Ohio Probate Law Updates

In re Estate of Wilson, 9th Dist. Summit C.A. No. 29738, 2021-Ohio-1056

The probate court denied the application to administer an estate filed by the executor nominated under the decedent’s will after the applicant’s brother, who was a next of kin of the decedent but not a beneficiary under the will, filed a will contest action against the applicant and other litigation. The denied executor appealed.

The Court of Appeals ruled that the probate court has discretion to appoint a fiduciary of an estate and the appellant failed to show an abuse of discretion. It was undisputed that there was conflict between the applicant and the objector, and it was undisputed that there was litigation. The court did not find it material that the challenged will and the prior will were pour-over wills with a trust as the sole beneficiary.

The Court of Appeals also rejected the appellant’s argument that the objector did not have standing to object to his appoint as a fiduciary because he was not a beneficiary under the challenged will or a prior will. The Court reasoned that all next of kin are entitled to notice of a fiduciary’s application and thus have standing to object to the appointment.

In re Estate of Cornell, 6th Dist. Williams No. WM-200-005, 2021-Ohio-877

After Alfred Cornell’s death, two wills were presented for probate: a will dated in 2001, which left the probate assets to a trust, and a will dated in 2015, which appointed Alfred’s son, Galen, as the fiduciary. The probate court accepted the 2015 will for probate and appointed Galen as Executor. The co-trustees – as beneficiaries of the 2001 will – filed a will contest. The will contest ended in a settlement reinstating the 2001 will and appointing Thompson Smith as executor as of March 2019.

In June 2019, Brian Kaiser, the attorney who represented Galen for his stint as executor, wrote to Smith requesting his attorney fees for estate administration in the amount of $6,305.80. On October 22, 2019, the estate filed and the probate court immediately approved attorney fees, executor fees, accepted a statement in lieu of final account, and discharged Smith as Executor. On October 29, 2019, Smith wrote to Kaiser denying the claim for his attorney fees.

In February 2019, Kaiser and Galen each moved to reopen the estate to address Kaiser’s attorney fee claim and Galen’s concern that the fees paid to Smith and his attorney were inflated due to the a piece of real estate titled to the trust having been included in the probate inventory. The probate court denied the reopening of the estate. Galen appealed.

The Estate argued Galen was not a beneficiary and had no standing to appeal or to object to the fiduciary and accounting fees. Furthermore, the Estate argued that Attorney Kaiser did not file suit within 2 months of the October 29, 2019 “rejection,” therefore R.C. 2117.12 barred his claim. The appellate court held it was an abuse of discretion not to reopen the estate.

The 2001 will poured into a trust, of which Galen was a beneficiary; therefore, he was an “interested party” with standing to object to the expenses of the estate. Galen, as a next of kin, was entitled to a copy of the estate inventory pursuant to the local rule, but had not received one – and therefore did not have the opportunity to object to the inclusion of the real estate. Further, the probate court was required by R.C. 2109.32 to set the final account for a hearing at least 30 days after the filing of the account. The probate court approved the filings immediately, so no one had a chance to object to it.

With regard to Kaiser’s claim for attorney fees, the appellate court noted that the 6-month deadline to file claims under R.C. 2117.06 does not apply to claims for attorney fees which were incurred as estate administration. Such fees did not exist or accrue before death. While Kaiser did not file a suit on the claim within two months of the October 29, 2019 “rejection” letter (as required by R.C. 2117.12), Smith had been relieved of his role as executor on October 22. Smith had no authority to accept or reject the claim – therefore, the claim was still pending and the estate had to be reopened to address it.

Progressive Macedonia, L.L.C. v. Shepherd, 11th Dist. Trumbull No. 2020-T-0036, 2021-Ohio-792

A nursing home (NH) petitioned the probate court to remove the guardian of one of the NH’s residents. The NH alleged that the guardian had allowed the resident-ward’s Medicaid to lapse, so the NH was not being paid. The probate court assigned a guardian ad litem (GAL) to review the matter. The GAL determined that the removal petition was not “well-founded” and payment to the NH was rectified by a retroactive Medicaid application. The Court ordered that the GAL “shall be entitled to compensation and expenses for serving as GAL...” and a dispute arose over whether the NH had standing to seek removal – but, the ward died before the Court could issue rulings. The GAL then filed a motion for its fees, and a magistrate issued an order that the NH must pay the GAL’s legal fees. The same day, the Court adopted the magistrate’s order. The NH appealed the Court’s order, but did not object to the Magistrate’s order, regarding payment of the GAL’s fees and costs.

The court of appeals upheld the order for the nursing home to pay the GAL’s attorney fees. The NH made a variety of technical and procedural arguments in its own defense, including that the NH lacked standing in the first place and therefore the magistrate’s decision and judgment entry were void. The court of appeals agreed that guardianship proceedings are in rem and are typically limited to the guardian, the ward and the court; therefore, the probate court probably erred in entertaining the NH’s motion to remove. However, the NH invited this error by bringing the claim in the first place and vigorously asserting its rights. Thus, the court of appeals found that other “interested parties” could seek to remove a guardian in certain circumstances, and in this case any error was voidable by the court, but not void ab initio.  

McMillan v. McMillan, 8th Dist. Cuyahoga No. 109048, 2021-Ohio-698

James and Tonya married in 2004. In February 2017, James left the marital home and moved in with his daughter, Ms. Hood. On March 10, 2017, Tonya applied to be guardian of James and Ms. Hood later filed a competing application to be her father’s guardian. On March 14, 2017, James (through a lawyer) filed a petition for divorce from Tonya, alleging incompatibility and gross neglect.

In June 2017, the probate court appointed Ms. Hood as James’s guardian, in part because of the conflict of interest between James and Tonya due to the pending divorce.

In the divorce trial, Tonya testified that James attempted to reconcile in June 2017 by coming back to the marital home and that James did not want a divorce. Ms. Hood testified that James filed the divorce petition of his own volition and that the June 2017 incident was not an attempt at reconciliation, but rather James had wandered, gotten lost, and appeared at his prior residence. James did not testify in the divorce trial; neither party attempted to call him. The domestic relations court found James was not competent based on the probate court record and that although there was not evidence of gross neglect or incompatibility, the record was clear that James and Tonya had lived separate and apart for more than one year. The domestic relations court granted the divorce over Tonya’s objections.

