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In the

October 28, 2011


T.C. NO. 10416WC-09-86 (Civil appeal from Common Pleas Court, Probate Division)

The opinion of the court was delivered by: Froelich, J.

Cite as In re Estate of Marsh,


{¶1} Elaine Grayson appeals from a judgment of the Greene County Court of Common Pleas, Probate Division, which granted summary judgment to Richard and Martha Marsh in Elaine's will contest action.*fn1 For the following reasons, the trial court's judgment will be affirmed in part and reversed in part, and the case remanded for further proceedings. I

{¶2} Elaine Grayson and Richard Marsh are the surviving children of Clara Marsh, who died on March 26, 2008. Elaine has been married to John Grayson since 1966. Richard and Martha (whose nickname is Sam) married in 2005. During the relevant time period, Clara lived in Xenia near the Graysons; the Marshes reside in Willoughby near Cleveland.

{¶3} On January 26, 1996, Clara executed a will ("the 1996 will"), which left her estate to her husband, if he were alive, and to her children equally, if her husband predeceased her. Clara's husband, LeRoy, subsequently died in 1996. In 2003, Clara sold her home and moved into a condominium purchased with proceeds from the sale of the house and additional money contributed by her son, Richard. After the purchase, Clara executed a quit claim deed that made Richard and Clara joint tenants with right of survivorship.

{¶4} In January 2004, Clara wrote a letter to her children, indicating that "[s]ince the purchase of my condo, I find it necessary to write a new will." The letter set forth her wishes regarding funeral arrangements and the disposition of her property. Of note, the letter stated: "I am sure you know that if it were not for Richard I would not be in this Condominium today. He wanted it for me as much as I and he did all he could do to get it. I am most grateful. Richard and I own this house equally. There is a recorded document (a survivorship deed) that leaves the condo to Richard at my demise. It is only right that I do this for him. He has done everything he could (physically and financially) because he wanted this move as much as I. I sincerely hope that this will not cause any friction between my children." The letter was not witnessed, and neither party has claimed that this letter qualified as a valid will under Ohio law. See R.C. 2107.03 (requiring at least two witnesses to create a valid will).

{¶5} In January 2006, Clara moved to Elmcroft Assisted Living, and the condominium was listed for sale. The Graysons and the Marshes disagreed about how the proceeds of the sale should be distributed. Richard informed the Graysons that Clara wanted the proceeds to be placed in a joint survivorship account in Clara and Richard's names. The Graysons believed that Clara's proceeds should be placed in her (Clara's) existing Merrill Lynch account. During July 2006, the Graysons and Marshes exchanged numerous e-mails relating to Clara's assets and whether she needed a guardian.

{¶6} On July 26, 2006, John (Clara's son-in-law) filed a petition for guardianship of Clara in the probate court, alleging that Clara had Alzheimer's disease and dementia. John acknowledged in his deposition that the guardianship proceeding mostly "was about determining where Clara's proceeds went, whether she kept control of them or they [were] given to someone else." Richard opposed John's petition and sought to be appointed Clara's guardian. It is clear that there was friction between Richard and the Graysons in 2006 prior to the filing of John's petition and that the relationship deteriorated after its filing.

{¶7} On August 19, 2006, unbeknownst to the Graysons, Clara executed a handwritten will ("the 2006 will"). This document stated, in its entirety: "Because of all the legal problems Elaine and John are causing, I am afraid my final wishes will be ignored. To prevent this from happening , this is my new will: I leave everything to my son Richard and his wife Sam. I love you all very much." (Emphasis in original.) The will was signed and dated by Clara. On September 1, 2006, Pamela E. Gaylor and Patricia B. Fuller, the priest and secretary, respectively, of Christ Episcopal Church in Xenia, signed the document under the handwritten sentence (written by Gaylor), "Clara Marsh is doing this of her own free will."

{¶8} In approximately late April 2007, Clara moved to the Alzheimer's unit at Elmcroft, and she remained there for approximately one month until she fell and broke her hip, requiring surgery. Following her hospital stay, Clara moved to Greene Oaks Nursing Home, and soon was placed in the Alzheimer's unit there. Clara died on March 26, 2008.

{¶9} On March 27, 2008, John filed the 1996 will with the probate court. The will was admitted, and John was appointed executor of Clara's estate in accordance with that will. On May 2, 2008, Richard filed an application to probate the 2006 will. After a hearing, the 2006 will was admitted to the probate court, and Richard was appointed administrator of Clara's estate.

{¶10} Elaine, Clara's daughter, subsequently filed this action against Richard and Martha, challenging the validity of the 2006 will. Elaine claimed that Clara lacked the requisite testamentary capacity to execute the 2006 will and that Richard had exerted undue influence upon Clara. Richard and Martha moved for summary judgment on Elaine's claims, and Elaine opposed the motion. After considering the parties' submissions, the trial court found no genuine issues of material fact and granted Richard and Martha's summary judgment motion.

{¶11} Elaine appeals from the trial court's judgment. In her sole assignment of error, Elaine claims that the trial court erred in granting Richard and Martha's motion for summary judgment.


{¶12} "The purpose of a motion for summary judgment is to test whether genuine issues of material fact exist such that a trial is necessary to resolve those issues." Abroms v. Synergy Bldg. Sys., Montgomery App. No. 23944, 2011-Ohio-2180, ¶34. Although the existence of testamentary capacity and undue influence are questions of fact, "disposition by summary judgment is appropriate in a will contest." Bustinduy v. Bustinduy (Dec. 18, 1998), Champaign App. No. 98-CA-21.

{¶13} Summary judgment should be granted only if no genuine issue of material fact exists, the moving party is entitled to judgment as a matter of law, and reasonable minds can come to but one conclusion, which is adverse to the nonmoving party. Civ.R. 56; Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66.

{¶14} Upon a motion for summary judgment, the moving party bears the initial burden of showing that no genuine issue of material fact exists for trial. Dresher v. Burt (1996), 75 Ohio St.3d 280, 292-93. Once the moving party satisfies its burden, the nonmoving party may not rest upon the mere allegations or denials of the party's pleadings. Id.; Civ.R. 56(E). Rather, the burden then shifts to the non-moving party to respond, with affidavits or as otherwise permitted by Civ.R. 56, setting forth specific facts which show that there is a genuine issue of material fact for trial. Id. Throughout, the evidence must be construed in favor of the non-moving party. Id.

{¶15} An appellate court reviews summary judgments de novo, meaning that we review such judgments independently and without deference to the trial court's determinations. Koos v. Cent. Ohio Cellular, Inc. (1994), 94 Ohio App.3d 579, 588.


{ΒΆ16} First, Elaine claims that the trial court erred in granting summary judgment to Richard and Martha on the ...

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