Application of the Ohio Trust Code: Cundell v. U.S. Bank, Hamilton App. Nos. C-070081, C-070082, 2007-Ohio-7067. This case involves interpretation of the Ohio Trust Code which went into effect on January 1, 2007. The case discussed when the Trust Code can be retroactively applied as well as how courts in Ohio obtain jurisdiction over non-resident Trust beneficiaries in Ohio trust litigation cases. Notably, when trust beneficiaries receive money distributed from a Trust that is administered in Ohio, the beneficiaries subject themselves to the jurisdiction of Ohio courts. Additionally, the case further discusses the concept of imposing a constructive Trust on people who obtain assets as a result of wrong doing.
Appointment of Disinterested 3rd Party as Guardian Over Those Nominated in Power of Attorney: In Re: Guardianship of Scobie, Lucas App. No. L-07-1177, 2008-Ohio-364. An incompetent adult had executed, earlier in her life and during a period of competency, 2 sets of valid estate planning documents naming two different individuals as her guardian. Both nominated guardians apfplied to be appointed guardian. In light of hostility between the applicants and their inability to always act in the ward's best interest, the Court of Appeals affirmed the Probate Court's ruling that neither applicant was suitable to serve as guardian and appointed a disinterested third party despite the fact that the incompetent adult had expressed strong preference for the 2 applicants in her estate planning documents.
Reformation of Trust to Carry Out Charitable Intent (Application of Cy Pres): In Re: Trust of Lowry, Henry App. No. 7-07-07, 2008-Ohio-517. A charitable trust was created expressly for the beautification and upkeep of three cemeteries located in Henry County, Ohio. The Trustee sought to terminate the Trust. The Ohio Attorney General's Office, involved as part of its statutory duty to supervise and ensure the intent of a charitable Trust be carried out, sought to have the Trust reformed under the Cy Pres Doctrine. The Court of Appeals agreed that the Trust administration was not impracticable and should not be terminated and could not be reformed.
Right of Beneficiary of a Will to Sue Attorney Who Drafted the Will: Brian v. Wright, Franklin App. No. 06AP-962, 2007-Ohio-942. The Court of Appeals reviewed whether a Plaintiff involved in estate planning legal malpractice case could sue the attorney despite no attorney/client relationship between the Plaintiff and attorney. The Plaintiff claimed that a Will was drafted by an attorney for an incompetent testator. Plaintiff argued his interest in the Will was fixed ("vested") at the time because the incompetent testator could not change his will going forward. The Court of Appeals noted that the incompetent testator had lucid days and by implication could have days where he was able to change his will. The Court of Appeals relying on Ohio Supreme Court precedent noted that in the absence of fraud, collusion or malice, a potential beneficiary under a Will cannot sue the testator's lawyer for legal malpractice in the drafting of the Will unless the plaintiff has a vested interest in the will at the time of the drafting. Despite the Court of Appeals' criticism of the reasoning of the Ohio Supreme Court, it followed the long standing Ohio Supreme Court precedent.
Execution of Last Will and Testament While Under Guardianship: Meek v. Cowman, Washington App. No. 07CA31, 2008-Ohio-1123. An incompetent individual under court imposed guardianship executed a Will during the period of guardianship and incompetency. The Court held that a Will may be executed under those circumstances but in proceedings to challenge the will there is a presumption that the Will is invalid. However, evidence can be produced to rebut this presumption and demonstrate that a person had sound mind and memory to make a Will at the time of its execution and thereby rebut the claim that will is invalid.
Power of Attorney Guilty of Concealment of Assets: Rusnak v. Fleming, (Trumbull Cty. Probate Ct. 2007), 144 Ohio Misc. 2d 99, 2007-Ohio-6752. An individual used a Power of Attorney to sign certificate of deposit ("CD") signature cards changing the title of the account from the owner's individual name to joint and survivorship naming the owner's attorney-in-fact as beneficiary. The Court allowed the Plaintiff to sue the Attorney-in-Fact/Beneficiary of the CDs under a statutory claim for concealment of assets. The Probate Court held the fiduciary relationship and Power of Attorney created a presumption of undue influence in the execution of the beneficiary designation and the burden shifted to Attorney-in-Fact to show the propriety and fairness of the transaction. The Court concluded that the Attorney-in-Fact/Beneficiary of the CDs failed to rebut this presumption and therefore was guilty of a concealment of assets.
