Invalidation of a Joint Survivorship Designation Resulting From Power of Attorney Abuse

Tewksbury v. Tewksbury, (2011), 194 Ohio App. 3d 603, 2011 Ohio 3358. Tewksbury demonstrates the need to obtain counsel that can properly evaluate the case, including the potential end result, before a substantial amount of time is wasted pursuing a case with a dead end result. This case demonstrates that, even if there was self-dealing and the transaction was set aside, if the ultimate recipient after the transaction is dissolved would be the same person; the claimant lacks standing and there is no benefit for the claimant in the end.

Within a month of decedents death, decedent executed a power of attorney in favor of one of his sons, Harold. Prior to the execution of the powers of attorney, decedent held his real property and several CDs as joint survivorship property with another son, Charles. Harold used the power of attorney to transfer decedents real property and the CDs to be held as joint survivorship property between Harold and Charles, rather than decedent and Charles. Decedents sons attest that decedent instructed them to transfer these assets into their names.

Based upon the trial testimony of decedents children and decedents attorney, the trial court found that decedent was competent when he executed the powers of attorney, therefore Harold validly possessed the powers of attorney. The court of appeals found there to be credible evidence in the record to support the trial courts decision and affirmed the validity of the powers of attorney.

Further, the trial court determined that if the transfers of the non-probate assets of real property and CDs, now held as joint property between Charles and Harold were invalidated pursuant to Harolds self-dealing using the powers of attorney, the property would not go back into the estate, but would be owned completely by Charles, as he was a joint survivorship owner of the property with decedent prior to the change made via the powers of attorney. On the basis that the estate lacked standing to seek to invalidate the transfers of non-probate assets, the trial courts dismissal of a portion of the estates claims was affirmed.