In re Estate of Marsh ( 2011 )


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  • [Cite as In re Estate of Marsh, 
    2011-Ohio-5554
    .]
    IN THE COURT OF APPEALS FOR GREENE COUNTY, OHIO
    IN THE MATTER OF THE ESTATE                               :
    OF CLARA A. MARSH, DECEASED
    :            C.A. CASE NO. 2010 CA 78
    :            T.C. NO.     10416WC-09-86
    :            (Civil appeal from Common
    Pleas Court, Probate Division)
    :
    :
    ..........
    OPINION
    Rendered on the           28th       day of      October       , 2011.
    ..........
    ARTHUR R. HOLLENCAMP, Atty. Reg. No. 0020528, 130 West Second Street, Suite
    2107, Dayton, Ohio 45402
    Attorney for Appellant
    MATTHEW C. SORG, Atty. Reg. No. 0062971, 2700 Kettering Tower, Dayton, Ohio
    45423
    Attorney for Appellees
    ..........
    FROELICH, J.
    {¶ 1} Elaine Grayson appeals from a judgment of the Greene County Court of
    Common Pleas, Probate Division, which granted summary judgment to Richard and Martha
    2
    Marsh in Elaine’s will contest action.1 For the following reasons, the trial court’s judgment
    will be affirmed in part and reversed in part, and the case remanded for further proceedings.
    I
    {¶ 2} Elaine Grayson and Richard Marsh are the surviving children of Clara Marsh,
    who died on March 26, 2008. Elaine has been married to John Grayson since 1966.
    Richard and Martha (whose nickname is Sam) married in 2005. During the relevant time
    period, Clara lived in Xenia near the Graysons; the Marshes reside in Willoughby near
    Cleveland.
    {¶ 3} On January 26, 1996, Clara executed a will (“the 1996 will”), which left her
    estate to her husband, if he were alive, and to her children equally, if her husband
    predeceased her. Clara’s husband, LeRoy, subsequently died in 1996. In 2003, Clara sold
    her home and moved into a condominium purchased with proceeds from the sale of the
    house and additional money contributed by her son, Richard.                                    After the purchase, Clara
    executed a quit claim deed that made Richard and Clara joint tenants with right of
    survivorship.
    {¶ 4} In January 2004, Clara wrote a letter to her children, indicating that “[s]ince
    the purchase of my condo, I find it necessary to write a new will.” The letter set forth her
    wishes regarding funeral arrangements and the disposition of her property. Of note, the
    letter stated: “I am sure you know that if it were not for Richard I would not be in this
    Condominium today. He wanted it for me as much as I and he did all he could do to get it.
    I am most grateful. Richard and I own this house equally. There is a recorded document (a
    1
    Because several family members share the same last name, we will refer to the parties by their first names.
    3
    survivorship deed) that leaves the condo to Richard at my demise. It is only right that I do
    this for him. He has done everything he could (physically and financially) because he
    wanted this move as much as I. I sincerely hope that this will not cause any friction
    between my children.” The letter was not witnessed, and neither party has claimed that this
    letter qualified as a valid will under Ohio law. See R.C. 2107.03 (requiring at least two
    witnesses to create a valid will).
    {¶ 5} In January 2006, Clara moved to Elmcroft Assisted Living, and the
    condominium was listed for sale.       The Graysons and the Marshes disagreed about how the
    proceeds of the sale should be distributed. Richard informed the Graysons that Clara
    wanted the proceeds to be placed in a joint survivorship account in Clara and Richard’s
    names. The Graysons believed that Clara’s proceeds should be placed in her (Clara’s)
    existing Merrill Lynch account. During July 2006, the Graysons and Marshes exchanged
    numerous e-mails relating to Clara’s assets and whether she needed a guardian.
    {¶ 6} On July 26, 2006, John (Clara’s son-in-law) filed a petition for guardianship
    of Clara in the probate court, alleging that Clara had Alzheimer’s disease and dementia.
    John acknowledged in his deposition that the guardianship proceeding mostly “was about
    determining where Clara’s proceeds went, whether she kept control of them or they [were]
    given to someone else.” Richard opposed John’s petition and sought to be appointed
    Clara’s guardian. It is clear that there was friction between Richard and the Graysons in
    2006 prior to the filing of John’s petition and that the relationship deteriorated after its filing.
