Ohio Probate Law Updates

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

Boli v. Huntington Natl. Bank, Fifth 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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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 Trustees. 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 Trustee 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. The trustee moved for summary judgment that Robin could not pursue her action to challenge the trust amendment because she violated the no contest clause by seeking to invalidate the trust amendment. The general division agreed with the Trustee and granted partial summary judgment against Robin and in favor of the trust. That decision found that Robin’s challenge terminated her beneficial interest in the trust. Robin did not appeal this decision because there were other claims that were not disposed by the partial summary judgment decision.

Robin later tried to remove the probate fiduciary (who was also the Trustee of the Trust) in the probate court. However, the probate court said that the summary judgment decision in the general division determined as a matter of law that Robin violated the no contest clause in the trust action, and therefore she was divested from any pecuniary interest in the estate (the will was a pour-over to the Trust). Therefore, she lacked standing to seek a probate fiduciary removal. There is no mention of the fact that she is a next of kin of the decedent. 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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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. 

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.”

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. 

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.

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.

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. 

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

In re Estate of Wilson, 9th Dist. Summit C.A. No. 29738, 2021-Ohio-1056

The probate court denied the application to administer an estate filed by the executor nominated under the decedent’s will after the applicant’s brother, who was a next of kin of the decedent but not a beneficiary under the will, filed a will contest action against the applicant and other litigation. The denied executor appealed.

The Court of Appeals ruled that the probate court has discretion to appoint a fiduciary of an estate and the appellant failed to show an abuse of discretion. It was undisputed that there was conflict between the applicant and the objector, and it was undisputed that there was litigation. The court did not find it material that the challenged will and the prior will were pour-over wills with a trust as the sole beneficiary.

The Court of Appeals also rejected the appellant’s argument that the objector did not have standing to object to his appoint as a fiduciary because he was not a beneficiary under the challenged will or a prior will. The Court reasoned that all next of kin are entitled to notice of a fiduciary’s application and thus have standing to object to the appointment.

In re Estate of Cornell, 6th Dist. Williams No. WM-200-005, 2021-Ohio-877

After Alfred Cornell’s death, two wills were presented for probate: a will dated in 2001, which left the probate assets to a trust, and a will dated in 2015, which appointed Alfred’s son, Galen, as the fiduciary. The probate court accepted the 2015 will for probate and appointed Galen as Executor. The co-trustees – as beneficiaries of the 2001 will – filed a will contest. The will contest ended in a settlement reinstating the 2001 will and appointing Thompson Smith as executor as of March 2019.

In June 2019, Brian Kaiser, the attorney who represented Galen for his stint as executor, wrote to Smith requesting his attorney fees for estate administration in the amount of $6,305.80. On October 22, 2019, the estate filed and the probate court immediately approved attorney fees, executor fees, accepted a statement in lieu of final account, and discharged Smith as Executor. On October 29, 2019, Smith wrote to Kaiser denying the claim for his attorney fees.

In February 2019, Kaiser and Galen each moved to reopen the estate to address Kaiser’s attorney fee claim and Galen’s concern that the fees paid to Smith and his attorney were inflated due to the a piece of real estate titled to the trust having been included in the probate inventory. The probate court denied the reopening of the estate. Galen appealed.

The Estate argued Galen was not a beneficiary and had no standing to appeal or to object to the fiduciary and accounting fees. Furthermore, the Estate argued that Attorney Kaiser did not file suit within 2 months of the October 29, 2019 “rejection,” therefore R.C. 2117.12 barred his claim. The appellate court held it was an abuse of discretion not to reopen the estate.

The 2001 will poured into a trust, of which Galen was a beneficiary; therefore, he was an “interested party” with standing to object to the expenses of the estate. Galen, as a next of kin, was entitled to a copy of the estate inventory pursuant to the local rule, but had not received one – and therefore did not have the opportunity to object to the inclusion of the real estate. Further, the probate court was required by R.C. 2109.32 to set the final account for a hearing at least 30 days after the filing of the account. The probate court approved the filings immediately, so no one had a chance to object to it.