Proof of Undue Influence to Set Aside Will: Kidwell v. Pitts, Montgomery App. No. 22370, 2008-Ohio-4395. Sibling sought to invalidate the Last Will and Testament of their stepmother which left the Estate to one sibling. The Court focused on the drafting lawyer's testimony as to testator's knowledge and understanding of her assets. In the Court of Appeals review of the evidence it noted that while there was evidence that there was an opportunity to assert undue influence by other siblings, the actual exertion of the influence was not shown and therefore they could not prove that the Will was something that the testator would not otherwise have done but for the exertion of the undue influence. The Court of Appeals affirmed the dismissal of the of the will contest lawsuit.
Removal of Trustee for Conflict of Interest: In re: Trust of Bernard, Summit App. No. 24025, 2008-Ohio-48338. Testamentary Trust was established with income to family member during her lifetime and remainder interest upon the death of the family member to go to a church that the settlor helped found. The Trust language acknowledged that the Trustee had a conflict of interest as a recipient of a $50,000 bequest and having an affiliation with the church. The Trustee also became a member of the Board of Trustees of the church as well. During Trust administration, a settlement agreement was reached between the Trust and the church involving the return of a piece of property to the church. Upon the request of the income beneficiary to the Trust, the Trustee was removed due to her conflict of interest. The Court of Appeals noted that the Probate Court had clear and convincing evidence to support a finding that a conflict of interest existed since the Trustee's decisions favored the church by causing assets to be diverted from the Trust to the church rather than retained by the Trust for the benefit of the current beneficiary. The Court noted that the Trust provision recognizing a potential conflict did not excuse the Trustee from the disregard of her fiduciary duty in acting in the best interest of the Trust and its current beneficiary.
Name Change of a Minor: Charles B. v. Jennifer S., Erie App. No. E-08-012, 2008-Ohio-4276. A father of child sought to have surname of his son changed to his name rather than the name of the mother. Father and mother were never married. The Court of Appeals affirmed the trial court's determination that naming the child with the father's surname was appropriate. In examining various factors to be considered in determining the best interests of the child, clear and convincing evidence was required to show the length of time the child used the surname, the effect of the name on the father/child relationship and on the mother/child relationship, the identification of the child as a part of the family unit, the embarrassment, discomfort or inconvenience that may result when a child bears a surname different from the custodial parents, the preference of the child, if the child is of age and maturity to express a meaningful preference and any other factor relevant to the child's best interest. Despite the precedent that there is no greater benefit to the child having the father's surname versus the mother's surname, the Trial Court concluded that it is the best interest of the child under the circumstances in this case. The Court of Appeals reversed because evidence was presented that the child lived with the mother and half brother who both bore mother's surname, would attend the same school system as his half brother and could suffer embarrassment from not having the same name as his custodial mother, is babysat weekly at his maternal grandmother's with his cousins who also have the mother's surname and has been established under his mother's surname and area doctor's office and hospital. The Court of Appeals finding that the father failed to establish be clear and convincing evidence of the best interests of the child, reversed the trial court ruling changing the child's surname to the father's name.
Will Construction: In the matter of John E. Jordan, deceased, Pike App. No. 08 CA 773, 2008-Ohio-4385. Decedent attempted to execute a Will that left his entire estate to a granddaughter. The Will was drafted by a notary at the church and signed by the notary and a friend. However, they did not designate that they signed as witnesses. Granddaughter sought to probate the Will under Revised Code 2107.24 that allows wills that do not otherwise comply with the statutory formalities required of a Will to be admitted to Probate if there is clear and convincing evidence that the decedent caused the document to be prepared, that he intended it to be a Will, and that two or more witnesses saw the decedent sign it. Probate Court admitted the Will over the objection of the decedent's son and the Court of Appeals affirmed. The Court of Appeals concluded that the witness' testimony established the document contained the testator's "wishes" as it relates to his assets and that the two witnesses saw the testator sign the Will and acknowledge that it was his Will. The Probate Court concluded there was some credible competent evidence supporting the probate court's finding that the two witnesses saw the testator sign the document purporting to be his Will.
Appeal of Guardianship Ruling After Ward's Death: In re: Guardianship of Crandall, Green App. 2007 CA 45, 2008-Ohio-3479. A Probate Court granted an application for the appointment of an emergency guardian for a ward and subsequently extended the emergency guardianship for an additional 30 days. Several other court orders ensued while applications for guardianship were pending. The ward died before a final guardianship determination was made. An appeal was taken of the order granting an emergency guardianship on the basis that, while it was technically moot, due to the fact that a guardianship terminates upon the death of a ward, it presented a matter of great public importance to be resolved. The Court of Appeals ruled that the appeal was frivolous and as a result the Appellant had to pay the attorneys fees of the Appellee's lawyer. This case was successfully litigated by Reminger Co. LPA.
