DANIEL G. STANEK, et al. Plaintiffs-Appellants
EDMUND D. STANEK, et al. Defendants-Appellees
Appeal from Probate Court Trial Court Case No. 11533C
MAUGER, Atty. Reg. No. 0063375 and GREGORY P. BARWELL, Atty.
Reg. No. 0070545, Attorneys for Plaintiffs-Appellants
R. CERTO, JR., Atty. Reg. No. 0018880, Attorney for
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.
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.
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
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
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
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
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