In re Estate of Means v. Means

2025 Ohio 2564

• Court: Ohio Court of Appeals
• Decided: July 21, 2025
• Docket: 14-24-47
• Status: Published

Opinion

[Cite as In re Estate of Means v. Means, 2025-Ohio-2564.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT UNION COUNTY

IN RE: THE ESTATE OF JOHNSTON H. MEANS CASE NO. 14-24-47 -AND-

DANIEL J. MEANS,

PLAINTIFF-APPELLEE,

V. OPINION AND THOMAS F. MEANS, ET AL., JUDGMENT ENTRY DEFENDANTS-APPELLANTS.

Appeal from Union County Common Pleas Court Probate Division Trial Court No. 2021PE096

Judgment Affirmed

Date of Decision: July 21, 2025

APPEARANCES:

Todd A. Long for Appellant

Jud R. Mauger & Andrew J. Lichtman for Appellee Case No. 14-24-47

ZIMMERMAN, J.

{¶1} Defendants-appellants, Thomas F. Means (“Thomas”) and Ann C.

Means (“Ann”) (collectively, “defendants”), appeal the June 16, 2023 judgment of

the Union County Court of Common Pleas, Probate Division, granting summary

judgment in favor of plaintiff-appellee, Daniel J. Means (“Daniel”), and the

November 26, 2024 judgment settling the estate of Johnston H. Means (“Johnston”).

For the reasons that follow, we affirm.

{¶2} This case originates from a dispute between Johnston’s sons, Daniel

and Thomas, along with Thomas’s wife, Ann, following Johnston’s death. Daniel,

Thomas, and Ann are Johnston’s sole heirs in his 2020 will. Daniel, married to

Mollie Means (“Mollie”), resides in Seattle, Washington, and they have two adult

children; Daniel and Mollie are both employed. Thomas and Ann, a real estate

agent, have three adult children, including Andrew Means (“Andrew”) who was

involved with Johnston’s investments at Hamilton Capital Management (“Hamilton

Capital”). Thomas is self-employed by the Means Advisory Group, Inc., and co-

owns White Water Holdings, LLC, which owns Guaranteed Clean Energy, LLC.

{¶3} Johnston, a retired attorney with expertise in estate, tax, employee, and

business organizations law, was a founding partner of Means, Bichimer, Burkholder

& Baker Co., L.P.A., and a veteran of the Korean War. Johnston passed away on

June 1, 2021 at the age of 93. In his later years, Johnston experienced declining

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health due to Parkinson’s disease, which caused hand tremors affecting his ability

to type and write. He also had significant hearing loss from his military service.

After his wife’s death in 2014, Johnston lived alone and, after ceasing to drive

sometime in 2019, became reliant on Thomas for daily care, transportation, and

communication. Thomas also served as Johnston’s attorney-in-fact. Johnston was

hospitalized following a fall on November 28, 2020, and subsequently moved to a

nursing care facility on December 31, 2020, where he remained until his death.

{¶4} The core of the conflict in this case revolves around the validity of

Johnston’s 2020 will—which notably departed from his long-standing pattern of

dividing his estate equally between his sons—along with Thomas’s management of

Johnston’s assets prior to his death. Historically, Johnston’s estate plans treated his

sons equally: the Means Investment Company (“MIC”), a partnership established in

1980 to manage farmland in Delaware County, initially allocated Johnston 50

percent and each son 25 percent. Johnston’s 1998 and 2005 wills and trusts also

reflected this equal division, with a 2005 trust amendment providing Daniel an

additional $400,000.00 to offset a prior gift to Thomas. Likewise, the investment

account opened at Hamilton Capital in 2017 was designated to pass equally to

Thomas and Daniel upon Johnston’s death.

{¶5} However, in the summer of 2019, Johnston, along with Thomas,

engaged attorneys Bruce Burkholder (“Burkholder”) and John Lucas (“Lucas”) of

Isaac Wiles Burkholder & Miller, LLC (“Isaac Wiles”) for additional estate

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planning. According to the evidence in the record, Johnston’s primary concerns

included a 2006 security interest held by Heritage Administration Services, Inc.

(“Heritage”) against Thomas’s MIC share, the possibility of Daniel wanting to sell

his MIC interest, and Daniel potentially contesting a new will if it favored Thomas.

Importantly, Johnston’s attorneys had concerns regarding Thomas’s presence

during these consultations and the potential for undue influence. The attorneys

recommended private discussions with Johnston that never materialized.

{¶6} Indeed, during deposition, Burkholder testified to Johnston’s emotional

struggle with potentially favoring Thomas and advised him to discuss any proposed

changes with Daniel, which Johnston reportedly agreed to do but never did. Lucas

provided Johnston with recommendations in November 2019 to minimize a will

contest, including using a no-contest clause and independent witnesses. However,

none of these suggestions were adopted in the 2020 will. Despite Johnston emailing

Lucas in November 2019 stating his intent for Lucas to draft a new will, this never

occurred, with Thomas later asserting Johnston decided to write the will himself to

save on legal fees.

{¶7} Johnston’s 2020 will, which is the focus of the dispute in this case,

contained significant changes from his prior wills. The 2020 will devised 37.5

percent of his 50 percent share of MIC to Ann and 12.5 percent to Daniel, with a

stated intent to “equalize” unencumbered ownership between the families. It also

included a clause forgiving all debts owed to Johnston by both Thomas and Daniel.

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The execution of the 2020 will at Thomas’s office involved witnesses Jennifer

Simpson (“Simpson”) and Andrew Bittner (“Bittner”) (Thomas’s business

associate), neither of whom had a clear independent recollection of seeing Johnston

sign the document. Their testimonies also conflicted regarding who controlled the

meeting as well as Johnston’s demeanor. The will itself presented numerous

physical irregularities in formatting, paper type, and printing that were not present

in Johnston’s prior homogenous estate documents, compounded by Thomas’s

inconsistent explanations regarding his possession of the original will, which was

not revealed to Daniel or Johnston’s attorneys for over a year.

{¶8} Thomas’s management of assets also came under scrutiny. In 2017,

Johnston sold his residence and approximately 35 acres to Pulte Homes for about

$1.8 million, with a contract to reacquire his home and three acres later by

reimbursing Pulte for property taxes. By December 2020, when the reacquisition

was ready and taxes were due, Johnston had sufficient funds to complete the deal.

However, Thomas, acting as attorney-in-fact while Johnston was in nursing care,

transferred Johnston’s remaining investment funds to his and Ann’s accounts and

instead executed a mortgage on Johnston’s home to cover the taxes owed to Pulte.

