Buffenbarger v. Estate of Meyer

[Cite as Buffenbarger v. Estate of Meyer, 2023-Ohio-2760.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HIGHLAND COUNTY
ROBERT THOMAS BUFFENBARGER,
ET AL., :
Plaintiffs-Appellants, : Case
No. 22CA10
v. :
NUNC PRO TUNC
ESTATE OF WILLIAM AUGUSTUS : DECISION & JUDGMENT ENTRY
MEYER, ET AL.,
:
Defendants-Appellees.
_______________________________________________________________
APPEARANCES:
Donald A. Cox, Orient, Ohio, for appellants.
Joshua Gunsher and Michael P. Richardson, Fairfield, Ohio, for
appellees.
________________________________________________________________
CIVIL APPEAL FROM PROBATE COURT
DATE JOURNALIZED:7-26-23
ABELE, J.
{¶1} This is an appeal from a Highland County Common Pleas
Court, Probate Division, summary judgment in favor of Kurt A.
Buffenbarger (Kurt) and James T. Buffenbarger (Tad)1 as
coexecutors of the estate of William Augustus Meyer, defendants
The depositions sometimes refer to James T. Buffenbarger
as Thad. Throughout this opinion, we have chosen the nickname
that appears in appellees’ brief, Tad.
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below and appellees herein.
Robert Thomas Buffenbarger (Tom), Bruce Timothy Buffenbarger
(Tim), and additional parties,2 plaintiffs below and appellants
herein, assign the following error for review:
“DID THE TRIAL COURT CORRECTLY GRANT THE
SUMMARY JUDGMENT IN THE COURT BELOW BASED
UPON THE PROPER STANDARD OF REVIEW SET FORTH
IN OHIO CIVIL RULE 56?”
{¶3} William Augustus Meyer, the decedent, was an elderly
man who never married or had children. Two of the decedent’s
nephews who lived in the area, Kurt and Tad, along with Tad’s
wife, Carla Buffenbarger, helped care for him until his death on
November 8, 2020.
{¶4} On March 11, 2021, the decedent’s last will and
testament was filed in probate court. The will bequeathed
various amounts of money to some of the decedent’s relatives and
to charitable organizations. Each of the following nieces and
nephews received $5,000: Linda Meyer, Vicky Meyer, Kurt Warner,
Timothy Buffenbarger, Sally Sagel, and Tom Buffenbarger.
Another niece, Tisha Golden, received $20,000. The will left
the primary residence to Kurt and the residual estate to Kurt
and Tad. The will also appointed Kurt and Tad as the estate’s
2
The additional plaintiffs listed in the complaint are
Vicki Anne Gierhart, Linda Meyer, Sara Jane Sagel, Kathy Dye
Edwards, and William Rawers.
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personal representatives. Additionally, the will recites that
the decedent signed the document on October 31, 2020, before two
disinterested witnesses, contains a “certificate of
acknowledgment” to indicate that on October 31, 2020 the
decedent acknowledged the will before Michelle Nephew, a notary,
and each page of the will contains the decedent’s signature.
{¶5} On May 4, 2021, appellants filed a will-contest
complaint and alleged they are estate beneficiaries and the will
admitted to probate is invalid. Appellants claimed, inter alia,
that the decedent lacked testamentary capacity, the will was not
properly witnessed, the “will is the product of undue influence,
manipulation, deceit, and coercion,” and the “will is a fraud
and a fake.”
{¶6} On July 22, 2022, appellees filed a summary judgment
motion and asserted that appellants have no evidence to create a
genuine issue of material fact as to validity of the will. In
response, appellants argued that genuine issues of material fact
remain because of witness credibility, the decedent’s
testamentary capacity, whether the will had been properly
witnessed and whether Kurt unduly influenced the decedent. To
support their argument, appellants relied upon the depositions
that had been filed in the case.
{¶7} In reply, appellees asserted that appellants did not
produce competent evidence to show that genuine issues of
material fact remain for a factfinder to resolve. In
particular, they pointed out that because none of the appellants
have personal knowledge of the circumstances that surrounded the
preparation and execution of the will, they are not competent to
testify to the decedent’s testamentary capacity, to the will’s
execution, or whether the will is the product of undue
influence.
{¶8} A review of the depositions reveal that, before the
decedent’s death, Kurt explained he had some discussions with
him about a will. The decedent was familiar with radio-talk-
show host Dave Ramsey and “his will kit.” Kurt told the
decedent that “he needed something like that.” Kurt also found
what appeared to be a handwritten will worksheet in the
decedent’s house and brought it to the decedent, who at that
point resided in a medical facility. Kurt asked the decedent if
the worksheet contained the provisions the decedent wanted to
include in his will, and he confirmed that it did. Kurt then
used the will worksheet to prepare the will the decedent signed.
{¶9} Kurt took the will to the decedent in the hospital and
he read the will. Kurt then left the room before the decedent
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signed the will. Approximately ten minutes later, Kurt returned
to the room and picked up the signed will.
