In re Estate of Pursell v. Pursell

[Cite as In re Estate of Pursell v. Pursell, 2023-Ohio-2531.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
IN RE: THE ESTATE OF:
PAUL R. PURSELL, SR., ET AL.,
PLAINTIFFS-APPELLEES, CASE NO. 1-23-04
-and-
CHRISTY T. PURSELL, ET AL.,
PLAINTIFFS-APPELLANTS,
v. OPINION
PAUL R. PURSELL, JR.,
DEFENDANT-APPELLEE.
Appeal from Allen County Common Pleas Court
Probate Division
Trial Court No. 2020 ES 276(A)
Judgment Affirmed
Date of Decision: July 24, 2023
APPEARANCES:
Jonathan D. Balcerzak and John P. Lewandowski for Appellants
Melissa R. Sherrick for Appellee
Case No. 1-23-04
WALDICK, J.
{¶1} Plaintiffs-appellants Paula Ann Augsburger, Christy T. Pursell, and
Opal L. Wright (“Appellants’)1, bring this appeal from the December 30, 2022,
judgment of the Allen County Common Pleas Court, Probate Division, dismissing
their complaint after awarding summary judgment to defendant-appellee, Paul R.
Pursell, Jr. (“Appellee”). On appeal, Appellants contend that the trial court erred by
determining that no genuine issues of material fact existed with regard to whether
the parties’ father, Paul Pursell, Sr. (“Decedent”), lacked testamentary capacity
when he executed a will in 2014, and that the trial court erred by determining that
no genuine issues of material fact existed with regard to whether Decedent was
unduly influenced by Appellee in executing the 2014 will. For the reasons that
follow, we affirm the judgment of the trial court.
Background
{¶2} Appellants and the Appellee are all children of Decedent. Decedent
retired from Ford and his wife of nearly fifty years managed farmland that was in
her name until her death in October 2013.2 Decedent was the executor of his wife’s
estate.
1
Appellant Paula is now deceased and she provided no evidence in this case. She was estranged from
Decedent long before the will at issue was drafted. Where we refer generally to “Appellants” providing
evidence or testimony herein, we are referring to Appellants Christy and Opal.
2
Decedent’s wife was the mother of Appellants Christy and Opal, but not Appellant Paula.
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{¶3} In November of 2013, approximately three weeks after his wife died,
Decedent met with a UAW Legal Services Plan attorney (“UAW attorney”) to
prepare a new will; however, he ultimately decided to take time to grieve before
having the new will prepared. Decedent resumed his interactions with a UAW
attorney in early 2014, discussing the drafting of his new will.
{¶4} As part of his new will, Decedent wanted all of his personal property
and the residue of his estate to go to Appellee, if Appellee survived Decedent. If
Appellee did not survive Decedent, then Decedent wanted everything to go to
Appellant Christy Pursell. Decedent told the UAW attorneys, inter alia, that he
wanted to leave everything to Appellee because Appellants had plenty of money
and jobs and Appellee did not.3 Further, Decedent indicated that he had provided
for the Appellants during his life, with the exception of Paula. Based on Decedent’s
wishes, the UAW attorneys drafted the will and set a signing date.
{¶5} On September 9, 2014, Appellee drove Decedent to Decedent’s
appointment for the will signing. Appellee was forced to wait outside while the
UAW attorney met with Decedent and confirmed all the information in the will.
Decedent ultimately executed the will in front of the UAW attorney and another
witness.
3
Again, this excludes Appellant Paula, as Decedent had no relationship with her and she was excluded from
his prior will.
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{¶6} Several years passed in which there were varying degrees of family
strife. At one point, Decedent banned Appellants from his property, though that did
not last for the rest of Decedent’s life. One of Decedent’s friends also averred that
while Decedent had a good relationship with Appellee for years, that relationship
was strained toward the end of Decedent’s life.
