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Stanek v. Stanek

Court of Appeals of Ohio, Second District

July 12, 2019

DANIEL G. STANEK, et al. Plaintiffs-Appellants
v.
EDMUND D. STANEK, et al. Defendants-Appellees

          Civil Appeal from Probate Court Trial Court Case No. 11533C

          JUD R. MAUGER, Atty. Reg. No. 0063375 and GREGORY P. BARWELL, Atty. Reg. No. 0070545, Attorneys for Plaintiffs-Appellants

          PETER R. CERTO, JR., Atty. Reg. No. 0018880, Attorney for Defendants-Appellees

          OPINION

          WELBAUM, P.J.

         {¶ 1} This appeal arises from a dispute among siblings about their father's estate. Appellants, Daniel Stanek, Arlene Bottenfield, and Rosemarie Keenan appeal from a judgment upholding the will and a transfer on death beneficiary designation made by Edmund E. Stanek, and finding that Appellee, Edmund D. Stanek, did not exercise undue influence over his father.[1]

         {¶ 2} In challenging the judgment, Appellants have raised five assignments of error. Essentially, they contend that the trial court abused its discretion and that the judgment was against the manifest weight of the evidence.

         {¶ 3} For the reasons discussed below, we conclude that the trial court did not err in rejecting Appellants' attempt to challenge the validity of the will and transfer on death beneficiary designation due to lack of testamentary capacity and undue influence. The court's judgment was not against the manifest weight of the evidence. Accordingly, the judgment of the trial court will be affirmed.

         I. Facts and Course of Proceedings

         {¶ 4} As a preliminary matter, we note that our recitation of facts relies primarily on the testimony of Appellants, because the trial court stated that:

All the witnesses at trial were credible, except Defendant [Ed]. They projected a calm, respectful, and confident demeanor. They were responsive to questions. * * *
Defendant lacked any credibility whatsoever. His testimony was deceptive and was peppered with snide and argumentative comments. He was arrogant, flippant and evasive. Even when others were testifying, Defendant's body language was purposely distractive, rolling his eyes and shooting looks of disbelief when others were testifying. His previous blatant lie to this Court in an earlier hearing - stating that the Merrill Lynch accounts had been nearly depleted - tainted everything he said during trial. Words cannot describe the horrible impression Defendant made on the Court.

Doc. #82, Decision and Judgment Entry, p. 6.

         {¶ 5} The decedent, Edmund E. Stanek, was born in 1924 and died on February 1, 2017, at age 92. He and his wife had four children: Daniel, Arlene, Rosemarie, and Ed. In 1986, Stanek executed a will naming his wife, Maria, as his sole beneficiary. In the event that Maria predeceased him, each child was to be given an equal share of the assets. If one of the children also predeceased Stanek, his or her share lapsed and was to be distributed equally to the remaining children. Maria was named executrix, and in the event of her death, Ed was named as executor. If Ed could not serve, Daniel was to be the executor.

         {¶ 6} In 1996, Stanek sent Daniel, Arlene, and Rosemarie a letter listing an enormous amount of money that he and his wife had spent on Ed. The list was titled "Expenditures for Ed's Domestic Violence w/Firearm Divorce Cases," and disclosed more than $43, 000 in expenses that had been paid. Plaintiffs Ex. 2, pp. 2-4. The letter further stated that "[i]f neither Mom or I receive reimbursement, this sum should be deducted from Ed's share of our estate. It would not be fair otherwise." Id. at p. 1.

         {¶ 7} In March 2000, Stanek executed a First Codicil to his will. At that time, Maria had been recently diagnosed with Alzheimer's, but was still capable. Due to the progressive nature of her disease, however, the family had been advised to change paperwork for the will. The codicil designated Daniel as executor; if he were unable to serve, Arlene and Rosemarie were to serve as co-executrixes. Daniel made up packets containing the last will and testament and codicil, along with a power of attorney, and everyone received a packet. In November 2000, Stanek also sent Daniel and Arlene a detailed list of all of his and Maria's property, including their residences, income property, checking and savings account numbers, insurance policy numbers, life insurance information, IRA information, and the like.

         {¶ 8} At the time of Maria's diagnosis, Stanek and Maria lived in Cleveland and also owned a condo in Florida. Ed had lived with them in Cleveland for significant periods of time, including after his 1976 divorce; during the late 1980's; and during and after his second divorce, from around 1996 to 2001. In the 2000-2001 time-frame, Arlene had discussions with her parents about moving to Dayton, Ohio, where she lived. This was due to Maria's Alzheimer's diagnosis and the desire to keep Maria at home. As a result, Stanek and Maria came to Dayton in 2001 to look at properties. They then built a condo and moved into it in April 2002.

         {¶ 9} Ed lived with Maria and Stanek in their Cleveland house until it was sold. When Maria and Stanek moved to Dayton from Cleveland, they told Daniel to tell Ed that he was not expected and was not welcome to move with them to Dayton. Subsequently, Ed moved in with Arlene and lived with her for several months.

         {¶ 10} After the move and until 2005, Maria and Stanek were living on their own with some assistance from Arlene, who typically went over every day, first to make sure Maria got up, and then in the evening, to make meals. After Stanek had surgery in 2005, Ed and his girlfriend/fiancée moved in with his parents. During that time, Stanek paid the girlfriend about $1, 500 per week to compensate for her lost income. While these payments were anticipated to be made only for a short time, they lasted longer due to Stanek's illness. Ed did not specifically say at trial how long this lasted, but his comments in medical records indicate that his fiancée left after a couple of years, which would have been sometime in 2007. See Plaintiffs Ex. 1.