{¶10} Tamson Connelly, a registered nurse, witnessed the
decedent sign the will. She stated that the other witness,
Candace Schnee, also was present in the room. Connelly thinks
that a notary also may have been in the room, but she does not
specifically recall whether a notary actually was present.
Connelly did not remember precisely how long she was in the
room, the time of day she witnessed the signature, or anything
specific about the decedent. Also, Connelly does not know if
the decedent read the will. She explained, however, that she
has witnessed wills in the past and when she does so, she
ensures that the person is the “right patient” by asking for the
person’s name and checking the person’s arm band. As part of
her process, Connelly would ask the person if he or she was
aware that she had been asked to witness their signature and she
“would stand there and watch him sign his name before I would
sign my name that I saw him sign his name to the document.”
Connelly stated that, if she saw anything that led her to
believe that the person was being pressured, she would say
something.
{¶11} Candace Schnee, a nurse practitioner, also witnessed
the decedent sign the will. Schnee stated that she, Connelly
and a notary were all present in the room when the decedent
signed the will, but she does not recall specific people in the
room. Schnee indicated that the decedent was in the bed and the
will may have been on a bedside table or a clipboard, but she
does not recall. She also does not know if the decedent read
the will. Schnee stated that she had not witnessed a will
signature in the past, but she had witnessed other legal
documents. She explained that, before she would sign a document
as a witness, she would assess the room and the patient to “read
everything going on in the room” and would engage in
conversation to ensure that the person understood “where they
are, who they are.” Schnee stated that she would not sign a
document if she felt that something was not right, or if she
thought that the person signing did not know what the person was
doing.
{¶12} Linda Jane Meyer testified that she was surprised to
learn that the decedent had a will because two of the decedent’s
sisters told her over the years that the decedent “will never
write a will, or he will leave it all to the church if he did.”
Meyer was not surprised, however, that the decedent left the
majority of the estate to Kurt and Tad, because “they were the
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ones [who] were looking after him.” Meyer did not have personal
knowledge regarding the decedent’s medical condition in the year
preceding his death, except what she heard from Kurt. Meyer
also did not have any personal knowledge surrounding the
decedent’s execution of the will.
{¶13} Sara Jane Sagel testified that she did not believe
that the will admitted to probate is “legitimate.” She
admitted, however, that she was not present when the decedent
executed the will and had no personal knowledge of the
circumstances that surrounded the will’s execution. Sagel
stated that she obtained some information about the decedent and
his medical condition from Tad or Carla Buffenbarger. Sagel
believes that the will is invalid due to some “red flags.” She
did not think that an attorney drafted the will, and the will
contained language “to bypass Probate and to offer an asset
inventory to the beneficiaries,” and the will provided for “no
accounting of the Estate.” She also found it odd that one of
her cousins is not listed in the will, “as if she had already
passed,” but the cousin’s two children are included. Sagel
additionally thought that the decedent’s signature appeared
“weak” whereas his initials “seemed to have a lot of strength.”
She also questioned why the addresses for the will’s witnesses
appeared to have been written by the same person and why the
witnesses did not complete the information on their own.
{¶14} Mary Kathleen Edwards stated that she found the will
suspicious because it bequeathed money to one of her aunt’s
children, but not to the aunt alive at the time the decedent
signed the will. She did not believe that the decedent would
have left the aunt out of his will.
{¶15} Tim testified that Kurt texted him after the decedent
passed and informed Tim that the decedent looked over the will
“very carefully and signed his initials on each page as the
witnesses looked on.” However, Tim has no personal knowledge of
the circumstances that surrounded the decedent’s signing of the
will and only knew “what Kurt told [him].” Tim also has a
picture of the decedent, dated October 31, 2020, the date the
decedent signed the will. Tim believes that the photo shows the
decedent “to be in very ill health” and “as if his mind is not
very cognitive.” Tim agreed, however, that he is not a nurse,
doctor, or other medical professional, and has no firsthand
knowledge of the decedent’s medical diagnoses. Tim stated,
however, that he “knew he was in bad shape.” Tim believes that
the will is invalid for the following reasons: (1) one cousin
“who was alive at the time was not listed as a beneficiary, but
yet her children were,” and this cousin’s absence from the will
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HIGHLAND, 22CA10
is “very suspicious,” (2) some cousins were not included while
some were, (3) the will stated “there would be no inventory of
assets,” which he thought suspicious, and (4) “the massive
discrepancy” in the amount left to some of the relatives
compared to Kurt and Tad. Tim did not think the decedent was
the type of person who would have a large disparity in the
disposition of his assets.