With regard to Kaiser’s claim for attorney fees, the appellate court noted that the 6-month deadline to file claims under R.C. 2117.06 does not apply to claims for attorney fees which were incurred as estate administration. Such fees did not exist or accrue before death. While Kaiser did not file a suit on the claim within two months of the October 29, 2019 “rejection” letter (as required by R.C. 2117.12), Smith had been relieved of his role as executor on October 22. Smith had no authority to accept or reject the claim – therefore, the claim was still pending and the estate had to be reopened to address it.

Progressive Macedonia, L.L.C. v. Shepherd, 11th Dist. Trumbull No. 2020-T-0036, 2021-Ohio-792

A nursing home (NH) petitioned the probate court to remove the guardian of one of the NH’s residents. The NH alleged that the guardian had allowed the resident-ward’s Medicaid to lapse, so the NH was not being paid. The probate court assigned a guardian ad litem (GAL) to review the matter. The GAL determined that the removal petition was not “well-founded” and payment to the NH was rectified by a retroactive Medicaid application. The Court ordered that the GAL “shall be entitled to compensation and expenses for serving as GAL...” and a dispute arose over whether the NH had standing to seek removal – but, the ward died before the Court could issue rulings. The GAL then filed a motion for its fees, and a magistrate issued an order that the NH must pay the GAL’s legal fees. The same day, the Court adopted the magistrate’s order. The NH appealed the Court’s order, but did not object to the Magistrate’s order, regarding payment of the GAL’s fees and costs.

The court of appeals upheld the order for the nursing home to pay the GAL’s attorney fees. The NH made a variety of technical and procedural arguments in its own defense, including that the NH lacked standing in the first place and therefore the magistrate’s decision and judgment entry were void. The court of appeals agreed that guardianship proceedings are in rem and are typically limited to the guardian, the ward and the court; therefore, the probate court probably erred in entertaining the NH’s motion to remove. However, the NH invited this error by bringing the claim in the first place and vigorously asserting its rights. Thus, the court of appeals found that other “interested parties” could seek to remove a guardian in certain circumstances, and in this case any error was voidable by the court, but not void ab initio.  

McMillan v. McMillan, 8th Dist. Cuyahoga No. 109048, 2021-Ohio-698

James and Tonya married in 2004. In February 2017, James left the marital home and moved in with his daughter, Ms. Hood. On March 10, 2017, Tonya applied to be guardian of James and Ms. Hood later filed a competing application to be her father’s guardian. On March 14, 2017, James (through a lawyer) filed a petition for divorce from Tonya, alleging incompatibility and gross neglect.

In June 2017, the probate court appointed Ms. Hood as James’s guardian, in part because of the conflict of interest between James and Tonya due to the pending divorce.

In the divorce trial, Tonya testified that James attempted to reconcile in June 2017 by coming back to the marital home and that James did not want a divorce. Ms. Hood testified that James filed the divorce petition of his own volition and that the June 2017 incident was not an attempt at reconciliation, but rather James had wandered, gotten lost, and appeared at his prior residence. James did not testify in the divorce trial; neither party attempted to call him. The domestic relations court found James was not competent based on the probate court record and that although there was not evidence of gross neglect or incompatibility, the record was clear that James and Tonya had lived separate and apart for more than one year. The domestic relations court granted the divorce over Tonya’s objections.

Tonya appealed the divorce asserting that granting the divorce solely on the testimony of a spouse’s guardian was improper. The appellate court affirmed and distinguished this case from Boyd v. Edwards, 4 Ohio App.3d 142 (8th Dist.1982), where the guardian filed the petition and the court thwarted attempts to allow the ward to testify. In James’s matter, he filed his own petition for divorce and there was no evidence before the domestic relations court that James was competent or able to testify or express his wishes. There was no error in granting the divorce based on living separate and apart for one year and based on the testimony of the guardian.

Froelich v. Rogers, 2d Dist. Montgomery No. 28916, 2021-Ohio-604.

