In re L.M.W.

[Cite as In re L.M.W., 2019-Ohio-3873.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
IN RE: L.M.W. C.A. No. 29111
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
CASE No. 2017 ES 236A
DECISION AND JOURNAL ENTRY
Dated: September 25, 2019
HENSAL, Judge.
{¶1} Sheridan Hatter appeals from the judgment of the Summit County Court of
Common Pleas, Probate Division, admitting a will of a later date to probate. This Court reverses
and remands for further proceedings consistent with this decision.
I.
{¶2} This appeal concerns the probate court’s decision to admit a will of a later date to
probate. Because Ohio law is clear that an order admitting a will to probate is not a final,
appealable order, this Court issued a show-cause order, requiring Ms. Hatter to address this
Court’s jurisdiction to consider her appeal. See In re Frey’s Estate, 139 Ohio St. 354 (1942),
paragraph one of the syllabus. Before we address her response, we will briefly summarize the
pertinent facts.
{¶3} The record reflects that the decedent died testate on August 2, 2012. In March
2017, Ms. Hatter (the decedent’s daughter) applied to have the decedent’s will, which was dated
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July 18, 1991 (“1991 Will”), admitted to probate. The 1991 Will designated Ms. Hatter as
personal representative of the decedent’s estate, as well as the residuary beneficiary. The 1991
Will provided specific monetary bequests to the decedent’s daughters and grandchildren. The
probate court admitted the 1991 Will to probate, and appointed Ms. Hatter as the executor.
{¶4} Then, in November 2017, the decedent’s granddaughter, Michelle Tally Hunter
Wilson, applied to have a will dated July 29, 2002 (“2002 Will”) admitted to probate. The 2002
Will named Ms. Wilson as the residuary beneficiary and executor, and disinherited three of the
decedent’s daughters (including Ms. Hatter) and her grandson. The 2002 Will contained an in
terrorem clause, otherwise known as a no-contest provision, providing that anyone contesting the
2002 Will would forfeit his or her interest in the decedent’s estate.
{¶5} The magistrate ordered a hearing regarding the due execution of the 2002 Will.
At the hearing, the attorney who prepared the 2002 Will testified. He indicated that he did not
specifically remember the execution of the 2002 Will, but testified as to his usual practice. He
testified that his secretary would type the will, he would review it, and then he would have his
clients come into his office to execute it. While in his office, he would have his clients review
the will and would ask them whether they knew what they were doing, and if they were of the
right state of mind. If they responded affirmatively, he would have them sign it while he and his
secretary served as witnesses. The attorney further testified that the decedent was “way over” 18
at the time she signed the 2002 Will.
{¶6} The attorney’s former secretary also testified, indicating that she specifically
remembered the decedent executing the 2002 Will. She testified that the decedent arrived at the
attorney’s office with her granddaughter, Ms. Wilson, and that she (the secretary) and the
attorney witnessed the decedent sign the 2002 Will.
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{¶7} After the hearing, the magistrate issued a decision admitting the 2002 Will to
probate. Ms. Hatter filed objections, and then supplemented her objections when the transcript
of the hearing became available. The probate court overruled Ms. Hatter’s objections,
concluding that she failed to meet her burden of showing that the 2002 Will was not properly
executed and, therefore, should not have been admitted to probate. It then adopted the
magistrate’s decision admitting the 2002 Will to probate. Ms. Hatter appealed that decision,
raising two assignments of error for our review.
{¶8} With that factual background in mind, we now turn to the issue of this Court’s
jurisdiction. Article IV, Section 3(B)(2) of the Ohio Constitution limits this Court’s appellate
jurisdiction to the review of final judgments of lower courts. “Generally, whether an order is
final and appealable is determined by the effect the order has on the pending action, rather than
the name attached to the order or its general nature.” In re T.G., 12th Dist. Butler No. 2008-01-
026, 2008-Ohio-4165, ¶ 14. Under Revised Code Section 2505.02(B)(2), an order is final and
appealable if it “affects a substantial right made in a special proceeding.” This Court has
“recognize[d] that probate cases involving the administration of estates constitute special
proceedings” and that we “possess[] jurisdiction to address [the matter] if the probate court’s
judgment affects a substantial right.” In re Estate of Chonko, 9th Dist. Lorain No. 14CA010691,
2016-Ohio-980, ¶ 10. As this Court has stated, “an order granting or denying a motion to
remove an executor would affect a substantial right created by statute[.]” In re Estate of Griffa,
9th Dist. Summit No. 25987, 2012-Ohio-904, ¶ 10.
{¶9} In her response to this Court’s show-cause order, Ms. Hatter argued, in part, that
because the probate court’s admittance of the 2002 Will effectively revoked her status as
executor, the order affected a substantial right in a special proceeding, thereby rendering the
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order final and appealable under Section 2505.02(B)(2). Under these facts, we agree. While the
probate court in this case did not grant a motion to remove Ms. Hatter as the executor, its
decision to admit the 2002 Will had the same effect: it revoked the 1991 Will, which effectively
removed Ms. Hatter as the executor. See R.C. 2107.22(A)(3) (“If a probate court admits a will of
later date to probate * * * its order shall operate as a revocation of the order admitting the will of
earlier date to probate[.]”). Additionally, we note that, in light of the no-contest provision in the
2002 Will, Ms. Hatter was precluded from seeking relief through a will-contest action. Compare
In re Hooks, 2d Dist. Montgomery No. 14498, 1995 WL 73438, *2 (“if the remedy of a will
contest action is available to the appellant, then a substantial right is not affected because the
appellant may still obtain relief through the will contest action and also may appeal from any
adverse decision in that action.”). We, therefore, conclude that this case presents a final,
appealable order, and now turn to Ms. Hatter’s assignments of error.