The mortgage was later paid from the sale of the home by the estate. Furthermore,

after Johnston was hospitalized in late 2020, Thomas wrote several MIC distribution

checks payable to Johnston, signed Johnston’s name in a manner mimicking his

Parkinson’s-affected signature, deposited them into Johnston’s account, and then

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transferred these funds to his and Ann’s account, totaling $19,500.00 from

Johnston’s MIC distributions.

{¶9} Johnston’s will, which was executed on March 13, 2020, was admitted

in the probate court on July 6, 2021.1 In accordance with Johnston’s will, Thomas

was appointed the executor of Johnston’s estate.

{¶10} Subsequently, Daniel filed a complaint in the probate court in

Johnston’s estate on July 29, 2021 contesting the validity of the will under R.C.

2107.71, alleging it was fraudulent, procedurally defective, and the result of undue

influence by Thomas. Daniel also sought an accounting of Johnston’s assets, which

he claimed Thomas improperly handled while acting as Johnston’s attorney-in-fact,

and requested the retrieval of estate assets. Furthermore, Daniel sought injunctive

relief and the appointment of a special administrator. Thomas, as executor of

Johnston’s estate, and the defendants filed answers on October 4, 2021, respectively.

Executor and Inventory Disputes

{¶11} On September 28, 2021, Thomas, in his role as executor, filed a claim

seeking court approval for $14,992.68 in estate expenses. On October 19, 2021,

Daniel moved to remove Thomas as executor. Thomas then agreed to resign, and

following a joint motion by the parties, the probate court appointed a special

administrator on December 30, 2021. Due to the pending challenges to his role and

1 The probate court rejected Thomas’s first application to administer Johnston’s estate, which was filed on June 23, 2021, because the will submitted with the application was not the original document and lacked original signatures.

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the will, the probate court later ordered Thomas to reimburse the estate expenses for

which he sought reimbursement to the estate account until the issues were resolved.

{¶12} Also on October 19, 2021, Daniel raised an exception to the inventory

of Johnston’s estate. He alleged that significant assets were omitted, including

proceeds from the 2017 real property sale exceeding $1,400,000.00, various

investment, bank, and trust accounts, and the valuation of Johnston’s ownership

interest in MIC. The special administrator later filed the estate inventory and

appraisal on February 15, 2022, and an amended version on March 28, 2022, to

which Daniel maintained his exceptions.

Motions for Repayment of Personal Expenses

{¶13} Several motions were filed concerning Thomas’s use of Johnston’s

funds. On November 23, 2021, Daniel filed a motion requesting that Thomas repay

Johnston’s estate $19,787.54, alleging these funds were used for Thomas’s personal

expenses (charged to a Chase credit card) and to reimburse the estate for real estate

agent fees paid to Ann for selling estate assets. Daniel amended this motion on

January 5, 2022, increasing the requested repayment for the Chase credit card bill

to $23,037.54. After the defendants opposed this motion, the parties filed an agreed

entry on February 11, 2022, in which Thomas agreed to reimburse the estate the

$23,037.54 for the personal charges on Johnston’s Chase credit card. The issue of

repaying Ann’s real estate fees remained pending.

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{¶14} On February 10, 2022, Daniel filed another motion, this time seeking

an order for Thomas to repay Johnston’s estate $49,891.00 for charges made to a

Bank of America credit card. On March 2, 2022, the parties again filed an agreed

entry, with Thomas consenting to reimburse Johnston’s estate for these charges.

{¶15} Nevertheless, the issue of reimbursement continued, and on November

17, 2022, the probate court ordered Thomas to reimburse Johnston’s estate

$88,000.00 by November 21, 2022. When Thomas failed to make this payment, the

special administrator filed a show cause motion on November 22, 2022 (and an

amended motion the next day). Consequently, on November 23, 2022, the probate

court ordered Thomas to appear on December 22, 2022 to show why he should not

be held in contempt of court. Following the hearing, the probate court found

Thomas in contempt of its prior order and sentenced him to 30 days in jail.

However, this sentence was suspended, allowing Thomas the opportunity to purge

his contempt by making the ordered payment, which he subsequently did.

Summary Judgment

{¶16} The dispute escalated with both parties filing motions for summary

judgment on October 7, 2022. In Daniel’s motion for summary judgment, he sought

to invalidate the 2020 will—citing grounds of procedural defects, improper

execution, undue influence, fraud, and forgery—and additionally requested an order

for an accounting of funds that he alleged Thomas transferred from Johnston’s

accounts for personal use, and the retrieval of estate assets, arguing that Thomas’s

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inter vivos transfers resulted from wrongful concealment or embezzlement. In their

competing motion for summary judgment, the defendants requested partial

summary judgment, asserting the validity of the 2020 will and denying any undue

influence, fraud, or procedural defects. Following these motions, Daniel filed a

memorandum opposing the defendants’ motion on October 13, 2022, and the

defendants filed a memorandum opposing Daniel’s motion on October 21, 2022.

Replies were filed by both parties on October 28, 2022.

{¶17} On June 16, 2023, the probate court largely sided with Daniel,

declaring Johnston’s 2020 will invalid due to undue influence and also finding it

inauthentic, citing irregularities and evidence of fraud. As a result, the probate court

ordered the revocation of its prior admission of the 2020 will.2 The probate court

also determined that the defendants’ self-dealing inter vivos transfers of assets since

2017 were invalid, found them guilty of wrongful concealment, embezzlement, and

conveyance of these assets before the estate’s creation, and ordered an accounting

for their retrieval by the estate. However, the probate court sided with the

defendants on Daniel’s specific claim that the will contained procedural defects in

its formal execution and witnessing.

2 Following the revocation of the 2020 will, Johnston’s 2005 will was admitted to the probate court on August 1, 2023.

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Estate Settlement

{¶18} After the probate court’s summary judgment decision, issues with

accounting persisted. Thomas filed an accounting on July 24, 2023, to which Daniel

and the special administrator filed objections in early August 2023. On August 23,

2023, the probate court ordered Thomas to provide further documentation relative

to the accounting. Thus, Thomas filed an amended accounting on September 29,

2023, but on November 27, 2023, the probate court disallowed it as deficient and

non-compliant, citing Thomas for failure to file a proper accounting and ordering

him to do so by December 15, 2023.

{¶19} Amidst these ongoing accounting difficulties, the parties disputed the

amounts subject to retrieval, the extent of damages, and the attorney fees.