Steven died intestate, survived by his brother Darryl and, allegedly, two minor children that Steven fathered out of wedlock. After Steven’s death, the local child support agency filed a paternity complaint against Steven and DNA evidence showed that the Steven was likely the father of the two minor children. The juvenile court entered an order of paternity but denied child support due to Steven’s death. A third party applied to administer the estate and petitioned the probate court to determine Steven’s heirs, naming Darryl and the two minor children as potential heirs. Darryl argued that determinations of paternity after the decedent’s death are invalid for purposes of inheritance. The administrator provided the probate court with the juvenile court order. The probate court determined that the minor children had established Steven as their father and there was no evidence to the contrary. The probate court ordered the minors as Steven’s only heirs without a hearing.

 The court of appeals reversed, finding that Darryl had a potential property interest in the estate and the hall mark of due process is the right to notice and a hearing before a party can be deprived of a property right. Because there was no hearing, Darryl was denied procedural due process (no notice, no hearing) and this was a violation of his constitutional rights.

 Darryl also appealed the effect of the post-mortem parentage determination, but the court of appeals declined to address issue and remanded the case to probate court.

In re Estate of Brown, 11th Dist. Trumbull No. 2020-T-0049, 2021-Ohio-655.

Donald Brown died and one of his children filed his 2003 will for probate. Later that day, a different child filed a 2019 will for probate, but the witness signatures were handwritten in print, not cursive. The probate court set the 2019 will for a hearing on whether it was sufficient on its face. After a hearing that included testimony from the witnesses to the will confirming their printed names, the probate court concluded the 2019 will was sufficient on its face and accepted the will for probate. The proponents of the 2003 will appealed the decision.

The court of appeals dismissed the appeal for lack of a final appealable order. The court of appeals reasoned that the real dispute was over the validity of the 2019 will and the order admitting it to probate merely determined the will appeared valid on its face. The 2003 proponents had other remedies, such as opposing the fiduciary’s appointment in the 2019 will and filing a will contest.

Decot v. Biggerstaff (In re Biggerstaff), 5th Dist. Perry No. 20 CA 00012, 2021-Ohio-591

Mother and Father had were divorced and father moved to California. Mother later applied to probate court to change the last name of their minor daughter to mother’s last name. Mother listed Father’s last known address on her application, but never perfected service on Father. Instead, mother selected publication as her service method and followed the rules for publication. After the publication period was complete, the probate court granted the application without hearing. Father later found out and appealed.

The court of appeals reversed the name change because the father’s address was known but service was not perfected. Service by publication is not proper when the last known address is known unless and until the applicant can prove failure or refusal of service.

In re: Pena, 6th Dist. Erie No. E-19-060, 2021-Ohio-531

On September 27, 2019, based on affidavits from a doctor pursuant to R.C. 5122.11 and R.C. 5122.111, Erie County Probate Court ordered the appellant to be held at the hospital due to mental illness. The following day, appellant was admitted to a hospital in Lucas County. On October 1, doctors submitted affidavits to Lucas County Probate Court to have the appellant hospitalized due to mental illness. Lucas County granted the order to hospitalize appellant.

By law, the probate must have a hearing within 5 days of an order to hospitalize a person. Erie County never held such a hearing based on their September 27 order. Lucas County held a hearing on October 3, at which time the magistrate ordered that the appellant be hospitalized not longer than 90 days. Appellant filed objections to the magistrate’s decision and the court scheduled a hearing before the judge on October 24. At this hearing, a doctor testified that the appellant no longer required hospitalization. Based on the testimony, Lucas County Probate Court found a lack of clear and convincing evidence of mental illness.

Appellant appealed only the September 27, 2019 order of Erie County Probate Court. She made no appeal of any order issued by Lucas County Probate Court. Generally, a person in appellant’s position can appeal a finding of mental illness because of the stigma such a finding may carry.

The appellate court dismissed this appeal for lack of jurisdiction. The Sixth District found that Erie County Probate had issued only a temporary order, and because Erie County had no hearing within the five days required, that case was dismissed. There was no finding of mental illness for appeal.