Authority of Power of Attorney: Grizzle v. U.S. Bank, Lawrence App. No. 07CA29, 176 Ohio App.3d 582, 2008-Ohio-3185. Probate Court granted summary judgment in favor of Estate in claim against a bank that allowed former power of attorney over decedent, who later was appointed and removed as Executor, to withdraw $41,000 in funds from the decedent's bank accounts both pre- and post-death. The Court of Appeals reversed finding there was a dispute as to whether the withdrawals were made with an apparent authority of the POA/Removed Executor to act on the decedent/Estate's behalf when making the withdrawals.
Guardianship Dispute: In re: Guardianship of Mollie Florkey, Highland App. No. 07CA22, 2008-Ohio-4994. Probate Court denied sister's application to be appointed guardian and instead appointed brother based upon the fact that he was nominated in ward's Durable Power of Attorney and because brother was found competent, suitable and willing to accept an appointment. In affirming the Probate Court ruling, Court of Appeals also concluded that the sister was not entitled to counsel in a civil proceeding and therefore cannot argue ineffective assistance of counsel and further because sister's interests were not aligned with ward's interests, she could not assert that the ward was denied the constitutionaly right of effective assistance of counsel.
Concealment of Estate Assets: In re: Estate of Brate, Warren App. CA2007-08-103, 2008-Ohio 3517. Probate Court found decedent's daughter guilty of concealing assets and failure to return assets after Court order. Estate sought guilty daughter to pay estate's attorneys fees. Court of Appeals found that though the concealment statute does not give specific authority to order the payment of attorney fees, the Probate Court's finding that the decedent's daughter acted in bad faith when she concealed various estate assets, which is a part of the finding of guilt under the concealment statute, justified attorneys fees to be awarded. However, since daughter merely possessed assets and did not wrongfully possess the assets, Court of Appeals ruled could not be found guilty of concealment though she could be ordered to return the assets to the estate.
Attempt to Vacate Appointment of Guardian: In re: Guardianship of Baker, Fairfield App. No. 07CA00065, 2008-Ohio-5079. Ward challenged the jurisdiction of the probate court to appoint a private attorney as guardian of the estate and person. Ward alleged that the appointment of a guardian was void as a result of the probate court's failure to serve notice of the guardianship hearing upon two next of kin. The trial court ruled that one person was not next of kin and the other's whereabouts were unknown therefore not entitling them to notice pursuant to Revised Code Section 2111.04 (A)(2)(b). The Court of Appeals noted that all those who were entitled to be served notice are those members of the class entitled to inherit as defined by the statute of descent and distribution at the time of application who also live in Ohio. Since at the time of the application, the ward's two daughters who would qualify as next-of-kin under the statute of descent and distribution did not reside in Ohio, they were not entitled to notice and the order appointing the Guardian was not vacated.
Attempt to Set Aside/Invalidate Beneficiary Designation on Life Insurance Policy: Albert Ament, M.D., as Trustee of Trust Agreement between Kyung H. Kim and Albert D. Ament v. Reassure American Life Insurance Co., et al., Cuyahoga App. No. 91185, 2009-Ohio-36. Decedent's husband, who was also Trustee of trust for benefit of husband and kids, sought to invalidate life insurance beneficiary designation naming decedent's sister, instead of Trust, as beneficiary of $500,000 life insurance policy. The jury returned a verdict finding the beneficiary designation naming the sister was valid. The Court of Appeals affirmed the jury's finding and further found that Plaintiff had completely failed to show evidence of undue influence thereby prohibiting the trial judge from instructing the jury on undue influence. In addition, Court of Appeals ruled that Trustee had duty to pursue claim on behalf of the Trust and therefore, maintained privilege defense with respect to decedent sister's counter-claim for tortious interference with contract.
Removed Guardian and Her Attorney Found in Indirect Civil Contempt: In re Guardianship of Hards, Lake App. No. 2007-L-150, 2009-Ohio-1002. After ward died, and for several years, removed Guardian and her Attorney disobeyed various Probate Court orders on the asserted basis that Probate Court lacked jurisdiction over deceased ward's affairs. 11th District Ohio Court of Appeals affirmed the Probate Court's finding that a) removed Guardian and her Attorney were guilty of indirect civil contempt for disobeying court orders to assist successor guardian to file final account and for attorney in advising client to disobey court orders, and b) successor guardian and special master were entitled to their attorneys fees and costs incurred as a result of former guardian and her attorney's obstructionist and contemptuous behavior.