Nevertheless, they entered into a joint stipulation on December 12, 2023, in which

Thomas acknowledged improperly transferring $1,375,302.00 from Johnston’s

Huntington Bank account between 2017 and 2021.

{¶20} Ultimately, on November 26, 2024, the probate court ordered the

defendants to pay Johnston’s estate $1,861,617.36; this total comprised

$1,375,302.00 in stipulated embezzled funds plus an additional $486,315.36

assessed for lost capital growth. Based on the finding that the defendants were

guilty of wrongful concealment, embezzlement, and conveyance of assets—a

judgment the court specified could not be dischargeable in bankruptcy—Daniel was

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separately awarded $186,161.74 as a statutory penalty and $281,685.58 for costs

and attorney fees, with all amounts set to accrue post-judgment interest.

{¶21} On December 24, 2024, the defendants filed a notice of appeal. They

raise three assignments of error for our review, which we will discuss together.

First Assignment of Error

The Probate Court erred when it granted summary judgment in favor of Daniel and found that the Will was fraudulent by weighing the evidence and making a credibility determination, which is an improper application of the Rule 56(C) standard.

Second Assignment of Error

The Probate Court erred when it weighed the evidence to find that Thomas exerted undue influence upon Johnston where there were genuine issues of material fact that should have been presented to a jury.

Third Assignment of Error

The Probate Court erred when it granted summary judgment, finding Thomas and Ann guilty of wrongful concealment, embezzlement, and conveyance of assets before creation of the estate, as well as retention of said assets (or the benefit thereof) following creation of the estate.

{¶22} In their assignments of error, the defendants argue that the probate

court erred by granting summary judgment in favor of Daniel by invaliding the 2020

will and by determining that they were guilty of wrongful concealment,

embezzlement, and conveyance of assets. In particular, in their first assignment of

error, the defendants contend that the probate court improperly invalidated the 2020

will as fraudulent by weighing evidence and making credibility determinations,

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rather than recognizing genuine disputes of material fact. The defendants

specifically argue in their second assignment of error that the probate court similarly

erred by finding Thomas exerted undue influence, again by weighing evidence on

an issue with contested facts that should have been decided by a jury. Finally, the

defendants contend in their third assignment of error that the probate court wrongly

applied R.C. 2109.50 and failed to follow proper statutory procedures in its

summary judgment finding that they wrongfully concealed, embezzled, or conveyed

estate assets.

Standard of Review

{¶23} We review a decision to grant summary judgment de novo. Doe v.

Shaffer, 90 Ohio St.3d 388, 390 (2000). Summary judgment is proper where there

is no genuine issue of material fact, the moving party is entitled to judgment as a

matter of law, and reasonable minds can reach but one conclusion when viewing the

evidence in favor of the non-moving party, and the conclusion is adverse to the non-

moving party. Civ.R. 56(C); State ex rel. Cassels v. Dayton City School Dist. Bd.

of Edn., 69 Ohio St.3d 217, 219 (1994).

Analysis

{¶24} We will begin by discussing the defendants’ arguments challenging

the probate court’s decision granting summary judgment in favor of Daniel as to his

will contest claim. Within this discussion, we will first address the defendant’s

specific challenge to the probate court’s finding that the will was procured by undue

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influence, followed by an examination of the probate court’s determination that the

will was fraudulent. Finally, we will turn to the defendants’ contention that the

probate court erred by granting summary judgment in favor of Daniel as to his claim

that the defendants wrongfully concealed, embezzled, or conveyed estate assets.

Will Validity

{¶25} “Generally speaking, admitting a written will to probate requires a

court to determine, from the face of the document itself, that it was executed in

compliance with the law.” In re Estate of Shaffer, 2020-Ohio-6973, ¶ 11. See also

Buffenbarger v. Estate of Meyer, 2023-Ohio-2760, ¶ 31 (4th Dist.) (noting that “in

a will-contest action, an order that admits a will to probate ‘is prima-facie evidence

of the attestation, execution, and validity of the will’”), quoting R.C. 2107.74. “If a

will bears all the signatures indicating due execution and attestation, the court must

admit the will to probate irrespective of whether the will’s validity could be

challenged on other grounds.” In re Estate of Shaffer at ¶ 12. “The court’s role at

the point of admission to probate is not to examine the validity of the will’s contents

but to verify that the document was validly executed.” Id. at ¶ 13.

{¶26} Challenges to a will’s validity may only be brought through a will

contest action under R.C. 2107.71. In re Elvin’s Will, 146 Ohio St. 448, 452-453

(1946). In a will contest action under R.C. 2107.71, the admission of a will to

probate constitutes prima facie evidence of its attestation, execution, and validity,

thereby establishing a rebuttable presumption that these legal requirements were

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met. Mastro v. Glavan, 2011-Ohio-3628, ¶ 46 (11th Dist.). Once a rebuttable

presumption arises, the party challenging the presumed fact bears the burden of

producing evidence that either counterbalances the presumption or leaves the case

in a state of equipoise. Buffenbarger at ¶ 31. The presumption is overcome and

disappears only if such sufficient rebutting evidence is successfully introduced. Id.

“Once the presumption of a will’s validity arises, the burden of proof shifts to the

will contestants to prove, by a preponderance of the evidence, that the will is

invalid.” Id.

Undue Influence

{¶27} “A will is invalid if it is the product of undue influence.” Id. at ¶ 43.

“‘Undue influence occurs when the wishes and judgment of the transferor are

substituted by the wishes and judgment of another.’” Simon v. Aulino, 2020-Ohio-

6962, ¶ 22 (4th Dist.), quoting Grimes v. Grimes, 2009-Ohio-3126, ¶ 36 (4th Dist.).

“‘A testator is unduly influenced by another when the testator is restrained from

disposing of property in accordance with his own wishes and instead substitutes the

desires of another.’” Buffenbarger at ¶ 43, quoting Riley v. Tizzano, 2006-Ohio-

6625, ¶ 20 (4th Dist.).

{¶28} “To establish undue influence in a will-contest action, the will

contestant must prove by clear and convincing evidence: ‘(1) a susceptible testator,

(2) another’s opportunity to exert [undue influence], (3) the fact of improper

influence exerted or attempted and (4) the result showing the effect of such

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influence.’” Id., quoting Redman v. Watch Tower Bible & Tract Soc. of

Pennsylvania, 69 Ohio St.3d 98, 101 (1994). “Exercise of undue influence ‘need

not be shown by direct proof, but maybe inferred from the circumstances.’” Simon

at ¶ 41, quoting Calloway v. Roy, 1977 WL 200400, *3 (10th Dist. Sept. 8, 1977).