{¶7} Decedent died on June 9, 2020. Following his passing, Appellants
learned of the will and filed a complaint challenging its legitimacy. Appellants
alleged that Decedent lacked testamentary capacity to make a valid will in 2014,
and that, in any event, Decedent was unduly influenced by Appellee.
{¶8} Appellee filed an answer denying the allegations and the case
proceeded through discovery. Depositions were taken of Appellants Christy and
Opal, as well as the Appellee.
{¶9} On October 26, 2021, Appellee filed a motion for summary judgment
contending that there were no genuine issues of material fact and that Appellee was
entitled to judgment as a matter of law. Appellee supported his motion with copies
of the deposition transcripts and, inter alia, the affidavit of the UAW attorney who
met with Decedent on September 9, 2014. The attorney averred that Appellee was
not present in the room when the will was executed, that it was her standard practice
to determine that the testator was of sound mind and memory, and that it was her
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standard practice to determine that the testator was signing willingly and not under
any restraint.
{¶10} Appellants filed a memorandum in response, arguing, inter alia, that
Decedent struggled with some of his own financial affairs after his wife died and
that he had the assistance of an attorney when he was administering his wife’s estate,
showing a possible lack of testamentary capacity. Further, Appellants alleged that
numerous incidents in the years after the will was signed established that Appellee
was taking advantage of Decedent, and, separately, that Appellee told Decedent lies
about the Appellants. According to the Appellants, this had to be the reason that
Decedent removed them from his will.
{¶11} Appellee filed a reply in support of his motion for summary judgment,
adding the notes from the meetings the UAW attorneys had with Decedent. The
notes indicated that UAW attorneys confirmed with Decedent on multiple occasions
that he specifically did not want to leave anything to the Appellants. (Doc. No. 58,
Ex. A).
{¶12} On December 30, 2022, the trial court filed a lengthy judgment entry
analyzing the issues raised by the Appellants. The trial court determined that there
was no actual evidence that Decedent lacked testamentary capacity on September
9, 2014, when he executed the will in question, and, in fact, the only evidence
supported a finding that Decedent was of sound mind at that time. Further, the trial
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court determined that there was no evidence beyond the speculations of Appellants
that Decedent was unduly influenced. Based on its conclusions, the trial court
granted Appellee’s motion for summary judgment and dismissed the Appellants’
complaint. It is from this judgment that the Appellants’ appeal, asserting the
following assignments of error for our review.
First Assignment of Error
The Trial Court erred in finding that no genuine issue of material
fact exists as to whether the Decedent was unduly influenced by
the Defendant.
Second Assignment of Error
The Trial Court erred in finding that no genuine issue of material
fact exists as to whether Decedent held testamentary capacity
when he executed the 2014 Will.
{¶13} For ease of discussion, we will review the assignments of error out of
the order in which they were raised.
Second Assignment of Error
{¶14} In their second assignment of error, Appellants argue that the trial
court erred by determining that there was no genuine issue of material fact regarding
whether Decedent lacked testamentary capacity when he executed the 2014 will.
Standard of Review
{¶15} We review a decision to grant summary judgment de novo. Doe v.
Shaffer, 90 Ohio St.3d 388, 390 (2000). “De novo review is independent and without
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deference to the trial court’s determination.” ISHA, Inc. v. Risser, 3d Dist. Allen No.
1-12-47, 2013-Ohio-2149, ¶ 25.
{¶16} Summary judgment is proper where there is no genuine issue of
material fact, the moving party is entitled to judgment as a matter of law, and
reasonable minds can reach but one conclusion when viewing the evidence in favor
of the non-moving party, and the conclusion is adverse to the non-moving party.
Civ.R. 56(C); State ex rel. Whittaker v. Lucas County Prosecutor’s Office, 164 Ohio
St.3d 151, 2021-Ohio-1241, ¶ 8. Material facts are those facts “‘that might affect
the outcome of the suit under the governing law.’” Turner v. Turner, 67 Ohio St.3d
337, 340 (1993), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106
S.Ct. 2505 (1986). “Whether a genuine issue exists is answered by the following
inquiry: [d]oes the evidence present ‘a sufficient disagreement to require submission
to a jury’ or is it ‘so one-sided that one party must prevail as a matter of law[?]’” Id.quoting Anderson at 251-252.