{¶16} Tim also stated that he did not think that the
decedent had a will because either Kurt or Tad told him, at some
point in the past, that the decedent had “a folder with stuff in
it that would tell how to take care of things.” Although Tim
agreed that Kurt or Tad found the folder that contained the
handwritten will worksheet that Kurt used to prepare a
computerized print-out of the decedent’s will, Tim questioned
whether the decedent had actually prepared the worksheet. He
pointed out that the writing is in pencil and then someone used
a pen to trace over the pencil. Tim also questioned why the
decedent did not include “Madeline and Kathy,” but included
“Tish and Kurt Warner.” He explained that Madeline was Tish and
Kurt’s mother and that bequeathing money to Tish and Kurt, but
not to their mother, made “no sense.” In Tim’s opinion, “the
Will is fraudulent.” He based his opinion upon “Kurt’s previous
actions regarding a previous uncle’s Estate and also the way in
which this Will came out of nowhere.” He thought that the
estate assets should have been mostly equally divided among the
number of living relatives with a little extra for Kurt and Tad.
Tim also thinks the will is fraudulent because “some of the
signatures are not [the decedent’s] signatures” and “[the
decedent’s] initials were not put there by [the decedent].”
“The signatures, the way it was witnessed, the fact that Kurt
drew it up, and the beneficiary list” all seem suspicious to
him. Tim believes that Kurt made the will and the decedent did
not read it thoroughly before he signed it.
{¶17} Tim also is not certain that the witnesses actually
watched the decedent read the will and sign it as he read it.
He thinks that the witnesses should have watched the decedent
write his signature on each page, but does not believe the
witnesses did so “because they’re hospital staff and that would
be time consuming, and I don’t know that they could be away from
their job that long to do it.” Tim agreed, however, that he is
“making some assumptions to get to [his] conclusion.”
Furthermore, Tim does not think that the two nurses who
witnessed the decedent sign the will were “given all the
instructions required to make it valid, in that they were
supposed to see that he seemed of sound mind and that they
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watched him read it and signature each page, initial it.” Tim
summed up his theory about the will’s validity as follows:
[The decedent’s] physical condition deteriorated to
the point where Kurt, possibly Carla, saw that he wasn’t
going to last very much longer, and not having had a
Will written, Kurt decided to get on the computer and
generate one, and put it – and put it to his liking, and
he then went to [the decedent], and I don’t know how he
presented it to him.
And then it was – the pages were signed and he
signed the final page. And I believe there was – because
Kurt is the Executor, made himself Executor, you know,
I think he – that he then made it very favorable to him
on the distribution of the Estate.
I believe he either forged signatures in the past
to become the [power of attorney] of his accounts, and
I believe his actions regarding our [previous uncle’s]
Estate showed deception and dishonesty.3
{¶18} Tom Buffenbarger believes that the decedent’s overall
medical issues “would have had an impact on his ability to
understand what he was doing with” the will. Carla told Tom
that the decedent “was not able or knowledgeable about signing
his own health care documents, such as admittance to a
hospital.” Tad also told him that the decedent “was in bad
shape.” Tom explained his concerns about the will:
The names listed, the amounts, the omissions and
knowledge from many, many years ago, [the decedent]
stated on several occasions that when he died, we would
3
The deposition testimony does not shed much light on
Kurt’s previous actions regarding a different uncle’s estate,
except that Kurt was named the executor of this other uncle’s
estate.
– everything would go to whoever was left of us, the
nieces and nephews.
He had no wife, no children, no other close
relatives, you know, family relatives left. In
addition, seeing that Thad [sic] and Kurt were named as
the Executors, the concern was Kurt.
{¶19} Tom recalled that the last time he heard the decedent
state that he wanted to distribute his estate to his nieces and
nephews was at least ten years earlier. Tom also claimed that
the decedent had said that he had binders stored with
“everybody’s name” on them that “represented [the decedent’s]
last wishes.” However, he never saw these purported binders.
{¶20} On October 13, 2022, the trial court entered summary
judgment in appellees’ favor and dismissed the will-contest
complaint. The court determined that appellants failed to
establish genuine issues of material fact as to whether the
decedent lacked testamentary capacity, whether the decedent had
been unduly influenced, and whether the will had been properly
witnessed. This appeal followed.
I.
{¶21} In their sole assignment of error, appellants assert
that the trial court erred by entering summary judgment in
appellees’ favor.4 Appellants claim that the facts “are subject
4
We observe that appellants’ brief does not contain a table
of contents, a table of cases, or a statement of the case or
citations to authority that support the primary assertions made
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to many different interpretations and give rise to many issues
of credibility and inferences that can be drawn from the conduct
of the parties.”
A.
(although it does cite to authority in support of the summary-
judgment standard). See App.R. 16(A)(1), (2), and (5). Under
App.R. 16(A)(7), an appellant’s brief shall include “[a]n
argument containing the contentions of the appellant with
respect to each assignment of error presented for review and the
reasons in support of the contentions, with citations to the
authorities, statutes, and parts of the record on which
appellant relies.” Moreover, appellate courts should not
perform independent research to create a litigant’s argument.
