2022-Ohio-3843

    In the underlying case, DPA Development (“DPA”) purchased 424 and 428 Littell Avenue – one parcel with two properties on it. DPA contracted with McCloskey that the parcel would be split and McCloskey would buy 424 Littell. McCloskey paid $175,000 to DPA. When DPA bought the parcel, it was never split. McCloskey died having never received the title to 424 Littell.

    McCloskey’s Estate sued DPA for breach of contract, constructive trust, trespass, and other claims. In a trial in 2019, DPA was held liable for breach of contract and ordered to deed over the property or alternatively to hold $175,000 for the Estate’s benefit. No one appealed this decision.

    Later that year, DPA still had not issued the deed and McCloskey’s Estate filed to show cause. In the intervening time, the parties disagreed about certain parking rights and brought that issue before the court as well. The parties entered an oral agreement as to the parking rights. By May 2020, the property still had not been transferred. The trial court held a hearing finding DPA in contempt and a judgment as to the parking license agreement the parties previously reached. The Court incorporated in the parking agreement a term about an option agreement that was part of the initial purchase agreement between McCloskey and DPA.

    In a prior appeal, the appellate court found that the option agreement violated the rule against perpetuities and remanded the case for the trial court to determine if the option term could be severed from the parking agreement. On remand, the trial court held the term was severable and the original purchase agreement was enforceable.

    On appeal now, the appellate court remanded again noting that the trial court performed the wrong analysis. The purchase agreement was upheld via the trial finding breach of contract, from which no party appealed. The only question remaining was whether the trial court’s order as to the parking agreement was enforceable once the referenced option terms were severable. The trial court will need to try again!

  • Court Properly Denied 60(B) Motion Claiming Action Filed Seven Years Earlier Failed to Include an Indispensable Party and Appellate Court Awarded Attorney Fees and Costs for the Frivolous Appeal
    Oct 24, 2022

    Wisehart v. Wisehart, 12th Dist. Preble No. CA2022-05-006, 2022-Ohio-3774

    When Dorothy died in 1993, half of her farms were owned by McKee and the other half in a trust of which McKee was the trustee. The Trust had 5 income beneficiaries, McKee’s wife (Elizabeth) and their 4 children. In 2010, as permitted by the trust, 4 of the 5 beneficiaries voted to remove McKee as the sole trustee and appointed McKee and Dodson (one of the beneficiaries) as co-trustees. Elizabeth died in 2013.

    In 2015, Dodson sued McKee for the quiet title due to his attempts to transfer the trust real estate without authority and for breaches of duty and accounting related to concealing farm income that belonged to the Trust. The probate court granted summary judgment to Dodson and the trust, voiding all of McKee’s improper attempts to transfer the real estate and ordering McKee to account for the farm income. The court also granted Dodson attorney fees. Those decisions were upheld on appeal.

    In 2022, McKee filed a 60(B) to “reopen” the case, alleging that his new wife, Joan Lipin, was an indispensable party and should have been part of the 2015 case. McKee had signed a quitclaim deed as trustee to Lipin in 2015, but that deed failed to grant any interest to Lipin because McKee lacked the authority to sign it. In any event, all such attempted transfers were voided by the court’s summary judgment and upheld on appeal, including a finding that neither McKee nor Lipin had personal interests in the trust’s assets. The trial court denied the 60(B) and the appellate court affirmed it and found the appeal was frivolous and thus awarded McKee to pay Dodson’s costs and reasonable attorney fees.

  • Trustee Transferring Property to Another Trust Where She is A Sole Residual Beneficiary is a Serious Breach of Trust
    Oct 21, 2022

    In re Trust of Tary, 6th Dist. Lucas No. L-21-1256, 2022-Ohio-3773

    Linda and Orville had two daughters, Tricia and Sandra. Linda owned valuable real estate and real estate interests and made a revocable trust where she and her husband were the primary beneficiaries, and Tricia and Sandra were equal beneficiaries after Linda and Orville had died. A month before Linda died, she executed a trust amendment that made Sandra the sole successor trustee, where previously it was Sandra and Tricia acting together. Linda died in December 2018.

    Three months after Linda died, Tricia reached out to Sandra and her attorneys to request a copy of the will and trust documents. Sandra refused to provide anything, arguing that Orrville was the only current beneficiary. Tricia sued Sandra in probate court demanding a trust accounting and a copy of the trust documents. Sandra still refused to provide documents and instead filed a counterclaim seeking to invoke the trust’s no-contest clause and disinherit Tricia. Sandra also attached evidence that she had filed for criminal and civil protection orders against Tricia and her husband, on her own behalf on behalf of Orville, which Tricia alleged were fabricated and blown out of proportion.

    Six months passed and Sandra continued to refuse to produce any documents. Tricia amended her complaint to remove Sandra as Trustee, alleging that she had either exhibited a pattern of bad behavior or had committed a serious breach of trust by failing to turn over the documents.

    In July 2020, Sandra finally produced a trust report that showed she, as trustee, had transferred certain Linda Trust real estate into a separate trust for Orrville, which her attorney had prepared, and for which Sandra was the sole beneficiary after Orrville’s death. Tricia amended her complaint again to remove Sandra based on this transfer of real estate, plus the prior issues. Sandra claimed the transfer of the real estate was to help Orrville qualify for Medicaid and it was Orrville’s decision – even though there was some evidence that Orrville didn’t know what he signed or why he was signing it. Sandra said this was really a family squabble and had nothing to do with Linda’s Trust.

    The trial judge disagreed with Sandra and removed her as trustee. The trial judge found that the transfer of the real estate to the Orrville Trust was extremely suspicious under the circumstances and that, plus the lack of turning over information and the family fighting was enough to justify her removal. The court also denied the counterclaim seeking to disinherit Tricia. Sandra appealed.

    The Sixth District Court of Appeals agreed with Tricia though. The Sixth District found that the transfer of the real estate out of Linda’s Trust for no consideration, into a trust where Sandra was the sole remainder beneficiary, and was prepared by Sandra’s attorney and recorded with Sandra’s knowledge and involvement, was itself a serious breach of trust that justified her immediate removal as trustee. The pattern of conflict was also a good reason to remove her, but the self-dealing aspect of the real estate transfer was the most egregious in the Court’s view. 

  • Probate Court Must Consider “Bad Faith” Exception to American Rule on Attorney Fees Where a Party Has Been Found Guilty of Concealment of Assets
    Oct 11, 2022

    Pirock v. Crain, 11th Dist. Trumbull No. 2021-T-0060, 2022-Ohio-3612

    This is part of an ongoing family saga dating back to 2013 that has divided a family and spawned almost a decade of lawsuits. The crux of this particular case was the concealment of assets action.

    Six siblings alleged that their father kept six lock boxes filled with $130,000 of cash, of which he intended to leave one lock box to each of his children. When he died there was a fight over who would be in charge of the estate and a non-family member attorney was appointed to be in charge He did not find the lock boxes. Six of the siblings sued their two other brothers, Frederick and Bryan, for concealment of assets, alleging that they stole or were hiding the lock boxes.

    Three months after the attorney was appointed to be in charge of the estate, Frederick gave the attorney four lockboxes and a white safe. The combined contents were $20,379.80 in cash and coins. Frederick said his dad gave him those things for storage back in 2013. The six siblings asked for a jury trial to determine if Frederick and Bryan had concealed the $780,000 that was believed to be in the lock boxes. On the eve of the first trial, the probate court dismissed the case, approved the estate accounting o without the inclusion of the lock boxes, and discharged the fiduciary. That was appealed, and the 11th district sent the case back to have a trial on the concealment action.

    There was a three-day jury trial for the concealment. The jury found Frederick guilty of concealing assets but found Bryan not guilty. The probate judge held a separate hearing on damages. The probate judge found that the six siblings failed to prove by a preponderance of the evidence that Frederick concealed the $780,000 but that the facts showed Frederick concealed the $20,379.80. The judge ordered damages of 10% of the amount Frederick concealed ($2,039), plus costs of the case, and ordered that paid to the state of Ohio. The judge denied any attorney fees to the plaintiffs because the estate was closed and because the “American Rule” prohibits prevailing parties from recovering their attorney fees. There was no transcript of the hearing. The six siblings appealed, arguing that the probate judge “nullified” the jury verdict and erred by not awarding attorney fees.

    The Court of Appeals affirmed the judge’s decision to hold a separate hearing on damages and affirmed his determination of damages. The Court of Appeals noted that the jury verdict forms specified only “guilty” or “not guilty” and did not specify a dollar amount. Nor were there jury interrogatory forms asking the jury to answer questions that explained their decisions. The jury instructions generally explained that the allegation was that Frederick and Bryan possessed or owed the estate “money” without a specific dollar amount. The court found that the probate judge had the discretion to review and determine damages and, without a transcript of the proceedings, his findings were supported by the evidence in the record.

    The final two matters for the appeal were whether the probate court erred in closing the estate and denying attorney fees. There is a separate appeal from the probate estate case that is still pending in the 11th District, and the Court of Appeals said you cannot appeal a probate administration matter from a concealment of assets verdict, even where that verdict has an effect on the accuracy of the estate accounting.

    As to the attorney fees, the Court of Appeals found that the probate judge only considered one statute, 2113.36, that allows attorney fees for a party administering an estate, but found that statute was inapplicable. The Court of Appeals agreed that 2113.36 was inapplicable, but held that a guilty verdict in a concealment of assets proceeding is tantamount to a finding of bad faith. A bad faith finding is one ground to consider for awarding attorney fees (and the concealment statute also allows a trial court to award attorney fees), and that is an exception to the American Rule. The case was sent back to the probate judge for a determination of attorney fees.

  • Custodian of Funds Ordered to Participate in Discovery After Default Judgment in Beneficiary Designation Dispute
    Oct 3, 2022

    Hogg vs. Grace Community Church, et al. 12th Dist. Fayette No. CA2021-11-025, 2022-Ohio-3516

    Charles, who lived in Fayette county, Ohio had millions of dollars in investments with G.A. Repple & Co, a wealth management company in Alabama and Florida. In Spring 2019, the beneficiaries on Charles’s accounts at Repple were changed to Grace Community Church, a national evangelical megachurch.

    Charles’s heirs filed a lawsuit against Repple and Grace, claiming that the beneficiary changes were forgeries and or the result of undue influence. Repple decided it was not going to retain an attorney to represent it in the lawsuit and was not going to participate in the lawsuit. Despite being served with a summons and communicating with attorneys for the heirs, Repple did not respond to the lawsuit. The heirs moved for default judgment against Repple, which the court granted.

    Charles’s heirs and Grace jointly sought information from Repple through discovery. Repple, through one of its non-attorney representatives, tried to deposit the funds with the court and resist discovery, arguing that it was no longer a party after the default judgment. Repple expressly stated that it did not want to become involved in the lawsuit. The Court compelled Repple to respond to discovery, but Repple refused. Repple finally hired an attorney and appealed the order seeking to compel it to participate in discovery.

    The Court of Appeals agreed with the trial court and ordered Repple to respond to discovery. The Court of Appeals pointed out that Repple was properly served with the complaint, that default judgment was entered against it, that it was not dismissed as a party, and that the claims of undue influence and forgery continued even after the default judgment. The Court of Appeals found that Repple was likely to have discoverable information and that Repple remained a party after the default judgment. The Court of Appeals also pointed out that Repple is a corporation and in Ohio, corporations cannot represent themselves or through their officers. They must hire an attorney.

  • Ward not Permitted to Get Married While Under Guardianship Due to Lack of Capacity to Contract
    Sep 30, 2022

    In re: Guardianship of Kindell, 2nd Dist. Miami No. 2022-CA-8, 2022-Ohio-3456

    Ms. Kindell was placed under guardianship in 2005 due to low IQ and several mental health disorders, including explosive disorder, which hindered her judgment and ability to care for herself. Two medical experts agreed she had childlike behavior and needed guidance to carry out daily life skills.

    In 2013, Ms. Kindell asked the guardian for permission to get married. The guardian asked the probate court if his permission was necessary for Ms. Kindell to get married, that his opinion was she should not get married, and that the probate court should determine whether she could get married at all. In response, Ms. Kindell filed a motion to terminate the guardianship.

    The evidence showed that the man Ms. Kindell wanted to marry had repeatedly borrowed money from her and others and never paid it back and that Kindell remained vulnerable due to her conditions. The court denied the request to terminate the guardianship but approved Ms. Kindell and her fiancé to live together under certain conditions related to her welfare and finances.

    Ms. Kindell and her fiancé were evicted from several apartments due to nonpayment of rent and unsafe and unhealthy living conditions. Ms. Kindell continued to send letters to the probate court seeking to have permission to marry. The court ordered an independent evaluation of Ms. Kindell in 2015 by her psychologist. Her psychologist said that Ms. Kindell had a poor understanding of how bad her relationship was with her fiancé and that guardianship should continue. All of the evidence presented at the hearing was that Kindell could not care for herself or properly apply her finances without constant supervision and assistance and that her fiancé was not helpful to either of those things.

    The Probate Court determined that Ms. Kindell lacked capacity to enter into marriage and because marriage was a civil contract, she would need the guardian’s permission, which must also come from the court’s permission first. The Court denied the termination of the guardianship and denied the request to marry.

    On appeal, the Court affirmed the probate court’s decision. The Court found that an adjudication that an adult is incompetent does not necessarily preclude that adult from getting married. Relying on precedent from 1930, the Court found that nevertheless, an incompetent person under guardianship must still demonstrate the sufficient mental capacity to under the nature of marriage and the duties and responsibilities marriage creates. The Court of Appeals deferred to the probate court’s determination of the credibility of the witnesses but held the door open for Ms. Kindell to develop a better understanding of marriage and the right to request to marry in the future.

  • Burden of Proof on Challenging Lifetime Gifts is Ultimately on the Challenger
    Sep 30, 2022

    Daddario v. Rose, 5th Dist. Stark No. 2021CA00104, 2022-Ohio-3537

    Kathy was the trustee and beneficiary of her trust and her deceased husband’s reciprocal trust. Each trust listed her four children, Marybeth, Tim, Colleen, and Victoria as the remainder beneficiaries after Kathy died. In 2012, Kathy made Marybeth her co-trustee and her power of attorney. Marybeth moved in with Kathy in 2013 to take care of her. Kathy died in 2018.

    After Kathy’s death, Tim, Colleen, and Victoria learned about several lifetime transfers from Kathy to Marybeth of almost $1Million. Marybeth claimed that some of these were disclosed to her siblings no later than 2013. Her siblings said they were aware of some transfers, but thought that those transfers to Marybeth were in trust for Marybeth and the siblings.

    The siblings, together with Kathy’s estate and trust, sued Marybeth to invalidate all of the lifetime transfers from Kathy to Marybeth, and for breaches of fiduciary duty as to Marybeth’s role as trustee of Kathy’s trust. There was a bench trial on whether any of the lifetime transfers were gifts. Marybeth argued they were all gifts and that the statute of limitations expired for anyone to challenge the gifts. The siblings and Kathy’s estate and Trust argued that all except one of the lifetime transfers were invalid. The probate court found two of the transfers were valid gifts, and that Marybeth failed to prove by clear and convincing evidence that the other transfers were gifts. Marybeth appealed.

    Marybeth argued that there was a presumption that transfers from parent to child are gifts. She also argued that the challenger to any gift has the ultimate burden to prove that a gift is invalid and the challenger's burden of proof is clear and convincing evidence. Her siblings argued that there is a presumption of undue influence when there is a gift from a person to her fiduciary, such as a POA or trustee, or other person in a confidential relationship. The Court of Appeals said both of them were correct.

    Marybeth argued that even though she was in a fiduciary relationship with her mother as her co-trustee and POA, she only had to prove there was no undue influence by a preponderance of the evidence. If she could prove it was more likely than not that these were family gifts and there was no undue influence, then her siblings had the burden of proof by clear and convincing evidence, not her. The Court of Appeals agreed with Marybeth.

    The Court of Appeals reversed the probate court’s decision. The Court of Appeals remanded the case to the probate court, with instruction to first determine if Marybeth overcame the presumption of undue influence (from her status as POA and Co-Trustee for Kathy) by a preponderance of the evidence. If Marybeth overcame that presumption, then the burden ultimately belonged to her siblings to prove there was clear and convincing evidence that the gifts were invalid. If Marybeth failed to overcome that initial presumption, then it is likely the gifts would be deemed invalid with no further burden to the siblings.

  • Probate Court Does Not Lose Jurisdiction to Enforce a Settlement Agreement After Trustee is Dismissed as a Party While Other Parties Remain in Litigation
    Sep 29, 2022

    Jacobson v. Gross, 8th Dist. Cuyahoga No. 110987, 2022-Ohio-3427

    Three trust beneficiaries brought a lawsuit in probate court against their mother as trustee of a trust, alleging breach of duty, and sued their brother for embezzling trust assets. The claim against the trustee was essentially negligence for letting the brother defendant embezzle money out of one of the trust properties that he managed. The trustee claimed ignorance and promptly fired the embezzling son from his position as a property manager.

    The embezzling son sued another brother, Jonathan, in a third-party complaint, even though Jonathan had been disinherited under the trust. All of the parties, including Jonathan, entered into a settlement agreement where the mother promised not to give her personal interests in the trust property to Jonathan and would instead give it to the plaintiffs. The mother would remain as a trustee. Jonathan agreed he would not accept any transfer of interests from his mother for that trust property but would instead receive her residence on her death. Everyone signed the settlement agreement. The mother trustee was dismissed as a party and the litigation continued against the embezzling brother and Jonathan.

    Without the plaintiff's knowledge, Jonathan had his mother execute transfer forms that gave him her interest in the trust property. After the mother died, Jonathan filed a lawsuit in the general division alleging that the transfers to him were valid and the settlement agreement was void due to fraudulent inducement. The plaintiffs moved to enforce the settlement agreement in probate court. The probate court judge found that the settlement was valid and enforceable and found that Jonathan undisputedly breached the settlement agreement. Jonathan’s counsel allegedly asked the court in a hearing if the court would consider an argument that the settlement agreement was induced by fraud, and the court said she was not going to consider evidence that was not before the court, and that the court stood by the prior ruling that accepted the settlement agreement from the parties. Jonathan was ordered to pay approximately $12,000 in attorney fees for breaching the settlement agreement.

    Jonathan appealed, raising a litany of arguments. Jonathan’s primary argument was that the probate court lost jurisdiction to enforce the settlement agreement when the trustee was dismissed.  Because he filed his claims in the general division to undo the settlement agreement before the plaintiffs sought to enforce the settlement agreement, Jonathan argued the general division had priority to hear the case. Jonathan also alleged he was denied due process by not being allowed to present his fraud argument to the probate court, and the motion to enforce the settlement agreement was void because the plaintiffs did not first seek to mediate the dispute as required by the agreement.

    The Court of Appeals disagreed with all of Jonathan’s arguments. The Court of Appeals held that the probate court retained jurisdiction over the whole of the dispute, even though there was a partial settlement and even though the trustee was dismissed. Where part of the litigation continued, the court retained litigation over the case.

    The Court of Appeals found that Jonathan was not prevented from raising his fraud argument in the probate court’s motion to enforce the hearing, but that he simply chose not to. The Court of Appeals found no denial of due process. Similarly, the Court of Appeals found that Jonathan was the first party to file a lawsuit instead of seeking mediation under the settlement agreement, and he could not claim that the other side breached the agreement by also failing to seek mediation.

    The Court was not explicit, but also pointed out that Jonathan could not claim the benefits of the settlement agreement, such as him receiving his mother’s house on her death and the parties being required to mediate before filing suit, and also attack the agreement’s validity.

    The Court of Appeals also found that its recent precedent allowed a non-breaching party to recover attorney fees from a breaching party when the breaching party breached a settlement agreement. This is a special exception to the American rule that a prevailing party cannot recover its attorney fees as a cost of litigation.

  • Judgment That Conveyance of Assets Was Fraudulent Against the Conveyor Can Be Enforced Against the Recipient Of the Property Even If He Was a Joint Owner
    Sep 16, 2022

    Mancz v. McHenry, 2nd Dist. Greene No. 2022-Ca-20, 2022-Ohio-3256

    This is part of an ongoing saga dating back to 2007 involving Calista McHenry. Multiple judgments have found that Calista abused a power of attorney during the principal’s lifetime and later concealed assets from the decedent’s estate. During the pendency of the POA abuse and Concealment claims, Calista transferred assets to her husband Robert, or into accounts that were jointly owned by them. The fiduciary of the estate who brought the concealment actions and was awarded judgment is still seeking to recover assets from Calista and Robert to satisfy the judgment.