    {¶ 7} On August 19, 2006, unbeknownst to the Graysons, Clara executed a
    handwritten will (“the 2006 will”). This document stated, in its entirety: “Because of all the
    4
    legal problems Elaine and John are causing, I am afraid my final wishes will be ignored. To
    prevent this from happening , this is my new will: I leave everything to my son Richard and
    his wife Sam. I love you all very much.” (Emphasis in original.) The will was signed and
    dated by Clara. On September 1, 2006, Pamela E. Gaylor and Patricia B. Fuller, the priest
    and secretary, respectively, of Christ Episcopal Church in Xenia, signed the document under
    the handwritten sentence (written by Gaylor), “Clara Marsh is doing this of her own free
    will.”
    {¶ 8} In approximately late April 2007, Clara moved to the Alzheimer’s unit at
    Elmcroft, and she remained there for approximately one month until she fell and broke her
    hip, requiring surgery. Following her hospital stay, Clara moved to Greene Oaks Nursing
    Home, and soon was placed in the Alzheimer’s unit there. Clara died on March 26, 2008.
    {¶ 9} On March 27, 2008, John filed the 1996 will with the probate court. The
    will was admitted, and John was appointed executor of Clara’s estate in accordance with that
    will. On May 2, 2008, Richard filed an application to probate the 2006 will. After a
    hearing, the 2006 will was admitted to the probate court, and Richard was appointed
    administrator of Clara’s estate.
    {¶ 10} Elaine, Clara’s daughter, subsequently filed this action against Richard and
    Martha, challenging the validity of the 2006 will. Elaine claimed that Clara lacked the
    requisite testamentary capacity to execute the 2006 will and that Richard had exerted undue
    influence upon Clara. Richard and Martha moved for summary judgment on Elaine’s
    claims, and Elaine opposed the motion. After considering the parties’ submissions, the trial
    court found no genuine issues of material fact and granted Richard and Martha’s summary
    5
    judgment motion.
    {¶ 11} Elaine appeals from the trial court’s judgment. In her sole assignment of
    error, Elaine claims that the trial court erred in granting Richard and Martha’s motion for
    summary judgment.
    II
    {¶ 12} “The purpose of a motion for summary judgment is to test whether genuine
    issues of material fact exist such that a trial is necessary to resolve those issues.” Abroms v.
    Synergy Bldg. Sys., Montgomery App. No. 23944, 
    2011-Ohio-2180
    , ¶34. Although the
    existence of testamentary capacity and undue influence are questions of fact, “disposition by
    summary judgment is appropriate in a will contest.” Bustinduy v. Bustinduy (Dec. 18,
    1998), Champaign App. No. 98-CA-21.
    {¶ 13} Summary judgment should be granted only if no genuine issue of material
    fact exists, the moving party is entitled to judgment as a matter of law, and reasonable minds
    can come to but one conclusion, which is adverse to the nonmoving party. Civ.R. 56;
    Harless v. Willis Day Warehousing Co. (1978), 
    54 Ohio St.2d 64
    , 66.
    {¶ 14} Upon a motion for summary judgment, the moving party bears the initial
    burden of showing that no genuine issue of material fact exists for trial. Dresher v. Burt
    (1996), 
    75 Ohio St.3d 280
    , 292-93.        Once the moving party satisfies its burden, the
    nonmoving party may not rest upon the mere allegations or denials of the party's pleadings.
    Id.; Civ.R. 56(E). Rather, the burden then shifts to the non-moving party to respond, with
    affidavits or as otherwise permitted by Civ.R. 56, setting forth specific facts which show that
    there is a genuine issue of material fact for trial. 
    Id.
     Throughout, the evidence must be
    6
    construed in favor of the non-moving party. 
    Id.
    {¶ 15} An appellate court reviews summary judgments de novo, meaning that we
    review such judgments independently and without deference to the trial court’s
    determinations. Koos v. Cent. Ohio Cellular, Inc. (1994), 
    94 Ohio App.3d 579
    , 588.
    III
    {¶ 16} First, Elaine claims that the trial court erred in granting summary judgment to
    Richard and Martha on the issue of testamentary capacity.