State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19
N.E.3d 900, ¶ 19, quoting State v. Bodyke, 126 Ohio St.3d 266,
2010-Ohio-2424, 933 N.E.2d 753, ¶ 78 (O’Donnell, J., concurring
in part and dissenting in part), quoting Carducci v. Regan, 714
F.2d 171, 177 (D.C. Cir. 1983) (“‘”appellate courts do not sit
as self-directed boards of legal inquiry and research, but
[preside] essentially as arbiters of legal questions presented
and argued by the parties before them”’”); accord State v.
Lykins, 4th Dist. Adams No. 18CA1079, 2019-Ohio-3316, ¶ 57.
“[W]e cannot write a party’s brief, pronounce ourselves
convinced by it, and so rule in the party’s favor. That’s not
how an adversarial system of adjudication works.” Xue Juan Chen
v. Holder, 737 F.3d 1084, 1085 (7th Cir. 2013). Consequently,
although we would be within our discretion to disregard the
assignment of error, in the interest of justice we will
addresses the arguments that appear to be raised in appellants’
brief and as appellees have responded in their appellate brief.
See In re Application of Columbus S. Power Co., 129 Ohio St.3d
271, 2011-Ohio-2638, 951 N.E.2d 751, ¶ 14; Robinette v. Bryant,
4th Dist. Lawrence No. 14CA28, 2015-Ohio-119, ¶ 33 (within
court’s discretion to disregard any assignment of error that
fails to present case citations cases or statutes in support.
{¶22} Appellate courts conduct a de-novo review of trial-
court summary-judgment decisions. E.g., State ex rel. Novak,
L.L.P. v. Ambrose, 156 Ohio St.3d 425, 2019-Ohio-1329, 128
N.E.3d 209, ¶ 8; Pelletier v. Campbell, 153 Ohio St.3d 611,
2018-Ohio-2121, 109 N.E.3d 1210, ¶ 13; Grafton v. Ohio Edison
Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).
Accordingly, an appellate court need not defer to a trial
court’s decision, but instead must independently review the
record to determine if summary judgment is appropriate.
Grafton, 77 Ohio St.3d at 105.
{¶23} Civ.R. 56(C) provides in relevant part:
* * * * Summary judgment shall be rendered forthwith
if the pleadings, depositions, answers to
interrogatories, written admissions, affidavits,
transcripts of evidence, and written stipulations of
fact, if any, timely filed in the action, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.
No evidence or stipulation may be considered except as
stated in this rule. A summary judgment shall not be
rendered unless it appears from the evidence or
stipulation, and only from the evidence or stipulation,
that reasonable minds can come to but one conclusion and
that conclusion is adverse to the party against whom the
motion for summary judgment is made, that party being
entitled to have the evidence or stipulation construed
most strongly in the party’s favor.
{¶24} Therefore, pursuant to Civ.R. 56, a trial court may
not award summary judgment unless the evidence demonstrates
that: (1) no genuine issue as to any material fact remains to be
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HIGHLAND, 22CA10
litigated; (2) the moving party is entitled to judgment as a
matter of law; and (3) after viewing the evidence most strongly
in favor of the nonmoving party, reasonable minds can come to
but one conclusion, and that conclusion is adverse to the
nonmoving party. E.g., State ex rel. Whittaker v. Lucas Cty.
Prosecutor’s Office, 164 Ohio St.3d 151, 2021-Ohio-1241, 172
N.E.3d 143, ¶ 8; Pelletier at ¶ 13; Temple v. Wean United, Inc.,
50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977).
{¶25} Under Civ.R. 56, the moving party bears the initial
burden to inform the trial court of the basis for the motion and
to identify those portions of the record that demonstrate the
absence of a material fact. E.g., Dresher v. Burt, 75 Ohio
St.3d 280, 293, 662 N.E.2d 264 (1996). The moving party cannot
discharge its initial burden with a conclusory assertion that
the nonmoving party has no evidence to prove its case. E.g.,
Kulch v. Structural Fibers, Inc., 78 Ohio St.3d 134, 147, 677
N.E.2d 308 (1997); Dresher, supra. Rather, the moving party
must specifically refer to the “pleadings, depositions, answers
to interrogatories, written admissions, affidavits, transcripts
of evidence in the pending case, and written stipulations of
fact, if any,” which affirmatively demonstrate that the
nonmoving party has no evidence to support the nonmoving party’s
claims. Civ.R. 56(C); Dresher, supra.
[U]nless a movant meets its initial burden of
establishing that the nonmovant has either a complete
lack of evidence or has an insufficient showing of
evidence to establish the existence of an essential
element of its case upon which the nonmovant will have
the burden of proof at trial, a trial court shall not
grant a summary judgment.