    After she was found liable for abuse of the power of attorney and concealing assets, and after those judgments were affirmed on multiple appeals, her husband Robert claimed that he should not be responsible for the judgments against his wife, or only half of it, because he was a joint owner of their property.

    The probate court was unpersuaded. The Court of Appeals affirmed.

  • Guardianship Ordered to Resume On New Application Even Though Guardianship Was Previously Terminated
    Sep 15, 2022

    In re Guardianship of S.B., 5th Dist. Richland No. 2022 CA 006, 2022-Ohio-3249

    A man had a traumatic brain injury in 2004 and his mother was appointed to serve as guardian of his estate and person thereafter. Over the next six years, the ward made repeated requests to terminate the guardianship. Eventually, his mother resigned as his guardian and the ward obtained an expert evaluation that the guardianship was no longer necessary. The guardianship was terminated.

    In 2021, an independent attorney filed an application for guardianship over the man, who was then residing at a nursing home and had trouble speaking due to multiple strokes. The man opposed the guardianship again, counsel was appointed for him, and he had a second expert evaluation. This second evaluation also said he needed a guardian. The guardianship hearing occurred via zoom and there were multiple technical difficulties where the audio was unintelligible. The man also had trouble speaking, so it was not clear from the record if he could not be understood because of technical problems or because of his physical disabilities. The Court placed the man under guardianship again with the independent attorney serving as guardian.

    The man appealed but the Court of Appeals affirmed the order of guardianship. The medical evidence supported the need for the guardianship and the attorney was a reasonable person. Any problems with the hearing transcript or technology were the ward’s duty to correct in the probate court, and there were no other errors.

  • Medicaid Benefits Denied Where Authorized Representative Failed to Open And Fund Applicant’s Qualified Income Trust; Covid No Excuse
    Sep 14, 2022

    Estate of Herubin vs. Ohio Dept. of Jobs and Family Srvs. 7th Dist. Mahoning No. 21 MA 0109, 2022-Ohio-3243

    Joe entered a nursing home and his son Mark applied for Medicaid long-term care benefits on behalf of Joe on March 20, 2020 during the first big wave of Covid. The ODJFS office that administers Medicaid benefits provided Mark with a checklist of items to verify and things to do to ensure that Joe was eligible for Medicaid. One of those items was a requirement that Mark open a Qualified Income Trust account for Joe because his monthly income was $4,160, which was higher than Ohio’s $2,349 monthly income limit to be eligible for Medicaid. The ODJFS office sent Mark a letter warning that failure to complete the checklist could result in denial of benefits, gave Mark a form for a standard QIT, and gave him 30 days to follow up.

    Mark claimed that he called several banks to try to set up an appointment to open a new bank account for the QIT but was locked out because banks were not doing in pin-person vices during Covid. ODJFS continued working with Mark, but Joe died on July 20, 2020 and the Medicaid benefits were denied on July 30, 2020. Mark went through administrative hearings with Medicaid and lost and appealed to the common pleas court on behalf of Joe’s estate, though no actual probate estate was opened at the time. Mark lost there too and he appealed.

    ODJFS argued that the appeal to common pleas was defective because there was no actual estate opened and a dead person, Joe, could not file an appeal. But the trial court and the court of appeals found that the appeal was proper because Mark was the authorized representative and eventually Joe’s probate estate was opened and substituted in.

    But turning to the merits of Mark’s appeal, the court of appeals was unpersuaded. The court of appeals pointed out that Medicaid eligibility requires having income below a certain threshold, and the QIT is a permissible method of getting income below the threshold. With no QIT, Joe’s income never went below the threshold, and there was no excuse of “impossibility” for failing to set up the QIT, or at least Medicaid could properly deny benefits where the applicant’s income is too high.

  • Oral Contract Claim Against a Decedent’s Estate Not Filed Until Four Years After Her Death Was Not Contingent And Dismissed Because Not Timely Filed
    Sep 6, 2022

    Havens v. Havens, 12th Dist. Fayette No. CA2022-01-002, 2022-Ohio-3103

    Vernon claimed to have an oral contract with his sister, Christine, where he let her use a car and gave her other financial support from time to time. Vernon claimed Christine agreed to repay him when she was able, or when she became terminal. Christine became terminal and went into hospice care. Vernon claimed his other siblings represented they were Christine’s financial power of attorney and he asked them to pay him with Christine’s assets, worried that Medicaid would take it all. Christine died in 2017.

    Vernon sued his siblings as Christine’s POA and sued Christine (or her estate) in Municipal Court alleging POA abuse, a demand for an accounting of her estate assets, and for breach of contract. The case was dismissed for lack of jurisdiction, finding that the claims involved Christine’s estate and were not proper in Municipal Court. Vernon then opened Christine’s estate and again sued the estate and his siblings in probate court. The probate court granted summary judgment to the siblings and the estate, finding that Vernon’s claim against Christine was not timely presented because he waited longer than six months after Christine’s death to present it against her estate. The Probate Court also found Vernon was not one of Christine’s heirs—her adult disabled child was her only heir—and so Vernon did not have an interest in the estate. Vernon appealed.

    The 12th District Court of Appeals agreed with the probate court. Though Vernon argued his claim was contingent, and thus entitled to a longer time for presentment after Christine’s death, he pointed to no facts to support this claim. The court of appeals rejected his argument that there was any uncertainty about what Christine would have owed Vernon, assuming there was a valid contract, after her death because she wouldn’t be borrowing the car or money after her death.

  • Judgment Finding Trustee Converted Property and Ordering the Return of the Property or Payment of Damages is Upheld
    Aug 22, 2022

    Barnosky v. Barnosky, 11th Dist. Portage No. 2022-P-008, 2022-Ohio-2928

    Charles was the trustee of an irrevocable trust created by his father, John, Sr., which owned a family farm. John, Jr. sued Charles alleging that he was the rightful owner of certain tools on the farm and Charles refused to let him access the property to retrieve the tools. At a trial for conversion, Junior testified that his uncle gave him some of the tools and he bought others of them. He provided a list of property and proposed market value totaling about $49,000. Junior’s wife and uncle confirmed the ownership of the tools and the fact that Junior had been banished from the property.

    Charles testified that Junior actually sold the tools to Senior sometime before Senior’s death. Charles considered the tools property of the trust. The Magistrate found and the court adopted the decision (over Charles's objections) that the tool rightfully belonged to Junior. The court ordered Charles to return the tools or to pay the damages of $49,000.

    On appeal, Charles argued that Junior did not ask him in his role as trustee to return the tools. The Appellate Court was not persuaded that this distinction mattered and noted that during testimony, Charles confirmed he was still denying Junior access because Charles believed the tools belonged to the trust. Charles made several arguments that went to the weight of the evidence, to which the Appellate court responded it had to defer to the factual determinations of the trial court who weighed the credibility of the witnesses. Lastly, the appellate court found that the owner of the property (i.e., Junior) is deemed competent to testify as to its market value – no expert was needed.

    The trial court judgment was affirmed.

  • There is no Charitable Trust Where Art Institute Did Not Manifest Intent To Hold Art In Trust And Donors Who Contributed To Building To House Art Were not “Settlors” With Regard to a Purported Trust Holding the Art Itself.
    Aug 22, 2022

    Found. Medici v. Butler Inst. of Am. Art, 11th Dist. Trumbull No. 2020-T-0042, 2022-Ohio-2923

    In 1995, the Butler Institute of American Art (“Butler”) and Foundation Medici (“Medici”) entered a 99-year lease for Butler to operate an art museum at Medici’s real estate. The lease provided that after 5 years, either party could terminate the lease.

    In 2010, Butler acquired a large terra cotta mural by Pierre Soulages – considered France’s greatest living artist at age 102 as the date of this decision. Soulages is often noted for his “outrenoir” or “beyond black” style, painting often with deep black. Butler undertook to fundraise to build an addition to house the large mural. According to non-party donors, Butler’s representatives assured them the Soulages would remain in Trumbull County.

    In 2019, Medici terminated the lease with Butler and Butler removed its artwork. Medici then sued Butler to prevent the removal of the mural arguing that it was 1) a fixture and/or 2) that Butler held the mural as part of a charitable trust, the terms of which required it remain displayed in the Medici building in perpetuity. Butler counterclaimed arguing that since it had paid for the addition to the building and Medici had terminated the lease early, Medici was unjustly enriched by $250,000.

    After a hearing to gather facts and submission of briefing and affidavits, the lower court granted summary judgment in favor of Butler. It was undisputed that Butler could remove the work and any damage caused by its removal could be repaired. As a matter of law, that means the mural is not a fixture, and therefore it continues to belong to Butler. The court also found there was no charitable trust. Medici had alleged the non-party donors were the settlors of this trust, but their donations were used to build an addition, not to acquire the mural. Furthermore, there was no evidence of an agreement by Butler to hold the mural in trust. Any statements by Butler’s agents that the mural “was not going anywhere” did not create a fiduciary duty, but merely stated an intent to continue leasing the property where the mural was housed.

    The appellate court affirmed the trial court and ordered that Butler can remove its mural.

    The Soulages work was last appraised in 1969 for $650,000 – or about $5M in 2022 dollars. Artwork by Soulages has auctioned for as much as $20M.

  • Order in Concealment And Embezzlement Case that Trustees Return Real Estate to The Estate is Not Final Appealable Order Where Matters of Restitution, Damages, and Rents Remain Pending
    Aug 22, 2022

    In re Estate of Notarian, 11th Dist. Geauga No. 2022-G-0019, 2022-Ohio-2927

    An executor sued co-trustees for concealment and embezzlement. The parties reached an agreement at mediation. The co-trustees filed a motion to enforce the settlement agreement. The executor filed a motion for partial summary judgment. The probate court denied the motion to enforce the settlement agreement and granted the partial summary judgment. The probate court found there was no settlement agreement and ordered 4 parcels of real estate be returned to the Estate.

    The appellate court found that there was not yet a final appealable order. The concealment is a special proceeding, but the order to return real estate does not (yet) affect a substantial right. The probate court still must determine things such as damages, restitution, and rents (if any). The co-trustees can appeal an order in the future, but this order is not yet appealable.

  • Failure to Add Executor as Party to Will Contest is Grounds for Dismissal After Court Gave 30 Days to Amend Complaint
    Aug 19, 2022

    Middlebrooks v. Beaman, 1st Hamilton No. C-210641, 2022-Ohio-2886

    After her death, Deborah’s daughter was appointed executor of her estate. Deborah’s son filed a will contest action naming his sister, individually, as a defendant. He did not name her in her capacity as executor.

    After a motion to dismiss, the probate court ordered the son to amend his complaint to add the estate as a party. When the son failed to amend the complaint, the daughter renewed her motion and the probate court granted the dismissal. The son asked for an attorney because he was indigent and was denied. The son appealed.

    The appeals court affirmed. The son had adequate time and notice to correct his flawed pleading and failed to do so, and, there is no right to counsel in a will contest.

  • Granddaughter who Fraudulently Transferred Grandfather’s Real Estate to Herself Liable to His Estate for Treble Damages
    Aug 11, 2022

    Dancybey vs. Dancy-Dunlap, 8th Dist. Cuyahoga No. 111089, 2022-Ohio-2774

    Mia lived with her grandparents when she was a child. Her grandparents prepared a quitclaim deed giving title to their house to Mia while she was still a child, but never delivered it to her or recorded it. Decades later, when her grandfather was ill and her aunt moved in to care for him, Mia found the quitclaim deed and recorded it without her grandfather’s permission. After her grandfather went to a nursing home, she filed an eviction action against her aunt, claiming to be the legal owner of the property. A year later she used the fraudulently obtained title to collateralize the property and get a mortgage from a credit union.

    The grandfather sued Mia to recover the title and for treble damages for civil theft. The grandfather died during the lawsuit and his executor took over the lawsuit. The trial court found that Mia fraudulently obtained title and granted the estate’s request to recover title to the property and extinguish liens. The trial court “declined” to award the estate treble damages, stating it believed damages were in the discretion of the court, and declined to award attorney fees because—even though there were detailed itemized invoices showing all time expended and the total amount of fees, and even though all beneficiaries of the estate agreed the fees were reasonable—there was no document showing the hourly rate for the attorney. The trial court declined to award attorney fees. The estate appealed.

    The Court of Appeals reversed the trial court’s decision to not award treble damages. The Court of Appeals reviewed the two applicable statutes, R.C. 2307.60 and 2307.61, and pointed out that the statute gives the plaintiff discretion to elect to request treble damages against a defendant. But if the plaintiff makes that election and the trial court finds the defendant liable for civil theft, the trial court must award the requested damages

    However, the Court of Appeals affirmed the denial of attorney fees. The Court of Appeals found that the magistrate erred in finding that the evidence submitted was insufficient to award attorney fees. Nevertheless, the applicable statute, 2307.61 says that a plaintiff is only entitled to recover attorney fees if the civil theft damages are $5,000 or less. Because the damages were $59,700, and because the treble damages equaled $179,100, and both figures were greater than $5,000, the plaintiff was not entitled to attorney fees.

  • Excess proceeds of sheriff’s sale from tax foreclosure are properly payable to an estate and not a mortgage holder when the mortgager holder fails to assert its interest prior to the conclusion of the foreclosure proceedings
    Aug 4, 2022

    Cuyahoga Cty. Treasurer v. Heirs of Weisner, Eighth Dist. Cuyahoga No. 110868, 2022-Ohio-2668

    PNC Bank appealed the Cuyahoga County Court of Common Pleas decision distributing the excess proceeds of a tax foreclosure sale to Gina Kosiewicz, commissioner of the Estate of Nancy J. Weisner. The Cuyahoga County Treasurer sought the foreclosure, and following Weisner’s death in 2014, the property sold for $25,000 at a sheriff’s sale. The proceeds were allocated in part to the Treasurer, the County, the Clerk of Courts, and the County Sheriff, and the confirmation of sale contained a provision barring any parties claiming any right in the property from asserting that right. The court also ordered the clerk to hold the remaining balance of nearly $7,000 for “cost and or future order of the court.”

    Kosiewicz moved to intervene and asked the court to distribute the excess proceeds to Weisner’s heirs. PNC filed a brief in opposition, along with its own motion to distribute the excess proceeds to itself because Weisner owed roughly $24,000 to PNC on an equity reserve agreement that was secured by a mortgage on the foreclosed property. The trial court found that the mortgage was extinguished following the sheriff’s sale because PNC did not assert its mortgage prior to its confirmation., and that PNC needed to pursue attachment. The motions were held in abeyance for some time to allow PNC to pursue a judgment on its note and obtain an attachment, but PNC took no further action, and the trial court ultimately granted Kosiewicz’s motion. PNC appealed, asserting that the trial court erred by ordering that the excess proceeds be distributed to Kosiewicz because PNC was a creditor of the deceased to whom money was still owed.

    The Eighth District found that the foreclosure action concluded before PNC even appeared in the case. Despite being served at the outset of the proceedings, PNC never asserted its interest in the property. Further, PNC did not dispute that the confirmation of sale extinguished its interest in the property, meaning its opportunity to receive equitable relief was extinguished at that point. Because PNC defaulted on the foreclosure action by failing to assert its interest, the court held that it was not entitled to a share of the proceeds. Further, the court found that the trial court’s determination that PNC could still seek a judgment and then pursue an attachment on the judgment was correct, and that PNC could have on Weisner’s breach of the equity reserve agreement either during her lifetime or collected from her estate after her death. Ultimately, the trial court’s judgment was affirmed.

  • Medicaid recipient’s unpaid share of costs owed to long-term care facility does not qualify as unpaid past medical expense
    Jul 22, 2022

    Chamberlain v. Ohio Dept. of Job & Family Servs., First Dist. Hamilton No. C-210540, 2022-Ohio-2505

    The Ohio Department of Job and Family Services (“ODJFS”) denied an unpaid past medical expense request from appellant Jared Chamberlain, the special administrator of the estate of Gary Boseman. Boseman was a Medicaid recipient who could not pay his entire patient liability to a long-term care facility because of a federal tax levy garnished from his income. On administrative appeal to the First District, Chamberlain argued that Boseman’s unpaid patient liability should have been subtracted from his future patient liability as an unpaid past Medicaid expense, and that the ODJFS erred in denying his request to that effect.

    Chamberlain argued that the Hamilton County Job and Family Services (“HCJFS”) department’s email to the long-term care facility denying the unpaid past medical expense request was defective notice and that the trial court should have reversed ODJFS’s decision which found that issue moot. He also argued that HCJFS violated federal Medicaid regulations requiring and specific reasons and supporting law to be provided along with notice of its decision. But the First District found that Boseman was provided a full and fair administrative hearing in which he was represented by counsel, meaning that while the defective notice issue was not technically moot, he was not prejudiced from the defective notice.

    Chamberlain also argued that the trial court erred in not finding that ODJFS had incorrectly denied Boseman’s unpaid past medical expense request, and that no code or regulation specifically precluded Boseman’s request such that ODJFS could not arbitrarily deny it. However, the First District held that Chamberlain’s argument that unpaid patient liability qualified as an unpaid past medical balance called for an absurd result. If his argument were true, patients could fail to pay their share of costs to a nursing facility and later claim it as an unpaid medical expense, rendering patient liability obligations meaningless. Ultimately, the First Circuit agreed with the ODJFS decision and affirmed the trial court’s ruling.

  • Plurality decision finds no preference for family member in competing guardianship application, says applicant does not have standing to appeal a failure to appoint an attorney for the ward
    Jul 21, 2022

    In re Guardianship of Marks, Eighth Dist. Cuyahoga No. 110814, 2022-Ohio-2495

    Appellant Ida Marks appealed the trial court’s order granting guardianship of her son, Ishmael, to appellee Advocacy and Protective Services, Inc. (“APSI”). This order was granted by a magistrate following a hearing on the parties’ competing guardianship applications, in which Ida appeared pro se. Ida filed objections to the order relating to the admissibility of testimony from Vaughn, an APSI representative, the evidentiary standard employed by the magistrate, and the magistrates purported failure to appoint counsel on behalf of Ishmael. The probate court overruled these objections.

    Ida’s sole assignment of error on appeal was that the trial court abused its discretion in awarding guardianship to ASDI instead of herself, as Ishmael’s natural mother. However, the Eighth District disagreed. Judge Forbes’s lead opinion stated that the probate court heard testimony and was provided with expert evaluations and other evidence establishing that Ishmael was incompetent. The court further found that the magistrate properly applied the clear and convincing evidence standard in reaching his decision regarding Ishmael’s incompetency. Additionally, the court found that Ishmael’s high needs meant that granting ASPI’s guardianship application was in Ishmael’s best interests, as Ida was not adequately prepared to meet his needs.

    Ida also raised ancillary arguments, which the court also rejected. First, the court found that Vaughn’s testimony was properly admitted, noting that most of the rules of evidence do not apply in guardianship, but nonetheless concluding that Vaughn’s testimony met the requirements of Evid.R. 601 and 702. Finally, addressing Ida’s argument that the magistrate failed to protect Ishmael’s statutory right to counsel, the court held that because Ishmael enjoyed those rights, Ida had no standing to assert those rights on his behalf as an applicant for guardianship.

    Ultimately, the lead opinion concluded that the probate court did not abuse its discretion in granting ASPI’s guardianship application rather than Ida’s. Judge Gallagher and Judge Sheehan both concurred in the judgment but wrote separate opinions. Judge Gallagher disagreed with the conclusion that Ida lacked standing to challenge the deprivation of Ishmael’s right to counsel, stating that although that right belongs to the alleged incompetent person, that is not to say that an interested person cannot seek its enforcement. As such, Judge Gallagher would have not rendered a decision on the standing issue, and the sole issue would have been whether the probate court abused its discretion by appointing APSI as Ishmael’s guardian instead of Ida. Judge Sheehan’s brief concurrence held that the issue regarding an alleged incompetent’s rights was not squarely before the court, and a holding on that issue was not necessary under the facts of the case.

  • Probate Court issued writ of procedendo to appoint counsel for indigent mother in adoption and proceed with adoption hearing following ten-month stay
    Jul 21, 2022

    State ex rel. T.B. v. Mackey, Slip Opinion No. 2022-Ohio-2493

    Two realtors petitioned the Ohio Supreme Court for a writ of procedendo to compel Franklin County Probate Court Judge Jeffrey Mackey to lift a stay and allow them to proceed with the adoption petition they filed in July 2019.The petition identified the child’s biological mother and represented that her consent was not required because she had failed to have more than de minimis contact with the child or provide support for at least one year prior to filing the petition. The mother objected, as did a man claiming to be the child’s biological father. Following a status conference, the probate court scheduled a hearing on the consent issue for January 2020, but the father could not participate due to errors by his counsel and because he was incarcerated at the time of the hearing. The probate court granted his motion for a new hearing for February 2021, but the purported father passed away before the hearing.

