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Fether v. Conkey

Court of Appeals of Ohio, Third District

July 22, 2013

RUTH FETHER, ET AL., PLAINTIFFS-APPELLANTS,
v.
RAYMOND D. CONKEY, JR., ET AL., DEFENDANTS-APPELLEES.

Appeal from Defiance County Common Pleas Court Probate Division Trial Court No. 16680A

Richard Kolb and Daniel McQuade for Appellants.

Stephen K. Snavely for Appellee.

Conkeys Marc F. Warncke for Appellee Sinn.

OPINION

SHAW, J.

{¶1} Plaintiffs-appellants Ruth Fether, Sherrie Barnes, and Teresa Dew (collectively, "appellants") appeal the December 14, 2012, judgment of the Defiance County Common Pleas Court, Probate Division, granting summary judgment to defendants-appellees Raymond D. Conkey, Jr., Linda K. Conkey, and Barbara Sinn, individually and as Executor of the Estate of Kermit Ridenour, in a will contest case.

{¶2} This case involves the last will and testament of Kermit L. Ridenour ("Ridenour"), two codicils amending that will, and Ridenour's beneficiary designations on selected annuities. Ridenour was diagnosed with cancer in April of 2008. After receiving his diagnosis, Ridenour began working with attorney James Weaner to get his estate plan in order.

{¶3} On April 10, 2008, Ridenour executed a General Power of Attorney designating his friend and neighbor Barbara Sinn ("Sinn") as his attorney-in-fact, giving Sinn authority to handle Ridenour's business affairs in the event that Ridenour became disabled.[1]

{¶4} On May 6, 2008, Ridenour executed his Last Will and Testament at attorney James Weaner's office. The will made a specific bequest of Ridenour's two 80-acre farms to Ray Conkey, Jr. ("Ray") and his wife Linda Conkey ("Linda"), or their survivor. Ray had been Ridenour's tenant-farmer since Ridenour retired from farming, and Ridenour considered Ray to be like a son to him. (Sinn Depo. at 48). Ray had known Ridenour all his life, they attended church together and were "very close friends." (Ray Depo. at 23). In addition, Ridenour and Ray Conkey, Sr. had been lifelong friends since childhood. Ridenour had no children, was never married, and his closest living relatives were his sister, Ruth Fether, and her children, Teresa Dew and Sherrie Barnes. Aside from the farms, the remainder of Ridenour's estate in his will was left to his sister, Ruth Fether.

{¶5} Over the course of the next two years, Ridenour received treatment for his cancer while he lived independently on one of his farms. On or about April 6, 2010, Ridenour received news that there was nothing else that could be done for his cancer, so he voluntarily entered a hospice facility in Defiance, Ohio. Shortly after entering into the hospice facility, Ridenour executed two codicils, the first dated April 7, 2010, and the second dated April 12, 2010. The codicils distributed certain items of personal property and made monetary bequests to Ridenour's church and to a cemetery.

{¶6} Appellants in this case claim that prior to the execution of the second codicil, a discussion was had at the hospice facility between Ridenour and appellants wherein Ridenour decided that he would alter his will to leave the farms to appellants. Neither codicil changed the will with regard to the two 80 acre farms or addressed the farms in any manner.

{¶7} On June 9, 2010, and June 25, 2010, Ridenour changed the beneficiaries of two annuities to his estate.

{¶8} On August 26, 2010, Ridenour died at the hospice facility. On August 31, 2010, his last will and testament, as modified by the two codicils, was admitted to probate and Sinn was appointed as the estate executor.

{¶9} On December 16, 2010, appellants filed a complaint against Sinn, and the Conkeys, asserting that the will and codicils were procured as a result of undue influence. (Doc. 1).

{¶10} On January 10, 2011, the Conkeys filed an answer. (Doc. 19). On February 15, 2011, Sinn filed an answer. (Doc. 32).

{¶11} Subsequently, discovery was conducted. During the course of discovery, depositions were taken of attorney James Weaner, Ruth Fether, Teresa Dew, Sherrie Barnes, Ray, Linda, Sinn, and Donald Suffel.

{¶12} On January 31, 2012, the Conkeys filed a motion for summary judgment asserting that absolutely no evidence was in the record that would establish "undue influence." (Doc. 63). On that same date, Sinn filed a motion for summary judgment making similar arguments, adding that the record contained evidence that Sinn had actually advised Ridenour against leaving the farms to the Conkeys, and that there was no evidence that Sinn had influenced Ridenour or had any motivation or desire to influence Ridenour to leave his farms to the Conkeys. (Doc. 65).

{¶13} On February 27, 2012, appellants filed a response to the summary judgment motions. (Doc. 68). On March 8, 2012, Sinn filed a reply to appellants' response. (Doc. 69).

{¶14} On December 14, 2012, the trial court filed its judgment entry on the matter, granting defendants' motions for summary judgment. The court found that "[s]ince no evidence exists of the exertion or attempt to exert undue influence upon the Decedent as it relates to the execution of any of the * * * documents, this being an essential element of either definition of undue influence, the court finds that there is no genuine issue as to any material fact and that the moving parties * * * are entitled to judgment as a matter of law." (Doc. 73).

{¶15} It is from this judgment that the appellants appeal, asserting the following assignments of error for our review.

ASSIGNMENT OF ERROR 1

THE TRIAL COURT ERRED IN FINDING NO EVIDENCE WAS PRESENTED TO DEMONSTRATE UNDUE INFLUENCE ...


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