Tonya appealed the divorce asserting that granting the divorce solely on the testimony of a spouse’s guardian was improper. The appellate court affirmed and distinguished this case from Boyd v. Edwards, 4 Ohio App.3d 142 (8th Dist.1982), where the guardian filed the petition and the court thwarted attempts to allow the ward to testify. In James’s matter, he filed his own petition for divorce and there was no evidence before the domestic relations court that James was competent or able to testify or express his wishes. There was no error in granting the divorce based on living separate and apart for one year and based on the testimony of the guardian.

Froelich v. Rogers, 2d Dist. Montgomery No. 28916, 2021-Ohio-604.

Steven died intestate, survived by his brother Darryl and, allegedly, two minor children that Steven fathered out of wedlock. After Steven’s death, the local child support agency filed a paternity complaint against Steven and DNA evidence showed that the Steven was likely the father of the two minor children. The juvenile court entered an order of paternity but denied child support due to Steven’s death. A third party applied to administer the estate and petitioned the probate court to determine Steven’s heirs, naming Darryl and the two minor children as potential heirs. Darryl argued that determinations of paternity after the decedent’s death are invalid for purposes of inheritance. The administrator provided the probate court with the juvenile court order. The probate court determined that the minor children had established Steven as their father and there was no evidence to the contrary. The probate court ordered the minors as Steven’s only heirs without a hearing.

 The court of appeals reversed, finding that Darryl had a potential property interest in the estate and the hall mark of due process is the right to notice and a hearing before a party can be deprived of a property right. Because there was no hearing, Darryl was denied procedural due process (no notice, no hearing) and this was a violation of his constitutional rights.

 Darryl also appealed the effect of the post-mortem parentage determination, but the court of appeals declined to address issue and remanded the case to probate court.

In re Estate of Brown, 11th Dist. Trumbull No. 2020-T-0049, 2021-Ohio-655.

Donald Brown died and one of his children filed his 2003 will for probate. Later that day, a different child filed a 2019 will for probate, but the witness signatures were handwritten in print, not cursive. The probate court set the 2019 will for a hearing on whether it was sufficient on its face. After a hearing that included testimony from the witnesses to the will confirming their printed names, the probate court concluded the 2019 will was sufficient on its face and accepted the will for probate. The proponents of the 2003 will appealed the decision.

The court of appeals dismissed the appeal for lack of a final appealable order. The court of appeals reasoned that the real dispute was over the validity of the 2019 will and the order admitting it to probate merely determined the will appeared valid on its face. The 2003 proponents had other remedies, such as opposing the fiduciary’s appointment in the 2019 will and filing a will contest.

Decot v. Biggerstaff (In re Biggerstaff), 5th Dist. Perry No. 20 CA 00012, 2021-Ohio-591

Mother and Father had were divorced and father moved to California. Mother later applied to probate court to change the last name of their minor daughter to mother’s last name. Mother listed Father’s last known address on her application, but never perfected service on Father. Instead, mother selected publication as her service method and followed the rules for publication. After the publication period was complete, the probate court granted the application without hearing. Father later found out and appealed.

The court of appeals reversed the name change because the father’s address was known but service was not perfected. Service by publication is not proper when the last known address is known unless and until the applicant can prove failure or refusal of service.

In re: Pena, 6th Dist. Erie No. E-19-060, 2021-Ohio-531

On September 27, 2019, based on affidavits from a doctor pursuant to R.C. 5122.11 and R.C. 5122.111, Erie County Probate Court ordered the appellant to be held at the hospital due to mental illness. The following day, appellant was admitted to a hospital in Lucas County. On October 1, doctors submitted affidavits to Lucas County Probate Court to have the appellant hospitalized due to mental illness. Lucas County granted the order to hospitalize appellant.

By law, the probate must have a hearing within 5 days of an order to hospitalize a person. Erie County never held such a hearing based on their September 27 order. Lucas County held a hearing on October 3, at which time the magistrate ordered that the appellant be hospitalized not longer than 90 days. Appellant filed objections to the magistrate’s decision and the court scheduled a hearing before the judge on October 24. At this hearing, a doctor testified that the appellant no longer required hospitalization. Based on the testimony, Lucas County Probate Court found a lack of clear and convincing evidence of mental illness.

Appellant appealed only the September 27, 2019 order of Erie County Probate Court. She made no appeal of any order issued by Lucas County Probate Court. Generally, a person in appellant’s position can appeal a finding of mental illness because of the stigma such a finding may carry.

The appellate court dismissed this appeal for lack of jurisdiction. The Sixth District found that Erie County Probate had issued only a temporary order, and because Erie County had no hearing within the five days required, that case was dismissed. There was no finding of mental illness for appeal.

McGraw v. Jarvis, 10th Dist. Franklin No. 19AP-538, 2021-Ohio-522 

Please note: This case has complicated set of facts and procedural nuance that resulted in cross-appeals. We recommend a full and careful reading of the opinion. A Reminger blog is forthcoming about this nuanced matter.

Lehmann, et. al. v. Westhoeffer, et. al., 5th Dist. Tuscarawas No. 2020 AP 01 0001, 2021-Ohio-529

On the day of her death, Kies executed a last will and testament that Westhoeffer, her friend of 30+ years and neighbor assisted her in preparing. The will had only 1 witness. The will left Kies’s entire estate to Westhoeffer and made her the executor. After a hearing, the will was admitted under R.C. 2107.24, the non-conforming will statute. Kies’s heirs-at-law included 31 cousins. Lehmann, an heir-at-law filed a pro-se will contest that failed to name all next-of-kin. Two other groups of cousins, represented by counsel, also filed will contests. Then, Lehmann amended his complaint without leave of court and named thirty “plaintiffs” other than himself, but did not issue proper service to all parties. Over his objections, the probate court dismissed Lehmann’s will contest for failure to properly add necessary parties. Lehmann did not appeal. The probate court proceeded to trial on the two will contest cases filed by other next-of-kin.

After the court empaneled a jury, the parties settled the two will contests. Lehmann participated in settlement discussions and agreed with the settlement. Nonetheless, Lehmann filed motions to stay the settlement. Ultimately, the probate court approved a final accounting that distributed the estate pursuant to the settlement terms. Lehmann received and cashed his distribution pursuant to the final account. Lehmann then filed a “motion for summary judgment” alleging fraud, undue influence, lack of capacity, and the application of the voiding statute because Westhoeffer was involved in the preparation of the will. The probate court denied this “motion for summary judgment,” terminated the litigation, and closed the estate. Lehmann appealed on his own behalf and on behalf of eight others.