    {¶ 17} R.C. 2107.02 provides that “[a] person of the age of eighteen years, or over,
    sound mind and memory, and not under restraint may make a will.” “A testator has
    capacity to make a will when he has sufficient mind and memory (1) to understand the
    nature of the business in which he is engaged, (2) to comprehend generally the nature and
    extent of his property, (3) to hold in his mind the names and identities of those who had
    natural claims upon his bounty, and (4) to be able to appreciate his relation to members of
    his family.” In re Estate of Worstell v. Harold Todd, Inc., ex rel. Estate of Worstell,
    Montgomery App. No. 19133, 
    2002-Ohio-5385
    , ¶17, citing Niemes v. Niemes (1917), 
    97 Ohio St. 145
    .
    {¶ 18} “Since the testamentary capacity is determined as of the time of the execution
    of the will, evidence of the testator’s mental and physical condition, both at the time of
    making the will, and within a reasonable time before and after its execution, is admissible as
    throwing light on testamentary capacity at the time of the execution.” Bustinduy, supra,
    quoting 33 Ohio Jur.3d (1997), Decedent’s Estates, Section 1153.
    {¶ 19} In granting summary judgment to Richard and Martha on the issue of
    7
    testamentary capacity, the trial court reasoned:
    {¶ 20} “There appears to be acceptance of the facts that the decedent was diagnosed
    with Alzheimer’s by Dr. Byers and was found to struggle with ‘significant cognitive
    impairments’ by Dr. Kraus. Dr. Byers felt the decedent needed ‘help’ and Dr. Kraus felt she
    needed ‘assistance.’    Neither, however, precluded her ability to generally continue to
    function in a fairly normal manner. There were many things she could continue to do.
    Also neither addressed the criteria for testamentary capacity and thus did not preclude the
    possibility.
    {¶ 21} “It also is not contested that there were instances where the decedent
    evidenced short term memory loss, forgetfulness, the inability to continue to play cards and
    to operate her television.
    {¶ 22} “On the other hand, Defendants point out at page 4 of their motion that the
    Plaintiff and her husband admit in depositions that the decedent understood that she was
    making her will, that she was aware of the general nature and extent of her property, that she
    knew her family and that she appreciated her relationship with them. This, of course, being
    the legal test for testamentary capacity.
    {¶ 23} “The Court believes it is also pertinent to this issue that the decedent penned
    her own will which appears in form, language and substance to have been written by
    someone who knew what she was doing.
    {¶ 24} “The Court, therefore, believes the Defendants’ motion for summary
    judgment on the issue of testamentary capacity should be granted.”
    {¶ 25} Upon an independent review of the evidence submitted by the parties,
    8
    viewing that evidence in the light most favorable to Elaine, we find no fault with the trial
    court’s conclusion. John and Elaine testified during their depositions that they saw Clara
    almost every day. Elaine testified that, in November 2006 (two months after the witnessing
    of the 2006 will), Clara knew who Elaine, John, Richard and Martha were, and Clara was
    aware of the guardianship proceeding. Elaine stated that Clara knew of the sale of the
    condominium in August 2006, and she was aware of the furnishings that she owned, that she
    had some personal property in storage, and that she had investments, although she may not
    have known the total amount of those investments.
    {¶ 26} John testified that, in November 2006, Clara understood her relationship to
    him, Elaine, and their daughter, Leslie, as well as to Richard and Martha. He indicated that
    Clara was aware of the ongoing legal actions regarding the guardianship petition and the sale
    of the condominium and of the feud between Richard and the Graysons. Clara also knew
    that she had proceeds from the sale of the condominium and was generally aware that she
    had assets at Merrill Lynch which were under John’s care, custody, and control; although
    Clara was likely unaware that the Merrill Lynch money was held in several mutual funds,
    John did not think Clara was incompetent for that reason. And, Clara knew that she had
    authorized John to act for her under a power of attorney, although there was evidence that
    she did not recall signing a document to that effect.