Pennsylvania Lumbermens Ins. Corp. v. Landmark Elec., Inc., 110
Ohio App.3d 732, 742, 675 N.E.2d 65 (2nd Dist.1996). Once the
moving party satisfies its burden, the nonmoving party bears a
corresponding duty to set forth specific facts to show that a
genuine issue exists. Civ.R. 56(E); Dresher, supra. More
specifically, Civ.R. 56(E) states:
* * * * When a motion for summary judgment is made
and supported as provided in this rule, an adverse party
may not rest upon the mere allegations or denials of the
party’s pleadings, but the party’s response, by
affidavit or as otherwise provided in this rule, must
set forth specific facts showing that there is a genuine
issue for trial. If the party does not so respond,
summary judgment, if appropriate, shall be entered
against the party.
{¶26} Additionally, when trial courts consider summary-
judgment motions, Civ.R. 56(C) specifies that the court may
examine only “the pleadings, depositions, answers to
interrogatories, written admissions, affidavits, transcripts of
evidence, and written stipulations of fact, if any, [that are]
timely filed in the action.” See also Whitt v. Wolfinger, 2015-
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Ohio-2726, 39 N.E.3d 809, 813–14, ¶ 12 (4th Dist.); Davis v.
Eachus, 4th Dist. Pike No. 04CA725, 2004-Ohio-5720, ¶ 36; Wall
v. Firelands Radiology, Inc., 106 Ohio App.3d 313, 334, 666
N.E.2d 235 (6th Dist.1995). Furthermore, a trial court
generally may consider only evidence that would be admissible at
trial. Lowe v. Cox Paving, Inc., 190 Ohio App.3d 154, 2010-
Ohio-3816, 941 N.E.2d 88, ¶ 27 (12th Dist.), citing Tokles &
Son, Inc. v. Midwestern Indemn. Co., 65 Ohio St.3d 621, 631, fn.
4, 605 N.E.2d 936 (1992) (“Only facts which would be admissible
in evidence can be * * * relied upon by the trial court when
ruling upon a motion for summary judgment”). “Deposition
testimony, in particular, must be admissible under the rules of
evidence” and “must be based on personal knowledge.” Turnmire
v. Turnmire, 2022-Ohio-3968, 200 N.E.3d 604, ¶ 24 (12th Dist.)
(citations omitted).
{¶27} Evid.R. 602 provides, in part, that a “witness may not
testify to a matter unless evidence is introduced sufficient to
support a finding that the witness has personal knowledge of the
matter.” “‘Personal knowledge’ is ‘[k]nowledge gained through
firsthand observation or experience, as distinguished from a
belief based on what someone else has said.’” Bonacorsi v.
Wheeling & Lake Erie Ry. Co., 95 Ohio St.3d 314, 320, 2002-Ohio-
2220, 767 N.E.2d 707, ¶ 26, quoting Black’s Law Dictionary (7th
Ed.Rev.1999) 875, and citing Weissenberger’s Ohio Evidence 213,
Section 602.1 (2002) (“The subject of a witness’s testimony must
have been perceived through one or more of the senses of the
witness. * * * [A] witness is ‘incompetent’ to testify to any
fact unless he or she possesses firsthand knowledge of that
fact.”); accord 1 McCormick on Evidence 40, Section 10 (5th
Ed.1992) (“[a] person who has no knowledge of a fact except what
another has told him does not, of course, satisfy the
requirement of knowledge from observation.”). Thus, “[e]vidence
is inadmissible under Evid.R. 602 if the witness could not have
actually perceived or observed what [the witness] is testifying
about.” Turnmire at ¶ 27, citing M. B. A. F. B. Fed. Credit
Union v. Cumis Ins. Soc., Inc., 681 F.2d 930, 932 (4th Cir.
1982), citing 2 Wigmore, Evidence, Section 658 (Chadbourn Rev.
1979), and 3 Weinstein & Berger, Weinstein’s Evidence, Section
602(02) (1981). Consequently, “‘[m]ere speculation and
unsupported conclusory assertions are not sufficient’” to meet
the nonmovant’s reciprocal burden to set forth specific facts to
show that a genuine issue exists. Bank of New York Mellon v.
Bobo, 2015-Ohio-4601, 50 N.E.3d 229, ¶ 13 (4th Dist.), quoting
Loveday v. Essential Heating Cooling & Refrig., Inc., 4th Dist.
Gallia No. 08CA4, 2008-Ohio-4756, ¶ 9.
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{¶28} We additionally observe that not every factual dispute
precludes summary judgment. Rather, only disputes as to the
material facts preclude summary judgment. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202(1986) (“[o]nly disputes over facts that might affect the
outcome of the suit under the governing law will properly
preclude the entry of summary judgment.”). “As to materiality,
the substantive law will identify which facts are material.”
Id. at 248; accord Turner v. Turner, 67 Ohio St.3d 337, 340, 617
N.E.2d 1123 (1993).
{¶29} Moreover, any disputed material facts must present
genuine issues, meaning that “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct.
2505, 91 L.Ed.2d 202, (1986). For this reason, the summary-
judgment evidence must reveal more than “some metaphysical doubt
as to the material facts.” Matsushita Elec. Industrial Co. v.