The appellate court affirmed the probate court. Frist, the appellate court notes that Lehmann cannot sue on behalf of others as he is not a licensed attorney. Next, with regard to all of Lehmann’s assignments of error, the appellate court found that Lehmann never properly contested the will. His complaint was dismissed for not including the proper parties; Lehmann did not appeal that decision nor amend his complaint. Finally, Lehmann participated in settlement discussions and received his funds pursuant to the settlement.

Allerton v. Burns, 5th Dist. Licking No. 2020CA00042, 2021-Ohio-500

The decedent, Ona, created a will in 2014 benefiting some of her children and grandchildren, and made her daughter Deborah, the defendant, the residuary beneficiary. Ona created a new will in 2019 that gave additional cash gifts to grandchildren, but left the residue portion to Deborah unchanged. Deborah’s sister Julia contested the 2019 Will alleging undue influence and lack of capacity based on a recollection that Ona had a stroke in 2013 and her doctor said the stroke affected the portion of Ona’s brain responsible for making decisions “about finances.” There was no other evidence of how the stroke made Ona susceptible to undue influence, and Julia admitted that Ona was strong willed. The probate court granted summary judgment in favor of Deborah.

On appeal, Julia argued there were genuine issues of material fact about the validity of the 2019 will and Ona’s susceptibility to undue influence. The court of appeals disagreed, finding that though there was opportunity for Deborah to exert undue influence—Ona lived with her before 2013 until her death in 2019—there was no evidence that Ona was susceptible to undue influence, or that the 2019 Will showed a result of undue influence. As compared to the 2013 Will, Deborah could have received less than under the 2013 will, or at least Deborah did not receive any greater portion.

Love v. Love, 4th Dist. Jackson No. 20CA4, 2021-Ohio-558

The executor of an estate brought money damage claims in common pleas court for fraud, unjust enrichment, conversion and theft against the defendant. The complaint alleged the defendant fraudulently opened a joint bank account with the decedent four days after the decedent was diagnosed with dementia and the decedent was unable to identify the year, month, date, town, county, or hospital where he was and could not write a sentence or draw a clock. The executor also alleged that a lifetime transfer of real estate by the decedent to the defendant that happened two weeks after the dementia diagnosis was fraudulent and the defendant was unjustly enriched. The defendant moved to dismiss the case, citing among other reasons that this was a probate matter and the common pleas court lacked subject matter jurisdiction. The common pleas court found it did not have subject matter jurisdiction to undo the real estate transfer because the result would be for the real estate to become a probate asset, but retained jurisdiction over the remaining claims because they sought money damages and not declaratory relief.

Defendant moved for summary judgment citing the lack of medical evidence on the date of the asset transfers, but the motion was denied. Extensive testimony by family members at trial described the decedent as incontinent, confused and failing in health at and around the time of the asset changes and transfers, and that Defendant told his siblings “I’ve got all the money and there is nothing you can do about it.” The testimony was uncontroverted that the decedent lived on the defendant’s property and was dependent on the defendant for basic care and transportation. The defendant denied all of this or minimized the descriptions as isolated incidents and moved for a directed verdict before the case was sent to the jury. The motion was denied. The jury returned a verdict in favor of the estate and against the defendant in the amount of $419,310.

On appeal, the defendant argued the common pleas court lacked subject matter jurisdiction and that there was no medical evidence of the decedent’s condition on the exact days of the asset changes and transfers. The court of appeals acknowledged potential for probate court jurisdiction, but held that the because the estate sought money damages rather than declaratory relief, the common pleas court had subject matter jurisdiction. The court also found there were genuine issues of fact regarding the decedent’s susceptibility to undue influence and fraud and, even though there was no expert medical evidence, the medical records and the and lay testimony about the decedent’s health around the dates of the assets transfers was sufficient evidence for a jury to believe there was fraud or undue influence.

Filo v. Filo, 12th Dist. Madison Nos. CA2020-01-003, CA2020-03-009, 2021-Ohio-413

After Tammy learned that her father, Elmer, disinherited her by executing a power of appointment prior to his death, she filed a declaratory judgment action against her brother, Terry, raising claims of undue influence and incapacity. Tammy sought shelter under the presumption of undue influence because Terry and Elmer held a fiduciary relationship. Ultimately, the jury found that Elmer had capacity, and his execution of the power of appointment was free from undue influence.

On appeal, Tammy argued the probate court erred by giving instruction on testamentary capacity rather than capacity to contract, and by excluding the presumption of undue influence. With respect to capacity, the appellate court found the testamentary capacity test required the jury to make additional and specific determinations before finding capacity, and thus the end result was the same regardless of which test was provided. Finally, there was no err in the undue influence instruction because the probate court properly excluded the relevant law based on evidence produced at trial, which the court found highly creditable to rebut such presumption. 

For more analysis, see our e-newsletter dated February 26, 2021.

Disciplinary Counsel v. Schwab, 2021-Ohio-283 (Supreme Court of Ohio)

In Ohio, only the Supreme Court can determine whether or not any particular action in the unauthorized practice of law (“UPL”). In this instance, a woman held herself out as a non-lawyer. She prepared legal documents for a church, on which she identified herself as a lawyer. She then met with a man and his wife and prepared living wills, healthcare powers of attorney, and last wills and testaments with self-proving affidavits. She identified herself as a lawyer on these documents as well.

The Board of UPL found all of these actions amounted to UPL. The Supreme Court accepted the findings. The Court issued a permanent injunction for Ms. Schwab to cease the UPL. The Board of UPL further recommended, and the Supreme Court ordered, a fine of $5,000 for each of the two acts of UPL.

In re: Estate of Seiler, 9th Dist. Summit No. 29756, 2021-Ohio-115

Mr. Seiler died in May 2018 after Summa hospital treated him for approximately 6 days. Summa submitted an invoice of $341,000 to Seiler’s health insurance carrier, Western Reserve (“WR”). WR denied the claim and Summa began an administrative review and appeal process. In April 2019, Summa had exhausted its administrative appeals and WR had not paid the invoice. In June 2019 – more than 1 year after Seiler passed – Summa opened Seiler’s estate and served itself with a creditor claim for $341,000 of hospital charges.

At probate court, Summa argued its claim to be contingent under R.C. 2117.37. Summa claimed that because the appeal process had only ended in April 2019, Summa had no claim until then. Thus, they claimed, the June 2019 filing was timely. The probate court agreed and allowed the claim.