McGraw v. Jarvis, 10th Dist. Franklin No. 19AP-538, 2021-Ohio-522 

Please note: This case has complicated set of facts and procedural nuance that resulted in cross-appeals. We recommend a full and careful reading of the opinion. A Reminger blog is forthcoming about this nuanced matter.

Lehmann, et. al. v. Westhoeffer, et. al., 5th Dist. Tuscarawas No. 2020 AP 01 0001, 2021-Ohio-529

On the day of her death, Kies executed a last will and testament that Westhoeffer, her friend of 30+ years and neighbor assisted her in preparing. The will had only 1 witness. The will left Kies’s entire estate to Westhoeffer and made her the executor. After a hearing, the will was admitted under R.C. 2107.24, the non-conforming will statute. Kies’s heirs-at-law included 31 cousins. Lehmann, an heir-at-law filed a pro-se will contest that failed to name all next-of-kin. Two other groups of cousins, represented by counsel, also filed will contests. Then, Lehmann amended his complaint without leave of court and named thirty “plaintiffs” other than himself, but did not issue proper service to all parties. Over his objections, the probate court dismissed Lehmann’s will contest for failure to properly add necessary parties. Lehmann did not appeal. The probate court proceeded to trial on the two will contest cases filed by other next-of-kin.

After the court empaneled a jury, the parties settled the two will contests. Lehmann participated in settlement discussions and agreed with the settlement. Nonetheless, Lehmann filed motions to stay the settlement. Ultimately, the probate court approved a final accounting that distributed the estate pursuant to the settlement terms. Lehmann received and cashed his distribution pursuant to the final account. Lehmann then filed a “motion for summary judgment” alleging fraud, undue influence, lack of capacity, and the application of the voiding statute because Westhoeffer was involved in the preparation of the will. The probate court denied this “motion for summary judgment,” terminated the litigation, and closed the estate. Lehmann appealed on his own behalf and on behalf of eight others.

The appellate court affirmed the probate court. Frist, the appellate court notes that Lehmann cannot sue on behalf of others as he is not a licensed attorney. Next, with regard to all of Lehmann’s assignments of error, the appellate court found that Lehmann never properly contested the will. His complaint was dismissed for not including the proper parties; Lehmann did not appeal that decision nor amend his complaint. Finally, Lehmann participated in settlement discussions and received his funds pursuant to the settlement.

Allerton v. Burns, 5th Dist. Licking No. 2020CA00042, 2021-Ohio-500

The decedent, Ona, created a will in 2014 benefiting some of her children and grandchildren, and made her daughter Deborah, the defendant, the residuary beneficiary. Ona created a new will in 2019 that gave additional cash gifts to grandchildren, but left the residue portion to Deborah unchanged. Deborah’s sister Julia contested the 2019 Will alleging undue influence and lack of capacity based on a recollection that Ona had a stroke in 2013 and her doctor said the stroke affected the portion of Ona’s brain responsible for making decisions “about finances.” There was no other evidence of how the stroke made Ona susceptible to undue influence, and Julia admitted that Ona was strong willed. The probate court granted summary judgment in favor of Deborah.

On appeal, Julia argued there were genuine issues of material fact about the validity of the 2019 will and Ona’s susceptibility to undue influence. The court of appeals disagreed, finding that though there was opportunity for Deborah to exert undue influence—Ona lived with her before 2013 until her death in 2019—there was no evidence that Ona was susceptible to undue influence, or that the 2019 Will showed a result of undue influence. As compared to the 2013 Will, Deborah could have received less than under the 2013 will, or at least Deborah did not receive any greater portion.