{¶17} “The party moving for summary judgment has the initial burden of
producing some evidence which demonstrates the lack of a genuine issue of material
fact.” Carnes v. Siferd, 3d Dist. Allen No. 1-10-88, 2011-Ohio-4467, ¶ 13, citing
Dresher v. Burt, 75 Ohio St.3d 280, 282 (1996). “In doing so, the moving party is
not required to produce any affirmative evidence, but must identify those portions
of the record which affirmatively support his argument.” Id., citing Dresher at 292.
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“The nonmoving party must then rebut with specific facts showing the existence of
a genuine triable issue; he may not rest on the mere allegations or denials of his
pleadings.” Id. citing Dresher at 292.
Relevant Authority
{¶18} Revised Code 2107.74 creates a presumption of the validity of a will
admitted to probate. Included in this presumption is that the testator was of sound
mind and possessed testamentary capacity to execute the will. Zimpfer v. Roach, 3d
Dist. Shelby No. 17-17-03, 2017-Ohio-8437, ¶ 58.
{¶19} However, an otherwise valid will may be invalidated if the party
contesting the will can establish that the testator lacked testamentary capacity at the
time the will was executed. Niemes v. Niemes, 97 Ohio St. 145 (1917), paragraph
four of the syllabus. Evidence of the testator’s mental and physical condition, both
at the time the will is executed and within a reasonable time before and after its
execution, is admissible as casting light on testamentary capacity. Kennedy v.
Walcutt, 118 Ohio St. 442 (1928), paragraph two of the syllabus, overruled on other
grounds, Krishbaum v. Dillon, 58 Ohio St.3d 58 (1991).
{¶20} Testamentary capacity exists when the testator has sufficient mind and
memory to: 1) understand the nature of the business in which the testator is engaged;
2) comprehend generally the nature and extent of the testator’s property; 3) hold in
the testator’s mind the names and identities of those who have natural claims upon
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his bounty; and 4) appreciate the testator’s relation to members of his family.
Niemes, supra.
Analysis
{¶21} At the outset, we emphasize that a presumption was created in this
matter that the will was valid and that Decedent had the requisite testamentary
capacity to execute the will once the will was admitted to probate. See R.C. 2107.74;
Zimpfer, supra, at ¶ 58. In Appellants’ attempt to rebut the presumption, Appellants
point to statements in the record indicating that Decedent was deeply distraught by
his wife’s death, that he was in a “steady cognitive decline” before and after he
executed the 2014 will as exhibited by Decedent often writing notes to himself, and
that Decedent needed assistance with his bills and finances after his wife died.
{¶22} Importantly, however, both before, during, and after the execution of
the 2014 will, there was never any challenge to Decedent’s competency. In fact,
Appellant Opal testified that up until his death, Decedent was “healthy as a horse.”
(Opal Wright Depo. at 7). Further, it is undisputed that Decedent was executor of
his wife’s estate, and that Decedent managed the farm business after his wife died,
securing better pricing for renting the farmland.
{¶23} Notwithstanding these points, focusing strictly on the time the will
was executed, and a reasonable time before and after, the only evidence in the record
supports Decedent having testamentary capacity in this matter. Decedent met with
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a UAW attorney shortly after his wife’s death about updating his will, but
specifically indicated he wanted more time to grieve before he did so.