On appeal, the Ninth District reversed. The appellate court stated that a claim is contingent only when the liability is not triggered until a later and uncertain event. In this case Summa knew they had a claim against the Estate, the only question was what amount – if any – WR would pay as insurance coverage. Summa’s claim was not contingent and needed to be presented within 6 months of the date of death.

For more analysis, see our blog post.

Nichols v. Bixler, 5th Dist. Stark No. 2020CA00037, 2021-Ohio-129

Jo Bixler’s trust provided that his son, Jeffrey, had the option to purchase the family farm “based on the agricultural use value” of the property. After Jo’s passing, Jeffrey argued that this amount should be the auditor’s “current agriculture use value” (“CAUV”). CAUV is a value set by the Ohio Department of Taxation; county auditor’s tax farm land at CAUV. Generally, CAUV is 60-70% less than fair market value.

In the probate court, the judge found that the language of Jo’s trust was ambiguous with regard to the term “agricultural use value.” As a result, the judge took extrinsic evidence on the topic, including the attorney who advised Jo. The attorney testified that he and Jo reviewed numerous valuations for farm land, including CAUV, auction values, and certified farm appraisal values. The attorney was adamant that Jo intended the value to be what a farmer would pay another farmer for this land to use it for farming. The probate court found, based on this extrinsic evidence, that Jo intended the higher value – not CAUV. The probate court then heard expert testimony on this value and set the price at $1.8 Million.

On appeal, the Fifth District agreed that the term was ambiguous and it was proper to hear extrinsic evidence. The appellate court affirmed the interpretation of “agricultural use value” and the setting of the price at $1.8 Million.

Mancz v. McHenry, 2nd Dist. Greene No. 2019-CA-74, 2021-Ohio-82

In 2009, an estate fiduciary brought a concealment of assets complaint against the decedent’s daughter related to misuse of the daughter’s authority under the decedent’s power of attorney during the decedent’s lifetime, as well as post-death improper transfers of assets. The estate fiduciary was awarded judgment against the defendant and sought to collect against the defendant. The defendant failed to satisfy the judgment and the evidence showed the defendant transferred real estate and other assets to her husband in attempt to avoid collection of the judgment against her. The estate fiduciary brought a second lawsuit to void the transfers of assets to the husband as fraudulent conveyances and received a jury verdict and judgment. The defendant appealed, raising thirteen separate arguments. The court of appeals affirmed the finding of fraudulent conveyance against the wife and ordered the real estate transfer void and the other assets paid to the estate.

Szokan v. Stevens, 11th Dist. Lake No. 2020-L-020, 2020-Ohio-7001

During their marriage, Donald and Delores purchased numerous savings bonds, each listing both spouses as a co-owner. Donald and Delores divorced in 2002 and their separate agreement did not address the savings bonds. The “separation agreement stated that the spouses had “effected, to their mutual satisfaction, a division of all property…” and that upon the execution of the agreement “each party shall deliver to the other party…all items or property to which he or she is entitled….” From 2002 until Delores’s death in 2017, Delores retained exclusive possession of the bonds. Delores’s will left all of her assets to her sister but did not specifically list the bonds.

 In the probate court, Delores’s sister was appointed her executrix and filed an action to declare ownership of the bonds. Donald claimed the he and Delores had an oral agreement that the survivor would keep the bonds. The probate court granted summary judgment to the executrix finding that the agreement requires the spouses to separate their property at that time and because Delores kept the bonds, she was their sole owner.

 On appeal, Donald argue the probate court lacked jurisdiction to interpret a separation agreement and, in the alternative, interpreted it incorrectly and failed to honor his oral contract with Delores. The appellate court held that the probate court had jurisdiction to determine whether the bonds were assets of the estate and in reaching that conclusion it can interpret a separation agreement. The court further agreed that the separation agreement was clear and intended to divide all marital assets in 2002. There could be no oral modification of the agreement, so any oral contract was unenforceable. The bonds belonged to Delores and must distribute pursuant to her will.

In re: Guardianship of Rhinehart, 11th Dist. Portage No. 2020-P-0047, 2020-Ohio-7005

Joseph was appointed guardian of the person and estate of Robin. Joseph retained counsel to represent him as the guardian. The probate court also appointed a limited guardian over the ward to manage a divorce action on behalf of the ward. The limited guardian was represented by separate counsel. In November 2019, Joseph (through his lawyer) filed an application for authority to expend funds (“ATE”), which included invoices for his attorney and the divorce attorney as well as other expenses and an ongoing budget for the ward. The probate court approved the application. In December 2019, Joseph filed another ATE, listing thereon an invoice of his guardianship counsel. The probate court scheduled a hearing on this ATE, and ultimately denied the expenditures in the December 2019 ATE related to attorney fees. Joseph’s attorney moved to withdraw from the case sometime thereafter. Probate court subsequently ordered Joseph’s counsel to repay the attorney fees the court had approved in the November 2019 ATE, effectively vacating its prior order allowing the fees, sua sponte.

Joseph’s former counsel appealed, arguing that the approval of the November 2019 was a final judgment and the court could not, sua sponte, vacate it. Rather, any vacation or modification of the order would require a motion under Civ.R. 60(B). The appellate court found that the probate court’s initial granting of the November 2019 ATE was done “inadvertently” and “without due consideration.” As such, even though it was a final order, the probate court had the discretion to modify or vacate it as a clerical mistake under Civ.R. 60(B).

In re Estate of Baughman, 5th Dist. Licking No. 19CA0123, 2020-Ohio-6928

An estate fiduciary filed suit under Ohio’s Uniform Power of Attorney Act to review the conduct of the decedent’s son, who served as her agent under a financial power of attorney (“Agent”) during her life. After a hearing, the trial court ordered the agent to repay the estate damages over $302,000 for abusing his authority under the power of attorney during the decedent’s lifetime. While the permits a power of attorney instrument to exonerate an Agent (R.C. 1337.35), the document in this case did not contain such a clause. The Agent nonetheless argued for exoneration based on the broad language of the document and his relationship with his mother. The lower and appellate court held that no such clause appeared in the document, nor was one implied. The Court of Appeals found that even if a power of attorney contains exoneration language, it is not an absolute defense where there is “evidence in the record to support a finding that appellant's conduct ‘falls outside the scope of any such clause.’”