    The mother applied to have counsel appointed after she discharged her original counsel in April 2021, claiming that she was indigent. Because the probate court was in the process of developing the necessary procedures to determine her indigency status following a December 2020 holding that indigent parents had the right to counsel in probate court adoption proceedings, Judge Mackey stayed the proceedings until such procedures would be put in place. After the mother timely submitted her application form, she waited nearly ten months to receive an appointment from one of only five eligible attorneys on the court’s appointment list. The realtors filed their complaint in April 2022, alleging that the probate court’s stay unreasonable, arbitrary, and unconscionable, given that the mother had just discharged private counsel.

    In its opinion, the Court stated that the determination whether to stay a proceeding lies with the discretion of the probate court and concluded that Judge Mackey acted within her discretion in accordance with recent precedent regarding indigency in probate cases when she stayed the proceedings and accepted the mother’s application for indigent status. The Court did, however, express concern about the untimeliness of the proceedings and stated that it is an abuse of discretion to allow a time-sensitive adoption proceeding to linger for so long – over three years at the time of the Court’s opinion. As such, the Court ordered the probate court to appoint counsel for the mother within 30 days of its decision.

  • General Division cannot order an estate fiduciary to do an act, even if part of an agreed settlement on the record; only probate court has jurisdiction over the conduct of executors
    Jul 19, 2022

    Santomauro v. McLaughlin, Slip Opinion No. 2022-Ohio-2441

    Christopher and Craig Santomauro were coexecutors of their deceased father’s estate. They petitioned the Ohio Supreme Court for writs of prohibition to prevent Summit County Court of Common Pleas, General Division Judge Kelly McLaughlin from enforcing an order memorializing a judicial-dissolution settlement. Christopher and Craig (the “coexecutors”) argued that they were not bound by the order because the General Division lacked both subject-matter jurisdiction to issue the order and lacked personal jurisdiction over them.

    The coexecutors’ father, Anthony, managed and controlled SUMSS Property Management, L.L.C., a family owned and operated property management company. Anthony passed away in 2011, Christopher became manager of SUMSS, and the Summit County Probate Court appointed Christopher and Craig as coexecutors of Anthony’s estate. In 2014, two of the coexecutor’s sisters filed suit in the General Division against SUMSS, seeking its dissolution, in which neither of the coexecutors was named a party. After protracted litigation, the General Division issued a final appealable order constituting the settlement agreement in 2021. Christopher and Craig objected to several provisions in that order that directed them to take specific actions regarding the estate.

    In its opinion, the Court found that the General Division attempted to exercise control over the coexecutors by directing the coexecutors’ conduct, and thereby acted outside its jurisdiction since directing the conduct of executors is within the exclusive jurisdiction of probate courts under the Ohio Revised Code. In rejecting the General Division’s argument that it did not exceed its authority because the terms that touched on probate-related issues were not essential to the settlement agreement, the Court further found that the General Division could not assign itself subject matter jurisdiction in the absence of legislative authorization and that it cited no authority recognizing an exception for nonessential terms in a settlement agreement. Finally, responding to the General Division’s argument that the underlying judicial dissolution claim fell within its jurisdiction and that the probate court lacked jurisdiction over it, the Court emphasized that while the General Division might have had jurisdiction over the original action, it still exceeded its jurisdiction when it attempted to direct the coexecutors’ conduct. Accordingly, the Court issued limited writs of prohibition.

  • Successor Trustee of Trust has no standing to sue settlor’s EP attorney for legal malpractice
    Jul 7, 2022

    Meehan vs. Smith, Eighth Dist. Cuyahoga No. 110976, 2022-Ohio-2359

    Appellant Marcia Meehan is the daughter of Thomas and Donna Meehan. Mr. and Mrs. Meehan owned a “farm” in Harrison County, Ohio. The couple entered oil, gas, and mineral rights leases on the property in 2010, which granted them substantial income. Around the same time, the Meehans hired appellee Smith, an attorney. Smith prepared estate planning documents for them, including wills and revocable living trusts, and also created an LLC for the purpose of owing the farm and receiving the revenues from the leases.

    Mr. and Mrs. Meehan passed away in 2012 and 2018, respectively. After Mr. Meehan passed away, the two sons, Timothy and Patrick, became concerned that Mrs. Meehan’s assets were diminishing, and so they met with Smith in October 2017. They sought to have Mrs. Meehan’s trust and the LLC’s documents amended to grant Timothy authority over accounts and other trust assets. Mrs. Meehan then revised her estate plan in April 2018, shortly before her death, and Marcia became co-trustee along with Timothy, as well as co-manager of the LLC with Timothy and an officer of the LLC.

    Marcia was set to receive a 25 percent distribution under the trust. However, she was upset with her brothers, believing them to be duplicitous in getting her mother to change her estate plan. Timothy and Patrick proposed a settlement agreement, but instead, Marcia filed for declaratory judgment in probate court, seeking to overturn her mother’s revised estate plan and also filed a legal malpractice action against Smith and one of his colleagues. Smith filed a motion for summary judgment at the close of discovery, claiming that he never entered an attorney-client relationship with Marcia, which the trial court granted. The Eighth District found that no express or implied attorney-client relationship existed between Marcia and Smith, and that Ohio’s adherence to the strict privity requirement in the area of estate planning prevented Marcia from suing Smith for legal malpractice. Accordingly, the trial court’s judgment was affirmed.

  • Medicaid recipient’s real property is a countable resource for purposes of evaluating application for retroactive benefits despite the applicant’s inability to find a buyer at the time of his application
    Jul 1, 2022

    Chamberlain v. Ohio Dept. of Job & Family Servs., First Dist. Hamilton No. C-210145, 2022-Ohio-2309

    Jared Chamberlain, special administrator of the estate of Isaac Harrell, appealed the trial court’s denial of Harrell’s application for retroactive Medicaid benefits. Harrell resided at a long-term care facility in 2017, and he named the facility his Medicaid representative as his health declined. In February 2017, the facility applied for Medicaid benefit retroactive to November 2016 on Harrell’s behalf, but the Hamilton County Department of Job and Family Services (“HCJFS”) denied the retroactive benefits, and only approved benefits beginning September 2017. HCJFS informed Harrell that his countable resources exceeded the $2,000. Specifically, Harrell owned real property he owned in Mississippi that was worth around $100,000, and although the property was listed for sale in September 2016, it did not sell until September 2017. Harrell unsuccessfully appealed to the Ohio Department of Job and Family Services (“ODJFS”), and then to the Hamilton County Court of Common Pleas.

    Before the First District, Chamberlain argued that a Medicaid applicant’s resources need to be “available” to be a “countable resource” for eligibility determinations under state and federal law, and that Harrell’s inability to sell the Mississippi property rendered it unavailable and uncountable. However, the court held that Chamberlain misconstrued the plain language of the administrative rule, emphasizing that the rule only required that the applicant have the legal ability to access the real property for it to be considered a countable resource, meaning that Harrell’s property was a countable resource despite his inability to secure a buyer up to that point because he was still legally able to sell it for cash. Chamberlain also argued that federal law carves out a resource exception for Medicaid applicants who are unable to sell their property. However, the court found this argument contrary to controlling precedent, which recognized that the federal regulations Chamberlain relied on in making this argument applied to SSI determinations, a purely federal obligation, and did not apply to state Medicaid eligibility determinations.

    Finally, Chamberlain contended that federal regulations at issue preempt Ohio law and that Ohio failed to submit an amended Medicaid plan to the centers for Medicare and Medicaid services (“CMS”) in order to qualify for Medicaid funding. However, the court found nothing in the record indicating that Ohio’s plan was noncompliant with federal regulations. Accordingly, the trial court’s judgment was affirmed.

  • Probate Court Lacks Jurisdiction To Correct Sex On Birth Certificate For Transgender Person
    Jun 17, 2022

    In re Application for Correction of Birth Record of Adelaide, 2nd Dist. Clark No. 2022-CA-1, 2022-Ohio-2053

    Hailey was born biologically male in Clark County in 1973. She began identifying as female as early as four years old and began living openly as female in 2020. In 2021, she filed an application for name change and an application to correct her birth certificate, specifically to correct the fact that her birth certificate listed her sex as male. The probate court granted her name change request but denied her request to change her sex on her birth certificate. The probate court ruled that the specific statute in question, R.C. 3705.15, did not give the probate court authority to correct facts that were otherwise true at the time, specifically that she was biologically/anatomically born male.

    Hailey appealed.

    On appeal, Hailey argued that a recent federal case Ray v. McCloud, 507 F.Supp.3d 925 (S.D.Ohio 2020) already determined that the Ohio Department of Health and Vital Statistics, which registers birth certificates, could not—as a blanket policy—refuse to allow people to change their sex on their birth certificates. The Ray court determined the blanket policy of denying requests to change sex was a violation of substantive due process. Hailey conceded that this federal district court decision was persuasive but not binding authority on the Second District but urged the Court to accept its persuasive value.

    The Second District affirmed the probate court. The Second District said that the statute did not explicitly give the probate court to modify birth certificates unless the facts thereon were missing or were factually incorrect at the time. In Hailey’s case, her birth certificate was factually accurate at the time. The Second District alluded to other administrative  procedures that Hailey could follow, which were direct with the Department of Health and would not involve the probate court. The Second District also distinguished the Ray case as a direct constitutional challenge to due process, whereas Hailey’s case did not raise constitutional challenges, and more akin to legal argument that the Probate Court did have its own authority to grant this request. The Second District said that the authority was not explicit, and so the probate court was proper in its denial of the change as outside the court’s jurisdiction.

  • Summary Judgment Properly Granted to Defendant In Will Contest Where Plaintiff’s Primary Evidence Of Undue Influence Was Repeating Attorney’s Advice
    Jun 17, 2022

    Fikes v. Estate of Fikes, 1st Dist. Hamilton No. C-210515, 2022-Ohio-2075

    Joseph had four children, Joey, Josh, Kimberly and Michelle. Joseph battled pancreatic cancer for three years but became terminal. A month before he died, Joseph talked with his brother, Gregory, about making a will. Joseph and Gregory called an attorney, Mrs. Davis, to make a will for Joseph. At this time, Joey and Josh were incarcerated and at least one of them owed past due child support. Mrs. Davis advised Joseph and Gregory that any inheritance that went to Joey and Josh would be seized by the state.

    Joseph made a will that made Gregory the executor, made a few specific gifts to his daughters and to his companion, but left the bulk of the assets to Gregory to divide the assets between Kimberly and Michelle. Joey and Josh filed a will contest, claiming Gregory was in a confidential relationship with Joseph, and that Gregory unduly influenced Joseph to cut Josh and Joey out the will. Joey and Josh also claimed that the attorney, Mrs. Davis, unduly influenced Joseph to cut his sons out of his will by advising him the state would seize their inheritance. Both sides filed motions for summary judgment and the court granted summary judgment in favor of the defense, finding there was no evidence Joseph was susceptible and no evidence that Gregory or Norma actually exerted undue influence on Joseph.

    The Court of Appeals affirmed. The Court of Appeals found even though there was a confidential relationship between Gregory and Joseph, Gregory merely repeated the attorney’s advice that any inheritance to Josh and Joey would be seized by the state. The Court of Appeals cited to a transcript of a call from Joseph to Josh where Joseph said “the lawyer told me don’t give them—the lawyer told me you can’t do it” in regard to leaving assets to Josh and Joey. The Court found that Gregory’s mere repeating what the attorney advised did not demonstrate the exertion of undue influence by Gregory on Joseph. Similarly, the Court of Appeals found that Mrs. Davis was not a beneficiary of Joseph’s Will and therefore there was no product of undue influence by her. There was no discussion about whether Mrs. Davis’s advice was correct.

    Finally, the Court of Appeals found that summary judgment was proper because there was no conflicting or contradictory evidence: all of the evidence was that Mrs. Davis advised Joseph that Joey and Josh’s inheritance would be seized by the state, that Gregory repeated that, and Joseph took that advice. Thus, summary judgment was proper.

  • Statute Of Limitations for Trustee Breach of Duty Does Not Apply to A Declaratory Judgment Action Challenging the Trustee’s Interpretation of the Trust Terms
    Jun 17, 2022

    Boli v. Huntington Natl. BankFifth Dist. Stark No. 2021 CA 00113, 2022-Ohio-2127

    Heather and Deborah’s father made a trust for which Heather and Deborah were equal beneficiaries after their parents’ deaths. Huntington Bank was the Trustee of the Trust. Their parents died in 1993 and 2001, and Deborah and Heather received distributions from the Trust from 2001 to 2015. when Deborah died without any descendants, Huntington began paying Deborah’s income share to Heather. Previously, in 2009, Huntington filed a complaint in probate court seeking to allow additional principal distributions to Deborah and Heather, but the Court said the extra principal distributions were not permitted by the terms of the Trust.

    After Deborah’s death, Heather noticed the distributions from Deborah’s share were larger than Heather had been receiving previously. Heather asked the trustee in 2020 why Deborah’s share of the trust was larger than Heather’s and why she did not receive the principal of Deborah’s share of the Trust. Heather sued Huntington in 2020 seeking (1) an accounting, (2) a declaration about the proper distributions of income and principal after Deborah’s death, and (3) to remove Huntington as Trustee.

    Huntington moved for summary judgment on statute of limitations grounds. Huntington argued the statute of limitations to bring a claim against a Trustee was two years from the date the Trustee issues a report that discloses the issue, or four years if no report is provided. Huntington argued that Heather knew about unequal distributions from Deborah’s share no later than 2015 after Deborah passed and therefore the statute of limitations expired no later than 2019. Huntington also argued that the issue of principal distributions was settled by the court in 2009 and Heather should have appealed then if she disagreed. The trial court agreed and granted summary judgment for Huntington.

    The Fifth District Court of Appeals reversed. The Fifth District focused on Heather’s second cause of action, where she asked the court to interpret the trust and declare that the trust required Huntington to make certain income and principal distributions to Heather as a result of Deborah’s death. The Fifth District explained that the probate court incorrectly interpreted Heather’s second cause of action as a breach of fiduciary duty claim when the record showed it was a claim to interpret the trust instrument. Therefore, the court misapplied the four-year statute of limitations under R.C.5810.05. The Court found that the section on principal distributions after death of one of the sisters was ambiguous and therefore subject to interpretation. The Court further found that no Court had adjudicated the meaning of the pertinent trust provision and therefore remanded the matter to the trial court.

  • If Medicaid Applicant Is Making “Reasonable Efforts” To Sell Real Property, That Property Is Excluded From The Applicant’s Countable Assets At The Time Of Application
    Jun 15, 2022

    Gardner v. Ohio Dept. of Job & Family Servs., 1st Dist. Hamilton No. C-210376, 2022-Ohio-2021

    Dianna owned property in West Virginia and was trying to sell it as early as December 2018. She entered a nursing home in March 2019 and applied for long-term Medicaid in August 2019. Other than this West Virginia real estate, she was, apparently otherwise eligible for Medicaid by August 2019. However, Medicaid denied her application due to the West Virginia real estate being unsold and being valued in excess of $2,000. Dianna argued the West Virginia property should be excluded for her countable resources because she was making reasonable efforts to sell it. The denial of Medicaid eligibility was affirmed at all administrative levels and then again in the court of common pleas. Dianna appealed.

    On appeal, the First District reversed. The First District analyzed the criteria for eligibility for Supplemental Social Security Income (SSI) and Ohio’s administrative criteria for Medicaid eligibility. The First District determined that Ohio could apply less restrictive eligibility criteria that what was applied for SSI, but could not be more restrictive than the rules for SSI.

    Under Ohio’s Medicaid rules, an asset was countable for Medicaid eligibility purposes if the applicant “has the legal ability to access [the asset] in order to convert to cash.”  Under the SSI rules, an asset that could not be liquidated is not countable as a resource. The First District was unpersuaded by this argument because unsuccessful sale efforts did not equate to inability to liquidate the real estate.

    But under the SSI rules, a person’s real estate is not counted as a resource if, among other reasons, the SSI applicant and property owner is making “reasonable efforts” to sell the property at the time of application but has been unsuccessful. The SSI rules give an applicant nine months to sell the property or demonstrate that she has made reasonable efforts to sell the property but has not been successful. SSI is conditionally awarded during that initial nine-month period, and can be unconditionally granted if, after nine months, the applicant demonstrates she has used reasonable efforts to sell the property but has been unsuccessful. Referring to the SSI rules, a property is un-salable when either:

    a) two knowledgeable sources state the property is un-salable due to a specified condition, or b) an actual sale attempt is made and no reasonable offer to purchase has been received.

    Conditional eligibility and repayment agreements are not required.

    The State of Ohio argued that it cannot give conditional Medicaid benefits subject to a sale of real estate as impractical and as contrary to a law that says Ohio cannot recover benefits that were correctly paid at the time of payment. But the First District said that Ohio retains recovery rights from a Medicaid recipient’s estate, and it is not impractical because the amount of benefits paid during the conditional eligibility period would be easily determined so it rejected these arguments.

    The First District said the countable resource rule under SSI did not apply to Ohio Medicaid, but this “reasonable efforts” criteria must apply to Ohio Medicaid. The First District found this notice was clear in the amended federal regulations on Medicaid, which Ohio was required to adopt as part of its participation in the Medicaid program.

    The First District remanded the case to the Court of Common Pleas to enter judgment in favor of Dianna—that making reasonable efforts to sell her real estate excluded the real estate from being a countable resource at the time of application.

  • Mother’s Request To Change Son’s First Name Because Of Potential Racial Stereotypes Deemed Not In Child’s Best Interest
    Jun 14, 2022

    In re Name Change of A.P.W., 10th Dist. No. 21AP-431, 2022-Ohio-2017

    Mother filed an application to change her eight-year-old son’s name from A.P.W., II to “P. Gabriel K-W.” K-W was a hyphenation of Mother’s last name and Father’s last name. There was no objection to the hyphenation of the last name. There was no objection to dropping the suffix II. Father, whose first name was also A, objected to the addition of Gabriel and the elimination of A. Father said that his son liked to be called “P” because there were two “A” names in the family, but had recently started going by “A.P.” Father testified that that having “A.” as part of his son’s name would help his son identify with his father. Father testified at the hearing that he would call his son A. or P. or A.P. or whatever his son preferred to be called. Ultimately, the only disputed issue was whether to change the child’s name to eliminate “A.” from his name.

    Mother said that, among other reasons, she wanted the first name changed to “P.” because the child identified as “P.” and because the name “A.” would put her son at a competitive disadvantage in society because the name was associated with a certain race. The trial court found it was not in the child’s best interest to remove the A from the name, and that removing Father’s name from the child’s name could alienate child from Father. Mother appealed.

    The Tenth District Court of Appeals affirmed the probate court. On appeal, Mother made a variety of arguments, including that because Father recently had another son, he could just name that son A and there would be one of his children with the name A. The Court of Appeals rejected those arguments. The Court of Appeals stated that “stripping the father’s name from an older child to bestow it on a younger one” would not help the older child and the father have a close relationship. The Court of Appeals firmly rejected mother’s argument that changing the first name would avoid racial stereotypes, stating that it was Mother’s burden to show the child had suffered racial stereotypes and she did not, that the trial court had the discretion to consider all the evidence that was presented, but that the trial court should not consider gender or racial stereotypes as a reason to change a minor’s name when there was not mutual consent of both parents.

    The Court of Appeals concluded that just because Mother preferred a name change does not mean that change is in the child’s best interest.

  • Probate Court Properly Ordered Real Estate With Negative Equity Transferred To Spouse Under R.C. 2106.10; Probate Court Must Accept Magistrate’s Findings Of Fact As True Where The Objector Does Not File A Transcript
    Jun 1, 2022

    Estate of Hatcher-Hamilton v. Hamilton, 9th Dist. Summit No. 29894, 2022-Ohio-1834

    Darling Hatcher-Hamilton died in March 2019 survived by her daughter, Darionne, and her husband, Delbert Hamilton. Delbert is not the father of Darionne. Darling’s will left her real estate and the balance of her estate to her daughter and nominated her daughter as executor. The probate court appointed Darionne who subsequently filed an inventory listing the real property valued at “$0.00.” Delbert filed a spousal election against the will. He also filed an election under R.C. 2106.10 to receive the house as part of his spousal elective share.