{¶24} Then, months later, Decedent met with a UAW attorney again about
altering his will. At that time, according to the notes of the UAW attorney, Decedent
discussed numerous matters with the UAW attorney including his children, his
assets, his land, his vehicles, his bank accounts, and who he wanted to be his
executor. Decedent informed the UAW attorney that he wanted Appellee to be his
executor, unless Appellee predeceased him, and he wanted all his property and the
residue of his estate to go to Appellee. Decedent specifically stated he did not want
to give anything to Appellant Opal because she and her husband owned farms and
had numerous homes, and he stated that they did not need anything more. As to
Christy, Decedent said she had plenty of money and a job so she did not need
anything. Decedent had no relationship with Appellant Paula, and did not want
anything to go to her. This conversation, which occurred when Appellee was not
present, establishes that Decedent was aware of his assets and his heirs.
{¶25} In the months following this meeting, the will was drafted, and after
some delay, a signing was scheduled for September 9, 2014. Prior to the will being
signed, another UAW attorney took over the case. She spoke with Decedent the day
before the scheduled will signing, specifically asking him about his decision to
disinherit his daughters. Decedent reaffirmed his commitment to disinherit his
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daughters, stating that he was doing it because of things that they had done, and
because Christy had been taken care of “material wise.” Decedent thus again
demonstrated a knowledge of his heirs and his assets prior to executing the will.
{¶26} As to the day of the execution of the will itself, Appellee drove
Decedent to the will-signing appointment on September 9, 2014. Appellee indicated
that his father was in good health on the day of the signing. He testified that he
dropped Decedent off at the office and then went to Kewpee, a local hamburger
shop. The UAW attorney confirmed that Appellee was not present when the will
was signed, and she averred as follows with regard to the signing itself.
7. The practice of our office was that those witnessing a will
execution were to confirm the identity and age of the
testator/testatrix; confirm that the testator/testatrix had read it,
understood it, and was of sound mind and memory, and that the
testator/testatrix was signing the Last Will & Testament willingly
and not under restraint.
8. If a client arrived with another person for a signing
appointment, I had a standard practice while at the UAW Legal
Services Plan of not permitting the other person in the room while
the testator/testatrix executed a Last Will & Testament.
9. I saw Paul R. Pur[s]ell, Sr. sign the subject Last Will and
Testament of Paul R. Pur[s]ell, Sr. on September 9, 2014 as did
the other witness, Rosemary Perez.
{¶27} Given the UAW attorney’s uncontested evaluation of Decedent on the
date of the will signing, all of the evidence in the record points to Decedent having
testamentary capacity both before the execution of the will and during the execution
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of the will. Thus the only question remaining is whether Appellants presented any
evidence that Decedent lacked testamentary capacity within a reasonable time after
the execution of the will, and there is no evidence specifically indicating that
Decedent had any cognitive issues that impacted his ability to execute the 2014 will.
{¶28} In sum, the Appellants’ allegations that Decedent was sometimes
forgetful do not undermine Decedent’s testamentary capacity on or around
September 9, 2014 as attested to by the UAW attorney. See Zimpfer v. Roach, 3d
Dist. Shelby No. 17-17-03, 2017-Ohio-8437, ¶ 70 (where the only evidence in the
record was an affidavit indicating that decedent was competent when the will was
signed, summary judgment is proper, particularly given the presumption of
validity). After reviewing all the evidence, the trial court found that the Appellants
had produced no actual evidence that Decedent lacked testamentary capacity in
executing the will in question. In our own de novo review, we agree with the trial
court. Therefore, Appellants’ second assignment of error is overruled.
First Assignment of Error
{¶29} In their first assignment of error, Appellants argue that a genuine issue
of material fact existed as to whether Decedent executed his will under undue
influence of the Appellee.
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Relevant Authority4
{¶30} Undue influence occurs when the wishes and judgment of the
transferor are substituted by the wishes and judgment of another. Thomas v.
Delgado, 3d Dist. Putnam No. 12-22-06, 2022-Ohio-4235, ¶ 26. To prove undue
influence, a party must establish by clear and convincing evidence that “(1) the
testator was susceptible to undue influence, (2) another person had an opportunity
to exert influence over the susceptible testator, (3) improper influence was exerted
or attempted and (4) a result showing the effect of such influence.” Id. We note that
undue influence need not be shown by direct proof, but can be inferred from the
circumstances. Id. citing Calloway v. Roy, 10th Dist. Franklin No. 77AP-301, 1997
WL 200400, * 3.