{¶29} “‘[G]eneral influence, however strong or controlling, is not undue

influence unless brought to bear directly upon the act of making the will.”’”

Buffenbarger at ¶ 43, quoting Riley at ¶ 25, quoting West v. Henry, 173 Ohio St.

498, 501 (1962). “‘Further, “[t]he mere existence of undue influence, or an

opportunity to exercise it, although coupled with an interest or motive to do so, is

not sufficient, but such influence must be actually exerted on the mind of the testator

with respect to the execution of the will in question.’” Id., quoting Riley at ¶ 25.

{¶30} A will is not automatically presumed to be the result of undue

influence merely because the testator distributes their property in a manner that

appears unnatural, unjust, or unequal, even if that distribution significantly

contradicts the testator’s previously expressed sentiments or intentions toward his

or her relatives or those who would typically be considered natural beneficiaries.

Id. at ¶ 44. Thus, an unnatural, unjust, or unequal distribution of property in a will—

or one that deviates from the testator’s prior statements—is not, on its own,

sufficient grounds to nullify the will. Id. Instead, for such a will to be invalidated,

it must be demonstrated that undue influence was actually exerted upon the testator.

Id. Any assessment of undue influence must focus on the circumstances existing

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around the time the will was signed. Id. This relevant period includes the moment

of execution itself, as well as a reasonable span of time immediately preceding and

following that event. Id.

{¶31} “However, undue influence is presumed if the challenging party

establishes a fiduciary or confidential relationship existed between the decedent and

a beneficiary.” (Emphasis added.) Foelsch v. Farson, 2020-Ohio-1259, ¶ 17 (5th

Dist.). Where such a relationship exists, any property transfer from the donor to the

donee is regarded with suspicion, specifically raising concerns that the donee may

have exerted undue influence upon the donor. Id.

{¶32} “A fiduciary relationship is ‘a relationship “in which special

confidence and trust is reposed in the integrity and fidelity of another and there is a

resulting position of superiority or influence, acquired by virtue of this special

trust.”’” Ciszewski v. Kolaczewski, 2013-Ohio-1765, ¶ 10 (9th Dist.), quoting Ed

Schory & Sons, Inc. v. Soc. Natl. Bank, 75 Ohio St.3d 433, 442 (1996), quoting In

re Termination of Employment of Pratt, 40 Ohio St.2d 107, 115 (1974). “A

fiduciary’s role may be assumed by formal appointment or may arise from a more

informal confidential relationship, wherein ‘one person comes to rely on and trust

another in his important affairs and the relations there involved are not necessarily

legal, but may be moral, social, domestic, or merely personal.’” Foelsch at ¶ 20,

quoting Craggett v. Adell Ins. Agency, 92 Ohio App.3d 443, 451 (8th Dist. 1993).

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{¶33} “A ‘confidential relationship’ exists ‘“whenever trust and confidence

is placed in the integrity and fidelity of another.”’” Young v. Kaufman, 2017-Ohio-

9015, ¶ 58 (8th Dist.), quoting Ryerson v. White, 2014-Ohio-3233, ¶ 19 (8th Dist.),

quoting Golub v. Golub, 2012-Ohio-2509, ¶ 33 (8th Dist.). ‘“A confidential

relationship can be moral, social, domestic, or merely personal in nature.’” Id.,

quoting Diamond v. Creager, 2002 WL 313137, *3 (2d Dist. Mar. 1, 2002). “The

determination of whether a relationship is a confidential relationship is a question

of fact dependent upon the circumstances in each case.” Id. Generally, “[a] parent-

child relationship in and of itself is insufficient to create a confidential or fiduciary

relationship.” Id. at ¶ 60. However, “‘[t]he holder of a power of attorney has a

fiduciary relationship with his or her principal and is not required to have used the

power of attorney for a confidential or fiduciary relationship to arise.’” Thomas v.

Delgado, 2022-Ohio-4235, ¶ 28 (3d Dist.), quoting Young at ¶ 57.

{¶34} “Where a presumption of undue influence arises based on the

existence of a confidential or fiduciary relationship between a donor and a

beneficiary, ‘the burden of going forward with evidence’ shifts to the beneficiary

accused of exercising undue influence to show that his or her conduct was free from

undue influence.” Young at ¶ 59, quoting Landin v. Lavrisiuk, 2005-Ohio-4991, ¶

23 (8th Dist.). To overcome this presumption, the beneficiary must demonstrate by

a preponderance of the evidence that the donor acted voluntarily, exercised their

own free will, and fully understood their actions and the resulting consequences.

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Id.; Wall-Meiring v. Gibson, 2023-Ohio-664, ¶ 43 (6th Dist.). Nevertheless, “‘the

party attacking the transfer retains the ultimate burden of proving undue influence

by clear and convincing evidence.’” Young at ¶ 59, quoting Ament v. Reassure Am.

Life Ins. Co., 2009-Ohio-36, ¶ 38 (8th Dist.).

{¶35} “‘Clear and convincing evidence’ is more than a preponderance of the

evidence, but does not rise to the level of certainty required by the beyond a

reasonable doubt standard in criminal cases.” Id. at ¶ 52. “It is that measure or

degree of proof that produces in the mind of the trier of fact a firm belief or

conviction as to the facts sought to be established.” Id. However, “[b]ecause ‘the

person who can give the best evidence is dead,’ most evidence of undue influence

‘will be circumstantial, leaving the factfinder to draw permissible inferences.’” Id.,

quoting Redman, 69 Ohio St.3d at 102.

{¶36} In this case, the probate court concluded that there was no genuine

issue of material fact that Johnston’s 2020 will was the product of undue influence

exerted by Thomas. Relevantly, the probate court determined that Johnston was a

susceptible testator due to his advanced age (91), having Parkinson’s Disease,

hearing loss, and his complete reliance on Thomas for daily care, transportation, and

communication, particularly after he stopped driving in 2019. Although Johnston’s

mental functioning was not found to be compromised, the probate court determined

that these factors rendered him vulnerable.

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{¶37} Importantly, the probate court found that Thomas had a clear

opportunity to exert undue influence arising from both a confidential relationship

(as Johnston’s son providing extensive care) and a fiduciary relationship (as

Johnston’s attorney-in-fact since 2017).3 Consequently, undue influence was

presumed, and the burden shifted to Thomas to prove Johnston’s decisions were free

of such influence. In this case, the probate court found Thomas’s explanations for

the will’s provisions significantly favoring him and Ann—such as Johnston being

upset with Daniel or wanting to reward Thomas for his care—to be implausible and

insufficient to overcome the presumption of undue influence, especially when

contrasted with evidence of Johnston’s long-standing intent to treat his sons equally

and his documented relationship with Daniel.