    When Darionne refused to transfer the property, Delbert filed a motion to force her to do so. Delbert provided evidence that the house was appraised at $315,000 but that it had a mortgage o as well as other liens resulting in $85,000 negative equity. Delbert stated he was entitled to the house because it is less than even his spousal allowance of $40,000 when valued by its equity as provided for under R.C. 2106.10. At a hearing before a magistrate on the motion, Darionne alleged Delbert had kept jewelry and other personal property belonging to the estate but provided no supporting evidence. Delbert denied Darionne’s allegations and stated he would take the house as his full spousal share.

    The magistrate issued a decision that the house must be transferred to Delbert. The magistrate found that Darionne failed to provide evidence of her claim that Delbert kept estate assets. Darionne objected to the magistrate’s decision and added that Delbert received retirement and insurance benefits that ought to count towards his spousal share. Darionne did not file a transcript of the hearing, which required that the judge adopt the magistrate’s factual findings as true. The trial court affirmed the conveyance of the property to Delbert and found that he agreed to accept the home in satisfaction of his full spousal share.

    On appeal Darionne argued that Delbert received $40,000 of estate assets including jewelry he should have returned to the estate and retirement benefits and life insurance. She further argued that Delbert benefited from not paying the funeral costs. Because Darionne did not file a transcript of the hearing with the probate, the judge was required to take as true the magistrate’s factual findings. Those findings included a rejection of the claim that Delbert took estate jewelry and a finding as to the valuation of the house and its equity. Without the underlying transcript, the appellate review is limited to whether the probate court abused its discretion in its adoption and/or modification of the magistrate’s decision. The appellate court found that the factual findings of the magistrate must stand because there was no transcript and Darionne did not develop any other argument on appeal. The appellate court affirmed.

  • Competing Affidavits Of Doctors And Lawyers Created A Question Of Fact About Capacity; Probate Court Cannot Revoke A Ward’s Trust Amendment Under R.C. 2111.50 Without The Required Notice And Hearing.
    May 27, 2022

    Garber v. Schneider, 1st Dist. Hamilton No. C-210568, 2022-Ohio-1777

    Dorothy had no close family, was 90 years old, and allegedly had given hundreds of thousands of dollars to her neighbor, Michael, over the prior years. In May 2019, guardianship proceedings were initiated after Adult Protective Services raised concerns about Dorothy. A medical examination in May 2019 and a subsequent one by a different doctor in September 2019 found Dorothy was incompetent and should be placed under guardianship. Dorothy resisted the guardianship and Michael assisted her in retaining counsel. Michael found a doctor who opined that as of June 2019, Dorothy could sign a power of attorney, but when he re-examined her in September 2019, he did not think Dorothy could make informed decisions.

    In October and November 2019, Dorothy met with at least two attorneys across four meetings. The result of these meetings was a power of attorney that nominated a friend, Carol, to be Dorothy’s attorney-in-fact and a trust amendment providing 40% of her estate to Michael. Dorothy also sat for a deposition in October 2019, during which time she could not recall if she had $12,000 or $12 Million and made statements indicating Michael had significantly coached Dorothy.

    In February 2020, the Court ruled Dorothy incompetent and appointed Marietta Garber as guardian (presumably a lawyer, but the opinion does not specify). The Guardian then filed a suit to revoke the November 2019 trust amendment as well as any other documents or beneficiary designations Dorothy may have signed between January 1, 2019 and the guardianship appointment in February 2020.

    The guardian filed a motion for summary judgment and Michael filed an opposition. The guardian provided affidavits of the two doctors who found Dorothy incompetent and Michael provided affidavits of the two lawyers who met with Dorothy in October and November 2019. Both sides quoted portions of Dorothy’s deposition. The probate court granted summary judgment and found the trust amendment void for lack of capacity. The court did not address undue influence. The court – sua sponte – revoked the trust amendment pursuant to power in R.C. 2111.50 allowing guardians to engage in estate planning for a ward.

    The appellate court reversed the summary judgment granting finding that this was a “classic” question of fact where multiple witnesses provided different versions of the same events. The appellate court further found that the Court could not revoke the amendment under R.C. 2111.50(B)(4) unless it first provided the required notices under division (C) and held a hearing under division (E). The matter was remanded for a bench trial because neither side had requested a jury in the original pleadings.

  • Probate court has exclusive jurisdiction over visitation of the ward and tort claims against nursing home for restricting access to ward must proceed in probate court.
    May 12, 2022

    Carney vs. Olmsted Operator, LLC, 8th Dist. Cuyahoga No. 110427, 2022-Ohio-1585

    James went into a nursing home and was the subject of a guardianship proceeding. During the pendency of the guardianship, his nephew Joseph acted as his personal attorney and his power of attorney. Joseph also tried to visit James in the nursing home and take him to church. The nursing home suspected that James was vulnerable to manipulation and excluded Joseph from visiting James while the guardianship was pending.

    James was named as a plaintiff in a lawsuit filed against the nursing home in the court of common pleas, alleging various tort and statutory claims about visitation, privacy, damages and conspiracy. It appeared that Joseph had actually prepared the lawsuit on behalf of James. After a guardian was appointed for James, she was substituted into the lawsuit against the nursing home. The nursing home moved to dismiss the case on the basis that it had to do with the guardianship, so probate court had exclusive jurisdiction. James argued that these were personal claims of torts and statutory violations and thus could not be brought in the probate court. The trial court granted the dismissal for lack of subject matter jurisdiction.

    In a 2-1 decision, the court of appeals agreed with the nursing home. The court of appeals surmised that the claims in the lawsuit all centered on visitation between James and Joseph. Because the probate court has exclusive jurisdiction over matters concerned the ward, including visitation, the claims should be heard by the probate court.

    The dissenting opinion pointed out that not all claims that involve a person under guardianship are proper in the probate court. While the probate court is the superior guardian of its wards, it still has limited jurisdiction to hear claims. The dissenting opinion stated that these types of claims could not be filed in the probate court under normal circumstances, and the fact that the plaintiff was under guardianship did not give the probate court exclusive jurisdiction over tort and statutory claims.

  • Court must consider extrinsic evidence of testator’s intent to construe will with two mutually exclusive provisions.
    May 10, 2022

    In re Estate of Skalsky, Fifth Dist. Holmes No. 21CA004, 2022-Ohio-1568

    Jeff made a will that left all the rest and residue of his estate to his companion of 30 years, Nancy. The will also contained a provision that said if Jeff died without any issue, he left the rest and residue of his estate to his next of kin who survived him. Jeff’s sole next of kin was his brother John. Jeff and John had not spoken in many years prior to Jeff’s death. Jeff died with no issue. Nancy probated the will and notified John, as Jeff’s next of kin. John asked the probate court to construe Jeff’s will, and argued that because the two provisions for the residue of the estate were mutually exclusive, they should be voided and the residue should pass to John under the laws of intestacy.

    John filed a complaint to construe the will and asked the probate court to declare that the two provisions cancelled each other out and the will should pass to the next of kin as by intestacy. John argued that the facts of Jeff’s intent did not matter and as a matter of law, because the two provisions were incompatible, they were void. The probate court disagreed and said the issue of Jeff’s intent was the central issue for the court. The matter proceeded to trial.

    John admitted that he did not have a good relationship with Jeff and didn’t even know that Jeff died until the attorney for the estate contacted him months later. Nancy testified that she had been with Jeff for 30 years. Two of Jeff’s friends testified that Jeff and John hated each other and Jeff loved Nancy. The drafting attorney testified that his secretary must have made an error in revising the will for Jeff, and that he had left the will in a drop box for Jeff to pick up, not reviewing it with Jeff in person because it was during Covid.

    The trial court ruled that Jeff’s intent was to leave everything to Nancy and John got nothing. John appealed, but the court of appeals agreed with the trial court.

  • Probate estate administration attorney fees limited to court guideline even though itemized invoices showed greater fee.
    May 9, 2022

    In re Estate of Dickens, 12th Dist. Brown No. CA2021-09-012, 2022-Ohio-1543

    An attorney charged an estate a fee of almost $6,000 based on her itemized invoices at a $300 hourly rate. The local court guideline allowed for a fee of approximately $1,600. There were no consents or objections to the attorney’s fees, but local rule required a hearing on the fees because it was in excess of the guideline. Three beneficiaries (one of which was the executor) and the executor appeared. The executor said the fees were reasonable and necessary because there was a lot of discord among the beneficiaries, which led to lots of phone calls and e-mails, and there were some complicating factors with predeceased next of kin. Two of the beneficiaries said the fees were “steep” and this was a pretty run of the mill estate that didn’t justify extra fees.

    The attorney’s fee agreement said that she would charge the local rule guideline fee, or she would submit itemized invoices. The probate court ruled that the attorney never asked for extraordinary fees and never notified the court of any discord or delay in administration. The court approved the guideline fee and denied the additional fees. The attorney appealed.

    The Court of Appeals affirmed the probate court decision, finding that attorney fees are in the discretion of the probate court and the attorney did not provide an adequate basis to explain why her fees should exceeded the guideline.

  • Remainder beneficiaries of trust did not confer a benefit on the trustee of their two trusts and so claim for unjust enrichment failed.
    Mar 30, 2022

    Helton v. Fifth Third Bank, 1st Dist. Hamilton No.C-210451, 2022-Ohio-1023

    Brothers William and John Sherman created trusts that paid income to William’s daughter for her lifetime and the remainder to William’s grandchildren. Fifth Third Bank served as Trustee of these Trusts. The Trusts were heavily concentrated with stock in a closely held business, and the Bank Trustee was concerned about diversification. However, the Bank Trustee never diversified, largely at the request of the William’s daughter and her children. The trust generated $72 million in income between 1985 and 2015. Eventually, the closely held business began to decline and eventually went into bankruptcy, reducing the value of the trusts to almost zero. After William’s daughter died in 2015, her children became the income beneficiaries and they sued the Bank Trustee for, among other things, breach of duty to diversify and unjust enrichment for allegedly taking improper fees from the trusts.

    The trial court found in favor of the Bank Trustee, ruling that the statute of limitations to bring a duty to diversify claim had expired before the children filed suit in 2015 and dismissing the other claims on summary judgment. The children appealed and the court of appeals affirmed the dismissal of the breach of duty to diversify as untimely filed. But the court of appeals remanded the unjust enrichment claim back to the trial court finding it to be a distinct claim from the duty to diversify.

    On remand, the Bank Trustee again moved for summary judgment on the unjust enrichment claim, which was denied, but the Bank Trustee asked the court to reconsider based on a recent appellate decision out of the 1st District that said an unjust enrichment claim cannot be maintained unless the plaintiffs actually conferred a benefit on the defendant. The children’s argument was that the Bank Trustee charged unreasonable fees while their mother was the beneficiary, for 2015 and prior, but not after they became income beneficiaries. The Bank Trustee argued that the children didn’t confer a benefit on the Bank, rather their mother did. The trial court agreed with the bank and granted summary judgment on the unjust enrichment claim. The children appealed but the Court of Appeals also agreed with the bank. Because the children were not income beneficiaries and not entitled to distributions from the trust during the time they alleged the Bank Trustee was paid improper fees, they did not confer a benefit on the bank and their unjust enrichment claim failed.

  • Contract to purchase real estate that was not fully performed in life enforceable against decedent’s estate when the last will and testament specifically references the intention to honor the contract.
    Mar 28, 2022

    Stover v. Doepker, 3rd Dist. Wyandot No. 16-21-03, 2022-Ohio-989

    Helen contracted with her son Eric in 2008 to purchase Helen’s farm property for $75,000. The terms of the contract required Eric to make a $1,000 down payment and then make payments on installments over time. Eric paid the down payment but not the installment payments. Helen made a will in 2015 that referenced the 2008 contract with Eric and gave him the property, but only if he agreed to purchase the property from Helen’s estate for the full remaining purchase price set forth in the 2008 contract.

    Helen died in 2018 and her daughter Tina was appointed Executor of the Estate. Eric sent the Estate a check for $74,000 to purchase the farm property but Tina refused. Eric filed a lawsuit to require Tina to carry out the terms of the will and sell him the property. Tina argued the contract wasn’t performed in Helen’s lifetime and too much time had passed to make it still enforceable. The probate court agreed with Tina and dismissed Eric’s complaint.

    The Court of Appeals reversed. The Court of Appeals found the will terms were unambiguous and that the contract itself had clear terms. The Court of Appeals found that Helen incorporated the contract into her will and gave Eric the right to purchase the property for the contract price, which Eric timely tried to do. The case was remanded back to the probate court to allow Eric to purchase the property.

  • A party who is not entitled to priority to administer an intestate estate has no standing to seek the removal of previously appointed administrator.
    Mar 25, 2022

    In re: Estate of Mayberry, Fifth Dist. Knox No. 22CA0004, 2022-Ohio-977

    Tiffani died intestate, survived by two minor children, her parents, and her ex-husband, among others. Tiffani’s ex-husband applied to administer Tiffani’s estate and was appointed. A month later, Tiffani’s mother sought to vacate the decision appointing the ex-husband as administrator. The probate court dismissed the motion to vacate and the mother appealed.

    The Court of Appeals dismissed the appeal for lack of standing. The Court of Appeals found that because mother was not entitled to inherit from the estate as a beneficiary, was not a creditor of the estate, and was not entitled priority appointment as administrator under R.C. 2113.06, she had no standing to undo the appointment of the ex-husband. The Court of Appeals said that even though the ex-husband was also not entitled to priority of administration and also did not have any right to inherit from the estate, the probate court nevertheless had the discretion to appoint him and did so. Essentially, the ex-husband won the race to the courthouse and was otherwise suitable to administer the estate. Without any other basis to challenge the ex-husband’s appointment, the mother had no standing to seek his removal and her appeal was dismissed.

  • Attorney/Administrator’s memorandum explaining an item on final estate account deemed waiver of hearing on the account.
    Mar 24, 2022

    In re Estate of Zeak, Tenth Dist. Franklin No. No. 20AP-310, 2022-Ohio-951

    An attorney entered into an agreement with a deceased’s next of kin for a 33% finder’s fee for discovering assets that belonged to the decedent. This agreement was signed before the estate was opened. The attorney was appointed to administer the estate and the attorney submitted the final estate accounting showing payment of his finder’s fee. The final account was set for a hearing and the attorney was ordered to appear at the hearing, but the hearing was continued. 

    According to the attorney, a clerk at the probate court told him he could submit a memorandum on his accounting and his appearance would not be required at a hearing. The attorney submitted a memorandum with the accounting prior to the hearing and did not appear.

    The magistrate found the attorney waived his right to attend a hearing on the accounting by filing his memorandum. The magistrate ruled the payment of the finder’s fee was improper and rejected the accounting, ordering the attorney to submit an accounting that showed no payment of the finder’s fee.

    The attorney objected to the magistrate’s decision and sought a transcript of the hearing record. The probate court told him there was no transcript, and the judge said that no transcript was necessary because of the memorandum, the attorney’s waiver of appearance at a hearing, and the completeness of the magistrate decision. The judge adopted the magistrate’s decision and the attorney appealed.

    In a 2-1 decision, the court of appeals determined that the attorney’s sole assignment of error was that the probate court erred in determining he waived his right to appear at an accounting hearing. The court of appeals noted that the attorney did not actually challenge the propriety of the decision to reject his accounting, but sought only to find a procedural defect in the account hearing requirement. The majority determined the attorney had notice of the hearing and simply chose to submit the memorandum in lieu of attendance. The dissenting opinion found that there is a statutory right to a hearing, that a hearing on a final account is mandatory, and that in the absence of a record of a hearing, the appellate court could not determine if a hearing actually took place or if waiver of the hearing by filing the memorandum was proper.

  • Probate court erred in excluding evidence in non-guardian / natural parent’s application to terminate guardianship.
    Mar 18, 2022

    In re: Guardianship of E.M., Sixth Dist. Sandusky No. S-21-011, 2022-Ohio-862

    Parents of a minor child, E.M., divorced in 2012 and mother was awarded custody of E.M. Approximately a year after the divorce, E.M.’s paternal grandparents filed for guardianship of E.M. in Probate Court due to mother’s and father’s inability to provide for E.M.’s medical care and financial needs at the time. Mother consented to the guardianship application, believing that it was indefinite until she was able to get on her feet financially.

    Two years later in 2015, mother sought to terminate the guardianship and restore full custody of E.M. The probate court denied the application to terminate the guardianship, stating that mother had relinquished her custody rights, that E.M. had not had a significant improvement in health, and that mother had not demonstrated that the grandparents were no longer suitable.

    In 2020, mother again sought to terminate the guardianship and sought to add into the record evidence from the original guardianship proceedings and issues that arose between 2013-2015. The probate court again denied mother’s motion to terminate, stating that E.M.’s health – the main reason for the guardianship in the first place – had not significantly changed and that there was still no good cause for removing grandparents. Mother appealed.

    The Court of Appeals reversed. The Court of Appeals pointed out that the probate court should never have exercised jurisdiction over the custody of E.M. because it had been previously determined by the domestic relations court, and in custody issues, the first court to exercise jurisdiction has priority to the exclusion of all other courts. But because mother had agreed to the guardianship in the first place and participated in the proceedings for seven years, the probate court’s decisions were only voidable and not void.

    But on the merits of the case, the court of appeals found the key issue in a custody/guardianship hearing is the best interests of the minor child/ward. Because the probate court focused on change in circumstance and “good cause” to remove the guardians, the court of appeals remanded the case to probate court to consider what was in E.M.’s best interests.

  • No Contest Clause in a trust deemed to have terminated beneficiary-plaintiff’s interest in trust and precluded her from seeking removal of fiduciary.
    Mar 11, 2022

    In Re: Estate of Reck, 2nd Dist. Darke No. 2021-CA-13, 2022-Ohio-719

    Robert made a trust naming his five kids as contingent beneficiaries and naming his daughter Robin as one of the co-trustees. Robert then amended his trust to remove Robin as one of the cotrustees. The Trust also has a no contest clause.

    Robin sued in the general division to declare the trust amendment invalid, arguing she was removed as cotrustee due to her father’s lack of capacity and or undue influence by one of her siblings. She raised other claims relating to a right of first refusal to Robin on the purchase of some real estate. In the general division, the parties filed motions to dismiss and the complaint was amended.

    While the general division contest action was pending, Robin sought to remove the executor from her father’s estate in the probate court. The father’s will was a pour-over will and Robin was a beneficiary of the resulting trust, thus she would have standing to remove the executor. In this removal action, the executor moved for summary judgment arguing that because Robin had filed and was in the process of litigating a contest action, Robin was in violation of the trust’s no-contest clause. Therefore, the no-contest clause applied, Robin had violated it by filing the pending contest action, and therefore Robin no longer had an interest in the trust or the estate. The probate court agreed with the executor and held that Robin lacked standing (lacked a pecuniary interest) in the probate estate because Robin is not a valid beneficiary of the trust as a result of violating the no-contest clause. Robin appealed the Probate Court decision, but the 2nd District affirmed. The second district said that Robin’s challenge of the trust amendment immediately eliminated her status as beneficiary and even though she argued the trust amendment was invalid due to lack of capacity or undue influence, the court of appeals was not persuaded.

  • Insolvency proceeding in probate court with notice to mortgage holder does not preclude a mortgage holder from subsequently filing a foreclosure on estate real estate.
    Feb 25, 2022

    Fifth Third v. Leveck, Second Dist. Miami No. 2021-CA-029, 2022-Ohio-546

    Mr. Blessing died testate. His executor filed an inventory and appraisal of his estate identifying certain real property. The executor determined the estate was insolvent and filed an action to deem the estate insolvent. The executor notified Fifth Third, which held a mortgage on the decedent’s real property, of the insolvency proceedings. Fifth Third did not respond. The probate court granted the insolvency and filed an entry certifying all known creditors had been notified of the insolvency hearing.

    The executor then reached out to Fifth Third to negotiate a settlement of Fifth Third’s mortgage for less than what was owed. Fifth Third’s counsel asked the executor to sell the property and run the offers to purchase by Fifth Third for review. Fifth Third then commenced foreclosure proceedings in the general division. The Estate moved to dismiss the foreclosure action, arguing that the probate court had priority jurisdiction over the real property and the general division agreed. Fifth Third appealed.