Analysis
{¶31} Appellants contend that they presented evidence that should have
defeated summary judgment on the issue of undue influence. Further, Appellants
actually argue that a presumption of undue influence should have been applied in
this case because Appellee had a fiduciary relationship with Decedent when he was
granted a Power of Attorney (“POA”) when the will was executed. See Thomas v.
Delgado, 3d Dist. Putnam No. 12-22-06, 2022-Ohio-4235, ¶ 26.
4
The same standard of review used previously is applicable here.
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{¶32} At the outset, we disagree with Appellants’ assertion that under
Thomas a presumption of undue influence should be applied here because Appellee
was granted POA of Decedent. Thomas is readily distinguishable because in this
case, the POA was not granted to Appellee until the will was executed. Thus
Appellee could not have abused a fiduciary relationship that he did not yet have in
order to induce Decedent to execute the 2014 will.5 Moreover, we have no
knowledge of what the POA entailed or if it was ever even used. Finally, Thomas
also specifically involved a claim of intentional interference with the expectancy of
an inheritance, which is not a claim alleged in this case. Thus a presumption of
undue influence will not be applied here.
{¶33} With the determination made that a presumption of undue influence
should not be applied here, we will review the evidence submitted by the Appellants
and their arguments with regard to undue influence. Appellants first contend that
Decedent was susceptible to undue influence because Decedent was taken to his
initial meeting with the UAW attorney to discuss his will by Appellee
approximately three weeks after Decedent’s wife died, when Decedent was still
grieving. Appellants argue that Decedent’s wife handled all aspects of the couple’s
daily life, including finances, to such an extent that Decedent could not even write
a check.
5
According to the affidavit of Tom Bradshaw, Decedent terminated Appellee’s POA at some unknown date.
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{¶34} Although Appellants suggest that Decedent’s grief made him
susceptible to undue influence, there is no evidence of that in the record. In fact,
Decedent delayed making his new will specifically so he could take time to grieve.
In addition, the record establishes that while Appellee drove Decedent to his
meetings with the UAW attorney, Appellee was not involved with the discussions
regarding the will.
{¶35} As to Appellants’ claims that Decedent was susceptible to undue
influence because his wife handled the couple’s finances, Decedent was able to
manage his wife’s estate. In addition, Decedent took over management of the
farmland and secured better pricing than his wife had. The actual evidence regarding
Decedent’s ability to manage his affairs does not point to susceptibility.
{¶36} Next, Appellants argue that Decedent was susceptible to undue
influence as illustrated by Appellee “misusing” Decedent’s money. Appellants
argue that this showed that Decedent was susceptible to manipulation.
{¶37} Notably, there is some evidence to support Appellants’ claims that
Appellee used Decedent’s money through the affidavits of Bob Rieman and Tom
Bradshaw. Both individuals, friends of Decedent, indicated that Decedent showed
them bank account statements wherein Appellee was withdrawing over $800 per
month from a bank account for a personal loan, separate from Appellee’s regular
expenses. While this evidence could be troubling if certain other facts were present,
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it is important to emphasize that Appellee had a joint bank account with his parents
even while his mother was still alive. The evidence indicated Decedent and his wife
paid for many of Appellee’s expenses, and according to the UAW attorney’s notes,
Decedent was clearly concerned with Appellee’s ability to provide for himself—a
concern he did not have for Appellants Opal or Christy. Moreover, Appellee also
testified in his deposition that he contributed money to the joint account while he
was working.