Zenith Radio Corp., 475 U.S. 574, 586–587, 106 S.Ct. 1348, 89
L.Ed.2d 538 (1986) (footnote omitted). Accordingly, if “the
record taken as a whole could not lead a rational trier of fact
to find for the nonmoving party, there is no ‘genuine issue for
trial.’” Matsushita Elec. Industrial Co. v. Zenith Radio Corp.,
475 U.S. 574, 586–587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)
(citation omitted).
{¶30} In the case at bar, as we explain below, even if some
disputed facts exist, none are material facts that raise genuine
issues that would preclude summary judgment.
B.
{¶31} We initially note that in a will-contest action, an
order that admits a will to probate “is prima-facie evidence of
the attestation, execution, and validity of the will.” R.C.
2107.74. Thus, a will admitted to probate is rebuttably
presumed to be valid. Krischbaum v. Dillon, 58 Ohio St.3d 58,
64, 567 N.E.2d 1291 (1991). When a rebuttable presumption
arises, “a party challenging the presumed fact must produce
evidence of a nature that counterbalances the presumption or
leaves the case in equipoise. Only upon the production of
sufficient rebutting evidence does the presumption disappear.”
Myocare Nursing Home, Inc. v. Fifth Third Bank, 98 Ohio St.3d
545, 2003–Ohio–2287, 787 N.E.2d 1217, ¶ 35. Once the
presumption of a will’s validity arises, the burden of proof
shifts to the will contestants to prove, by a preponderance of
the evidence, that the will is invalid. Stanek v. Stanek, 2nd
Dist. Greene No. 2018-CA-39, 2019-Ohio-2841, ¶ 35, citing
Bustinduy v. Bustinduy, 2d Dist. Champaign No. 98-CA-21, 1998 WL
22HIGHLAND, 22CA10
879121, *2 (Dec. 18, 1998), citing Golding v. Ohio Natl. Bank of
Columbus, 115 Ohio App. 465, 466, 185 N.E.2d 577, (10th
Dist.1962).
{¶32} In the case sub judice, the trial court admitted the
will to probate. Therefore, the will enjoys a presumption of
validity and the burden falls upon appellants to produce
evidence to demonstrate that genuine issues of material fact
remain regarding the will’s validity. Appellants appear to
assert that genuine issues of material fact remain as to whether
(1) the will was properly witnessed, (2) the decedent had
testamentary capacity, and (3) the will was the product of undue
influence.
1
{¶33} R.C. 2107.03 sets forth the requirements for the
execution of a will. A will must be in writing and “signed at
the end by the testator or by some other person in the
testator’s conscious presence and at the testator’s express
direction.” R.C. 2107.03. Additionally, “[t]he will shall be
attested and subscribed in the conscious presence of the
testator, by two or more competent witnesses, who saw the
testator subscribe, or heard the testator acknowledge the
testator’s signature.” R.C. 2107.03. “‘[C]onscious presence’
means within the range of any of the testator’s senses,
excluding the sense of sight or sound that is sensed by
telephonic, electronic, or other distant communication.” R.C.
2107.03.
{¶34} To attest and subscribe involves “two acts: (1) an
‘act of the senses’ by personally observing the signing or
acknowledgment of signature by the testator and (2) a physical
act of signing the document, under the observation of the
testator, to prove that the attestation occurred.” In re Estate
of Shaffer, 163 Ohio St.3d 497, 2020-Ohio-6973, 171 N.E.3d 281,
¶ 17, citing Tims v. Tims, 22 Ohio C.D. 506, 14 Ohio C.C.(N.S.)
273 (1911), quoting Schouler, A Treatise on the Law of Wills,
Section 330 (2d Ed.1892). A competent witness within the
meaning of R.C. 2107.03 is a witness who “satisfies the elements
of R.C. 2317.01.” Shaffer at ¶ 16, citing Rogers v. Helmes, 69
Ohio St.2d 323, 432 N.E.2d 186 (1982), paragraph one of the
syllabus. R.C. 2317.01 provides:
All persons are competent witnesses except those
of unsound mind and children under ten years of age
who appear incapable of receiving just impressions of
the facts and transactions respecting which they are
examined, or of relating them truly.
{¶35} In the case at bar, the will contains the decedent’s
signature and the signatures of two witnesses, nurses at the
medical-care facility where the decedent was hospitalized.
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HIGHLAND, 22CA10
Appellants did not put forth any evidence to suggest that the
nurses are not competent witnesses. None of the evidence
suggests they were of unsound mind or under ten years of age.
Furthermore, both nurses stated in their depositions that, even
though they could not recall the precise details that surrounded
the execution of the will, they did recognize that they signed
the will. They explained their normal procedure and observation
when they witness a patient sign a legal document and the nurses
said they would have followed this usual procedure when they
witnessed the decedent sign the will. Moreover, their usual
procedure indicates they would not have signed as witnesses if
they were not within the decedent’s conscious presence.
Consequently, the evidentiary materials submitted to the court
demonstrate that the nurses are competent witnesses and that
they attested and subscribed the will in the decedent’s
conscious presence.