    {¶ 27} In addition, Reverend Gaylor, who witnessed Clara’s acknowledgment of her
    will, testified that Clara came into the church office on September 1, 2006, and said that she
    had something for Reverend Gaylor to read.              Reverend Gaylor paraphrased the
    conversation, saying: “She said I have something to read to you. I have something for you
    9
    to read. This is a new Will. I’ve changed my Will. I would like for you to read this and
    sign it.”   Reverend Gaylor indicated that she asked Clara to sit down, she read the
    document, and recommended that Clara talk with an attorney. Clara had responded, “I will
    do that later, but right now I want you to sign this.” Clara repeated to Gaylor and to Fuller
    that she wanted to them to sign her new will. In a private conversation, Reverend Gaylor
    again asked Clara whether she was “certain this is really what you want to do.” Gaylor and
    Fuller signed the will. The will, on its face, indicates that Clara knew her children and the
    “legal problems” that were occuring, and her statements to Reverend Gaylor and Fuller
    constitute further evidence that she understood what she was doing when she had the 2006
    will witnessed.
    {¶ 28} We recognize, as did the trial court, that Elaine presented evidence that Clara
    was evidencing signs of dementia, including short term memory loss, and that her ability to
    manage her medications, bills, and schedule was becoming more limited.            Dr. Byers,
    Clara’s physician, completed a Statement of Expert Evaluation for the guardianship
    proceeding on July 27, 2006, which stated that Clara was experiencing progressive dementia,
    Alzheimer’s type and that “[i]t would be in her best interest to have assistance.” Dr. Byers
    stated that Clara needed help with “bills, etc.” Dr. Byers believed that Clara’s children
    would “always act in her best interest.”
    {¶ 29} Clara was evaluated in October 2006 by Dr. George Kraus, a psychologist, as
    part of the guardianship proceeding. Dr. Kraus concluded:
    {¶ 30} “It appears that in many ways, Mrs. Marsh is carrying on many of her
    Activities of Daily Living with skill and success. It appears that while she cannot live a
    10
    fully independent lifestyle that Mrs. Marsh feels fairly well adjusted at her place of
    residence, given the constraints of living in an assisted living facility.     Despite this,
    however, it appears that Mrs. Marsh does need assistance with managing her medications
    and with other Instrumental Activities of Daily Living.
    {¶ 31} “*** Although [Mrs. Marsh’s] memory scores are consistent with what
    would be expected for a person with her IQ scores, given her education level there does
    appear to be evidence of significant global neurocognitive impairment. Mrs. Marsh’s score
    on the Hopkins Competency Assessment Test also indicated significant difficulty
    understanding and thinking about medical decisions. Her level of decline in this regard was
    indicative of someone who cannot make medical decisions for themselves.
    {¶ 32} “I believe there are many activities for which Mrs. Marsh is competent.
    However, regarding her ability to manage her own finances, manage her own medical
    decision making, and manage her own life decisions regarding her place of residence, I
    believe there is sufficient evidence that Mrs. Marsh is not competent to manage her own
    affairs.”
    {¶ 33} Elaine and John also described some impairments in Clara’s management of
    her day-to-day activities, as well as in such activities as playing cards or writing letters.
    Elaine indicated that Clara “declined rapidly” in 2007. John similarly stated that Clara had
    some “stairstep” declines starting in the summer of 2006, but had “some very significant
    ones” in 2007.
    {¶ 34} Even accepting the evidence of Clara’s dementia/Alzheimer’s as true, “it is
    not enough to show that the testator had Alzheimer’s disease, even if the Alzheimer’s
    11
    disease existed at the time the will was executed.       The plaintiff must also show that
    Alzheimer’s disease actually affected the testator’s capacity to execute the will.” In re
    Estate of Goehring, Columbiana App. Nos. 
    05 CO 27
    , 
    05 CO 35
    , 
    2007-Ohio-1133
    , ¶54,
    citing Martin v. Dew, Franklin App. No. 03AP-734, 
    2004-Ohio-2520
    , ¶20. See, also, e.g.,
    Meek v. Cowman, Washington App. No. 07CA31, 
    2008-Ohio-1123
    , ¶17 (no evidence
    existed that decedent lacked testamentary capacity, even though he had been declared
    incompetent and was on medication for dementia, when there was no evidence as to how the
    dementia affected the decedent or that the dementia rendered him unable to understand what
    he was doing when he made his will); In re Estate of Hall (Tex.App. 2001), No.
    05-98-01929-CV. Based on the record before us, we find no genuine issue of material fact
    that Clara satisfied the criteria for testamentary capacity at the time she wrote her 2006 will
    or when she had it witnessed.