{¶38} Furthermore, there is no time frame indicating when Appellee’s
purported withdrawals were made from the joint bank account, which could have
been long after the will was executed and irrelevant to the question of undue
influence at the time the will was executed. Thus we have no evidence that the
money was actually misused, or when it was used it all. But, even assuming
Appellee did misuse some funds, there is no evidence that when he did he was
exerting undue influence in the execution of the will. Young v. Bellamy, 5th Dist.
Delaware No. 16CAF110051, 2017-Ohio-2994, ¶ 19 (stating undue influence must
be present at the time of the execution of the will resulting in dispositions which the
testator would not otherwise have made.) The actions of Appellee after the
execution of the will are simply not relevant to a determination of undue influence.
{¶39} Appellants next argue that Appellee had the opportunity to influence
Decedent and that he did, in fact, exert his influence to get Decedent to change his
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will so that he was the only beneficiary. Appellants contend that after Decedent’s
wife died, Decedent needed assistance with his finances and with running errands.
Further, Appellants indicate that Appellee saw Decedent almost daily. In addition,
Appellants assert that Appellee was a liar, who was always making up stories. For
example, Appellant Christy testified that at Decedent’s funeral Appellee told
“unbelievable stories all the time” such as being “attacked by 6 guys dressed like
Ninja’s [sic].” (Christy Pursell Depo at 23). Christy also testified that Appellee told
his niece that he wrestled a bear once, but it had a muzzle on its face. Appellants
also indicated that Appellee fabricated a story that the Appellants were going to put
Decedent in a nursing home.
{¶40} Again, however, at best it is unclear when these statements were
allegedly made, and some of the statements were definitely made several years after
the 2014 will was executed. Appellants’ assertions that Appellee is a liar and that
he could be manipulative does not establish that he exerted any “undue” influence
on Decedent, particularly when compared to the unequivocal statement of the UAW
attorney who indicated she spoke with Decedent and determined that he was
executing his will freely.6
6
We note that pursuant to the affidavit of Bob Rieman, presented by Appellants, during the last years of
Decedent’s life, his relationship with Appellee was strained, but the two had been close prior to that. Even
with this purportedly “strained” relationship with Appellee in his later years, Decedent never decided to alter
his will. Decedent’s friend asserted that he had conversations with Decedent toward the end of Decedent’s
life that led him to believe that a new will had been made subsequent to the 2014 will. However, there is no
other evidence of this will. Decedent’s friend implied that Appellee disposed of the will when he gained
access to Decedent’s residence after Decedent passed to look for “important papers.” Notwithstanding this
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{¶41} Importantly, we have already determined that there was no evidence
that Decedent lacked the mental capacity to understand the will he executed in 2014.
That the will may be considered unfair by the Appellants does not directly indicate
that Decedent did it with a lack of understanding or under undue pressure. It is
important to emphasize that influence alone is not enough to establish undue
influence, the influence must be “undue” and induce the testator to act contrary to
his wishes. Fikes v. Estate of Fikes, 5th Dist. Hamilton No. C-210515, 2022-Ohio-
2075, ¶ 9. We simply have no evidence of that here.
{¶42} Upon reviewing the record, the trial court found that the only evidence
of undue influence was speculation by the Appellants, which was not sufficient to
establish a genuine issue of material fact with regard to undue influence. After our
de novo review, we agree with the trial court. Appellants attempt to point to
instances that occurred well after the execution of the 2014 will to show that undue
influence had occurred, but these later assertions and family squabbles do nothing
to alter the analysis. Therefore, Appellants’ first assignment of error is overruled.
point, the “general rule * * * is that declarations of the testator not made contemporaneously with the
execution of the will or so near thereto as to constitute a part of the res gestae are not admissible as substantive
proof of the fact of undue influence.” See West v. Henry, 173 Ohio St. 498, 502.
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Conclusion
{¶43} Having found no error prejudicial to Appellants in the particulars
assigned and argued, the judgment of the Allen County Common Pleas Court,
Probate Division, is affirmed.
Judgment Affirmed
WILLAMOWSKI and ZIMMERMAN, J.J., concur.
/jlr
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