Love v. Love, 4th Dist. Jackson No. 20CA4, 2021-Ohio-558

The executor of an estate brought money damage claims in common pleas court for fraud, unjust enrichment, conversion and theft against the defendant. The complaint alleged the defendant fraudulently opened a joint bank account with the decedent four days after the decedent was diagnosed with dementia and the decedent was unable to identify the year, month, date, town, county, or hospital where he was and could not write a sentence or draw a clock. The executor also alleged that a lifetime transfer of real estate by the decedent to the defendant that happened two weeks after the dementia diagnosis was fraudulent and the defendant was unjustly enriched. The defendant moved to dismiss the case, citing among other reasons that this was a probate matter and the common pleas court lacked subject matter jurisdiction. The common pleas court found it did not have subject matter jurisdiction to undo the real estate transfer because the result would be for the real estate to become a probate asset, but retained jurisdiction over the remaining claims because they sought money damages and not declaratory relief.

Defendant moved for summary judgment citing the lack of medical evidence on the date of the asset transfers, but the motion was denied. Extensive testimony by family members at trial described the decedent as incontinent, confused and failing in health at and around the time of the asset changes and transfers, and that Defendant told his siblings “I’ve got all the money and there is nothing you can do about it.” The testimony was uncontroverted that the decedent lived on the defendant’s property and was dependent on the defendant for basic care and transportation. The defendant denied all of this or minimized the descriptions as isolated incidents and moved for a directed verdict before the case was sent to the jury. The motion was denied. The jury returned a verdict in favor of the estate and against the defendant in the amount of $419,310.

On appeal, the defendant argued the common pleas court lacked subject matter jurisdiction and that there was no medical evidence of the decedent’s condition on the exact days of the asset changes and transfers. The court of appeals acknowledged potential for probate court jurisdiction, but held that the because the estate sought money damages rather than declaratory relief, the common pleas court had subject matter jurisdiction. The court also found there were genuine issues of fact regarding the decedent’s susceptibility to undue influence and fraud and, even though there was no expert medical evidence, the medical records and the and lay testimony about the decedent’s health around the dates of the assets transfers was sufficient evidence for a jury to believe there was fraud or undue influence.

Filo v. Filo, 12th Dist. Madison Nos. CA2020-01-003, CA2020-03-009, 2021-Ohio-413

After Tammy learned that her father, Elmer, disinherited her by executing a power of appointment prior to his death, she filed a declaratory judgment action against her brother, Terry, raising claims of undue influence and incapacity. Tammy sought shelter under the presumption of undue influence because Terry and Elmer held a fiduciary relationship. Ultimately, the jury found that Elmer had capacity, and his execution of the power of appointment was free from undue influence.

On appeal, Tammy argued the probate court erred by giving instruction on testamentary capacity rather than capacity to contract, and by excluding the presumption of undue influence. With respect to capacity, the appellate court found the testamentary capacity test required the jury to make additional and specific determinations before finding capacity, and thus the end result was the same regardless of which test was provided. Finally, there was no err in the undue influence instruction because the probate court properly excluded the relevant law based on evidence produced at trial, which the court found highly creditable to rebut such presumption. 

For more analysis, see our e-newsletter dated February 26, 2021.

Disciplinary Counsel v. Schwab, 2021-Ohio-283 (Supreme Court of Ohio)

In Ohio, only the Supreme Court can determine whether or not any particular action in the unauthorized practice of law (“UPL”). In this instance, a woman held herself out as a non-lawyer. She prepared legal documents for a church, on which she identified herself as a lawyer. She then met with a man and his wife and prepared living wills, healthcare powers of attorney, and last wills and testaments with self-proving affidavits. She identified herself as a lawyer on these documents as well.

The Board of UPL found all of these actions amounted to UPL. The Supreme Court accepted the findings. The Court issued a permanent injunction for Ms. Schwab to cease the UPL. The Board of UPL further recommended, and the Supreme Court ordered, a fine of $5,000 for each of the two acts of UPL.

In re: Estate of Seiler, 9th Dist. Summit No. 29756, 2021-Ohio-115

Mr. Seiler died in May 2018 after Summa hospital treated him for approximately 6 days. Summa submitted an invoice of $341,000 to Seiler’s health insurance carrier, Western Reserve (“WR”). WR denied the claim and Summa began an administrative review and appeal process. In April 2019, Summa had exhausted its administrative appeals and WR had not paid the invoice. In June 2019 – more than 1 year after Seiler passed – Summa opened Seiler’s estate and served itself with a creditor claim for $341,000 of hospital charges.