{¶36} Appellants argue that a genuine issue of material fact
exists and point out that the nurses thought that a notary had
been present at the time that they signed the will and that this
mystery notary somehow establishes a genuine issue of material
fact regarding the execution of the will. We do not agree. The
presence or absence of a notary does not affect the fact that
(1) the two nurses, according to their usual procedures, would
have witnessed the decedent subscribe his name to the will, and
(2) they signed the will as witnesses and would not have done so
if they had any question regarding the decedent’s conscious
presence. See Ayer v. Morenz-Harbinger, 1st Dist. Hamilton No.
C-190687, 2020-Ohio-6861, ¶ 42 (will contestant cannot “create a
triable issue based solely on [witness’s] lack of memory as to
the details of the execution”). Moreover, appellants did not
cite any authority to support their assertion.
{¶37} We therefore disagree with appellants that genuine
issues of material fact remain as to the will’s execution.
2
{¶38} Appellants also assert that genuine issues of material
fact remain regarding the decedent’s testamentary capacity. “A
person who is eighteen years of age or older, of sound mind and
memory, and not under restraint may make a will.” R.C. 2107.02.
A testator is of sound mind and memory and has testamentary
capacity when the testator: (1) understands the nature of the
business in which the testator is engaged; (2) comprehends
generally the nature and extent of the testator’s property; (3)
holds in the testator’s mind the names and identity of those who
have natural claims upon the testator’s bounty; and (4)
appreciates the testator’s relation to the members of the
26
HIGHLAND, 22CA10
testator’s family. Niemes v. Niemes, 97 Ohio St. 145, 119 N.E.
503 (1917), paragraph four of the syllabus. Testamentary
capacity ordinarily is determined as of the will-execution date.
Kennedy v. Walcutt, 118 Ohio St. 442, 161 N.E. 336 (1928),
paragraph two of the syllabus, overruled on other grounds,
Kirschbuam v. Dillon, 58 Ohio St.3d 58, 64, fn. 9, 567 N.E.2d
1291 (1991). “However, evidence of the testator’s mental and
physical condition, both at the time the will was executed and
within a reasonable time before and after its execution, is
admissible as casting light on [the testator’s] testamentary
capacity.” Riley v. Tizzano, 4th Dist. Washington No. 06CA3,
2006, ¶ 15.
{¶39} In the case sub judice, we agree with the trial
court’s conclusion that appellants did not submit evidence to
establish that a genuine issue of material fact exists regarding
the decedent’s testamentary capacity. None of the appellants
had been in contact with the decedent at, or within a reasonable
time before or after, he executed the will. In fact, the last
time any appellant had been in the decedent’s presence was
approximately 18 months before his death. Thus, none observed,
or had an opportunity to evaluate, the decedent’s testamentary
capacity at or near the time that he executed the will.
Consequently, appellants lack personal knowledge of the
decedent’s mental or medical state near the time that he signed
the will. Instead, appellants base their claims about the
decedent’s testamentary capacity upon unsupported conclusions
that his poor health rendered him unable to understand what he
was doing when he signed the will. The two witnesses to the
will, however, stated that, although they could not precisely
recall the circumstances that surrounded the execution of the
will, they would not have signed as witnesses if they had doubts
regarding the decedent’s testamentary capacity. Furthermore,
although appellants complain that no one explained the will to
the decedent, appellants did not cite any authority that
requires someone to verbally explain the contents of a will to a
decedent in order for the decedent to have testamentary
capacity.
{¶40} Additionally, even if the decedent may have been in
poor health at the time that he signed the will, poor health
does not necessarily equate to a lack of testamentary capacity.
Instead, any “[s]uch health decline must have actually affected
the testator’s capacity to execute the will.” Foelsch v.
Farson,2020-Ohio-1259, 153 N.E.3d 601, ¶ 33 (5th Dist.); accord
Meek v. Cowman, 4th Dist. Washington No. 07CA31, 2008–Ohio–1123,
¶ 17 (no evidence existed that decedent lacked testamentary
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HIGHLAND, 22CA10
capacity, even though he had been declared incompetent and on
medication for dementia, when no evidence established how the
dementia affected the decedent or that dementia rendered him
unable to understand what he was doing when he made his will);
In re Estate of Goehring, 7th Dist. Columbiana Nos. 05 CO 27 &
05 CO 35, 2007–Ohio–1133, ¶ 54 (genuine issue of material fact
did not exist even though testator had Alzheimer’s disease when
testator executed the will; no evidence indicated that disease
“actually affected the testator’s capacity to execute the
will”); Martin v. Dew, 10th Dist. Franklin No. 03AP–734, 2004–
Ohio–2520, ¶ 20 (no genuine issue of material fact when evidence
did not show that “decedent was affected by dementia on the date
she executed the will, and the uncontradicted statements by the
individuals who witnessed her sign the will indicate she was
alert, oriented, and had testamentary capacity”); Robinson v.