    On appeal, Fifth Third argued that the executor never invoked the probate court’s jurisdiction to sell the property, such as filing a land sale action or filing a consent to power to sell real estate. Therefore, Fifth Third was free to foreclose on the property. The Estate argued, among other things, that probate court acquired jurisdiction over the sale of the real estate by accepting it on the estate inventory; the insolvency proceeding invoked the probate jurisdiction over the sale of the real estate; and alternatively, that the decedent’s will granted the executor the power to sell real estate, such that the appointment of the executor with the power to sell real estate invoked the probate court’s jurisdiction over the property.

    The Court of Appeals reversed the general division’s dismissal. The Court of Appeals determined that the mere filing of an estate and identifying real property as an estate asset does not invoke the probate court’s jurisdiction over the sale of real estate. The Court of Appeals found that the executor did not invoke the probate court’s jurisdiction to sell the real estate by commencing a land sale or filing a consent to power to sell real estate.

  • Purported daughters of decedent lacked standing to pursue will contest due to lack of proof that they were decedent’s actual children.
    Feb 24, 2022

    Powell vs. Williams, 8th Dist. Cuyahoga No. 110536, 2022-Ohio-526

    Tiffany and Sophia claimed that Larry was their father. Larry’s obituary referenced Tiffany and Sophia as his daughters and he had made them beneficiaries of some of his other assets. However, Larry’s last will and testament did not reference Tiffany or Sophia but rather only referenced his son Brandon and made Brandon and Larry’s other minor children the beneficiaries. Brandon was the executor of the will and Brandon identified Tiffany and Sophia as “alleged daughters” on the probate next of kin form.

    Tiffany and Sophia filed a will contest and subsequently filed a motion for genetic testing to prove they were Larry’s daughters. Brandon did not respond to the motion for genetic testing. The probate court denied the motion, finding that while the probate court would have jurisdiction to hear a parentage action, Tiffany and Sophia were required to establish Larry as their father during his lifetime or within five years after they turned 18 through a specific legal proceeding. Larry died more than five years after Tiffany and Sophia had turned 18 and no action was filed to prove Larry was their father within that five-year period. The statute of limitations had expired. Accordingly, the will contest complaint was dismissed.

    Tiffany and Sophia appealed, arguing that the five-year statute of limitations (after they turned 18) to prove their parentage was unconstitutional. The Court of Appeals, in a 2-1 decision, affirmed the denial of the genetic testing and the dismissal of the will contest.

    The dissenting opinion said the statute of limitations to prove parentage should be 12 years, which is similar to the statute of limitations for childhood victims of sexual abuse to bring claims against their abusers. Both the majority and the dissent agreed there was evidence to show that Larry socially recognized Tiffany and Sophia as his daughters, and both agreed that the current statutory procedure for proving parenthood for children born out of wedlock barred Tiffany’s and Sophia’s claim.

  • Proponent of a will cannot ask the Court to pick the “best” will when multiple wills are submitted to probate.
    Dec 14, 2021

    In re Estate of Vernon D. Todd, Fifth Dist. Morrow No. 2021 CA 002, 2021-Ohio-4419

    After Vernon passed away, his brother Charles sent letters to Vernon’s son, daughter and granddaughter telling them that Vernon had dictated a will to Vernon’s sister, and that Charles was going to carry out Vernon’s wishes by making certain distributions. Charles sent checks out of his own personal account to Vernon’s son and daughter and asked them to sign and acknowledgement. Both of them accepted the checks and signed the documents.

    More than a year later, an attorney filed an application to administer Vernon’s estate. Charles then filed an application to probate Vernon’s will and filed a document purporting to be signed by Vernon, but had no witness signatures. Vernon’s sister then filed a similar version of the “will” but did not file an application to probate the will. Charles then filed a third document purporting to be Vernon’s will, along with an affidavit from Vernon’s sister and brother-in-law, who claimed they saw Vernon sign only one of the three documents – but not more than one, and not sure exactly which one.  

    The attorney seeking to probate the estate challenged the validity of the documents submitted by Charles and his sister and requested a hearing. At the hearing, Charles admitted that he did not know which document was the actual will that Vernon intended, but they all had very similar distributions and provisions. Charles had a handwriting expert testify that all of the documents were definitely signed by Vernon because they all had similar features in the signatures.

    The attorney had a handwriting expert of greater renown and experience and he testified that none of the signatures were actually Vernon’s because they had too many dissimilar features, which is the hallmark of a forgery in practice.

    The probate court issued a detailed decision and concluded that Charles failed to meet his burden of proof and denied any of the documents were Vernon’s actual will. Charles had the burden of proof to establish that one of the documents was clearly and convincingly Vernon’s last will, and he admitted that he couldn’t tell which one was the real one, nor could he explain why there were three signed versions of similar wills. Charles appealed.

    The Court of Appeals affirmed the probate court. The Court of Appeals agreed that Charles failed to meet his burden because he had to affirmatively establish that one of the documents was the actual will. Charles admitted that he could not do that. It was not enough to provide evidence that one of the documents must have been the will – he had to be clear and convincing to show one of the documents was valid. Charles could not ask the Probate Court to pick one. He had to show one was valid and he did not do that.

  • Nursing home loses breach of contract and promissory estoppel case against agent under power of attorney.
    Dec 8, 2021

    Montgomery at Carecore, L.L.C. v. Abbott, 1st Dist. Hamilton No. C-210252, 2021-Ohio-4276

    Mrs. Abbot was the agent under a power of attorney instrument executed by her stepfather, Lloyd. Mrs. Abbot filled out nursing home admission paperwork for Lloyd  for Montgomery at Carecore. The agreement specifically defined Mrs. Abbot as a sponsor, and said she had no personal financial liability to the nursing home. The agreement stated that Mrs. Abbot would use Lloyd’s funds to pay his bills, to the extent Mrs. Abbot had access to those funds.

    Lloyd died owing a balance of approximately $17,000 to the nursing home. The nursing home sued Mrs. Abbot for breach of contract and for promissory estoppel, alleging that she breached the contract by failing to pay Lloyd’s bills, or that the nursing home relied on her representations that she would pay Lloyd’s bills with his money.

    The trial court and the court of appeals agreed that Mrs. Abbot had no personal liability under the contract, so she could not be held liable for breach. Both courts agreed that because there was an express contract, the nursing home could not rely on promissory estoppel, which is a quasi-contract theory either.

  • First court in Ohio to interpret the term “devise” in the anti-lapse statute interprets it to mean that a gift in a will to one person does not constitute a “devise” and therefore anti-lapse does not apply.
    Dec 6, 2021

    Diller v. Diller, Third Dist. Mercer No. 10-21-03, 2021-Ohio-4252

    Theodore made a will in 1998 that said:

    ITEM II. I hereby give, devise and bequeath my farm located in Butler Township, Mercer County, Ohio, and any interest that I may have in any farm chattel property to my brother, JOHN PENNO.

    ITEM III. All the rest, residue, and remainder of my property, real and personal, of every kind, nature, and description, wheresoever situated, which I may own or have the right to dispose of at the time of my decease, I give, devise, and bequeath equally to my brother, JOHN PENNO and my sister, MARY ANN DILLER, absolutely and in fee simple, share and share alike therein, per stirpes.

    John predeceased Theodore in 2016. John was survived by his two kids, David and Linda. Theodore died in 2019. In construing Theodore’s will, Mary Ann argued that, because John predeceased Theodore, the devise of the farm in Mercer County lapsed, and passed as the residue of the estate. That meant instead of the farm passing to David and Linda under Item II of the Will, the farm would pass under Item III of the Will, 50% to Mary Ann and 50% divided between David and Linda.

    David and Linda argued that Ohio has an “anti-lapse” statute, R.C. 2107.52, and the 1992 version of the statute in effect when Theodore made his will required that if there was a specific gift to a person, and that person predeceased the testator, then his heirs at law would stand in his shoes and inherit. In this case, that meant they would step into their dad’s shoes and inherit the entire farm under Item II of the Will.

    Mary Ann argued that the Court should use the version of the anti-lapse statute in effect in 2019 when Theodore died. That version of the statute said that gifts to specific people or members of class fail if the person or member of the class predeceases, and his or her heirs do not step into his shoes unless the will has specific language to require that. Mary Ann also argued that the word “devise” as used in the anti-lapse statute, did not create a substitute gift if the gift in the will was to only one person.

    This case presented the question of what the word “devise” means in the anti-lapse statute, and essentially whether the gift to John lapsed. If it lapsed, then it passed to the residue of the estate. If the anti-lapse statute “saved” the gift, then it would pass to John’s children, David and Linda. 

    The probate court did not explicitly say which version of the statute it was applying, but it referenced both the language in the 1992 version of the statute and the 2019 version, essentially concluding that both versions would reach the same result. The probate court said that David and Linda should receive the farm under Item II of the Will, and the gift to John was “saved” by the anti-lapse statute. 

    On appeal, the Third District compared the two versions of the statute. The Court of Appeals agreed that the two version of the statute could have been considered. The Court of Appeals said that the 2019 version applied because that statute explicitly said it applied to all wills for decedents who die on or after March 22, 2012. However, the Court of Appeals said that was not the main question.

    The main question was the meaning of the word “devise” as used in the anti-lapse statute. The Court of Appeals determined that the anti-lapse statute only creates a substitute gift and “saves” a provision in a will if the provision in the will is (a) an “alternate devise,” (b)  a devise in the form of a class gift or (c) an exercise of  a power of appointment. Thus, the anti-lapse statute does not apply to a gift to one person, which is “primary devise.”

    An alternate devise would be “Blackacre to A, but if A predeceases, then to B.” In that example, the “primary devise” is the gift to A. The alternate devise is the gift to B. B only takes as an alternative if A predeceases. Under the anti-lapse statute, if both A and B predeceased, then the anti-lapse statute would “save” the gift to B from lapsing, and B’s heirs would step into her shoes and inherit. A would not inherit because the statute only applies to “alternate devises.”

    A class gift would be “to my nieces and nephews.” In that case, if there were four nieces and nephews, and one of the nephews predeceased the testator, and that nephew was survived by one daughter, the nephew’s daughter would stand in his shoes and receive his share.

    A power of appointment is when the will says something like “I give A the power to dispose of my property held in the B Trust in favor of C.” If C predeceased, then C’s heirs would have the right to say the gift to C is saved by the anti-lapse statute.

    The Court of Appeals acknowledged that Mary Ann’s reading of the statutory meaning of the word “devise” was a narrow one, but they agreed that her version was accurate under the statute. The Court of Appeals questioned whether the legislature really meant to exclude “primary devises,” and went so far to say that the actual language used in the statute was accidental rather than intentional. But the Court of Appeals reversed the probate court and remanded the case to interpret the Will to mean that Item II of Theodore’s Will lapsed, and the Mercer farm passed as part of the residue of the estate.

  • Transactions with an invalid power of attorney six months before filing for divorce are not per se indications of financial misconduct.
    Dec 2, 2021

    Kowalski-Tippett v. Tippett, 10th Dist. No. 20AP-228, 2021-Ohio-4220

    Christine and Henry were married with children. Christine and Henry were the subject of a raid by the DEA in 2011. They both executed reciprocal power of attorney instruments in 2012, naming each the agent for the other in case they were incarcerated. They were later indicted in 2014.

    Henry’s bail was revoked in 2015 and he directed Christine to sign a new POA for him naming their adult children as agents for Henry in case Christine was incarcerated too. Henry was subsequently incarcerated but Christine was not. While Henry was in jail, a Florida property he owned jointly with Christine fell behind on the mortgage and Christine and the kids decided to sell it, with Christine signing the deed and the kids under the 2015 POA signing as Henry’s agents. Christine received about $50,000 in proceeds from the Florida sale in fall 2017, spent it all, and filed for divorce six months later. Henry argued in the divorce that Christine committed financial misconduct by using a legally invalid POA to sell marital property and  then spent it all. The divorce court agreed with Henry, finding that the 2015 POA was invalid and awarded Henry special damages due to Christine’s misconduct.

    On appeal, the Tenth District agreed that the 2015 POA was invalid but pointed out that Henry is the one who asked Christine to sign it for him. The Tenth District found that the fact that the POA was legally invalid was less important than the fact that Henry told Christine to sign it for him. However, the Tenth District agreed that, while using it to sell the Florida real estate was not per se misconduct, taking the proceeds and spending it all on herself and on the kids is a question of fact in a determination of misconduct. The case was remanded back to the divorce court.

  • Husband failed to change his estate plan pursuant to his divorce decree and his executor & trustee were ordered to pay one-half of his probate and non-probate assets pursuant to the decree.
    Nov 24, 2021

    McCloskey v. McCloskey, Second Dist. Montgomery No. 29055, 2021-Ohio-4158.

    James and Linda divorced in 2014. They had two adult children, Michael, who was disabled and non-verbal, and Janice. One of the terms of their divorce decree was that James and Linda would make an irrevocable trust for Michael and each of them would make Michael’s trust a beneficiary of 50% of their assets upon their death. Linda made an irrevocable trust for Michael in 2014. Michael was the primary beneficiary of the Trust and Janice was the remainder beneficiary upon Michael’s death. The divorce decree did not specify if assets meant probate or non-probate or both but referenced a will or trust.

    James died, but never updated his estate plan or beneficiary designations to pay 50% of his assets to Michael’s trust. Janice was the executor of James Estate and Trustee of his Trust and was the primary beneficiary of both. Janice paid some life insurance to Linda for an alimony obligation and paid the balance to Michael’s 2014 Trust.

    Janice and Linda had become estranged. Linda created a new irrevocable trust for Michael in 2018, eliminated Janice as a remainder beneficiary, and made Janice’s children the remainder beneficiaries instead.

    Linda sought to compel Janice to pay 50% of James probate and non-probate assets to Michael’s trust. Janice said the divorce decree was ambiguous and it only applied to probate assets. The probate court ordered the parties to go back to domestic relations court to interpret the divorce decree. Linda added Janice to the divorce case as a third party in her capacity as Executor and Trustee. Linda also sought to hold Janice in contempt for failing (and for James’s failing) to comply with the property distributions required in the divorce decree.

    The DR court found that the decree applied to all of James’s assets that he owned at his death, and that if it only meant probate assets, then James could avoid his obligation by avoiding probate altogether, rendering the decree meaningless. The DR Court also found that it would not be fair to hold Janice in contempt for James’s failure, and that Janice had a good faith disagreement about the meaning of the divorce decree. The DR court also ordered that a new irrevocable trust be made for Michael with no remainder beneficiary, and that the assets would pass by the laws of intestacy after Michael’s death.

    On appeal, the court agreed that with the DR Court about the interpretation of assets to include probate and non-probate, and agreed that 50% of those assets should be distributed to a trust for Michael. But the court of appeals found that James’s estate left everything to Janice, and therefore Janice should be the remainder beneficiary of the new irrevocable trust for Michael. Linda did not have to take any assets out of the 2014 or 2018 Trusts, nor was she ordered to modify the terms, but a new trust was to be created for Michael, remainder to Janice.

  • Nursing home loses fraudulent conveyance case against non-probate beneficiary of decedent’s asset.
    Nov 9, 2021

    Kingston of Miamisburg, LLC v. Jeffery, Second Dist. Montgomery No. 29021, 2021-Ohio-4105

    Marian named her son Fred the beneficiary on a TOD account in 2013. Years later, she entered a nursing home. She died at the nursing home owing a balance of approximately $30,000 and her probate estate only had approximately $10,000 in assets. The nursing home sued Fred directly under a theory of fraudulent conveyance, claiming that the TOD transfer to Fred rendered Marian’s estate insolvent and therefore the transfer was fraudulent.

    The trial court disagreed, finding that Marian’s estate had assets and the TOD transfer did not make the Estate insolvent. The Court of Appeals agreed.

  • Deed was invalid because no evidence that grantor authorized someone else to sign for her.
    Nov 5, 2021

    Byars v. Byars, Second Dist. Montgomery Nos. 29007 & 29009, 2021-Ohio-3940

    Margaret raised five children in the Dayton area. Margaret’s son Keith was a successful college and professional football player and he paid off Margaret’s mortgage and paid for substantial repairs and improvement to the house. In 2016, Margaret let her one daughter and son in law move into her house and then Margaret moved to a nursing home. After Margaret was in the nursing home, Margaret purportedly signed a quit-claim deed transferring the title to her house to Keith. Keith did not record the deed until several months after Margaret passed away, and Keith did not tell his siblings about the deed until he commenced eviction proceedings against his sister and brother-in-law. The signature on the deed did not match Margaret’s prior signatures.

    The administrator of Margaret’s estate filed a declaratory judgment action against Keith to invalidate the quitclaim deed. The Court found Keith’s testimony about the deed less than credible but found the testimony of the notary to be persuasive. The notary said the deed was already signed when she arrived at the nursing home, and that Keith was already there with Margaret, but also that Margaret appeared to understand what she was doing. The probate court confirmed title belonged to Keith and the Estate appealed.

    The Court of appeals reversed. The Court of Appeals found that it was undisputed that Margaret did not actually sign the deed. The Court of Appeals found that there was credible evidence that Margaret was capable of signing a deed and making the transfer to Keith, and that it was permissible for someone other than the grantor to sign the deed if the grantor knew what she was doing and wanted someone else to sign for her. But the Court of Appeals found there was no evidence that Margaret actually authorized someone else to sign the deed for her. Because there was no evidence that Margaret authorized someone to sign for her, the deed was “not signed by the grantor or at the grantor’s direction” and was therefore invalid. The Court of Appeals remanded the case to probate court to grant title to the estate.

  • For purposes of a name change application, a person can “reside” in a county other than their legal “residence”.
    Nov 1, 2021

    In re Name Change of Davis, Third Dist. Marion No. 9-21-05, 2021-Ohio-3879

    A man was convicted of several crimes that he committed in Hamilton County, Ohio and was sentenced to serve out a prison sentence in Marion County, Ohio. He applied to Marion County Probate Court to change his name, indicating he had resided at the prison for more than one year. The Probate Court denied his application on the basis that he was not a resident of Marion County because his presence was involuntary due to his imprisonment.

    The Court of Appeals reversed the Probate Court. The Court of Appeals found, in a thorough analysis of statutes and case law on the meaning of “reside” and “resident”, that the word “resides” as used in R.C. 2717.01 (the name-change statute) means that a person could “‘reside’ somewhere other than where their legal domicile makes them a “resident.” Thus, the fact that the applicant resided in Marion County prison, even involuntary, still made him a resident for purposes of his name change request.

  • General division has jurisdiction to determine title to property that was improperly transferred by an emergency guardian of the person.
    Oct 22, 2021

    VanDeGrift v. Miller, Second Dist. Miami No. 2021-CA-16, 2021-Ohio-3758

    Michael acquired title to real estate in Piqua in September 2011 from the six co-owners, one of which was Patrick. Each of the six co-owners signed deeds conveying their 1/6 interest in the property to Michael, except for Patrick. Patrick’s deed was signed by Erin, who purported to be signing on Patrick’s behalf as Patrick’s guardian. The probate records show that Erin had applied for emergency guardian of Patrick’s person in August 2011 and that she was appointed emergency guardian for Patrick’s person from August 29, 2011 until November 2011. During the pendency of the emergency guardianship, Erin applied for non-limited guardianship over Patrick, but Erin withdrew the guardianship application before there was a hearing. Erin was never appointed guardian of Patrick’s estate.

    In 2020, Michael filed suit for quiet title in Miami County Common Pleas Court, alleging that he was the sole owner of the Piqua property based on the transfer of title from the prior six co-owners and stating there was confusion about Patrick’s interest in the property. Michael alleged that under R.C. 5301.07(C), there was a conclusive presumption that the deed on behalf of Patrick was valid because it had been recorded for more than four years and was unchallenged. Michael moved for default judgment and the matter was set for hearing in March 2021. Michael admitted the deed from Erin was not valid because she did not have authority over Patrick’s real estate, but because the deed had been unchallenged for four years, he argued it now became conclusively valid under R.C. 5301.07(C).

    The trial court denied the motion for default judgment and denied a subsequent motion for summary judgment. The court stated that the evidence showed Erin did not have a legal right to transfer Patrick’s interest in the real estate and if there was a question about the validity of Erin’s conduct as Patrick’s guardian, only the probate court could hear that question. The case was dismissed for lack of jurisdiction. Michael appealed.

    On appeal Michael argued he could not do anything in probate court because the guardianship matter was closed, and that only the general division could hear his arguments under R.C. 5301.07(C) to determine that because of the passage of time, he now had good and valid title in the Piqua property. The Court of Appeals agreed that the probate court is a court of limited jurisdiction and would not have jurisdiction over a stand-alone quiet title complaint unless it was brought in the context of an estate or guardianship administration. Since the guardianship was previously terminated, the probate court would have no other jurisdiction over the quiet title action The court of appeals reversed the trial court’s dismissal and remanded the case to common pleas for further proceedings.