{¶38} Notwithstanding this conclusion, the probate court further determined

that Thomas actually exercised undue influence over Johnston. Critically, the

probate court reasoned that, even though Johnston maintained testamentary capacity

and an understanding of his financial affairs, Thomas’s repeated withdrawals from

Johnston’s accounts created an “impossible dilemma,” effectively forcing Johnston

to include a significant debt forgiveness clause in the 2020 will. (June 16, 2023 JE

at 42). Indeed, the probate court found that Johnston was aware of Thomas’s

extensive financial needs and his inability to repay these sums. Thus, the probate

3 Thomas’s fiduciary authority over specific investment accounts began in 2017 and a broader general durable power of attorney was executed in 2018.

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court reasoned that the execution of the will on March 13, 2020, amid the early

Covid-19 pandemic and potentially endangering Johnston’s health, highlighted the

acute pressure and need orchestrated by Thomas’s influence.

{¶39} Finally, the probate court found that the 2020 will’s terms clearly

demonstrated the result of this undue influence. Significantly, the probate court

found that the will drastically departed from Johnston’s established pattern of

treating his sons equally in prior estate plans, instead heavily favoring Thomas and

Ann with provisions like the substantial debt forgiveness and an unequal distribution

of Johnston’s MIC interest. Notably, the probate court found the explanations for

these changes, such as keeping the MIC farm in the family or protecting assets from

Thomas’s creditor, to be inconsistent with the MIC partnership agreement (which

Johnston, as its drafter, understood) and previous legal advice. The probate court

particularly viewed the debt forgiveness as a direct consequence of Thomas’s

financial actions, effectively disinheriting Daniel from funds Johnston likely

intended for him.

{¶40} On appeal, the defendants argue that the probate court erred by

granting summary judgment in favor of Daniel on the issue of undue influence

primarily because the probate court improperly weighed evidence and made

credibility determinations, rather than identifying genuine issues of material fact

that should have been presented to a jury. Specifically, the defendants contend that

the probate court wrongly concluded Johnston was a “susceptible testator” by

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focusing on his age, physical infirmities, and reliance on Thomas, while failing to

consider evidence of Johnston’s competence and good health around the time the

will was executed in March 2020, and that his significant health decline occurred

months later. They argue Johnston’s dependence on Thomas at most demonstrated

an opportunity for influence, not inherent susceptibility.

{¶41} Furthermore, the defendants assert that the probate court improperly

dismissed Thomas’s evidence rebutting the presumption of undue influence by

deeming his explanations “implausible.” They claim that the undisputed evidence,

including Burkholder’s testimony about Johnston’s independent statements,

demonstrates that Thomas did not exert improper influence and that Johnston

himself intended to favor Thomas in his will. The defendants maintain that an

unequal property disposition alone does not prove undue influence without evidence

that such influence was actually exercised, and that the probate court’s finding relied

on speculation rather than concrete proof.

{¶42} Daniel disputes the defendants’ arguments, contending that the

probate court correctly found that Thomas failed to present sufficient evidence to

rebut the presumption of undue influence that arose from his confidential and

fiduciary relationship with Johnston. Importantly, Daniel argues that Thomas’s

rebuttal, which primarily consists of his own self-serving narrative that Johnston

acted freely out of love for Thomas and disappointment with Daniel, is contradicted

by substantial evidence. Specifically, Daniel points to Johnston’s long-standing and

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documented history of treating his sons equally in all prior estate plans and evidence

of their continued loving and supportive relationship through 2020, which makes

the claim of a sudden intent to disinherit Daniel implausible.

{¶43} In addition to challenging the plausibility of that narrative, Daniel

argues that overwhelming circumstantial evidence of Thomas’s actual exertion of

influence demonstrates precisely why Thomas failed to meet his burden of rebutting

the presumption that Johnston’s actions were not the product of his own free will.

This evidence includes Thomas’s pattern of withdrawing significant funds from

Johnston’s accounts, which effectively forced Johnston to include the debt

forgiveness clause in the 2020 will. Daniel also highlights Thomas’s control over

Johnston’s access to independent legal counsel—including managing

communications with the attorneys at Isaac Wiles and ultimately halting the

professional estate planning process—and the suspicious urgency of executing the

will during the Covid-19 shutdown as further proof of Thomas’s improper

influence. Finally, Daniel argues the result of this influence is self-evident in the

2020 will itself, which drastically changed Johnston’s estate plan from an equal

50/50 split to an 87/13 split in Thomas’s favor, providing the clear effect of the

unrebutted undue influence.

{¶44} Based on our de novo review of the record, construing the evidence in

a light most favorable to the defendants, we conclude that the defendants failed to

sufficiently rebut the presumption that Johnston’s will was the product of undue

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influence. While the will’s admission to probate initially presumed its validity and

placed the ultimate burden on Daniel to prove undue influence, a specific

presumption of undue influence arose directly against Thomas. See Hutchison v.

Kaforey, 2016-Ohio-3541, ¶ 38 (9th Dist.). This was due to the fiduciary

relationship existing between Johnston and Thomas, stemming from Thomas’s

capacity as attorney-in-fact and the confidential nature of their relationship where

Thomas managed Johnston’s personal, financial, and health matters. Consequently,

the burden shifted to Thomas to demonstrate by a preponderance of the evidence

that Johnston acted voluntarily, with free will, and full understanding, thereby

rebutting the presumption. See Wall-Meiring, 2023-Ohio-664, at ¶ 43 (6th Dist.).

We conclude that Thomas presented insufficient evidence to meet this burden. That

is, we conclude that Thomas’s attempt to rebut the presumption did not create a

genuine issue of material fact that would preclude a finding that the will was a

product of undue influence. See Meehan v. Meehan, 2023-Ohio-2772, ¶ 51 (8th

Dist.).

{¶45} Critically, “not every factual dispute precludes summary judgment.

Rather, only disputes as to the material facts preclude summary judgment.”

(Emphasis added.) Buffenbarger, 2023-Ohio-2760, at ¶ 28 (4th Dist.), citing

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (asserting that “[o]nly

disputes over facts that might affect the outcome of the suit under the governing law

will properly preclude the entry of summary judgment”). “‘As to materiality, the

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substantive law will identify which facts are material.’” Id., quoting Anderson at

248.