         {¶ 11} In September 2007, Ed was arrested and removed from his parents' home after assaulting his father. Shortly after the incident, Ed returned to get his belongings. Arlene and her husband were there, and her parents were outside the house. At that time, Ed said to Arlene and her husband: "you think this -- this is all about money; and if you think you're going to get away with me being gone, I'll make sure that you don't see a penny of dad's money ever." Transcript of Bench Trial, ("Tr. 1"), p. 182. During the six to eight months that Ed was gone, the family had home care, and Arlene was also there daily to care for her mother. At that time, the care was for Maria; Stanek did not really need care.

         {¶ 12} In 2008, Ed returned to his parents' home. According to Arlene, Ed was living in a breezeway of another home and asked his father if he could move back in. Ed claimed, in contrast, that his father "begged" him to come back. In any event, Ed returned and remained in the home until February 2017, when his father died. Maria had previously died on June 4, 2012.

         {¶ 13} From 2005 until his death, Stanek had a number of hospitalizations and medical problems, including bladder and prostate cancer; a triple bypass; diabetes; essential hypertension; anemia; a cholecystectomy in July 2010 with a complicated postoperative course, including respiratory failure and cardiac arrest; delirium in September 2010 due to conditions classified elsewhere; chronic kidney disease; MRSA in a sternal incision; loss of peripheral vision due to stroke; retinopathy; a cataract; mild cognitive impairment; and a hearing impairment. Stanek was also overweight and had significant mobility issues. In February 2012, the medical notes indicate that Stanek was not capable of managing his medications and that he was "[i]ncapable of handling money." Plaintiffs Ex. 1 at p. 2. These issues remained the same throughout the rest of Stanek's life.[2]

         {¶ 14} In 2014 alone, Stanek had several hospitalizations. On April 30, 2014, he had a gastrointestinal bleed and lost six pints of blood. During the hospitalization, he had three cardiac arrests, was sent to Kindred Care from May 16 to June 4, 2014, and was then sent to Dayton Rehab, where he remained until around the last week of June 2014. See Defendant's Ex. D.

         {¶ 15} On June 4, 2015, Stanek signed several documents that had been prepared by Attorney Pete Rife. These included: (1) a last will and testament, which made Ed the sole beneficiary of Stanek's estate and effectively disinherited the other siblings; (2) a living will (naming Ed as first in priority to be notified if an attending physician determined that life-sustaining treatment should be withheld; Arlene was listed second); (3) a power of attorney granting Ed the power to act on Stanek's behalf concerning all his affairs; and (4) a durable power of attorney for health care granting Ed the power to act in all health care decisions, and rejecting the designation of an alternate beneficiary. See Plaintiffs Exs. 3, 5, 6, and 7. In addition, Stanek brought a Merrill Lynch power of attorney form to Rife's office. This form had already been filled in. Stanek signed this power of attorney as well, giving Ed the power to withdraw and transfer any amount of money from Stanek's account to himself or to third parties. See Plaintiffs Ex. 4. Notably, the new will and other documents were signed on the anniversary of Maria's death, which was a significant day for Stanek.

         {¶ 16} Rife had virtually no recollection of the transaction. His paralegal, who prepared the documents, indicated that they were prepared and signed very quickly, within a day or so after the office was contacted. No copies of any documents were sent to Appellants, nor did Ed ever notify them of any changes in the will. Rife was not the attorney for the prior will and codicil.

         {¶ 17} Both Daniel and Arlene were aware that their father had a significant amount of money in a Merrill Lynch account. Daniel became aware of this in 2007 when Ed was not living in the house and Daniel was assisting his father with financial matters. The account had a transfer-on-death ("TOD") designation, so that it would transfer to Maria if Stanek predeceased her. If Maria died before Stanek, the account would be included in the estate and would be divided equally among the children.

         {¶ 18} On July 8, 2016, Stanek signed a new TOD beneficiary designation, naming Ed as the sole beneficiary on his Merrill Lynch account. Ed believed that his father had previously signed a form on June 5, 2015 changing the TOD beneficiary from Maria to Ed. However, that was an incorrect form. After Ed and Stanek made several trips to Merrill Lynch, the correct form to change the TOD designation was ultimately signed on July 8, 2016. According to Ed, the Merrill Lynch account was valued in June 2015 at $180, 000 to $189, 000. At the time of Stanek's death in 2017, the account was valued at $198, 000.

         {¶ 19} Previously, in 2014, when Stanek was in a nursing home, Daniel, Rosemarie, and Ed went to dinner after visiting their father. Daniel and Rosemarie were concerned about bills and were also concerned because Ed had gone to great lengths to keep their father in the nursing facility after he had been discharged. As a result, a bill of about $17, 000 was owed. They asked Ed specifically what had happened to the Merrill Lynch account; Ed said it had been "wiped out" in the 2008 stock market crash, and very little was left in the account.

         {¶ 20} Arlene had also seen the Merrill Lynch portfolio when it contained around $240, 000. However, between October and November 2016, Ed told her there was very little money in the account. This representation occurred in front of Stanek. Stanek worried about money, and, at some point earlier, had also stopped paying for gifts for his children and grandchildren.

         {¶ 21} Between 2013 and 2017, Ed restricted Appellants' personal and telephone contacts with their father. Taking the telephone contacts first, Stanek's hearing impairment inhibited conversation even when contact was allowed. At trial, Stanek's medical records were admitted. These records began in July 26, 2011 (although they included information about prior medical history). Even at that time, the doctor indicated that Stanek had "limited use" of the phone because of his hearing impairment. Defendant's Ex. A., p. 1. The hearing situation did not improve, and later entries indicated that Stanek was deaf or had serious difficulty hearing, that his hearing was "markedly ...


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