    {¶ 35} The trial court did not err in granting summary judgment to Richard and
    Martha on Elaine’s claim that Clara lacked testamentary capacity.
    IV
    {¶ 36} Second, Elaine claims that the trial court erred in granting summary judgment
    to Richard and Martha on her undue influence claim.
    {¶ 37} The elements of undue influence are: 1) a susceptible party; 2) another’s
    opportunity to influence the susceptible party; 3) the actual or attempted imposition of
    improper influence; and 4) a result showing the effect of the improper influence. Ingle v.
    Ingle, Greene App. No. 2005 CA 110, 
    2006-Ohio-3749
    , ¶51, citing West v. Henry (1962),
    
    173 Ohio St. 498
    , 501.
    12
    {¶ 38} “General influence, however strong or controlling, is not undue influence
    unless brought to bear directly upon the act of making the will. If the will or codicil, as
    finally executed, expresses the will, wishes and desires of the testator, the will is not void
    because of undue influence.” (Emphasis in original) 
    Id.
     Stated differently, “[t]he mere
    existence of undue influence or an opportunity to exercise it, although coupled with an
    interest or motive to do so, is not sufficient to invalidate a will; such influence must actually
    be exerted on the mind of the testator with respect to the execution of the will and, in order
    to invalidate the will, it must be shown that the undue influence resulted in the making of
    testamentary dispositions which the testator would not otherwise have made.” Buckingham
    v. Middlestetter (Mar. 22, 1993), Montgomery App. No. 13575. Further, “[t]he fact that the
    will of a testator of admitted testamentary capacity disposes of his property in an unnatural
    manner, unjustly or unequally and however much at variance with the expressions by the
    testator concerning relatives or the natural objects of his bounty, does not invalidate the will
    unless undue influence was actually exercised on testator.” West, 173 Ohio St. at 511.
    {¶ 39} In granting summary judgment to Richard and Martha on Elaine’s undue
    influence claim, the trial court recognized that Clara “was very possibly susceptible to
    influence due to her diminished mental condition” (element 1) and that Richard and Martha
    had opportunity to exert undue influence (element 2). The court found, however, that there
    was “no evidence that any undue influence was actually exerted or attempted at the time
    decedent prepared and signed her holographic will.” The court indicated that there was no
    evidence that Richard and Martha were present when the 2006 will was prepared or that
    there was “any connection between any of the Defendants’ influence and the decedent’s act
    13
    of preparing her will.” (Element 3.) The trial court also concluded that the alleged unfair
    distribution of Clara’s property did not raise a presumption of undue influence and that it
    was “very clear from the evidence that the decedent was quite upset with the guardianship
    created at the behest of her daughter, the Plaintiff, and the disposition of the proceeds from
    the sale of her condominium. This clearly was a factor in her preparing her new will.”
    (Element 4.)
    {¶ 40} We agree that Elaine presented evidence that Clara was a susceptible party
    and that Richard and Martha had opportunities to influence her and, thus, that genuine
    issues of material fact exist regarding the first and second elements of undue influence.
    Although the extent of Clara’s impairment from dementia in the summer of 2006 was
    disputed, the parties agree that Clara was diagnosed with dementia and Alzheimer’s in July
    2006 by Dr. Byers. In September 2006, the probate court investigator filed a report, stating
    that it “appears that she [Clara] can be easily influenced.” John also wrote to Richard in
    July 2006 that “[w]e both know that either of us could spend a little time and convince Clara
    of whatever we wanted.” On the other hand, the record also contains evidence to refute a
    conclusion that Clara was easily influenced around the time that she made her handwritten
    will, and Martha and Richard testified that they did not believe that Clara was easily
    influenced. Notably, John stated in his deposition that Clara was not open to suggestion
    from him during August 2006, after the guardianship petition was filed. However, Elaine’s
    evidence, construed in her favor, creates a genuine issue of material fact regarding Clara’s
    susceptibility.
    {¶ 41} In addition, there was evidence that Richard and Martha had opportunities to
    14
    exert influence over Clara. Richard testified in his deposition that he came to Xenia on July
    26, 2006, after John’s guardianship petition was filed, and took Clara back to the Cleveland
    area. While en route back to their residence, Martha contacted a friend who worked as a
    paralegal for a probate attorney, Richard Hennig. The following day, Richard, Martha, and
    Clara went to Hennig’s office and spoke to him about the guardianship proceeding that John
    had filed. Clara stayed with Richard and Martha until July 31, 2006. On August 16, 2006,
    Richard took Clara to see John Herbert of Merrill Lynch regarding Clara’s request to have
    Herbert transfer approximately $71,000 to another account.                                   The 2006 will was dated
    August 19, 2006.