{¶46} “Moreover, any disputed material facts must present genuine issues,

meaning that ‘the evidence is such that a reasonable jury could return a verdict for

the nonmoving party.’” (Emphasis added.) Id. at ¶ 29, quoting Anderson at 248.

“For this reason, the summary-judgment evidence must reveal more than ‘some

metaphysical doubt as to the material facts.’” Id., quoting Matsushita Elec.

Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “Accordingly, if

‘the record taken as a whole could not lead a rational trier of fact to find for the

nonmoving party, there is no “genuine issue for trial.”’” Id., quoting Matsushita at

587, quoting First Nat. Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 270 (1968).

{¶47} Particularly, as evidence to rebut the presumption of undue influence,

Thomas relied on his own affidavit and deposition testimony to assert that Johnston

was aware of and authorized the financial transfers and intended the will’s

provisions out of love and a desire to support him and his family, while denying any

manipulation. See, e.g., Stedke v. Hume Contracting, LLC, 2025-Ohio-323, ¶ 30

(3d Dist.) (explaining the impact of self-serving assertions on motions for summary

judgment). Nevertheless, to corroborate his assertions, Thomas pointed to the

deposition testimonies of Burkholder and Lucas. While at first glance certain

aspects of their testimonies—such as Johnston’s perceived competence during

meetings or his expressed desire to potentially favor Thomas—might appear to

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support a triable issue as to whether Thomas overcame the presumption, a deeper

review reveals that their testimonies, taken as a whole, bolster Daniel’s claim of

undue influence by highlighting Thomas’s pervasive involvement and Johnston’s

isolation from independent counsel.

{¶48} For instance, Burkholder, who had a long-standing professional and

personal relationship with Johnston (and who also represented Thomas individually

concerning the Heritage lien on his MIC share), testified that he found Johnston

competent during his interactions with him. Indeed, Burkholder affirmed

Johnston’s competence throughout their interactions, including during the complex,

multi-year property sale to Pulte Homes which concluded around 2020.

Notwithstanding that evidence, Burkholder’s testimony also revealed critical

underlying concerns.

{¶49} Importantly, during the October 1, 2019 estate planning meeting

initiated for Johnston (which Thomas also attended), Burkholder pointedly

expressed apprehension about Thomas’s very presence and the potential for undue

influence, stressing the unfulfilled need for counsel to speak with Johnston

privately. As Johnston’s health declined and his accessibility diminished in early

2020, Burkholder’s communications regarding Johnston’s affairs, including the

Pulte property reconveyance, predominantly shifted to Thomas acting as Johnston’s

power of attorney. Even a rare private meeting between Burkholder and Johnston

(believed to be after October 2019 for real estate document signing) underscores the

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issues: Johnston emotionally discussed slightly favoring Thomas but agreed to

Burkholder’s strong advice to discuss these changes with Daniel first—a crucial

step that was never taken. Significantly, Burkholder confirmed that neither he nor

Lucas were consulted on the drastic MIC share redistribution or the substantial debt

forgiveness clause that ultimately appeared in the 2020 will. Indeed, Burkholder

remained entirely unaware of the 2020 will’s existence until April 2021, long after

Johnston’s capacity to discuss it had waned.

{¶50} Similarly, Lucas’s testimony, rather than aiding Thomas’s rebuttal,

further highlights Thomas’s controlling influence. Specifically, Lucas confirmed

his direct interaction with Johnston regarding the estate plan was limited to the

single October 1, 2019 meeting, which Thomas also attended throughout.

According to Lucas, Johnston’s primary concerns voiced at this meeting were

keeping the MIC farm in the family, Daniel possibly selling his share, and Thomas’s

significant MIC lien (over $1 million) potentially jeopardizing family ownership of

the farm. According to Lucas, it was discussed that Johnston’s MIC interest could

potentially go to Ann to possibly shield it from Thomas’s creditors.

{¶51} Critically, Lucas testified that Burkholder raised concerns about

Thomas’s potential undue influence during this meeting, prompting Lucas to

memorialize in his own memo the necessity of speaking with Johnston without

Thomas present to confidently assess the absence of undue influence. However,

Lucas explicitly stated that such a private consultation with Johnston never occurred

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with him. While Lucas testified that he did not perceive Thomas as influencing

Johnston during the October meeting where Johnston spoke for himself and

Johnston and Thomas “both talked about the same problems,” Lucas also affirmed

he had no way of knowing if Johnston was unduly influenced on the actual day the

2020 will was executed, as he was not present. (Lucas Depo. at 31). Moreover,

Lucas testified that, although Johnston apparently stated Daniel would not contest a

new will during the October meeting, Lucas noted in his memo at the time that he

(Lucas) did not believe Johnston was entirely confident in that.

{¶52} Furthermore, Lucas testified that following their only meeting,

Thomas became the primary, if not exclusive, conduit for communications

regarding Johnston’s estate planning with Isaac Wiles. Although Johnston directly

emailed Lucas in November 2019 expressing a desire for Lucas to draft a will and

promising an outline of his wishes, Lucas never received this outline, and no will

was ever prepared by him. Instead of the promised outline from Johnston, the

follow-up communications were from Thomas, who sent an email on Johnston’s

behalf adding several other specific estate issues for consideration, including noting

that the Hamilton Capital account was a non-probate asset, that the will should cover

the “whole estate plan,” and that Lucas should attest to Johnston’s competency. (Id.

at 29).

{¶53} Ultimately, it was Thomas who formally halted the new estate plan.

In a January 9, 2020 email Thomas instructed Lucas to put all estate planning work

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on hold, ostensibly until Johnston provided the outline and Thomas’s lien situation

could be further clarified—a decision Lucas understood to be from both Johnston

and Thomas. Lucas testified his involvement never progressed past this stage,

confirming he was not engaged for any work beyond sending his initial November

4, 2019 letter providing “some thoughts” and recommendations. (Id. at 48).

{¶54} Additionally, Lucas confirmed that none of the specific

recommendations that he provided to Johnston to address concerns about will

contests or undue influence (such as a no-contest clause or using independent

witnesses) were implemented in the 2020 will that later surfaced. He also testified

that crucial and controversial provisions of the 2020 will, like the specific MIC share

redistribution and the debt forgiveness clause, were never discussed with him during

his engagement.