Estate of Welch vs. Taylor, 12th Dist. Clinton No. CA2020-03-004, 2020-Ohio-6909

The next-of-kin of a decedent filed suit in the general division of common pleas court alleging that an interloper took over $500,000 from decedent’s estate by convincing decedent to execute beneficiary designations and make gifts. The general division dismissed the complaint for “lack of jurisdiction,” but did not transfer the matter to the probate division. The plaintiffs then filed suit in probate, more than 3 months after the will was admitted to probate, and after the court approved the final probate account. The interloper moved for stay of discovery and for summary judgment immediately, which the probate court granted. The probate court held the lawsuit was really an attempt to contest the validity of the will and it was thus untimely and barred, and that the case was barred by res judicata because it was dismissed by the common pleas court.

The Court of Appeals reversed, finding that this was not a will contest but rather a challenge to the lifetime gifts and beneficiary changes. The assets, if recovered, would belong to the probate estate. The Court further reasoned that Civ.R. 56(F) permits discovery and it was an abuse of discretion to deny discovery and to grant summary judgment. Thus, the plaintiffs stated a claim for which relief could be granted even if there was no will contest, because if the plaintiffs were successful in undoing the beneficiary designations, those assets may revert to prior beneficiaries.

In re: Estate of Anderson, 3rd Dist. Shelby No. 17-20-03, 2020-Ohio-6924

The decedent, Betty was the payee for certain child support payments during her lifetime. When she died, there was a balance of child support arrearage owed to Betty but unpaid. The fiduciary of Betty’s estate included on the inventory the child support arrearages that Chris owed to Betty for the time period that Betty cared for Chris's daughter, Emily. Emily, who is now over the age of 18, filed exceptions to the inventory arguing that child support should not be an asset of Betty's estate but should pay to Emily directly and outside of probate court. The trial court found that Chris owed the support to Betty and there were judgments against Chris in favor of Betty to pay the support. The probate court found that the child support orders were to pay to Betty and the reason for the support paid to Betty was because Betty was providing care to Chris’s children. The probate court denied Emily’s exceptions to the inventory and the Court of Appeals affirmed, finding that the child support arrearages were properly an asset of Betty's estate.

Interestingly, the estate fiduciary for Betty’s estate was special counsel for Medicaid Estate Recover (MER). On appeal, MER argued that “estate” under the applicable MER statute, included probate and non-probate assets, and thus the MER could recover the child support arrearages even if they were not an asset of Betty’s Estate because it was an asset payable to Betty in her lifetime. The court of appeals agreed with this argument.

Zarlenga v. Zarlenga, 7th Dist. Mahoning No. 2019MA89, 2020-Ohio-6947

Two brothers, Daniel and Carmine, served as co-trustees of trusts that owned family businesses. Daniel served as president of the family businesses and Carmine lived out-of-state. The businesses and the trusts entered loan agreements requiring the companies to make payments to the trusts. Daniel allowed the companies to default and then, as a co-trustee, failed to serve default notices on the company. Daniel also used trust funds to pay into the companies and to rent himself a condo and purchase a home. Carmine sued Daniel for an accounting and sought his removal. After a hearing, the probate court found Daniel breached his fiduciary duties and ordered him to repay over $2.7 million in damages, which included amounts owed by the family businesses for having defaulted on notes on which Daniel never sought payment. The appellate court affirmed the removal and the calculation of damages finding the that the probate court has statutory authority to “compel a trustee to redress a breach of trust by paying money…”  

Ayer v. Morenz-Harbinger, 1st Dist. Hamilton Nos. C-190687, C-190716, 2020-Ohio-6861

Ruth’s will was signed in 2014, and Ruth had a stroke in 2017, which required around-the-clock care after that. Ruth’s will left almost everything to her niece, Debbie. Ruth’s nephews, who were omitted as beneficiaries, claimed Ruth’s will was the product of undue influence and lack of capacity. The nephews pointed to Ruth’s incapacity in 2017 and to Debbie’s control of Ruth’s care and frequent communication before then as signs of undue influence. Probate Court and Court of Appeals agree that evidence of lack of capacity and undue influence is limited to the time close to the execution of the will, and later incapacity or even undue influence doesn’t matter. The plaintiffs’ evidence of undue influence was too far removed from the execution of the will.   

In re: Adoption of Y.E.F., slip opinion, 2020-Ohio-6785 (Supreme Court of Ohio)

R.C. 2151.352 provides an indigent parent the right to counsel in juvenile court cases that may result in the termination of parental rights. The same right had not previously been extended to parents whose rights may be terminated in an adoption through probate court proceedings. In this case, a mother of twin boys placed her children with her sister and brother-in-law for temporary care after the boys’ father left the mother and emptied their joint bank accounts. Eventually, the sister sought to adopt the boys, alleging that the biological parents had de minimums contact and provided no support in the prior year. At probate court, the mother raised issues of equal protection and due process via  a letter from legal aid society, and requested counsel noting that she did not know how to cross-examine the witnesses herself. Her request was denied. The probate court allowed the adoption and the appellate court affirmed.

Ohio’s Supreme Court reversed, reasoning that R.C. 2151.352, which allows appointed counsel in juvenile proceedings, was unconstitutionally under inclusive under the equal protection clauses of the Ohio and United States’ Constitutions. Going forward, indigent parents are entitled to counsel in adoption proceedings in Ohio. The decision was 5-2.

In re: Guardianship of Lieber, 8th Dist. Cuyahoga No. 109646, 2020-Ohio-5625

The probate court placed Mr. Lieber under guardianship in 2016. Mr. Lieber’s daughter brought suit against him, alleging that prior to his guardianship, Mr. Lieber mismanaged funds that he held in a trust for her benefit. In October 2019, the parties reached an agreement to resolve the dispute, subject to probate court’s approval of the settlement. Mr. Lieber died 3 days before the probate court hearing to approve the proposed settlement. The probate court dismissed the application to approve the settlement finding that after the ward’s death, its jurisdiction was only to approve a final account and determine attorney fees, if any. The appellate court affirmed, holding that after the death of the ward, the probate court lacks subject matter jurisdiction to approve a settlement of a claim in a guardianship.

Moyer v. Abbey Credit Union, 2nd Dist. Montgomery No 28759, 2020-Ohio-5410

Executor went to Credit Union (“CU”) to close decedent’s account and the CU releases the account to the Executor. Executor deposits the funds in a savings account at the same CU. Later, the CU realizes that the funds were actually pay-on-death to someone, and not estate property. CU initiates a chargeback and pulls the money out of the estate savings account. Executor sues the CU in probate court for breach of contract for, among other things, trying to get the money back. Probate Court granted judgment on the pleadings for the estate. On appeal, the Second District largely agreed that the bank was not entitled to chargeback/self-help and it was just coincidence that it was able to accomplish the chargeback. But the appellate reversed on the judgment on the pleadings standard because the estate did not allege that it was actually entitled to the funds, nor that it detrimentally relied on the funds such that it was harmed by the chargeback.