    {¶ 42} Martha and Richard testified that they saw Clara in Xenia again on August
    20, 2006, after they received a phone call from Clara asking them to come to see her.2 The
    Marshes took Clara to Pennsylvania from August 28 to August 31, 2006. The 2006 will
    was witnessed by Reverend Gaylor and Patricia Fuller on September 1, 2006; Clara was
    driven to the church by the Marshes. Construing the evidence in Elaine’s favor, the trial
    court properly concluded that there was evidence that the Marshes had opportunities to
    influence Clara regarding the execution of a new will.
    {¶ 43} Elaine claims that the trial court erred in concluding that there were no
    genuine issues of material fact as to whether the Marshes actually exerted or attempted to
    exert undue influence and whether the 2006 will constitutes “a result showing the effect of
    the improper influence.”
    2
    Elaine indicates that she has filed a Civ.R. 60(B) motion based on newly discovered evidence that Clara did not call
    Richard in North Carolina on August 20, 2006. This evidence was not before the trial court when it granted summary
    judgment, and we may not consider it. See Wallace v. Mantych Metalworking, 
    189 Ohio App.3d 25
    , 
    2010-Ohio-3765
    , ¶10-11.
    15
    {¶ 44} As to whether the 2006 will constitutes “a result showing the effect of the
    improper influence” (element 4), Elaine emphasizes that Clara disinherited her daughter,
    while giving half of her estate to Martha, who had been married to Richard for
    approximately 15 months when the 2006 will was executed. Upon review of the evidence,
    we find a genuine issue of material fact as to whether the 2006 will reflects the result of
    undue influence. The 1996 will distributed Clara’s assets evenly to her children, whereas
    the 2006 will gives “everything” to Richard and Martha, her son and his wife. There is
    evidence in the record to explain the change in the distribution of Clara’s estate, such as
    Clara’s anger toward Elaine regarding the guardianship and her fondness for Martha (who
    had been part of Richard’s life since 1996). Nevertheless, the terms of the 2006 will created
    an issue of fact as to whether it was “a result showing the effects of undue influence.”
    {¶ 45} The pivotal issue in this case is whether Elaine presented evidence of “the
    actual or attempted imposition of improper influence” by the Marshes (element 3). In
    moving for summary judgment, Richard and Martha asserted that Clara was concerned about
    how the proceedings from the condominium sale would be handled, and that she was upset
    about the guardianship proceedings initiated by John. There is ample evidence to support
    the assertions. The Marshes argued: “While news of the guardianship legal proceedings
    may have upset Clara and motivated her to execute the 2006 Will, this does not rise to the
    level of undue influence under Ohio law.           Informing Clara as to the guardianship
    proceedings is not improper ‘undue influence.’ Plaintiff can present no evidence to show
    that Clara did not make her own decision as to whom she wanted to leave her estate in her
    Will. If Plaintiff’s actions in her guardianship proceeding upset Clara, she was entitled to
    16
    act as she desired, even if it seems unfair to Plaintiff. ***”
    {¶ 46} Elaine claims that the circumstantial evidence supports a conclusion that the
    Marshes actually imposed undue influence on Clara. Elaine argues that the Marshes first
    “tried to have Clara’s equity in her condominium deposited in a joint in survivorship bank
    account” and, when that failed, they influenced Clara into changing her will.          Elaine
    emphasizes that there is rarely direct evidence of undue influence, but that it must be a
    factual question to be determined from the circumstantial evidence; and that, especially
    when all the evidence is considered, there is a genuine issue as to whether there was undue
    influence by the Marshes.
    {¶ 47} The evidence indicates that Richard attempted to have the proceeds from the
    condominium placed in a survivorship account in his and Clara’s names. For example, in a
    letter dated August 26, 2006, Richard wrote to Elaine: “On July sixth I told you and John
    that proceeds from the sale of mom’s condo were going into a joint survivorship investment
    account.”    Richard does not dispute that he would have placed the funds in a joint
    survivorship account, although he claims that Clara wanted the proceeds to be placed into
    such an account (and the January 2004 letter supports this).