{¶55} In sum, in our view, Thomas’s attempt to rebut the presumption of

undue influence rests on his own self-serving denials, which are insufficient to

create a genuine issue of material fact when they are not only uncorroborated but

are actively undermined by the testimonies of the very attorneys upon which he

relied. Decisively, rather than confirming Johnston’s independent and uninfluenced

intentions, the testimonies of Burkholder and Lucas detail a pattern of Thomas

controlling the engagement and flow of information with legal counsel. This

absence of independent, private interaction—a step both attorneys deemed

important to rule out undue influence—combined with Thomas halting the

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professional planning process and the eventual, secret appearance of the 2020 will

containing drastic terms unknown to counsel, substantiates, rather than rebuts, the

presumption of undue influence. Indeed, the manner in which the 2020 will

eventually came to light—13 months after its purported execution (via Thomas)—

and initially as a copy that the probate court rejected—further erodes any claim of

a transparent, testator-driven process and supports Daniel’s claim.

{¶56} Even so, the defendants claim that the probate court improperly

applied a credibility assessment to reach the conclusion that summary judgment was

proper in favor of Daniel on the issue of undue influence. “Generally, issues of

witness credibility are outside the scope of the summary judgment proceeding.”

Bevier v. Pfefferle, 1999 WL 961409, *4 (6th Dist. Oct. 22, 1999). However,

contrary to the defendants’ contention, our review of the record reveals that the

probate court did not improperly weigh or judge the credibility of the witnesses

when determining that summary judgment was appropriate in favor of Daniel on his

undue influence claim. Accord Foelsch, 2020-Ohio-1259, at ¶ 27 (5th Dist.).

Instead, the probate court fulfilled its proper summary judgment function by

determining that the evidence Thomas presented was legally insufficient to create a

genuine issue of material fact regarding his rebuttal of the presumed undue

influence. See id.

{¶57} Therefore, even though Thomas presented a competing factual

narrative—that Johnston acted freely out of love and gratitude—this did not create

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a genuine issue of material fact that would preclude summary judgment on the issue

of undue influence. Indeed, Thomas’s rebuttal rests almost entirely on his own

uncorroborated, self-serving testimony. Our review of the record, even in a light

most favorable to the defendants, reveals that Thomas’s narrative is so contradicted

by the objective circumstantial evidence detailing Thomas’s control over the estate

planning process, Johnston’s isolation from independent counsel, and the secret

creation of the 2020 will with terms unknown to anyone involved, that it fails to

establish a genuine dispute. Consequently, no reasonable jury could find that

Thomas met his burden to rebut the presumption when his claims are rendered

implausible by the testimony of Burkholder and Lucas.

{¶58} Moreover, our de novo review of the record reflects that there is no

genuine issue of material fact that Daniel further carried his burden of proving undue

influence. Indeed, in addition to the evidence outlining Thomas’s conduct and

influence over Johnston, the product of Thomas’s improper influence is self-evident

in the 2020 will itself, which greatly benefitted the defendants.

{¶59} For these reasons, because the record taken as a whole could not lead

a rational trier of fact to find for Thomas, no genuine issue for trial exists on the

issue of undue influence. Accordingly, we conclude that the probate court did not

err by granting summary judgment in favor of Daniel as to his claim for undue

influence.

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Will Authenticity

{¶60} “In Ohio, a will must meet certain statutory requirements before it can

be admitted to probate.” In re Estate of Hand, 2016-Ohio-7437, ¶ 12 (12th Dist.).

In order to be valid, a will must be (1) in writing, (2) signed at the end by the testator or by some other person in the testator’s conscious presence and at the testator’s express direction, and (3) attested and subscribed in the conscious presence of the testator by two or more competent witnesses who saw the testator subscribe or heard the testator acknowledge the testator’s signature.

Id., citing R.C. 2107.03. See also In re Estate of Shaffer, 2020-Ohio-6973, at ¶ 13

(“The standards of R.C. 2107.24 provide a narrow exception to the formalities

required in R.C. 2107.03, primarily by excusing a witness’s failure to sign the

will.”). “‘[C]onscious presence’ means within the range of any of the testator’s

senses, excluding the sense of sight or sound that is sensed by telephonic, electronic,

or other distant communication.” R.C. 2107.03.

{¶61} “To attest and subscribe involves ‘two acts: (1) an “act of the senses”

by personally observing the signing or acknowledgment of signature by the testator

and (2) a physical act of signing the document, under the observation of the testator,

to prove that the attestation occurred.’” Buffenbarger, 2023-Ohio-2760, at ¶ 34 (4th

Dist.), quoting In re Estate of Shaffer at ¶ 17. “A competent witness within the

meaning of R.C. 2107.03 is a witness who ‘satisfies the elements of R.C. 2317.01.’”

Id., quoting In re Estate of Shaffer at ¶ 16. R.C. 2317.01 provides that “[a]ll persons

are competent witnesses except those of unsound mind and children under ten years

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of age who appear incapable of receiving just impressions of the facts and

transactions respecting which they are examined, or of relating them truly.”

{¶62} Moreover, “the language of the will must ‘illustrate, at the minimum,

a testamentary intent, i.e., a disposition of property to take effect only at death.’” In

re Estate of Rickels, 2003-Ohio-5125, ¶ 4 (3d Dist.), quoting In re Estate of Ike, 7

Ohio App.3d 87 (1982), paragraph one of the syllabus. The “testamentary intent”

necessary to establish that a document is actually a will is different from the

decedent’s separate intent regarding how specific provisions or gifts within that will

should be interpreted or carried out. In re Estate of Shaffer at ¶ 26.

{¶63} In this case, the probate court determined that Johnston’s 2020 will

formally complied with the legal requirements for attestation, subscription, and

witness competency, specifically rejecting Daniel’s contention that Bittner was

incompetent due to his relationship with the defendants. However, when applying

the summary judgment standard to the 2020 will’s overall authenticity, the probate

court granted summary judgment in favor of Daniel after determining that there was

no genuine issue of material fact that the 2020 will was fraudulent and inauthentic.

{¶64} Specifically, the probate court analyzed that the 2020 will’s

abnormalities included significant physical and formatting inconsistencies between

the document’s pages (such as differing paper types, fonts, margins, and printing

irregularities suggesting pages were not created contemporaneously), content that

starkly contradicted Johnston’s known intentions and the specific legal advice that

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he had sought to prevent a will contest, and the suspicious circumstances

surrounding the will’s handling, custody, and delayed presentation. In sum, the

probate court resolved that the pages of the document were not contemporaneously

adopted by Johnston and that the will admitted to probate was different from the

same one he executed.