  • Successor Trustee’s claims for fraud and breaches of duty against former trustee were time-barred; Successor Trustee knew or should have known of the alleged fraud within 4-year statute of limitations.
    Oct 22, 2021

    Bonner v. Delp, Sixth Dist. Lucas No. L-20-1147, 2021-Ohio-3772

    Evelyn Delp had three stepchildren: Roberta Bonner, Bradley Delp and Cleves Delp. Evelyn created the Delp Independence Trust in 1999. The Independence Trust benefited Cleves and Bradley, equally. It was funded with a Voya life insurance policy, an investment account, and shares of The Delp Company (“TDC”) representing about 2% of the voting shares of TDC. Attorney Dominic Spinazze served as Trustee from 1999 until his resignation on February 22, 2010. Prior to his resignation, he transferred the investment account and the TDC stock from the Independence Trust to a trust for Cleves’ benefit. Spinazze stated that Brad and Cleves consented to these transfers. A signed consent existed for Brad, but he never explained why that consent would not be valid and enforceable.

    Bonner became the Successor Trustee on February 23, 2010 by a written acceptance of Trustee, but later claimed she did not assume the role of Trustee until 2011. Bonner also claimed that it was not until 2014 that she learned the investment account and the TDC stock had been transferred away from the Independence Trust. So, in February 2015, Bonner sued Spinazze and Cleves for various claims of breaches of trust, fraud, conversion, and conspiracy. Bonner sought the return of the property to the Independence Trust. Spinazze and Cleves defended the claims stating that they were barred by a four-year statute of limitations under R.C. 5810.05(C)(1) and R.C. 2305.09(B) as well as being barred by res judicata based on a similar 2014 federal case. Bonner claimed that she needed further discovery, that Spinazze continued to act as Trustee after his formal resignation and never turned over the Trust property, and that any statute of limitations should be tolled as she had not and could not have discovered the fraud until 2014.

    The Lucas County Probate Court found that significant discovery was completed and granted summary judgment as to claims against Spinazze. After a full hearing, the probate court dismissed Bonner’s claims against Cleves. Bonner appealed. The Sixth District affirmed.

    The appellate court found several factual matters had been determined by the probate court that disputed Bonner’s claim that she was not Trustee until 2011. In 2010, Bonner executed several acceptances as Trustee, opened Trust accounts, borrowed funds on behalf of the Trust to pay premiums on the Voya insurance policy (because the Trust’s liquid assets in the investment account were transferred to Cleves), and signed checks for the Trust. The record further revealed that Bonner had allowed Brad to act as the de facto Trustee during this time – admitting in testimony that she did everything Brad asked, she signed documents without understanding what they were, and that she didn’t even understand why she was suing Cleves. The appellate court also found merit in the trial court’s finding of res judicata. In 2014, Brad brought claims against Cleves and the trust that now held the TDC stock in federal court seeking the return of the TDC stock. That case was dismissed with prejudice as a sanction for litigation misconduct. The probate court found and the appellate court agreed that the federal case involved the same parties because under these facts, Bonner and Brad were in privity – i.e., Brad was a beneficiary of the Trust and Brad was able to direct and control Bonner’s activities as Trustee. Both cases also sought the return of the TDC stock to the Independence Trust. Because the federal case was a final decision on the merits, involving the same parties and arising from the same transaction or occurrence, it created res judicata as to the claims that were or could have been brought.

    Bonner knew or should have known about any fraud by July 2010 – when she was clearly acting as Trustee. At this point, she had a duty to conduct further due diligence. Therefore, no “discovery rule” about fraud claims was applicable and any claims brought after July 2014 would be time-barred by R.C. 2305.09(B). Spinazze, the prior Trustee, resigned in February 2010 and Bonner failed to demonstrate what assets Spinazze did not deliver to her (seeing as the investment account and TDC stock were not assets at that point). Therefore, claims against Spinazze as Trustee expired four years later (February 2014) per R.C. 5810.05(C)(1). Lastly, under these unique facts, Bonner and her beneficiary, Brad, were sufficiently within privity and Bonner sought the same relief that Brad sought – and lost on the merits – in his 2014 federal case.

  • Nursing home loses fraudulent conveyance lawsuit against deceased resident’s power of attorney.
    Oct 21, 2021

    Montefiore Home v. Fields, Eighth Dist. Cuyahoga No. 110183, 2021-Ohio-3734

    Hazel made her goddaughter, Faye, her financial power of attorney. Hazel then entered an assisted living facility. Faye ran errands for Hazel, paid some of her bills, and often withdrew cash from Hazel’s bank account so Hazel could pay for her own needs. Hazel directed her income payments to her nursing home and privately paid for her nursing home costs for a year. Hazel fell behind on her assisted living costs and died owing a balance of $22,000 to her facility. Faye paid $7,000 from her own funds for Hazel’s funeral.

    The nursing home sued Faye individually, alleging, among other things, that she misused the POA and that Hazel fraudulently conveyed Hazel’s assets to Faye so that Hazel could not pay her nursing home bills and her estate would be insolvent. The evidence showed that Faye had transferred approximately $12,000 of Hazel’s money to Faye’s own bank account, and that Faye did not have receipts for many of the transactions that she said she paid at Hazel’s direction. Faye testified that she only spent the money on Hazel and as Hazel directed. Faye testified that Hazel privately paid for many things that the assisted living facility would have provided, like toiletries, groceries, a TV, phone services, and social activities, and that she liked to pay for these things in cash. The trial court held that there was no evidence of fraudulent intent by Faye and ruled in favor of Faye. The nursing home appealed, arguing the trial court decision was against the manifest weight of the evidence.

    The Court of Appeals, in a 2-1 decision, found that the nursing home did not satisfy its burden of showing a fraudulent intent by Hazel, and there was credible evidence from Faye that she had a good faith defense to the fraudulent transfer allegations because she demonstrated a non-fraudulent intent. The dissenting opinion agreed that Faye had no personal liability merely as Hazel’s POA, but because Faye did not have a good enough explanation for the $12,000 of Hazel’s money that she deposited into directly into her own account, that the nursing home met its burden on the fraudulent conveyance argument for that amount.

  • Guardian’s inaccurate list of next of kin at the time he filed his application harmless error and not good grounds to set aside guardianship proceedings.
    Oct 15, 2021

    In re: Guardianship of Steven Baker, 2nd Dist. Montgomery No. 29145, 2021-Ohio-3692

    Steven was living in the Dayton area and was seeking medical care at the VA. People at the VA were concerned that Steven was being financially exploited or was at risk of financial exploitation. Adult Protective Services investigated and filed a petition for appointment of guardian with the probate court. Attorney Sperry filed an application to serve as guardian and indicated he could only find one next of kin, a niece. This niece was Steven’s purported POA and she was accused of exploiting Steven by transferring his house to her name alone. Sperry was appointed guardian in December 2019. Sperry obtained a deed transferring the house from the niece back to Steven.

    Sperry found out that Steven had a brother, Donald, in the Dayton area in February 2020 and talked with Donald and his son at that time but did not update the next of kin form with the Court. In the summer of 2020, Steven moved to a nursing home and Sperry started the process of selling Steven’s residence. The house sale was set to close on February 18, 2021.

    The day before the closing, Steven’s other brother, Harold Bryant filed his own application for guardianship of Steven and tried to prevent the sale of Steven’s house, claiming to be Steven’s power of attorney since 2018 and trying to transfer title of the real estate to himself to stop the sale. Harold argued he was never properly notified of the guardianship and that Sperry failed to do even a minimal search to find next of kin, so Sperry’s appointment as guardian was void.

    The probate court dismissed Harold’s application for guardianship. Harold filed a motion to set aside the guardianship and stop the sale of real estate again, and was joined by Donald and Stevens’ sister, Carolyn. Harold argued again that Sperry failed to notify the next of kin of the guardianship and could have found out about their existence with a simple google search or if he looked at the property records, he would see that Carolyn and Donald lived in Montgomery County and had an interest in Stevens’ real estate at one time. Sperry issued a response denying the lack of notice to the next of kin and sought to terminate all powers of attorney. The probate court agreed with Sperry, found that Donald and Harold had notice of the guardianship no later than June 2020, and that they waited too long to take any action, and that Sperry’s incorrect list of next of kin at the time he filed his guardianship application was harmless. Harold and Donald appealed.

    The Court of Appeals agreed with the probate court, finding that Sperry’s list of next of kin was accurate to the best of his knowledge at the time he filed the guardianship application, and that the guardianship was otherwise warranted at the time. The court of appeals did not discuss the arguments about failure to update the next of kin after the fact. 

  • General division has jurisdiction over trust dispute where trust property is in that county and challenging parties are following rules of the trust.
    Oct 12, 2021

    Wisehart v. Wisehart, 12th Dist. Preble No. CA2021-01-001, 2021-Ohio-3649

    In a multi-state, multi-court, multi-generational family trust dispute, a son sued his father regarding the administration of the grandmother’s trust. The son, together with his siblings, sought to have the son made the current trustee of the grandmother’s trust and to prevent the father, who was serving as the trustee, from selling real estate in Preble County. The son also sought an accounting from the father and alleged breach of fiduciary duty due to mismanagement and lack of communication and information about the trust.

    The father had previously sued the son and his other children in state and federal courts in New Jersey and Colorado regarding other trust property and other trust administration issues in those states. The father, who at one time was a practicing attorney and was representing himself pro se. The father collected income from the farm property in Preble County and tried to sell the property, despite an injunction and the father was found in contempt of court. The father alleged that the Ohio courts did not have jurisdiction over the lawsuit, there was no actual controversy, and the son had no standing because only the deceased grandmother could appoint a trustee.

    The father and son moved for summary judgment and the son prevailed, also receiving an award of $134,374.22 in attorney fees against the father. The father appealed, again arguing a lack of subject matter jurisdiction and lack of controversy, but his appellate brief was “rambling, incoherent, and rife with irrelevant legal concepts and legal authority.” The appeals court pointed out that the son was an income beneficiary and the terms of the trust allowed a majority of income beneficiaries to appoint a successor trustee, which they did. The court also pointed out that the lawsuit involved a dispute over real estate in Preble County and the administration of a trust with property in Preble County, and thus the general division had jurisdiction over that dispute.

  • Sale of real estate in probate land sale for value less than the outstanding mortgage permitted where mortgage holder could not show property was worth more than sale price.
    Oct 6, 2021

    Urban v. Folan, 9th Dist. Summit No. CA No. 29826, 2021-Ohio-3452

    An estate owned a parcel of real estate that was encumbered by a mortgage and was falling behind on mortgage payments. The administrator of the estate filed an appraisal that valued the property at $100,000. Later, the administrator filed a land sale action in probate court to sell the property. During the pendency of the land sale action, the mortgage holder assigned the mortgage to a different entity, PennyMac. PennyMac intervened in the land sale action and also filed a foreclosure complaint. The estate successfully dismissed the foreclosure action and the case returned to probate court. The administrator moved the probate court to accept a valuation of $100,000 for the property and asked the court to approve a private sale of the property for that price, which the Court did. It was undisputed that the administrator did not serve either of those pleadings on PennyMac. PennyMac was not aware the property was sold until it received a check for $91,000 of the proceeds – less than the $126,000 that was owed on the mortgage at the time of the sale.

    PennyMac moved the probate court pursuant to Civ.R. 60(B) to set aside the private sale order, arguing that the administrator undervalued the property and that PennyMac was unfairly denied a right to object to the sale at the price of $100,000 because the Administrator never served it with those documents. PennyMac attached its own form of an appraisal, which was actually a Broker’s Price Opinion, which valued the property at closer to $155,000.

    The probate court found that the administrator definitely failed to properly notify PennyMac of the sale, but that ultimately PennyMac did not have a meritorious defense because the $155,000 value that PennyMac alleged was not credible because it was a BPO, not an actual appraisal. PennyMac appealed.

    The Court of Appeals agreed with the probate court. While PennyMac was unfairly surprised by the result of the sale and not afforded the right to object, PennyMac failed to show that the property was worth more than what it sold for. The Court of Appeals found that the probate court had discretion to find PennyMac’s evidence of value was not credible and pointed out that the BPO was based only on the exterior of the property, only considered three comparable sales relative to 26 comparable sales, and disregarded the six city code violations for the property.

  • Victim of car accident caused by decedent driver barred from collecting against assets of the decedent’s estate but permitted to pursue negligence claim.
    Sep 30, 2021

    Doczi v. Blake, 4th Dist. Meigs No. 20CA3, 2021-Ohio-3433

    Adam and was involved in a car accident with the decedent On November 30, 2016, in which the decedent died and Adam was seriously injured. Adam attempted to present a claim against the decedent’s estate on February 17, 2017 via letter to the estate’s executor, but the letter was vague, didn’t include Adam’s address, and didn’t include specifics about Adam’s claim. The executor asked for more details on the claim, which Adam provided a more than a year later on April 18, 2018.

    Adam filed a lawsuit for negligence against the decedent’s estate and other defendants on November 5, 2018. The parties engaged in discovery for almost a year and the estate filed a motion for summary judgment, arguing that Adam could not recover any damages from the decedent’s estate due to the untimely presentment of his creditor claim (for failure to provide his address and details on the claim according to R.C. 2117.06). Adam argued that his claim was timely presented but even if it was not timely presented, he could still seek recovery from any insurance that the decedent had that covered the accident.

    The estate also argued that if Adam could not collect any damages from the decedent’s estate, then he could not obtain a judgment against the estate and he could not reach the issue of insurance coverage.

    The trial court granted summary judgment to the estate, finding that Adam’s creditor claim was not properly presented under R.C. 2117.06 and that because Adam could not collect against Adam’s estate assets, any lawsuit against the estate was barred. And because any lawsuit against the estate was barred, there was no way Adam could seek insurance coverage that the decedent may have had. Adam appealed.

    The Fourth District Court of Appeals agreed with the trial court that Adam’s claim against the estate did not strictly comply with the parameters of R.C. 2117.06 and thus Adam could not recover any damages from the decedent’s probate estate. However the Court of Appeals found the trial court went too far in ruling that Adam could not seek recovery from any of the decedent’s insurance and could not proceed to trial against the decedent’s estate for liability. The Court of Appeals clarified that by statute, specifically R.C. 2117.06(G), even if a creditor claim against a probate estate is not timely presented, this does not reduce any other statutes of limitations or periods of repose for wrongful death claims or claims of tort, contract or other miscellaneous actions against a decedent. The probate creditor statute of limitations only limited the source from which a creditor could recover.

  • Jurisdictional priority does not apply in trust dispute where prior action in Probate Court was dismissed prior to filing related action in General Division of Common Pleas.
    Sep 30, 2021

    White v. White, 11th Dist. Lake No. 2020-L-119, 2021-Ohio-3488

    Mrs. White made a trust in 2011 and modified the trust just before she died in 2013 in Ashtabula County. After several years of litigation regarding the validity of the 2013 trust modification in Ashtabula County Probate Court, and criminal fraud charges against one of the sons involved in the 2013 trust modification, the parties challenging the 2013 trust modification dismissed their lawsuit in Ashtabula County and filed a similar complaint in Lake County Common Pleas.

    Eventually, the parties reached a settlement in 2018, and the Lake County Common Pleas Court retained jurisdiction to enforce the settlement. One of the disgruntled beneficiaries of the trust refused to cooperate with the settlement, alleging that she was entitled to certain reports and information about the trust and demanding a formal accounting. The Lake County Court ordered the trustees to provide the information but ruled there was no statutory basis to require a formal accounting. The Lake County court approved the trustees’ final report and the disgruntled beneficiary appealed. 

    On appeal, the disgruntled beneficiary alleged that Lake County Common Pleas Court did not have jurisdiction because the case was a probate matter, only probate courts can order the final accounting of executors and administrators, the related estate administration was pending in Ashtabula County Probate Court, and the trust case was originally filed in Ashtabula County Probate Court.

    The Court of Appeals disagreed. The Court of Appeals found that this was not an estate matter, but rather a trust dispute and trust accounting matter. The probate court did not have exclusive jurisdiction over those actions. The General Division of Common Pleas court and Probate had concurrent jurisdiction, so either court would have subject matter jurisdiction. The Court of Appeals also rejected a ‘jurisdictional priority’ argument, noting that though the case was first filed in Ashtabula Probate, the plaintiffs voluntarily dismissed that case before filing in Lake County, so there were not two simultaneous proceedings that could invoke the jurisdictional priority rule.

  • Common Pleas General Division has concurrent jurisdiction with Probate Court to resolve trust issues, and jurisdictional priority does not apply where prior action in Probate Court was dismissed prior to filing in General Division
    Sep 30, 2021

    White v. White, 11th Dist. Lake No. 2020-L-119, 2021-Ohio-3488

    Mrs. White made a trust in 2011 and modified the trust just before she died in 2013 in Ashtabula County. Several years of litigation regarding the validity of the 2013 trust modification ensued  in Ashtabula County Probate Court, and criminal fraud charges against one of the sons involved in the 2013 trust modification were filed in Lake County. The parties challenging the 2013 trust modification dismissed their lawsuit in Ashtabula County and filed a similar trust dispute complaint in Lake County General Division.

    Eventually, the parties reached a settlement in 2018 in Lake County. One of the disgruntled beneficiaries of the trust refused to cooperate with the settlement, alleging that she was entitled to certain reports and information about the trust and demanding a formal accounting. The Lake County Court ordered the trustees to provide the information and eventually approved the trustees’ final report. The disgruntled beneficiary appealed.

    On appeal, the disgruntled beneficiary alleged that Lake County General Division did not have jurisdiction because the case was a probate matter, only probate courts can order the final accounting of executors and administrators, the related estate administration was pending in Ashtabula County Probate Court, and the trust case was originally filed in Ashtabula County Probate Court. Thus, Ashtabula Probate had priority over the case.

    The Court of Appeals disagreed. The Court of Appeals found that this was not an estate matter, but rather a trust dispute and trust accounting matter. The Ashtabula probate court did not have exclusive jurisdiction over those actions. The General Division and Probate had concurrent jurisdiction, so either court decide on the disputes. The Court of Appeals also rejected a ‘jurisdictional priority’ argument, noting that though the case was first filed in Ashtabula Probate, the plaintiffs voluntarily dismissed that case before filing in Lake County, so there were not two simultaneous proceedings that could invoke the jurisdictional priority rule.

  • Appellate court affirms judgements award for breach of fiduciary duty and attorney fees where trustee-appellant failed to properly certify the court records and transcripts for appeal.
    Sep 20, 2021

    Steffen v. Steffen, 9th Dist. Lorain No. 20CA011637, 2021-Ohio-3277

    Wallace Jr. was trustee of his dad’s trust and made several loans to himself of the trust property. His sister, a trust beneficiary, found out and sued Wallace Jr. for breach of fiduciary duty. The sister obtained a six-figure judgment against Wallace Jr. for breach of trust and then a larger six-figure judgment against him for attorney fees. Wallace Jr. hired an outside court reporting company to make a transcript of the proceedings and submitted four volumes of transcript to the Court of Appeals as part of his appeal of the judgments against him.

    However, Wallace Jr. failed to have the transcript certified according to the rules of the Court of Appeals. Wallace Jr. also did not make sure the trial exhibits were part of the court’s record. Therefore, the Court of Appeals was “required to presume regularity in the trial court’s proceedings” and affirmed the judgments.

  • Guardian of Estate for incompetent adult successfully intervened in divorce action and successfully obtained a constructive trust.
    Sep 17, 2021

    Branscum v. Sullenberger, Second Dist. Champaign No. 2020-CA-23, 2021-Ohio-3250

    Wendy filed for divorce from Scott in Champaign County. Before her marriage to Scott, Wendy acquired real estate from H.H.’s revocable trust. H.H. was later placed under guardianship in Montgomery County. H.H.’s Guardian intervened in Wendy and Scott’s divorce action and asserted an interest in the real property that was subject to division in the divorce. The Guardian was successful in her efforts to order the real estate sold and have the proceeds of the sale of the real estate to be held in a constructive trust for the benefit of H.H., and the proceeds transferred to the Guardianship for division among H.H., Scott and Wendy in Montgomery County probate court.