    {¶ 48} After the July 6 conversation with Richard, the Graysons apparently decided
    to seek a guardianship for Clara.        John testified that he spoke with Clara about the
    guardianship the day before the petition was filed; at that time, John “explained it to her in
    soft, kind terms that she was very comfortable with, and she was not upset at all.” Elaine
    also said that she and John “were always trying to tell mom that [the] guardianship was just
    taking care of her the way we always had, just paying her bills, taking care of her needs,
    17
    taking her to all the doctors’ appointments, and that’s all the guardianship was. And she
    was very comfortable with that.” The Graysons stated that, after Clara spoke with Richard
    about the guardianship, Clara was very upset.
    {¶ 49} The Marshes’ deposition testimony substantiated that Clara was driven to
    Cleveland on July 26, the day the guardianship petition was filed. Richard and Martha
    indicated that they discussed the guardianship proceeding with Attorney Hennig on July 27,
    and that Hennig recommended that they remove Clara’s assets from John’s control, have
    him removed as her attorney in fact, and have Clara write a new will. Richard testified that
    Hennig spoke with Clara privately, found her to be competent to create a new will, and
    offered to draft one for her. Richard testified that they declined to have Hennig draft a new
    will for Clara because they were “not here for that” and it would be “inflammatory, make
    our situation worse.”
    {¶ 50} During the evening of July 27, 2006, after the meeting with Hennig, Richard
    drafted a letter to John from Clara (at Clara’s behest, Richard states), which removed John as
    her agent and executor. The next day (July 28, 2006), Richard drafted a letter from Clara to
    John Herbert of Merrill Lynch, asking him to transfer $71,279.07 to a National City Bank
    account. Clara signed both letters. On August 16, 2006, after learning that the funds were
    not transferred, Richard and Clara went to Herbert’s office to discuss the matter.
    {¶ 51} John testified that, after Clara returned to Xenia on August 1, 2006, Clara was
    “upset” and “frightened” and, at times, did not want John in her apartment. At times, Clara
    asked John, “Why are you stealing my money?” and “Why are you making Richard mad?”
    Richard indicated that Clara was very upset that John and Elaine were attempting to have her
    18
    found incompetent.
    {¶ 52} The 2006 will, handwritten by Clara, was dated August 19, 2006; Elaine
    testified that Clara was often confused about dates. Martha and Richard testified that they
    left on August 18, 2006 to go Chapel Hill, North Carolina for Martha’s daughter’s college
    graduation. The Marshes testified that they traveled to Xenia, at Clara’s request, on August
    20, 2006, at which time Clara showed them the handwritten will. Richard and Martha
    indicated that they told Clara to “hide this someplace” and to think it over.      When the
    Marshes took Clara to Christ Episcopal Church on September 1, Clara told Reverend Gaylor
    and Fuller that she wanted them to sign the 2006 will as witnesses. Clara repeated this to
    Reverend Gaylor in private when Gaylor wanted assurance that Clara was certain she wanted
    to create a new will. Clara left the will at the church for safekeeping.
    {¶ 53} Circumstantial evidence and direct evidence are of equal value, especially
    because some facts can only be proved by circumstantial evidence. State v. Jenks (1991),
    
    61 Ohio St.3d 259
    , 272. The “weight accorded an inference is fact-dependent and can be
    disregarded as speculative only if reasonable minds can come to the conclusion that the
    inference is not supported by the evidence.” Wesley v. The McAlpin Co. (May 25, 1994),
    Hamilton App. No. C-930286, citing Donaldson v. Northern Trading Co. (1992), 
    82 Ohio App.3d 476
    , 483. The question of whether the circumstantial evidence is conjectural and
    the inference speculative is essentially “the distinction between a reasonable inference and a
    guess.” Mid-America Tire, Inc. v. PTZ Trading Ltd., 
    95 Ohio St.3d 367
    , 
    2002-Ohio-2427
    ,
    ¶156.
    {¶ 54} Construing the evidence in the light most favorable to Elaine, we find a
    19
    genuine issue of material fact as to whether the Marshes imposed undue influence on Clara.