II.
ASSIGNMENT OF ERROR I
THE PROBATE COURT ERRED IN APPLYING THE INCORRECT BURDEN
OF PROOF.
{¶10} In her first assignment of error, Ms. Hatter argues that the probate court erred by
applying the incorrect burden of proof. This Court agrees.
{¶11} Section 2107.22(A)(1)(a) provides that “[t]he probate court may admit the will of
later date to probate * * * if it appears from the face of the will of later date * * * that the
execution of the will complies with the law * * *.” The burden is on the proponent of a will to
make a prima-facie case in favor of its validity. In re Young, 60 Ohio App. 2d 390, 393-394 (9th
Dist.1978). Once it is admitted to probate, a will is presumptively valid. Krischbaum v. Dillon,
58 Ohio St. 3d 58, 64 (1991), citing R.C. 2107.74 (stating that “the order admitting a will to
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probate is prima facie evidence of the attestation, execution and validity of the will[,]” and that
such an order creates a rebuttable “presumption of validity[.]”). Thereafter, “those who have
adverse interests[] have the right to contest its validity[.]” In re Young at 392, quoting In re
Hathaway’s Will, 4 Ohio St. 383, 385 (1854). In a will-contest action, it is “incumbent upon the
contestant to offer evidence sufficient to preponderate against the evidence offered in support of
the will, as well as the presumption arising from its probate.” Potts v. First-Cent. Trust Co., 37
Ohio Law. Abs. 382 (9th Dist.1940).
{¶12} Here, the record makes clear that the magistrate held a hearing for the purpose of
determining whether the 2002 Will was duly executed and, therefore, whether it should be
admitted to probate. In its judgment entry denying Ms. Hatter’s objections and adopting the
decision of the magistrate, the probate court appears to have treated this proceeding as a will-
contest action. It stated that “it is well-settled that the contestant of a will bears the burden of
proof,” and that “[t]he proponents of the will do not bear the burden of proof; that lies with [Ms.]
Hatter.” It then concluded that “[Ms.] Hatter has failed to meet her burden of proof to show that
the will in question was not properly executed and should not have been admitted to Probate.”
Accordingly, it overruled Ms. Hatter’s objections to the magistrate’s decision, and admitted the
2002 Will to probate.
{¶13} Ms. Wilson, as the proponent of the 2002 Will, bore the burden of establishing a
prima-facie case in favor of its validity. Only after a will has been admitted to probate does the
burden shift to the contestant to rebut the presumption of validity. See In re Young at 392,
quoting In re Hathaway’s Will at 386. Yet the probate court in this matter adopted the
magistrate’s admittance of the 2002 Will to probate based upon Ms. Hatter’s failure to meet her
burden as the contestant, rather than Ms. Wilson’s satisfaction of her burden as the proponent.
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This application of the incorrect burden of proof resulted in error, and the probate court’s
decision may not stand. See In re A.M.W., 9th Dist. Medina Nos. 06CA0078-M, 06CA0079-M,
2007-Ohio-682, ¶ 13 (“Because the trial court utilized an incorrect burden of proof in reaching
its decision, the court’s conclusion is erroneous as a matter of law, and the judgment may not
stand.”). Accordingly, we sustain Ms. Hatter’s first assignment of error, and reverse and remand
the matter for the probate court to apply the appropriate burden of proof in the first instance. See
Filip v. Wakefield Run Master Homeowners’ Assn., Inc., 9th Dist. Medina No. 15CA0050-M,
2017-Ohio-1179, ¶ 9 (reversing and remanding the trial court because “[a] consideration of the
evidence under the proper burden of proof must be performed in the first instance by the trial
court.”). Ms. Hatter’s first assignment of error is sustained.
ASSIGNMENT OF ERROR II
THE PROBATE COURT ERRED IN ADMITTING THE LATER DATED
WILL TO PROBATE.
{¶14} In her second assignment of error, Ms. Hatter argues that the probate court erred
by admitting the 2002 Will to probate. In light of this Court’s disposition of Ms. Hatter’s first
assignment of error, we decline to address her second assignment of error.
III.
{¶15} Ms. Hatter’s first assignment of error is sustained. This Court declines to address
Ms. Hatter’s second assignment of error. The judgment of the Summit County Court of
Common Pleas, Probate Division, is reversed, and the cause is remanded for further proceedings.
Judgment reversed,
and cause remanded.
There were reasonable grounds for this appeal.
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We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellee.
JENNIFER HENSAL
FOR THE COURT
CARR, P. J.
CALLAHAN, J.
CONCUR.
APPEARANCES:
CLARENCE B. RADER, III, Attorney at Law, for Appellant.
MICHELLE TALLY HUNTER WILSON, pro se, Appellee.