Jacobsen v. Resnick, 8th Dist. Cuyahoga No. 108169, 2020-Ohio-5424

A son claimed that his mother made two gifts to him near the end of her life: a check for $24,000 and jewelry, including rings and a watch. The rings were specifically bequeathed in mother’s last will and testament. At the time of the gifts, the son was serving as his mother’s agent under a power of attorney. The son attempted to negotiate the check after his mother’s death, but it was rejected or canceled. The son filed a claim against the estate, which the estate rejected. The remaining beneficiaries filed an action to declare that the alleged gifts of the check and jewelry were the product of a breach of son’s fiduciary duty or were invalid as a result of undue influence or lack of capacity. The probate court granted summary judgment in favor of the beneficiaries finding no genuine issues of material fact finding that 1) the estate had the right to stop payment of the check; and, 2) as a result of the power of attorney, the gifts were presumed invalid and the only evidence the son presented to create an issue of fact were self-serving affidavits of himself and his fiancée. The probate court further agreed with the beneficiaries that the gifts to the son were the product of his undue influence.

 The appellate court agreed. Case law previously ruled that an uncashed check is not a completed gift. The donor still retains control and the ability to stop payment on the check. The son’s offered affidavits were self-serving, and his fiancée did not aver that she witnessed the mother deliver the allegedly gifted jewelry.

Dayal v. Lakshmipathy, 6th Dist. Wood No. ED-19-049, 2020-Ohio-5441

A husband created an irrevocable trust for the benefit of his wife, in part to take advantage of the estate and gift tax exemption of $5 million. In a later divorce action, the trial court determined that assets of an irrevocable trust are marital and thus divisible between the spouses. On appeal, the Sixth District reversed, finding the irrevocable trust was separate property for the wife. It was a completed gift and even if done for estate planning or tax reasons, the husband relinquished all rights to the property in the irrevocable trust, so he made it separate property, not marital.

In re: Transfer of Structured Settlement of P. Anderson, 2nd Dist. Champaign No. 2020-CA-15, 2020-Ohio-5408

Under the Ohio Structured Settlement Transfer Act (“OSSTA,” R.C. 2323.58, et. seq.), a transfer company must apply to probate court for approval to transfer (or “buy out”) a structured settlement. Here, a twenty-eight-year-old gentleman receives $1,500/month as part of a structured settlement. The payments are to continue for the next several decades, totaling approximately $260,000. Stone Street Originations, LLC offered him a $29,000 immediate cash payment in exchange for the rest of his monthly payments. Champaign County Probate Court’s local rule provides a prohibition on these types of transfers if the transferor receives less than 50% of the future value. Based on this local rule, probate court denies the transfer. Stone Street appealed and the court of appeals reversed, finding the probate court cannot use “a blanket policy that affects all [persons] regardless of their situation.” The OSSTA provides a list of factors for the court to consider including the best interests of the transferor, and the Probate Court must provide some analysis, even though this situation “appears unconscionable.” 

Hughes v. Hughes, 10th Dist. Franklin No. 19AP-329, 2020-Ohio-4653

The parties were co-trustees of their mother’s trust. They submitted their disputes to an arbitration and the arbitrator found that appellant committed a material breach of trust and suspended him as trustee. The suspended trustee sued to vacate that arbitration award. R.C. 2711.10 provides situations in which a court can vacate an arbitration award, such as fraud, partiality, misconduct in refusing to hear pertinent evidence, and an arbitrator exceeding his or her authority. The trial court found that the appellant merely disagreed with the arbitrator’s decision but offered no statutory grounds under R.C. 2711.10 to support vacation of the award. The appellate court affirmed.

In re: Guardianship of Siman, 8th Dist. Cuyahoga No. 109586, 2020-Ohio-4472

After the filing of competing applications between Dana and Pamela, three siblings agreed that Pamela should be appointed Guardian of their 82-year-old father. The father passed and the probate court appointed Dana the Executor of his state. Using this authority, Dana withdrew $15,000 from the guardianship account, prior to Pamela’s filing of a final account in the guardianship. Pamela moved the probate court to order the return of the funds to the guardianship, which the probate court granted. The appellate court reversed, finding that even though the funds were removed, Pamela can still complete a final account. The probate court’s jurisdiction – except for approval of the final account and determination of fees – terminated at the death of the ward.

Goddard v. Goddard, 8th Dist. Cuyahoga No. 109085, 2020-Ohio-3372

A son sued his father claiming that father was trustee of three trusts of which son was the beneficiary. The son claimed his father had failed to administer the trusts properly, failed to make distributions to him, and failed to keep him informed. As part of his summary judgment motion, the father provided evidence that two of the trusts had been fully administered and that the son had received necessary information and distributions for his benefit from the third. The father further argued that if the son had any claim, he would have known about it as of 2012 and therefore the statute of limitations had passed. The probate court granted summary judgment if favor of the father. The appellate court affirmed, finding that the son admitted he had received the assets of two of the trusts. As to the third trust, the son knew or should have known as of a March 2012 email that funds used to pay his insurance premiums and medical bills were paid for from the third trust, of which he admitted he received a full accounting.

Doran v. Doran, 1st Dist. Hamilton Nos. C-190296, C-190298, 2020-Ohio-1583

A family trust provided that it terminated in 2009. A decade later, the cotrustees still had not terminated the trust and distributed its assets. The probate court further found that the cotrustees had not communicated with the beneficiaries about the trust assets until they had to obtain counsel to enforce their rights to information. The probate court removed the trustees finding it to be in the best interest of the beneficiaries. The appellate court upheld the removal finding the probate court had ample evidence to remove the trustees and that a formal hearing is not required where the trustees had ample opportunity to defend themselves.

Foelsch v. Farson, 5th Dist. Knox No. 19CA000036, 2020-Ohio-1259

After several amendments to her estate plan, Josephine’s final trust amendment left gifts of $60,000 to two of her children in lieu of real estate she left to other children. Josephine’s trust contained a “no contest” or in terrorem clause stating that anyone challenging the trust shall be treated as predeceased. Anne, one of the children left $60,000, filed a trust contest action, which was dismissed on summary judgment. The trustees successfully moved for the in terrorem clause to be enforced against Anne. The appellate court agreed with the enforcement of the in terrorem clause, finding that the clause applied even though it was found in the trust body and Anne challenged a later trust amendment. In Ohio, there is no basis for a “good faith exception” to an in terrorem clause.