    Part of the divorce entry required Wendy to cooperate with the Guardian to sell the real estate, move out, and pay taxes and maintenance. The divorce court retained jurisdiction over the sale of the real estate. Wendy refused to cooperate with the Guardian. Wendy did not pay the taxes, attempted to thwart the sale, and otherwise refused to even sign the purchase agreement. Even after the Guardian obtained court orders to force Wendy to cooperate, Wendy still refused, changing the purchase price on the purchase agreement and trying to remove fixtures from the property and causing damage. The Guardian successfully obtained a contempt order against Wendy in the divorce case and obtained an award of her attorney fees incurred in trying to sell the real estate as part of the contempt order.

    Wendy appealed the award of attorney fees, arguing they were not totally related to the contempt finding and that they were just regular fees incurred in trying to sell real estate that should be part of the guardianship. The Court of Appeals disagreed with Wendy, finding that it was undisputed she did not cooperate with the sale of real estate and was properly held in contemp. The Court of Appeals also pointed out that the court award a lump sum for attorney fees and costs as contempt damages, but the total was less than the total fees that the Guardian had presented as related to the sale of the real estate. The Court of Appeals found it was within the court’s discretion to determine the amount of fees that were part of the contempt order. The attorney fees and costs award were affirmed.

  • Father failed to present sufficient evidence to show guardianship over his minor child was intended to be temporary when Father consented in writing to application where guardian would serve until a specific date.
    Sep 15, 2021

    In re Guardianship of T.M.D.-D, Fourth Dist. Washington No. 20CA36, 2021-Ohio-3249

    A nine-month-old minor child’s maternal Aunt applied to be guardian of the minor because the minor’s mother suffered from addiction problems and was in a rehab facility, and the child’s father was a full-time student in Colorado. Mother and Father both consented in writing to the appointment of Aunt as guardian for the minor. On the guardianship application, Aunt indicated that the guardianship was requested for a definite period of time until the minor’s 18th birthday, but the letters of guardianship stated they were for an indefinite period of time. The minor did not have any known or long-term disabilities and the guardianship was requested only because the child was a minor and not residing with his natural parents.

    Approximately 18 months after the guardianship was granted, Father moved the probate court to terminate the guardianship. Father argued that he had commenced juvenile court proceedings about the minor in Ohio around the same time as the guardianship in Ohio and, and that he only consented to the guardianship with the understanding that it would resolve the juvenile court matter by giving temporary custody to Aunt, and the guardianship would end when Father graduated college. (Interestingly, the probate judge is also the juvenile judge in this County). Father also argued that the guardianship letters were for an indefinite period of time, meaning that the guardianship was only temporary.

    The Aunt and the child’s maternal grandmother argued the guardianship was intended to be permanent until the child turned 18. They opposed the termination of the guardianship. Both testified that Father did not say anything about the guardianship ending when he graduated school at the time of the guardianship, and that Father did not try to bring the minor to Colorado at all. There was no dispute that the Father kept in communication with Aunt and the child, but Aunt felt that the child had established a good living situation here in Ohio and the guardianship was working well for everyone. There was also no dispute that Aunt had requested the guardianship to terminate on the child’s 18th birthday, which it otherwise would by operation of law, regardless of what the letters of guardianship stated.

    The probate court agreed with Aunt. The probate court found that while the guardianship letters said they were for an indefinite period of time, it just meant indefinite until the child turns 18. The probate court found that father failed to present any evidence that the Guardian was acting improperly or that there was any change of circumstance to show the guardianship was not in the best interest of the child. Father appealed.

    The Court of Appeals affirmed the probate court.

  • Summary judgment in favor of Agent under POA Instrument was improper where Agent did not show, and court did not analyze, that Agent acted in good faith.
    Aug 17, 2021

    Alibrando v. Miner, Fifth Dist. Licking No. 2021 CA 0010, 2021-Ohio-2827

    Guito made a will in 2013 giving his girlfriend, Connie, $100,000 and the rest of his estate to his two sons. Connie admitted that she knew about the will and its contents. Two years later, Guito named Connie his agent under a power of attorney instrument and opened a joint bank account with her. The POA instrument authorized the agent to sell Guito’s real estate and to place the proceeds of the sale into an account that Guito owned individually or jointly. Shortly before Guito’s death, Connie sold Guito’s real estate and deposited more than $200,000 of proceeds into a bank account owned jointly by Connie and Guito. After Guito died, Connie moved the proceeds into her personal savings account.

    During the administration of Guito’s estate, Guito’s sons found out about the transfer of the real estate and objected to the final accounting because it did not include the proceeds of the real estate. They also filed a complaint for concealment of assets against Connie and alleged she breached her duty of good faith as the agent under the POA instrument when she deposited the proceeds of the sale of the real estate into an account that she owned jointly with Guito shortly before his death.

    The probate court granted summary judgment in favor of Connie, finding that it was undisputed Guito was competent when he executed the POA, and that the POA authorized Connie as the agent to deposit the funds into a joint bank account.

    The Court of Appeals reversed, finding that though the POA authorized the deposit of funds into the checking account, Guito’s sons demonstrated that there were genuine issues of material fact. Specifically, the Court of Appeals said there were questions as to whether Connie breached her duty of good faith to Guito because, for example, depositing the funds into the joint account did not preserve his known estate plan and it was not clear that Guito reasonably expected her to do this.

  • Probate Court has discretion to accept inventory value of real estate based on appraisal later than date of death.
    Aug 16, 2021

    In re: Estate of Clonch, 11th Dist. Trumbull No. 2020-T-0079, 2021-Ohio-2815

    A beneficiary of an estate objected to the value of real estate listed on the estate’s inventory. The beneficiary provided an appraisal that was valued as of the date of death, finding a value of $109,500. This appraisal was done on a “drive by” basis, and the appraiser did not have access to the interior of the property, and the appraiser did not conduct his appraisal analysis until a year after the decedent died.

    The estate administrator’s appraiser evaluated the property almost a year after the decedent’s date of death and found the value to be $58,000 as of that time. The administrator’s appraiser inspected the interior of the property and found the interior was “extremely rough,” had “very unorthodox” modifications, the only heat source was a wood burning stove, and the property “has no evidence of being well maintained.” The appraiser later revised his opinion to note that there were no significant market changes or changes to the condition of the property that would change his opinion about the value as of the decedent’s date of death.

    The beneficiary objected to the administrator’s appraisal, specifically that it was not accurate because it was not valued as of date of death. The probate court found there had been no significant change or improvement to the property between the time the decedent died and the time of the appraisal, and the administrator’s appraisal was more detailed and rationally related to a realistic date of death value. The probate court accepted the administrator’s appraisal and overruled the objection to the inventory.

    The Court of Appeals affirmed the probate court, finding it was in the Court’s discretion to determine the value of the real estate for the inventory purposes and that the evidence supported the probate court’s determination.

  • Entering a settlement at any point in trial waives defects up to that point, even if the settlement is based on a misinterpretation of a jury’s compensatory damage award.
    Aug 5, 2021

    Morris v. Morris, 8th Dist. Cuyahoga No. 109854, 2021-Ohio-2677

    Amy was the sole shareholder of a family business and owed 500 shares of stock issued on 5 certificates of 125 shares each. In 2006, Amy was diagnosed with cancer, so she updated her estate plan. Amy’s estate plan left her personal property under her will to her daughter, Alex, who was in middle school at the time, and everything else to a trust for the benefit of Alex. Amy named her sister April and her mother father and father Bonnie and Jeffrey as Co-Executors of the Estate and co-Successor Trustees of her Trust. Alex had limited access to the trust assets until she turned 25.

    April moved in with Amy and Alex shortly before Amy died in 2010. Alex was only 17 when Amy died. April hired an attorney to administer Amy’s estate. The attorney only listed 125 shares of stock for the business as a probate asset and valued them at $26,048. April bought the shares from the Trust and April assumed complete ownership of the business.

    Alex claimed that she never received any notice or information about her mother’s will or trust until she found a trust document seven years after her mother passed away. It was undisputed that Alex never received any assets from her mother’s estate or trust.

    In Common Pleas court, Alex sued the attorney who helped April with the estate and trust administration for legal malpractice, and sued April, Bonnie and Jeffrey for various claims, including fraud, breach of fiduciary duty, and accounting, among other things. April, Bonnie and Jeffrey filed a counterclaim against April claiming she stole the trust records from Jeffrey’s house. The case went to bifurcated trial, first on liability and compensatory damages, and then later for punitive damages. After denying motions to dismiss, the judge assigned the trial to a visiting judge.

    At trial, the claims against Jeffrey were dismissed by the visiting judge on a directed verdict, but the claims against Bonnie and April and the counterclaim against Alex went to the jury. The jury awarded Alex $62,000 in compensatory damages for the fraud and breach of fiduciary duty against Bonnie and April, and awarded April $1.00 against Alex for Alex taking the records.

    In reviewing the jury’s verdict form, it was not clear to the plaintiff’s the jury was awarding Alex $62,00 for each claim, or $62,000 total. The judge determined – without consulting the jury – that the award was $62,000 in total. That night, before the hearing on punitive damages, the attorneys for the parties negotiated a settlement based on the jury verdict for April and Bonnie to pay Alex $120,000.

    The next day, plaintiff and defense counsel discussed the case with the jury off the record, and the jury stated that they intended to award $62,000 in damages to Alex for each claim, for a total of $310,000. The jury foreperson sent Alex’s attorney an e-mail that he was “sickened” at the thought that the judge interpreted their damages award as only $62,000 and hoped that the parties were able to adjust their settlement.

    Bonnie’s and April’s attorney sought to enforce the $120,000 settlement. Alex’s attorney’s argued the settlement was void because of the mutual mistake about what the jury intended to award as damages and pointed to the e-mail from the juror. The judge also ruled against Alex, finding that she settled the case and there was no settlement agreement in the record and no jurisdiction for the Court to enforce it. Alex appealed.

    On Appeal, Alex argued that either there was no settlement agreement or the settlement agreement was void due to the mistake of the visiting judge’s interpretation of the jury’s damage award. The Court of Appeals affirmed the trial court, finding that it was undisputed that Alex entered into a settlement agreement before the punitive damages phase. The Court of Appeals found that Alex never put the settlement agreement in the record and so it was not clear that the settlement incorporated the jury verdict into the agreement or if it stood alone. The court found that settling a case at any point in a trial results in a waiver of any defects up to that point. The Court of Appeals found that Alex was not even asking the Court to interpret the settlement agreement to determine if it was valid and enforceable, but found that it was clear that Alex agreed to the visiting judge terminating the trial based on a settlement that she entered into, and she did not otherwise object.

  • Court did not abuse it’s discretion in denying request to remove guardian, disqualify counsel, and disclose financial records to Ward’s next of kin
    Aug 2, 2021

    In re Guardianship of Bakhtiar, 9th Dist. Lorain No. 201CA011680, 2021-Ohio-2629.

    In “the most litigated guardianship (or any case) in Lorain County Probate Court history” the son of the ward was dissatisfied with the fees charged by his mother’s guardian and the attorneys hired by the guardian. The guardian sought permission from the probate court to hire attorneys to defend the guardian and the ward in other lawsuits filed by the son and some of his siblings, which the court approved.

    The son claimed the fees were excessive, that the attorneys and guardian had conflicts of interest, and that the attorneys should be required to produce bank statements to him as the ward’s next of kin. The son sought to remove the guardian and disqualify the attorneys. In a detailed, 29-page judgment entry, the probate court denied the son’s motions, finding that the guardian had faithfully carried out his duties, that there was no conflict of interest and that the fees were reasonable and necessary under the circumstances, and the son did not have standing to claim a conflict with the attorneys.

    The court of appeals affirmed the decision of the probate court, finding that the probate court had already limited the son’s involvement in the guardianship to visitation with his mother, not access to her finances, and finding that his motion to compel the attorneys to show cause to justify their attorney fees “defies logic and has no basis in law.”

  • When a settlor of a revocable trust defaulted on a personal guaranty obligation, the settlor’s creditor had the legal right to seize funds from a trust bank account.
    Jul 29, 2021

    Zipkin v. FirstMerit Bank, 8th Dist. Cuyahoga No. 109501, 2021-Ohio-2583.

    Zipkin created a revocable trust in the 1970s to hold real estate. Zipkin had a long relationship with a bank, which changed names through a series of mergers over the years. Zipkin opened personal and trust bank accounts at these banks and financed many of his real estate transactions at these banks. In 2012, Zipkin individually signed as a guarantor for a loan that the bank made to one of Zipkin’s friends. The terms of the personal guaranty provided that the bank had setoff rights to any account that Zipkin held at the bank, individually or jointly, but the bank’s setoff rights did not include “any trust accounts for which setoff would be prohibited by law.”

    Zipkin’s friend eventually defaulted on the loan and the bank exercised its setoff rights in two accounts that Zipkin held at the bank; one in his name individually and one in the name of his revocable trust. Zipkin individually and as trustee sued the bank for breach of contract and other claims, alleging that the bank improperly exercised its setoff rights against Zipkin’s revocable trust account. The trial court agreed with Zipkin, finding that the trust was not a guarantor of the loan and the setoff from the trust account was otherwise prohibited by law, which breached the guarantee agreement. The bank appealed.

    The Court of Appeals, in a 2-1 decision, reversed the trial court, finding that R.C. 5805.06 permitted the bank to exercise its setoff rights in this case. That statute provides, among other things, that a creditor of a settlor of a revocable trust may reach the settlor’s interest in the trust during his/her lifetime. While Zipkin testified that his children were the beneficiaries of the trust, the actual trust instrument provided that Zipkin was the sole trustee and beneficiary during his lifetime, and Zipkin further reserved an unlimited power to revoke the trust or withdraw any or all assets from the trust at any time. The Court of Appeals then determined that there was no evidence that Zipkin’s trust was a spendthrift trust, which could prevent creditors from attaching a beneficiary’s interests and prevent a setoff. The Court of Appeals determined that Zipkin’s trust account was subject to the setoff provision and setoff was not otherwise prohibited by law.

    The dissenting opinion stated she would find the setoff was improper because the trust was not a guarantor of the loan, there was insufficient evidence to show that the setoff was permitted by law, and because the bank provided no notice or legal process before seizing the funds in the trust account. 

  • Where probate settlement agreement involving guardianship, it was improper for party to agreement to seek enforcement of a right under the agreement in common pleas court even after the Ward had passed away.
    Jul 7, 2021

    Hoffman v. Arthur, Fifth Dist. Coschocton No. 2020CA009 & 2020CA0016, 2021-Ohio-2318

    In 2015, Douglas filed a lawsuit against his mother, Sandra, and a man named Phillip Arthur. Douglas alleged that his mother, as Trustee, improperly transferred trust real estate to Phillip and to an LLC for which Phillip was the sole member. Douglas alleged these transfers were invalid under the terms of the trust and were the product of undue influence by Phillip over Sandra. After the lawsuit was filed, Sandra was adjudicated incompetent, and a guardian was appointed.

    Sandra’s Guardian investigated Douglas’s claims and Sandra’s finances. The Guardian filed a counterclaim against Douglas, alleging he improperly withdrew more than $400,000 from Sandra’s accounts, but also joined in the claims of undue influence against Phillip and the LLC.

    The Guardian filed a motion for summary judgment against Douglas and receive a judgment in the amount of $408,162.69 against Douglas, which the guardian reduced to a lien and placed the lien against certain real estate owned by Douglas.

    Sometime later, Douglas, Phillip and the Guardian entered into a settlement agreement resolving all claims among them but specifically excepting the judgment lien against Douglas as valid and unsatisfied. The settlement agreement specifically stated that the Probate Court retained jurisdiction to enforce and interpret the settlement agreement as the sole and exclusive venue for litigation among the parties, and the Probate Court issued a judgment entry incorporating that same language on jurisdiction.

    The Guardian then sold some trust real estate and used that to satisfy the judgment against Douglas. Shortly after that, Sandra died. In her final guardian’s account, the Guardian did not list the debt/lien against Douglas as an asset or as resolved, but simply omitted it, stating “that asset is no longer in existence.” However, the guardian never filed a satisfaction or release of the judgment.

    Douglas applied to administer Sandra’s probate estate and Phillip filed a competing application based on a 2015 will that named Phillip as executor of Sandra’s estate. Douglas argued that Phillip should not be allowed to administer Sandra’s estate because he waived any inheritance rights by or through Sandra, but the Court appointed Phillip as Executor because the 2015 will was otherwise valid on its face.

    Douglas filed a motion for summary judgment in the estate case seeking a judgment that established, among other things, that Douglas had satisfied his judgment lien and debt to Sandra and the Lien should be released by Phillip as Executor. The probate court denied Douglas’s Motion for Summary Judgment.

    The next day, Douglas filed an identical complaint in Common Pleas court against Phillip as Executor and again moved for summary judgment, relying on an affidavit from the Guardian that she had deemed the judgment lien satisfied. The Common Pleas court granted Douglas’s motion and Philip appealed, arguing that the Probate Court had exclusive jurisdiction over the matter per the settlement agreement.

    The Court of Appeals agreed with Phillip and reversed the Common Pleas court’s Entry granting summary judgment to Douglas. The Court of Appeals said it appeared that the settlement agreement and the probate court judgment entry adopting the agreement appeared to make it clear that the probate court retained jurisdiction over this dispute. The Court of Appeals also stated that the probate court had jurisdictional priority over the matter, the claim being first filed there and still pending.

  • Attorney Fees Awarded to Counsel for Removed Guardian of the Person are not Subject to Appeal where not objected to in the probate proceedings.
    Jun 28, 2021

    In re Guardianship of Bakhtiar, 9th Dist. Lorain No. 19 CA011508, 2021-Ohio-2162

    A law firm was representing the guardian of the person in a guardianship, who was also a caregiver for the ward. One of the ward’s sons had a contentious and highly litigious relationship with this guardian of the person, his sister. The guardian of the person was removed as guardian and a successor guardian was appointed. Sometime after, the law firm representing the removed guardian of the person applied for attorney fees that included time for when their client was guardian of the person and after she was removed. The new guardian of the person and the court-appointed attorney for the ward consented to the fees and the probate court approved the fees in their entirety. The ward’s son did not object to the fees when they were submitted nor after they were approved by the Court. Instead, the son appealed the judgment entry granting the fees as an abuse of discretion.

    The court of appeals found that the son failed to timely object to the attorney fee application in the probate court and therefore he did not have standing to appeal the decision.

  • Attorney fees granted against a ward’s son who filed frivolous motions in guardianship proceedings were not improper.
    Jun 28, 2021

    In re Guardianship of Bakhtiar, 9th Dist. Lorain No. 20CA011676, 2021-Ohio-2163

    In a contentious guardianship, the ward’s son filed multiple motions and appeals related to alleged acts and omissions by the guardian and the guardian’s attorneys. The son’s motions and briefs were found to be frivolous. The attorney fees were presented to the court in a formal hearing with a joint expert witness for all of the attorneys. The probate court awarded attorney fees for frivolous conduct against the son and in favor of the guardianship and to some of the attorneys representing the guardians and the ward.

    The ward’s son appealed the award of attorney fees against him, arguing that his conduct was not frivolous and that the joint expert was not properly qualified as an expert. The Court of Appeals found the conduct was frivolous, the fees were proper and properly presented to the probate court by a local attorney whose practice was performed “85-90%” in this particular probate court’s jurisdiction. 

  • Probate court did not abuse discretion in denying minor name change because “custom” is not a sufficient grounds to grant change.
    Jun 23, 2021

    In the Matter of the Change of Name of OBA, 4th Dist. Scioto No. 20CA3920, 2021-Ohio-2212

    Savanna Lore gave birth to  a son, “O.B.L.” in 2017. Caleb Andronis subsequently established paternity and received parenting time with his child. Caleb later filed a petition with probate court to change the child’s surname to Andronis. At a hearing on the name change, Caleb argued that his family spends more time with the child and that during Savanna’s parenting time, the child is mostly with a babysitter. He further argued that it was “customary” for a child to receive the father’s surname and that he wanted to carry on his name. Savanna and her mother (the child’s grandmother) testified that OBL spent time with her family, that she cared for him “99% of the time,” that a name change would confuse the child, and that she “deserved” to give her son her own surname. The probate court determined a name change was no in OBL’s best interest and denied the father’s petition.

     On appeal, Caleb argued the probate court abused its discretion and that the court was openly contemptuous of his testimony, despite the fact that both parents felt they “deserved” to give their son their surname. The appellate court set forth the Willhite factors and notes that it cannot supplant the factual determinations of the probate court – it can only determine whether the probate court abused its discretion. The appellate court noted that “custom” is not sufficient evidence of a name change being in a child’s best interest. The appellate court agreed that the probate court admonished only Caleb for the argument that he “deserves” to give his son his name, when the mother testified similarly. However, that was not sufficient to taint the probate court’s overall ruling and findings under the Willhite factors. The appellate court affirmed the denial of the name change.