At probate court, Summa argued its claim to be contingent under R.C. 2117.37. Summa claimed that because the appeal process had only ended in April 2019, Summa had no claim until then. Thus, they claimed, the June 2019 filing was timely. The probate court agreed and allowed the claim.

On appeal, the Ninth District reversed. The appellate court stated that a claim is contingent only when the liability is not triggered until a later and uncertain event. In this case Summa knew they had a claim against the Estate, the only question was what amount – if any – WR would pay as insurance coverage. Summa’s claim was not contingent and needed to be presented within 6 months of the date of death.

For more analysis, see our blog post.

Nichols v. Bixler, 5th Dist. Stark No. 2020CA00037, 2021-Ohio-129

Jo Bixler’s trust provided that his son, Jeffrey, had the option to purchase the family farm “based on the agricultural use value” of the property. After Jo’s passing, Jeffrey argued that this amount should be the auditor’s “current agriculture use value” (“CAUV”). CAUV is a value set by the Ohio Department of Taxation; county auditor’s tax farm land at CAUV. Generally, CAUV is 60-70% less than fair market value.

In the probate court, the judge found that the language of Jo’s trust was ambiguous with regard to the term “agricultural use value.” As a result, the judge took extrinsic evidence on the topic, including the attorney who advised Jo. The attorney testified that he and Jo reviewed numerous valuations for farm land, including CAUV, auction values, and certified farm appraisal values. The attorney was adamant that Jo intended the value to be what a farmer would pay another farmer for this land to use it for farming. The probate court found, based on this extrinsic evidence, that Jo intended the higher value – not CAUV. The probate court then heard expert testimony on this value and set the price at $1.8 Million.

On appeal, the Fifth District agreed that the term was ambiguous and it was proper to hear extrinsic evidence. The appellate court affirmed the interpretation of “agricultural use value” and the setting of the price at $1.8 Million.

Mancz v. McHenry, 2nd Dist. Greene No. 2019-CA-74, 2021-Ohio-82

In 2009, an estate fiduciary brought a concealment of assets complaint against the decedent’s daughter related to misuse of the daughter’s authority under the decedent’s power of attorney during the decedent’s lifetime, as well as post-death improper transfers of assets. The estate fiduciary was awarded judgment against the defendant and sought to collect against the defendant. The defendant failed to satisfy the judgment and the evidence showed the defendant transferred real estate and other assets to her husband in attempt to avoid collection of the judgment against her. The estate fiduciary brought a second lawsuit to void the transfers of assets to the husband as fraudulent conveyances and received a jury verdict and judgment. The defendant appealed, raising thirteen separate arguments. The court of appeals affirmed the finding of fraudulent conveyance against the wife and ordered the real estate transfer void and the other assets paid to the estate.

Szokan v. Stevens, 11th Dist. Lake No. 2020-L-020, 2020-Ohio-7001

During their marriage, Donald and Delores purchased numerous savings bonds, each listing both spouses as a co-owner. Donald and Delores divorced in 2002 and their separate agreement did not address the savings bonds. The “separation agreement stated that the spouses had “effected, to their mutual satisfaction, a division of all property…” and that upon the execution of the agreement “each party shall deliver to the other party…all items or property to which he or she is entitled….” From 2002 until Delores’s death in 2017, Delores retained exclusive possession of the bonds. Delores’s will left all of her assets to her sister but did not specifically list the bonds.

 In the probate court, Delores’s sister was appointed her executrix and filed an action to declare ownership of the bonds. Donald claimed the he and Delores had an oral agreement that the survivor would keep the bonds. The probate court granted summary judgment to the executrix finding that the agreement requires the spouses to separate their property at that time and because Delores kept the bonds, she was their sole owner.