Estate of Neal v. White, 1st Dist. Hamilton No. C-180579, 2019-Ohio-4280

After Daniel Neal died in 2017, his girlfriend continued to live in the home. The Administratrix, daughter of the decedent, sought to have the girlfriend evicted. The trial court granted the eviction and restored the property possession to the Estate. The Estate further sought damages for unpaid rent on the basis of quasi-contract and unjust enrichment. because the girlfriend did not have a formal lease agreement with the decedent or the Estate. The trial court denied damages and the Estate appealed.

 The appellate court reversed, finding that the Estate had presented evidence of all the elements of unjust enrichment, including expert testimony on the value of the benefit conferred on the girlfriend. The appellate court remanded. In January 2020, the Estate won a judgment of $4,579 plus interests and costs. 

In re: Estate of Gravis v. Coffee, 9th Dist. Summit No. 28815, 2019-Ohio-2806

On June 8, 2015, Vanessa filed to be the guardian of the person and estate of William Gravis. On June 17, 2015, Jacki also filed an application. On August 20, 2015, the probate court determined Gravis to be incompetent, appointed Vanessa the guardian of the person, and requested a local attorney file an application for guardian of the estate. On November 25, the probate court appointed the local attorney as guardian on the estate.

On November 13, 2015, while the application for guardianship of the estate was still pending, Gravis executed transfer on death designation affidavits (“TODDA”) for real estate to pass to Michael and Thomas Coffee. At that point, Gravis had been served notice of the pending application, Vanessa was guardian of the person, and Gravis’s attorney knew that she had been so appointed. After Gravis’s death, his estate brought a declaratory judgment action against the Coffees arguing that the TODDAs were invalid. The probate court granted summary judgment in favor of the estate, invalidating the TODDAs.

The probate court based its findings on two statutes. First, under R.C. 2111.04(D), “from the service of notice until the hearing, no sale, gift, conveyance, or encumbrance of the property of an alleged incompetent shall be valid as to persons having notice of the proceeding.” Gravis and his counsel had notice of the application at the time he signed the TODDAs, therefore the TODDAs are invalid as a matter of law. Next, under R.C. 2111.50(D), the probate court found that as of the court’s finding that Gravis was incompetent, the probate court became his superior guardian and the probate court had not approved the TODDAs.

The Coffees appealed, asserting that the probate court incorrectly found the appointment of the guardian of the person to be an “irrebuttable presumption of incompetence” with regard to the TODDAs. The appellate court disagreed, finding that the probate court did not argue there was an irrebuttable presumption, but rather relied on the statutes cited above. As the Coffees did not address those statutes in their appeal, the appellate court affirmed.

In re: Estate of Schwenker, 10th Dist. Franklin No. 18AP-320, 2019-Ohio-2581

A father named his two children, William and Diana, as co-executors of his estate. They, in turn, retained counsel. Throughout the administration, the co-executors did not get along and oftentimes refused to cooperate with their attorney.

At the completion of the administration, counsel submitted a fee application for $73,995 for work done from September 2015 through June 2017. William objected to the fees. After a hearing with competing expert testimony, a magistrate approved the fees with some adjustments. William objected. The probate court overruled most of William’s objections, and awarded fees of approximately $68,000. The probate court further agreed to allow counsel to withdraw after the final account, which the co-executor’s refused to sign. William (but not Diana) appealed the probate court’s approval of the attorney fees as being unreasonable and against the weight of the evidence.

The appellate court notes that the determination of fees rests within the sound discretion of the trial court, and the court will not overturn the award unless they are so low or so high so as to shock the conscience. The appellate court found no abuse of discretion and ample evidence to support the fees, holding that the “poor relationship between beneficiaries or executors can support an award of higher attorney fees in a probate case.”

In Re: Guardianship of Bakhtiar, 2019-Ohio-581. 

The Ninth District Court of Appeals in the matter of In Re: Guardianship of Bakhtiar made an important ruling that allows persons interested in the welfare of another to intervene in guardianship proceedings if the intervening party can demonstrate an interest relating to the property or transaction that is the subject of the action.  Without the right of intervention in order to have a say in the guardianship proceeding, an interested party would have to file a guardianship application.

Pristine Senior Living v. Mistler, 12th Dist. Butler No. CA2019-05-083, 2020-Ohio-416

Ronald Mistler executed an admission agreement on behalf of his mother, serving as her agent under a power of attorney. Mistler’s mother could not sign the agreement due to dementia and Mistler clearly signed with a designation indicating he was “POA.” A section of the admission agreement required the parties thereto to arbitrate any disputes. At an arbitration, the arbitrator awarded the nursing facility $119,000 with a judgment entered against Mistler and his mother, jointly and severally. The award was subsequently confirmed by the trial court. Subsequently, Mistler filed a motion under Civ.R. 60(B) to set aside the order confirming the award, arguing that the order must be set aside as against him because he signed only as a POA and not individually. The lower court vacated the judgment confirming the award against Mistler and dismissed him from the case. The nursing facility appealed. The appellate court affirmed finding, as the trial court did, that “equity mandated, and justice required, granting Mistler relief… and dismissing him from the case.”

When his parents died, John, an only child, inherited $500,000, most of which passed to him outside of probate. John did probate his father’s estate to transfer title to motor vehicles but did not disclose to his probate attorney some cash and jewelry found in his father’s home, which therefore were not listed on the estate inventory. John deposited the jewelry and cash in a safe deposit box held joint with his wife and deposited the remainder in a joint savings account, segregated from the couple’s marital funds. John’s wife eventually emptied the savings account and the safe deposit box and filed for divorce. In the divorce action, John alleged the funds, the cash, and the jewelry were his separate property as having inherited it from his father. The lower court ordered John’s wife to return the funds from the joint savings account, including monies she spent for her own needs. As to the jewelry and cash, however, the court found that those assets belonged to John’s father’s estate, and not to John individually, and only probate court can determine which assets pass to a beneficiary pursuant to a will. The appellate court affirmed finding that the divorce court did not have jurisdiction over the cash and the jewelry; John would have to bring those claims in the probate court.