Harmon, 107 Ohio App. 206, 206, 157 N.E.2d 749 (2d Dist.1958)
(“Evidence that a person who executed a will was suffering from
some of the infirmities of old age, such as failing eyesight,
tremor of the hand in writing and a tendency to talk to himself
and to change subjects frequently in conversation, does not of
itself show a lack of testamentary capacity.”).
{¶41} In the case before us, the will’s admission to probate
constitutes prima-facie evidence of its validity, and the two
witnesses’ deposition testimony demonstrates the absence of a
genuine issue of material fact as to whether the decedent’s
health condition actually affected the decedent’s testamentary
capacity. Moreover, appellants did not present any admissible
summary-judgment evidence to contradict the two witnesses’
deposition testimony. Rather, appellants offered unsupported
conclusions and speculation.
{¶42} Consequently, we conclude that appellants did not
establish that a genuine issue of material fact remains as to
the decedent’s testamentary capacity.
3
{¶43} Appellants further contend that the decedent’s will is
a product of undue influence. A will is invalid if it is the
product of undue influence. Riley v. Tizzano, 4th Dist.
Washington No. 06CA3, 2006-Ohio-6625, ¶ 20, citing West v.
Henry, 173 Ohio St. 498, 510-511, 184 N.E.2d 200 (1962). “A
testator is unduly influenced by another when the testator is
restrained from disposing of property in accordance with his own
wishes and instead substitutes the desires of another.” Id. To
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HIGHLAND, 22CA10
establish undue influence in a will-contest action, the will
contestant must prove by clear and convincing evidence: “(1) a
susceptible testator, (2) another’s opportunity to exert [undue
influence], (3) the fact of improper influence exerted or
attempted and (4) the result showing the effect of such
influence.” Redman v. Watch Tower Bible & Tract Soc. of
Pennsylvania, 69 Ohio St.3d 98, 101, 630 N.E.2d 676 (1994),
citing West, 173 Ohio St. at 510-511.
“[G]eneral influence, however strong or
controlling, is not undue influence unless brought to
bear directly upon the act of making the will.” West,
supra at 501. Further, “[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, but such influence must be actually
exerted on the mind of the testator with respect to
the execution of the will in question.” Id.
Riley at ¶ 25.
{¶44} Furthermore, a will is not presumed to be the product
of undue influence simply because a testator “‘disposes of his
property in an unnatural manner, unjustly, or unequally, and
however much at variance with expressions by the testator
concerning relatives or the natural objects of his bounty.’”
West, 173 Ohio St. at 502, quoting 94 Corpus Juris Secundum,
1074, at Section 224. Instead, an unnatural, unjust, or unequal
property disposition – or one that varies from a testator’s
previous expressions – “‘does not invalidate the will, unless
undue influence was actually exercised on the testator.’” Id.,
quoting 94 Corpus Juris Secundum, 1074, at Section 224. We
additionally note that the relevant time period to evaluate the
existence of undue influence “is the time at or near the
execution of the will” or at “a reasonable period before and
after the execution of the document.” Knowlton v. Schultz, 179
Ohio App.3d 497, 2008-Ohio-5984, 902 N.E.2d 548, ¶ 22 (1st
Dist.).
{¶45} In the case sub judice, our review reveals that the
record contains no evidence to establish that the will is the
product of undue influence, or that anyone actually exerted
undue influence on the decedent. Instead, the will admitted to
probate matches a handwritten will that the decedent had
prepared. According to Kurt, before the decedent’s death he
confirmed that the handwritten will accurately set forth his
wishes. Once again, no evidence exists that anyone exercised
undue influence over the decedent that resulted in a will that
did not reflect the decedent’s wishes. The will admitted to
probate matches the wishes that the decedent had documented in a
handwritten will. Appellants offer no evidence to establish a
genuine issue of material fact as to whether the will was the
product of undue influence. Instead, all of their arguments are
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HIGHLAND, 22CA10
based upon speculation and innuendo, not admissible summary-
judgment evidence.
{¶46} In sum, we believe that appellants have not
established the existence of any genuine issues of material fact
regarding the validity of the will. Consequently, the trial
court did not err by entering summary judgment in appellees’
favor.
{¶47} Accordingly, based upon the foregoing reasons, we
overrule appellants’ sole assignment of error and affirm the
trial court’s judgment.
JUDGMENT AFFIRMED.
JUDGMENT ENTRY
It is ordered that the judgment be affirmed and that
appellees recover of appellants the costs herein taxed.
The Court finds there were reasonable grounds for this
appeal.
It is ordered that a special mandate issue out of this
Court directing the Highland County Common Pleas Court, Probate
Division, to carry this judgment into execution.
A certified copy of this entry shall constitute that
mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Smith, P.J. & Hess, J.: Concur in Judgment & Opinion
For the Court
BY:__________________________
Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a
final judgment entry and the time period for further appeal
commences from the date of filing with the clerk.