 On appeal, Donald argue the probate court lacked jurisdiction to interpret a separation agreement and, in the alternative, interpreted it incorrectly and failed to honor his oral contract with Delores. The appellate court held that the probate court had jurisdiction to determine whether the bonds were assets of the estate and in reaching that conclusion it can interpret a separation agreement. The court further agreed that the separation agreement was clear and intended to divide all marital assets in 2002. There could be no oral modification of the agreement, so any oral contract was unenforceable. The bonds belonged to Delores and must distribute pursuant to her will.

In re: Guardianship of Rhinehart, 11th Dist. Portage No. 2020-P-0047, 2020-Ohio-7005

Joseph was appointed guardian of the person and estate of Robin. Joseph retained counsel to represent him as the guardian. The probate court also appointed a limited guardian over the ward to manage a divorce action on behalf of the ward. The limited guardian was represented by separate counsel. In November 2019, Joseph (through his lawyer) filed an application for authority to expend funds (“ATE”), which included invoices for his attorney and the divorce attorney as well as other expenses and an ongoing budget for the ward. The probate court approved the application. In December 2019, Joseph filed another ATE, listing thereon an invoice of his guardianship counsel. The probate court scheduled a hearing on this ATE, and ultimately denied the expenditures in the December 2019 ATE related to attorney fees. Joseph’s attorney moved to withdraw from the case sometime thereafter. Probate court subsequently ordered Joseph’s counsel to repay the attorney fees the court had approved in the November 2019 ATE, effectively vacating its prior order allowing the fees, sua sponte.

Joseph’s former counsel appealed, arguing that the approval of the November 2019 was a final judgment and the court could not, sua sponte, vacate it. Rather, any vacation or modification of the order would require a motion under Civ.R. 60(B). The appellate court found that the probate court’s initial granting of the November 2019 ATE was done “inadvertently” and “without due consideration.” As such, even though it was a final order, the probate court had the discretion to modify or vacate it as a clerical mistake under Civ.R. 60(B).

In re Estate of Baughman, 5th Dist. Licking No. 19CA0123, 2020-Ohio-6928

An estate fiduciary filed suit under Ohio’s Uniform Power of Attorney Act to review the conduct of the decedent’s son, who served as her agent under a financial power of attorney (“Agent”) during her life. After a hearing, the trial court ordered the agent to repay the estate damages over $302,000 for abusing his authority under the power of attorney during the decedent’s lifetime. While the permits a power of attorney instrument to exonerate an Agent (R.C. 1337.35), the document in this case did not contain such a clause. The Agent nonetheless argued for exoneration based on the broad language of the document and his relationship with his mother. The lower and appellate court held that no such clause appeared in the document, nor was one implied. The Court of Appeals found that even if a power of attorney contains exoneration language, it is not an absolute defense where there is “evidence in the record to support a finding that appellant's conduct ‘falls outside the scope of any such clause.’”

Estate of Welch vs. Taylor, 12th Dist. Clinton No. CA2020-03-004, 2020-Ohio-6909

The next-of-kin of a decedent filed suit in the general division of common pleas court alleging that an interloper took over $500,000 from decedent’s estate by convincing decedent to execute beneficiary designations and make gifts. The general division dismissed the complaint for “lack of jurisdiction,” but did not transfer the matter to the probate division. The plaintiffs then filed suit in probate, more than 3 months after the will was admitted to probate, and after the court approved the final probate account. The interloper moved for stay of discovery and for summary judgment immediately, which the probate court granted. The probate court held the lawsuit was really an attempt to contest the validity of the will and it was thus untimely and barred, and that the case was barred by res judicata because it was dismissed by the common pleas court.

The Court of Appeals reversed, finding that this was not a will contest but rather a challenge to the lifetime gifts and beneficiary changes. The assets, if recovered, would belong to the probate estate. The Court further reasoned that Civ.R. 56(F) permits discovery and it was an abuse of discretion to deny discovery and to grant summary judgment. Thus, the plaintiffs stated a claim for which relief could be granted even if there was no will contest, because if the plaintiffs were successful in undoing the beneficiary designations, those assets may revert to prior beneficiaries.

