Failure to properly swear, certify, or authenticate evidence leads to summary judgment in will-contest action

Smith v. Gold-Kaplan, 8th Dist. No. 100015, 2014-Ohio-3195. The defendant moved for summary judgment in this will-contest action, and the plaintiff opposed the motion relying upon her own affidavit and a letter from a doctor to the plaintiff's attorney stating that it was more than likely that the decedent did not manifest testamentary capacity when the challenged will was executed. In the reply brief, the defendant stated that the plaintiff had failed to comply with Ohio Civil Rule 56 because the plaintiff had failed to properly authenticate any of her exhibits in order to offer summary judgment evidence. Ohio Civil Rule 56(C) requires that documents submitted in defense of a motion for summary judgment be properly sworn, certified, or authenticated by affidavit, or such evidence may not be considered in determining whether an issue of fact exists. The lone exception to this rule is when the opposing party fails to raise an objection to the admission of the documents. The Eighth District Court of Appeals held that the evidence the plaintiff proffered in opposition to the defendant's motion for summary judgment was not properly authenticated under Ohio Civil Rule 56(C). This meant that the only evidence the trial court could consider in support of the plaintiff's claims were excerpts from the plaintiff's own self-serving affidavit. Accordingly, the appellate court ruled that the plaintiff had failed to raise an issue of fact as to undue influence or establish a confidential relationship. The trial court's granting of summary judgment for the defendant was upheld.