    Viewed in Elaine’s favor, the evidence demonstrates that Richard wanted Clara’s proceeds
    from the sale of the condominium to be placed in a survivorship account in his and Clara’s
    names.     The result of such an account would be that Richard would receive Clara’s
    proceeds upon her death. An e-mail written by John to Richard indicated that John had
    spoken to Clara about how the proceeds should be handled, and Clara expressed to John that
    they should be placed in her Merrill Lynch account (which would have made them part of
    her estate upon her death). The Graysons further testified that they had discussed the
    guardianship with Clara, and she was “very comfortable” with it.
    {¶ 55} When John sought guardianship of Clara, primarily due to the dispute over
    the proceeds, Richard and Martha took Clara to Cleveland, where they spoke to a probate
    attorney regarding the guardianship proceeding. Richard stated that they were advised to
    take control of Clara’s assets, have John removed as Clara’s agent, and have Clara write a
    new will. The same evening that the Marshes met with Hennig, Richard drafted a letter to
    John removing him as Clara’s agent, and the next day, Richard wrote a letter to Herbert of
    Merrill Lynch asking that money be transferred to a different account. Clara signed both of
    those letters.
    {¶ 56} When Clara returned from Cleveland on August 1, she was frightened and
    upset. She often did not want to visit with John and Elaine, even though the Graysons had
    previously looked after Clara’s personal and financial needs and had visited with her daily
    without incident.
    {¶ 57} The 2006 will, handwritten by Clara, was dated August 19, 2006, three days
    20
    after Richard and Clara went to meet with Herbert of Merrill Lynch about his failure to
    transfer Clara’s asserts. Although the Marshes presented testimony that they were in North
    Carolina on August 19, the Graysons testified that Clara did not keep track of dates well.
    They stated that Clara sometimes got ready for church on the wrong day, thinking that it was
    Sunday. When the Marshes saw the 2006 will, they advised Clara to “hide” it so that Elaine
    would not see it.
    {¶ 58} The Marshes took Clara to Christ Episcopal Church on September 1 to have
    the 2006 will witnessed; Richard and Martha testified that Clara asked them to take her to
    the church. At the church, Clara told Reverend Gaylor and Fuller that she wanted them to
    sign the 2006 will as witnesses. Although Clara repeated this to Reverend Gaylor in private
    when Gaylor wanted assurance that Clara was certain she wanted to create a new will, the
    Marshes were present when Gaylor and Fuller signed the 2006 will. The will was left at the
    church. Clara and the Marshes did not inform their attorney that Clara had made a new
    will, even though they met with the attorney immediately after leaving the church.
    {¶ 59} In short, the evidence, construed in Elaine’s favor, supports a conclusion that
    Richard wanted the proceeds in a survivorship account and, after John filed a petition for
    guardianship, Richard consulted with a probate attorney and influenced Clara to take all the
    steps that Hennig suggested – including the writing of a new will – to make sure that
    Richard would receive the condominium proceeds upon Clara’s death.
    {¶ 60} We recognize that Richard and Martha presented substantial evidence that
    Clara was aware of what she was doing, that she was upset with John and Elaine about the
    guardianship proceeding, and that Richard merely assisted her in doing what she, in fact,
    21
    wanted to do. However, at this stage, we must construe all evidence in favor of the
    non-moving party (Elaine), and summary judgment is not appropriate if the non-moving
    party has presented evidence to the contrary. Whether or not there was “undue” influence
    and whether it was “actually exerted” upon Clara are genuine issues that remain and which
    must be proven at trial.
    {¶ 61} Accordingly, the trial court erred in granting summary judgment to the
    Marshes on whether they had exerted undue influence.
    V
    {¶ 62} Elaine’s assignment of error is overruled in part and sustained in part.
    {¶ 63} The trial court’s judgment will be affirmed in part and reversed in part, and
    the matter will be remanded for further proceedings.
    ..........
    FAIN, J. and DONOVAN, J., concur.
    Copies mailed to:
    Arthur R. Hollencamp
    Matthew C. Sorg
    Hon. John C. Newlin
    (sitting by assignment)
    

Document Info

Docket Number: 2010 CA 78

Judges: Froelich

Filed Date: 10/28/2011

Precedential Status: Precedential

Modified Date: 10/30/2014