In re: Estate of Anderson, 3rd Dist. Shelby No. 17-20-03, 2020-Ohio-6924

The decedent, Betty was the payee for certain child support payments during her lifetime. When she died, there was a balance of child support arrearage owed to Betty but unpaid. The fiduciary of Betty’s estate included on the inventory the child support arrearages that Chris owed to Betty for the time period that Betty cared for Chris's daughter, Emily. Emily, who is now over the age of 18, filed exceptions to the inventory arguing that child support should not be an asset of Betty's estate but should pay to Emily directly and outside of probate court. The trial court found that Chris owed the support to Betty and there were judgments against Chris in favor of Betty to pay the support. The probate court found that the child support orders were to pay to Betty and the reason for the support paid to Betty was because Betty was providing care to Chris’s children. The probate court denied Emily’s exceptions to the inventory and the Court of Appeals affirmed, finding that the child support arrearages were properly an asset of Betty's estate.

Interestingly, the estate fiduciary for Betty’s estate was special counsel for Medicaid Estate Recover (MER). On appeal, MER argued that “estate” under the applicable MER statute, included probate and non-probate assets, and thus the MER could recover the child support arrearages even if they were not an asset of Betty’s Estate because it was an asset payable to Betty in her lifetime. The court of appeals agreed with this argument.

Zarlenga v. Zarlenga, 7th Dist. Mahoning No. 2019MA89, 2020-Ohio-6947

Two brothers, Daniel and Carmine, served as co-trustees of trusts that owned family businesses. Daniel served as president of the family businesses and Carmine lived out-of-state. The businesses and the trusts entered loan agreements requiring the companies to make payments to the trusts. Daniel allowed the companies to default and then, as a co-trustee, failed to serve default notices on the company. Daniel also used trust funds to pay into the companies and to rent himself a condo and purchase a home. Carmine sued Daniel for an accounting and sought his removal. After a hearing, the probate court found Daniel breached his fiduciary duties and ordered him to repay over $2.7 million in damages, which included amounts owed by the family businesses for having defaulted on notes on which Daniel never sought payment. The appellate court affirmed the removal and the calculation of damages finding the that the probate court has statutory authority to “compel a trustee to redress a breach of trust by paying money…”  

Ayer v. Morenz-Harbinger, 1st Dist. Hamilton Nos. C-190687, C-190716, 2020-Ohio-6861

Ruth’s will was signed in 2014, and Ruth had a stroke in 2017, which required around-the-clock care after that. Ruth’s will left almost everything to her niece, Debbie. Ruth’s nephews, who were omitted as beneficiaries, claimed Ruth’s will was the product of undue influence and lack of capacity. The nephews pointed to Ruth’s incapacity in 2017 and to Debbie’s control of Ruth’s care and frequent communication before then as signs of undue influence. Probate Court and Court of Appeals agree that evidence of lack of capacity and undue influence is limited to the time close to the execution of the will, and later incapacity or even undue influence doesn’t matter. The plaintiffs’ evidence of undue influence was too far removed from the execution of the will.   

In re: Adoption of Y.E.F., slip opinion, 2020-Ohio-6785 (Supreme Court of Ohio)

R.C. 2151.352 provides an indigent parent the right to counsel in juvenile court cases that may result in the termination of parental rights. The same right had not previously been extended to parents whose rights may be terminated in an adoption through probate court proceedings. In this case, a mother of twin boys placed her children with her sister and brother-in-law for temporary care after the boys’ father left the mother and emptied their joint bank accounts. Eventually, the sister sought to adopt the boys, alleging that the biological parents had de minimums contact and provided no support in the prior year. At probate court, the mother raised issues of equal protection and due process via  a letter from legal aid society, and requested counsel noting that she did not know how to cross-examine the witnesses herself. Her request was denied. The probate court allowed the adoption and the appellate court affirmed.

Ohio’s Supreme Court reversed, reasoning that R.C. 2151.352, which allows appointed counsel in juvenile proceedings, was unconstitutionally under inclusive under the equal protection clauses of the Ohio and United States’ Constitutions. Going forward, indigent parents are entitled to counsel in adoption proceedings in Ohio. The decision was 5-2.