Collins v. Hearty Investment Trust, 9th Dist. Case No. 27964, 2017-Ohio-1270.

Karras v. Karras, 2d Dist. Case No. 26841, 2016-Ohio-8079.

Brown v. Ralston, 7th Dist. Case No. 14 BE 0051, 2016-Ohio-4916.

In re: Ball, 7th Dist. Case No. 15 BE 0004, 2016-Ohio-4917.

Nolan v. Hinzey, 7th Dist. Case Nos. 15 BE 0047, 0048, 2016-Ohio-4657.

Steiner v. Martin, 9th Dist. No. 15AP0039, 2016-Ohio-5281.

Guardianship of Edema Cardine Carpenter, Third Appellate District, Marion County, 2016-Ohio-3389.

In re: Guardianship of Terese Sweeney, 8th Dist. Case No. 103285, 2016-Ohio-3260.

Gehrke v. Senkiw, 2d Dist. Case No. 26829, 2016-Ohio-2657.

Fugate-Walton v. Walton, 5th Dist. Case No. 15CAE 07 0053, 2016-Ohio-1175.

Estate of Bohl, 12th Dist. Case Nos: CA-2015-01-005, CA-2015-01-006, 2016-Ohio-637.

Cincinnati Bar Assoc. v. Roberston, Ohio Supreme Court Case No. 2014-068, 2016-Ohio-654.

Huntington v. Riversource, 7th Dist. Case No. 2012 CI 00038, 2015-Ohio-5600.

In re: Guardianship of Mull, 7th Dist. Case No. 15 BE 11, 2015-Ohio-5440.

In re: Guardianship of Fred Van Dyke, 2d District Case No. 26465, 2015-Ohio-4202.

Estate of Dombroski v. Dombroski, 7th Dist. Case No. 14-HA-3, 2014-Ohio-5827.

Cartwright v. Batner, 2d Dist. Case No. 25938, 2014-Ohio-2995.

In Re: Estate of Ross, 11th Dist. Case No. 2015-T0009, 2015-Ohio-4030.

Wilson v. Lawrence, 8th Dist. Case No. 102585, 2015-Ohio-4677

Huth v. Kus, 5th Dist. Case Nos. 2014 AP 10 0041, 2014 AP 10 0052, 2015-Ohio-3457.

Castillo v. Ott, 6th Dist. Case No. L-14-1248, 2015-Ohio-90528.

Bayes v. Dornon, 2d District Case No. 2014-CA-129, 2015-Ohio-3053.

In Re: Estate of Cannon, 6th Dist. Case No. L-14-1069, 2015-Ohio-390.

In Re: Estate of Yeager, 11th Dist. Case Nos. 2014-T0107, 2014-T-0108, 2015-Ohio-2458.

Graham v. Boerger, 2nd District Case No. 2014-CA-17, 2015-Ohio-3261.

In re: Estate of Amoroso, 8th Dist. Case No. 102484, 2015-Ohio-3352.

Jakubs v. Borally, 8th Dist. Case No. 101756, 2015-Ohio-2696.

In re: Guardianship of Isabelle A. Hilt, 6th Dist. Case No. S-14-010, 2015-Ohio-3186.

In re: Guardianship of Pinkney, 8th Dist. Case No. 102577, 2015-Ohio-2709.

Evans v. Evans, 4th Dist. Case Nos. 12CA5, 12CA6, 2014-Ohio-4450.

Fletcher v. The Estate of Fletcher, 11th Dist. Case No. 2013-L-084, 2014-Ohio-5377.

Miller v. Shreve, 5th Dist. No. 13CA3, 2014-Ohio-4612.

In re: Estate of Deloris D. Panning, 6th Dist. No. WD-14-004, 2014-Ohio-4969.

In re: Guardianship of Collins, 12th Dist. Case No. CA2013-08-072, 2014-Ohio-5750.

Smith v. Gold-Kaplan, 8th Dist. No. 100015, 2014-Ohio-3195.

In re Estate of Thomas, 9th Dist. No. 27177, 2014-Ohio-3481.

In re Cletus P. McCauley & Mary A McCauley Irrevocable Trust, 5th Dist. No. 2013CA00237, 2014-Ohio-3489.

Estate of Small v. Bank of New York, 3d Dist. No. 15-13-10, 2014-Ohio-3546.

Kinchen v. A.R. May, Etc., 8th Dist. No. 100672, 2014-Ohio-3325.

In re Guardianship of Soltesz, 6th Dist. Nos. E-13-067, E-13-072, 2014-Ohio-2832.

Graham v. Szuch, 8th Dist. No. 2012 ADV 181974, 2014-Ohio-1727.

In re Guardianship of Basista, 11th Dist. No. 2013-G-3140, 2014-Ohio-1349.

Estate of Bevery Hersh, 1st Dist. No. C-130212, 2014-Ohio-612.

Infinity Security Solutions, LLC v. Karam Properties I, Ltd., 6th Dist. No. L-12-1313, 2013-Ohio-4415.

Wetli v. Denny, 6th Dist. No. L-13-1043, 2014-Ohio-1009.

Fischer v. Kratus, 8th Dist. No. CV-12-789598.

Rheinhold v. Reichek, 8th Dist. No. CV-782576, 2014-Ohio-31.

Blausey v. Van Ness, 6th Dist. No. OT-13-011, 2013-Ohio-5624.

In re Guardianship of Dougherty, 11th Dist. App. No. 2013-A-0048.

In re Estate of Adams, 11th Dist. App. No. 2013-A-0042.

In re Estate of Rand, 8th Dist. App. No. 99678, 2013 Ohio 4709.

Widdig v. Watkins, 4th Dist. No. 13-CA-3531, 2013 WL 4792544 (Aug. 22, 2013).

Nye, trustee v. Eastman Smith Ltd,, et al., 6th Dist. L-13-2013 Ohio 4742.

In re S.H., 9th Dist. No. 13CA0057-M, 2013-Ohio-3708 (Aug. 27, 2013).

In re Estate of Campbell, 2013-Ohio-1356, 989 N.E.2d 1090 (6th Dist. 2013).

Ross v. Hornack, 8th Dist. No. 98961, 2013-Ohio-1901.

In re Estate of Rotilio, 7th Dist. App. No. 11 BE 9, 2013 Ohio 2878.

In re Estate of Garza, 10th Dist. App. No. 12AP-1000, 2013 Ohio 2750.

Kostyo v. Kaminiski, 9th Dist. App. No. 12CA010266, 2013 Ohio 3188.