  • Beneficiary’s incarceration during estate administration does not create exception to statute of limitations to bring breach of fiduciary duty claims against estate administration 21 years after estate was closed.
    Jun 17, 2021

    Smith v. Smith, 8th Dist. Cuyahoga No. 109899, 2021-Ohio-1955

    Roosevelt died intestate in 1990. One of the beneficiaries of Roosevelt’s estate, his son Andre, was incarcerated for all or part of the time that Roosevelt’s estate was administered by William, that time being 1991-1998. In 2019, Andre sued William alleging that William breached his fiduciary duties to Andre by selling real estate and other estate administration errors. In his Complaint, Andre claimed the statute of limitations was tolled due to his disability in the form of incarceration and drug dependency.

    William filed for summary judgment, arguing that the statute of limitations had long since expired and, at the same time, that the doctrine of laches barred any claims. Andre argued that under the discovery rule, he did not discover William’s wrongdoings with the estate until 2019 so his statute of limitations was tolled. The trial court agreed with William and dismissed Andre’s Complaint.

    On appeal, the Court found Andre’s blanket claim that his incarceration tolled the statute of limitation was incorrect. The Court found that based on his pleadings, Andre was no longer incarcerated by at least 1998 when the estate was closed, and therefore his statute of limitations commenced no later than 1998. The Court did not consider the laches defense. The case was dismissed.

  • Current trust beneficiaries can sue for accounting of transactions that occurred during time where they were vested but not-yet-current beneficiaries.
    Jun 11, 2021

    Yeager v. U.S. Bank, 1st Dist. Hamilton No. C-200262, 2021-Ohio-1972

    U.S. Bank was Trustee of the Trust where there was a primary beneficiary named Robert. Robert’s three sons were successor beneficiaries upon Robert’s death. At some point in 2011 while Robert was beneficiary, U.S. Bank discovered one or more of its trust officers embezzled funds out of multiple trusts, including the Trust for Robert. It is not clear if U.S. Bank disclosed the embezzlement to Robert. Instead, U.S. Bank returned the embezzled funds to the Trust account later in 2011 and identified the deposit as “Cash Receipt Miscellaneous Receipt Reimb Cash Due to Loss.”

    Robert died in 2017 and his three sons became the beneficiaries of the Trust. In 2018, Robert’s sons sent a letter to U.S. Bank demanding an explanation of the miscellaneous cash reimbursement back in 2011, and later asked U.S. Bank for a full accounting of the Trust. U.S. Bank never provided an accounting or explanation, so Robert’s sons sued the bank in 2018 demanding an accounting. U.S. Bank sought to dismiss the Complaint for lack of standing, arguing that Robert’s sons were not beneficiaries at the time and were not in privity with U.S. Bank.

    Robert’s sons amended their Complaint to add claims for breach of fiduciary duty, conversion and civil theft. U.S. Bank again sought to dismiss the Complaint for lack of standing and lack of privity, arguing that the sons were not beneficiaries of the trust at the time. The trial court granted U.S. Bank’s motion to dismiss pursuant to Civ.R. 12(B)(6), with prejudice.

    The Court of Appeals reversed the trial court. The Court of Appeals found that the sons’ demand for an accounting triggered U.S. Bank’s duty as trustee under R.C. 5808.13 to respond to the beneficiaries’ request for information related to the administration of the trust unless the request is unreasonable. The Court of Appeals found the request for the accounting was reasonable and thus the sons properly stated a claim for an accounting.

    As to the claim that the sons lacked privity, the Court of Appeals disagreed with the trial court. The Court of Appeals found that this was an irrevocable generation skipping trust and the sons’ interest in the trust was vested upon the creation of the trust. Therefore, they were in privity with the trustee and even though they were not primary beneficiaries, their interests were vested. The Court of Appeals rejected the argument that current beneficiaries could not sue for allegedly improper conduct that occurred prior to their becoming current beneficiaries. Thus, the Court found that the sons properly stated a claim for breach of fiduciary duty.

    For the conversion and civil theft claim, the Court of Appeals found that the claims were not properly pled, but could have been pled in another way. Therefore, the dismissal was proper, but the dismissal should have been without prejudice.

  • Spousal elective rights are tolled until the court issues the formal citation to the spouse of spousal rights.
    Jun 1, 2021

    In re Estate of Weitzel, 12th Dist. Warren No. CA2021-01-001, 2021-Ohio-1859

    Joseph married Martine. Joseph had two children from a prior marriage before he met Martine. Joseph died intestate in December 2018. Martine applied to administer Joseph’s estate in August 2019 and was appointed as administrator. The probate court did not issue the citation to surviving spouse as required by R.C. 2106.01(A) after Martine was appointed.

    In October 2020, more than a year after Martine had been appointed administrator of the estate, Joseph’s children filed a motion to bar Martine from exercising her spousal rights under R.C. 2106, arguing that she failed to affirmatively elect to exercise those rights within five months of her appointment as fiduciary. Martine argued, and it was undisputed, that the probate court failed to issue her the citation to the surviving spouse. Accordingly, her spousal election period – five months from the issuance of the citation – never ran, so her rights had not expired, and she asked the court for an extension to make her election. The probate court agreed with Martine and held that it was the court’s duty and the court’s error with regard to the citation to the surviving spouse. The probate court gave Martine 14 days to make an election.

    Joseph’s children appealed the probate court’s decision, but the 12th District sided with Martine. The 12th District found it was the probate court’s statutory obligation to issue the citation and the spousal election period does not run until the citation is properly served on the spouse. While R.C. 2106.01(E) says that the time for a spouse to elect against a will begins to run as soon as the fiduciary is appointed, the court found it inapplicable because Joseph died intestate, and this section had to do with election against a will.

  • Attorney who notarized execution of a contested POA is properly disqualified from representing the proposed ward.
    May 27, 2021

    In re Guardianship of Carney, 8th Dist. Cuyahoga No. 110034, 2021-Ohio-1819

    Attorney who notarized execution of a contested POA is properly disqualified from representing the proposed ward.

    In a power of attorney, James Carney, Jr. nominated his son, James Carney, III to be his guardian. The POA also authorized the son to retain attorneys on his father’s behalf. While the father was in a psychiatric unit, his cousin, Joseph Carney, had the father sign a limited power of attorney nominating Jeanne Carney (Joseph’s wife) as his guardian. Joseph is an attorney and he notarized the limited POA.

    The son applied to be his father’s guardian and Jeanne filed a competing application. The son argued that the limited POA nominated Jeanne was the result of lack of capacity, undue influence and/or improper conduct by Joseph, a lawyer. The guardianship matter involved several disputes over who could retain independent counsel for the potential ward and whether Joseph could serve as the potential ward’s counsel.

    The probate court granted the son’s motion to disqualify Joseph from representing the potential ward. The court based the disqualification in part on the fact that Joseph was a necessary witness regarding the signing of the limited POA. The potential ward – through new counsel – appealed the probate court’s disqualification of Joseph.

    The Eighth District upheld the disqualification. It was not required for the probate court to have a full hearing on the issue and it could be decided on the briefing. The probate court properly found Joseph would be a necessary witness and there was no exception in Prof.Cond. 3.7 permitting Joseph to serve as a lawyer and witness.

  • No hardship exemption for denial of Medicaid benefits, when applicant owned two parcels of real estate that she was unable to sell.
    May 26, 2021

    Cowan v. Ohio Dept. of Jobs & Family Servs., 1st Dist. Hamilton No. C-200025, 2021-Ohio-1798

    Mrs. Cowan was in a nursing home and authorized her nursing home to apply for Medicaid on her behalf. Mrs. Cowan’s application for Medicaid benefits was denied because Mrs. Cowan owned two parcels of real estate that had a combined county auditor valuation of $6,000, which was in excess of the Medicaid resource limit of $2,000. Mrs. Cowan appealed the denial of her Medicaid benefits because she had tried to sell the properties but could not find a buyer, arguing that because she could not find a buyer, the properties should not count as assets. Mrs. Cowan was represented by an attorney for the nursing home.

    ODJFS opposed Mrs. Cowan’s appeal, arguing that the nursing home’s attorney was really representing the nursing home and not Mrs. Cowan, and thus the nursing home was not the real party in interest. The trial court agreed, but alternatively ruled that the real estate value was in excess of the Medicaid asset limit and there was no applicable exemption so the denial of the Medicaid benefits was proper.

    Mrs. Cowan eventually gave away the two parcels and was approved for Medicaid. However, Mrs. Cowan appealed the trial court’s decision anyways. The Court of Appeals found that even though the Nursing Home’s attorney admitted he was hired by the nursing home, he did not indicate that he did not also represent Mrs. Cowan. Therefore, the trial court’s decision to dismiss for lack of standing/not the real party in interest was error. However, the court of appeals ultimately upheld the denial of Mrs. Cowan’s appeal because Ohio’s Medicaid rules for asset limits were clear, bright line rules and no exception to the rule applied.

  • Trust beneficiary does not have standing to challenge prior trust transactions before having vested interest.
    May 20, 2021

    Campbell v. Donald A. Campbell 2001 Trust, 8th Dist. Cuyahoga No. 109585, 2021-Ohio-1731

    Margaret and Donald Campbell created an elaborate estate plan involving multiple trusts, a family limited partnership (FLP), and life insurance. Donald created the Donald Trust, which excluded one of his sons, Allen, as a beneficiary. Margaret created the Margaret Trust that included Allen as a beneficiary. When Donald died, Margaret became the sole trustee and primary beneficiary of the Donald and Margaret trusts and became the managing partner for the FLP. The FLP required equal contributions and equal split of costs from the partners, which was effectively Margaret’s Trust and Donald’s Trust, at the discretion of the managing partner. Margaret utilized funds from primarily her Trust and the FLP to pay for her care from 2010 until her death in 2015.

    After she passed away, her son Allen became the successor trustee and a vested beneficiary in the Margaret Trust. He discovered that his mother used more of the money in her own trust to pay for her care from 2010 to 2015 and thought it was unfair that the Donald Trust did not pay for more of those expenses. Allen alleged that his mother’s conduct in using trust assets and FLP assets to pay for her care diminished his inheritance through the Margaret Trust, and so he sued the successor trustees of the Donald Trust and the Margaret Trust and the beneficiaries of each, to recover funds that he felt were owed to Margaret’s Trust. Allen eventually resigned as executor of Margaret’s estate and as Trustee of Margaret’s Trust. Allen brought three lawsuits about the trust administration during his mother’s lifetime and it culminated in one case that he originally filed in the general division that was transferred to probate. The probate court dismissed all of Allen’s claims for lack of standing and failure to state a claim. 

    Allen appealed the dismissal and alleged the probate court lacked jurisdiction to hear the case because he was seeking money damages due to fraud and because he filed in common please first, argued that he had standing to bring the claims as a beneficiary of the trust, and generally disagreed with the court’s dismissal of his claims.

    The Court of Appeals found that the probate court had exclusive jurisdiction over the trust dispute and concurrent jurisdiction over the related claims. The court found that Allen’s claims of fraud were really against his mother for fraud against herself or her trusts in her lifetime, and there were no specific allegations of fraud against the actual defendants to his case. The court also found that there was no jurisdictional priority in the common pleas court because there were not two related cases in two different courts; rather the common pleas court elected to transfer the case to probate jurisdiction.

    The Court of Appeals agreed with the probate court that Allen lacked standing to challenge his mother’s conduct as trustee and beneficiary because he was not a vested beneficiary at the time of the alleged misconduct and the trusts and the FLP gave his mother discretion to spend as much of the money as she wanted for her benefit. The court found that Margaret’s exclusive authority over all of the assets prevented Allen from claiming an injury in the use of those assets because that was “exclusively her prerogative.” The court added that Allen could not have been damaged by this conduct during Margaret’s lifetime as his interest did not vest until after her death. Nor could the successor trustees and beneficiaries have done any harm to Allen because the conduct preceded their rights and interests in the trusts as well.

  • Responsive pleading that expresses doubts about validity of will does not trigger "no-contest clause".
    May 3, 2021

    In re: Estate of Damschroder, 3rd Dist. Seneca No. 13-20-19, 2021-Ohio-1558

    John died in 2015 and his will left the residue of his estate to his daughter Tina and step-daughter Debra in equal shares. John appointed Tina’s son as the executor of his estate. The Will omitted John’s daughter Lia Ann, who filed a will contest action naming Tina and Debra as necessary parties. In response to the will contest action, Debra prepared a letter and mailed it to the court, stating that this was her answer to the will contest case. In her letter, she said she did not have money to hire an attorney, that she wanted to protect her interests in the estate, and that she had “serious concerns” about John’s legal documents including his Will. Debra also expressed concern about Tina’s role in allegedly having John sign new documents.

    John’s Will had a no-contest clause that stated if any beneficiary of the Will would “directly or indirectly” oppose the probate of the Will, or if any beneficiary or next of kin would “initiate, participate in, either directly or indirectly, or prosecute any legal action whatsoever to contest or set aside” the Will, then that person would be disinherited from the estate.

    The will contest case went to trial and Debra testified, but she was not asked about the validity of the will and did not testify in such a way to contest the will. The jury found the will to be valid. After the trial, the executor of the estate filed a declaratory judgment action asking the court to determine if Debra violated the no contest clause by indirectly or directly challenging the validity of the will based upon (a) filing a response to the will contest action (b) the contents her written letter to the court and (c) her voluntary participation in the will contest trial. The trial court found Debra did not trigger the no contest clause.

    The court of appeals agreed with the trial court. The court of appeals said that filing a response to the will contest action was not a challenge and was a reasonable and necessary thing to do. The court said that the contents of the letter sought to protect Debra’s interest in the estate, not challenge the validity of the Will – even if the letter said there were concerns about the documents. Finally, the court said that her participation in the will contest trial was also reasonable and did not relate to the validity or invalidity of the will.

  • It was abuse of discretion not to hold a hearing on an attorney fee application where the probate court previously authorized the guardian of the person to retained counsel and “to bind the guardianship estate to the same.”
    Apr 30, 2021

    In re: Guardianship of Montgomery, 6th Dist. Erie No. E-20-016, 2021-Ohio-1546

    The probate court appointed an attorney the guardian of the estate of Mr. Montgomery. Subsequently the court appointed the ward’s son, Kevin, guardian of his father’s person, on the condition that Kevin retain counsel. The court signed an order – prepared by Kevin’s counsel, McLoughlin – permitting Kevin to enter a fee agreement and requiring that a fee application be approved before payment from the guardianship to Kevin’s counsel. Later, Kevin dismissed McLoughlin as his counsel and McLoughlin filed an application for $15,353 in fees and costs for representing Kevin from October 2019 through May 2020. The probate court denied the fee application for the following reasons: 1) it had not appointed McLoughlin as counsel; 2) the guardianship had insufficient funds to pay the fee. The guardian of the estate also objected to payment of the invoice.

    McLoughlin appealed. The Sixth District found the probate court abused its discretion. First, the complexities of this guardianship required the court to hold a hearing on the attorney fee application. Also, the probate court did approve an order authorizing Kevin to hire McLoughlin and therefore McLoughlin was entitled to present evidence on the necessity and reasonableness of his services.

  • Debtor of an Estate lacks standing to file exceptions to final account and a probate court’s order dismissing exceptions to an account is not a final appealable order.
    Apr 22, 2021

    In re: Estate of Abraitis, 8th Dist. Cuyahoga No. 109810, 2021-Ohio-1408

    Through a long history of removal of fiduciary, investigation, and associated appeals, the probate court ordered Catherine Brady (“Brady”) and her former client, Sarunas, jointly and severally, to pay $104,485 in attorney fees and costs to the Estate of Vlada Abraitis. In the interim, Sarunas died and Brady became the Executrix of his estate. She was removed from this role as well, in part because of the conflict: Sarunas and Brady, jointly, were debtors of Vlada’s Estate. Brady filed exceptions to the final account of Sarunas’s Estate, which were dismissed for lack of standing (2020-Ohio-4222). Subsequently, the Executor of Vlada Estate – i.e., the creditor to whom Brady owned money – filed a final account. Brady asserted exceptions to the that account. When her exceptions were dismissed, Brady appealed that decision, but did not appeal the order approving the final account.

    The 8th District again dismissed for lack of final appealable order and commented that again, Brady lacked standing. An order that denies exceptions to an account or inventory is not a final appealable order and does not affect a substantial right, so no interlocutory appeal is allowed. Even if the order was final, Brady lacks standing. She – as a debtor to the Vlada Estate – is not a “person interested” in the Vlada Estate. She has not “direct pecuniary interest” in the account or the Vlada Estate.

  • Creditor claim served on attorney for fiduciary is not properly presented under R.C. 2117.06
    Apr 1, 2021

    Stafford Law Co., L.P.A. v. Estate of Coleman, 8th Dist. Cuyahoga No. 109377,  2021-Ohio-1097

    Attorney provided legal services to decedent in her lifetime. Attorney filed notice of claim in the probate court within six months after the decedent’s death and certified service of the notice of the claim to the fiduciary in care of his attorney at his attorney’s address within six months of the decedent’s date of death. The fiduciary rejected the claim saying it was not properly presented to him as fiduciary and that service on his agent, his attorney, was not sufficient service under 2117.06.

    After litigation in common pleas and in probate court, the probate court issued an entry stating that the attorneys’ creditor claim was timely presented against the estate, but that the claim was rejected by the fiduciary so the probate court had no jurisdiction to enforce the claim. The attorney then was granted summary judgment in the common pleas court on the argument that the probate court determined the claim was properly presented.

    The court of appeals reversed, finding that the probate court’s entry about proper presentment was void because the court lacked jurisdiction after the claim was rejected by the fiduciary. The court of appeals also reversed on the grounds that presentment of a creditor claim must actually be made upon the fiduciary and that service in care of the fiduciary’s attorney was not sufficient under 2117.06.

  • Order appointing a master commissioner to investigate a fiduciary’s conduct during decedent’s lifetime is not a final appealable order.
    Mar 31, 2021

    In re Estate of Durkin, 9th Dist. Summit C.A. No. 29532, 2021-Ohio-1076

    In an estate administration, there were allegations that the fiduciary had acted improperly toward the decedent during her lifetime as her power of attorney. The probate judge appointed a special master commissioner to investigate the fiduciary’s conduct as power of attorney to determine if any additional assets should be included in the estate. The fiduciary appealed the order appointing the master commissioner.

    The court of appeals dismissed the appeal for lack of a final order. The court of appeals ruled that the appointment of the master commissioner does not remove the fiduciary and therefore does not affect a substantial right. The master commissioner’s findings may lead to the fiduciary’s removal, but it was premature to argue that and therefore not appealable.

    One judge dissented, arguing that the appointment of the master commissioner was to review the fiduciary’s conduct and justify his removal. Therefore, a substantial right was affected and an interlocutory appeal would be allowed.

  • Jury verdict reversed because admitted character evidence against defendant was prejudicial and prejudice outweighed probative value
    Mar 31, 2021

    Erzurum v. Erzurum, 7th Dist. Mahoning No. 20 MA 0012, 2021-Ohio-1162

    Mom and dad transferred to high-revenue rental properties to Son in 2018 and 2019. Later, Mom and Dad sued Son to undo the real estate transfers, alleging undue influence and duress by Son on Parents. Parents were in their 90s and had physical ailments. Parents alleged that Son had a deceitful past, including allegations of Medicare fraud, two bankruptcies, and a secretive move to Turkey without telling his parents. Son claimed that he was never charged with a crime, that bankruptcies were necessary and one was at his parents’ request, that they transferred the real estate to him as part of a long-established plan and to induce him to stop practicing medicine, and that his parents were suing him in retaliation for his refusal to falsify the income tax records for the rental properties.

    The case proceeded to a seven-day jury trial. Despite Son’s objections, the Court permitted Mom and Dad and their counsel to discuss the Medicare fraud claim from 2003, the bankruptcy from 2004, the move to Turkey from 2005 to 2012, and the 2012 bankruptcy. The jury found in favor of Mom and Dad to undo the real estate transfers.

    The Court of Appeals said that the two arguments presented by Mom and Dad and Son were diametrically opposed, and thus the entire case turned on witness credibility. The Court of Appeals found that the character evidence against son from his prior mistakes was more prejudicial than probative. The Court of Appeals made the highly rare decision of reversing the jury’s verdict and remanding the case for a new trial.

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