{¶65} On appeal, the defendants contend that the probate court erred by

granting summary judgment in favor of Daniel as to the validity of the 2020 will

because the probate court overstepped by weighing evidence and making its own

credibility determinations, essentially “playing detective” regarding the will’s

physical characteristics, such as formatting and paper types, and its chain of custody.

Relevantly, the defendants contend that there was no direct or forensic evidence

proving the will was a forgery or fake. Instead, they argue that the probate court

drew speculative inferences while disregarding plausible explanations for any

irregularities, such as Johnston, a 90-year-old with tremors, having typed the will

himself. Furthermore, they claim that the probate court ignored the evidence in the

record, including witness authentication of their signatures on the will beneath a

proper attestation clause, and Thomas’s testimony about Johnston’s preparation of

the document, when determining that no triable issue remained as to the 2020 will’s

authenticity.

{¶66} Daniel disputes the defendants’ arguments, contending that the

probate court correctly determined that the totality of the evidence defeated the 2020

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will’s validity. He emphasizes that this evidence, as the probate court found,

included an “unprecedented mix of abnormalities” personally observed in the

original document, as well as suspicious circumstances surrounding Thomas’s

handling, storage, and delayed revelation of the will. Importantly, Daniel argues

that Thomas’s explanations and self-serving affidavit were wholly insufficient and

implausible to counter these overwhelming indicators of fraud, thus justifying the

probate court’s conclusion that the document admitted to probate was not Johnston’s

authentic will and that reasonable minds could only find it fraudulent.

{¶67} However, based on our determination that the probate court did not err

by granting summary judgment in favor of Daniel as to his undue influence claim,

as there is no genuine issue of material fact that the 2020 will was the product of

such influence, we need not address the defendants’ separate assignment of error

concerning the will’s authenticity. See App.R. 12(A)(1)(c).

Wrongful Concealment, Embezzlement, Conveyance of Estate Assets

{¶68} In its June 16, 2023 judgment entry granting summary judgment in

favor of Daniel, the probate court found clear and convincing evidence that the

defendants were guilty of wrongful concealment, embezzlement, and conveyance

of assets before the creation of Johnston’s estate under to R.C. 2109.50.

Specifically, the probate court’s analysis focused on Thomas’s wrongful or culpable

conduct while acting as Johnston’s attorney-in-fact, particularly his transfer of over

$1.6 million from Johnston’s accounts to himself and his family from 2017 to 2021.

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Indeed, the probate court found that Thomas’s repeated promises to financial

advisors to replenish these funds demonstrated bad faith, as he had neither the intent

nor the ability to repay, and that these actions constituted embezzlement and

wrongful conveyance. Thus, the probate court declared the transfers made by

Thomas void.

{¶69} In their third assignment of error, the defendants argue that the probate

court erred by finding them guilty of wrongful concealment, embezzlement, and

conveyance of assets under R.C. 2109.50. Their primary contention is that the

statute does not apply because the funds in question originated from non-probate

assets—a transfer on death (“TOD”) investment account and a joint and

survivorship bank account—which would not have rightfully belonged to

Johnston’s estate upon his death. Alternatively, they argue that even if the statute

is applicable, its quasi-criminal nature requires a trial to determine guilt, making a

summary judgment ruling on the matter procedurally improper. Finally, the

defendants assert that genuine issues of material fact exist as to whether Thomas’s

conduct was wrongful, contending that the evidence shows Johnston was fully

aware of and authorized the financial transfers as support for his family, thus

negating any claim of concealment or embezzlement.

{¶70} In response, Daniel argues that the probate court correctly applied R.C.

2109.50 to find the defendants guilty of wrongful concealment, embezzlement, and

conveyance, and to order the retrieval of those assets. He contends that the

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defendants’ primary argument—that the funds were non-probate assets and thus

beyond the statute’s reach—fails because Thomas, acting as attorney-in-fact for

Johnston, engaged in presumptively invalid self-dealing when he transferred the

assets to himself and his family. Moreover, Daniel asserts that even if the funds

were in accounts designated as non-probate assets, the probate court has the

authority to invalidate the inter vivos transfers themselves. That is, he contends

that, once invalidated, the funds rightfully belonged to the estate and were

retrievable under a concealment action. Furthermore, Daniel maintains that,

because Thomas stipulated to transferring $1,375,302.00 of Johnston’s assets for

his family’s benefit and failed to rebut the presumption that these self-dealing

transfers were invalid, the probate court correctly found him guilty and ordered the

funds returned to the estate.

{¶71} “The probate court is a court of limited jurisdiction, and therefore it

can only exercise jurisdiction when authority is expressly construed by statute.”

Lamar v. Washington, 2006-Ohio-1414, ¶ 15 (3d Dist.). See also R.C. 2101.24.

While the powers of the probate division are plenary, they extend only to matters

that are properly before the court. In re Estate of Harmon, 2016-Ohio-2617, ¶ 24

(5th Dist.). The probate division’s plenary, or complete, powers are extensive, but

they cannot be used to expand the court’s jurisdiction beyond the types of cases it

is specifically authorized to hear by statute. Id.

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{¶72} “Specifically, pursuant to R.C. 2109.50, an executor or other

interested person may file a complaint in the probate court ‘against any person

suspected of having concealed, embezzled, or conveyed away or of being or having

been in the possession of any moneys, personal property, or choses in action of the

estate . . . .” Id. at ¶ 25, quoting R.C. 2109.50. A “R.C. 2109.50 proceeding for the

discovery of concealed or embezzled assets of an estate is a special proceeding of a

summary, inquisitorial character whose purpose is to facilitate the administration of

estates by summarily retrieving assets that rightfully belong there.” State v.

Harmon, 2017-Ohio-320, ¶ 14 (5th Dist.). “In essence, ‘the inquiry under R.C.

2109.50 focuses on the ownership of the asset and whether possession of the asset

is being impermissibly concealed or withheld from the estate.’” In re Estate of

Harmon at ¶ 26, quoting Wozniak v. Wozniak, 90 Ohio App.3d 400, 407 (9th Dist.

1993).

{¶73} Likewise, R.C. 2109.52 empowers the probate court in a concealment

proceeding to conduct a hearing where it may determine questions of title to the

assets and decide whether the accused is guilty of concealment, embezzlement, or

conveyance. Harmon at ¶ 15. If the person is found guilty, the statute then directs

the court to enter a judgment against them for the value of the assets, plus a ten

percent penalty. Id.

{¶74} Under R.C. 2109.50 and 2109.52, a probate court has the authority “‘to

recover certain assets wrongfully concealed, embezzled, or conveyed away before

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the creation of the estate.’” In re Estate of Rotilio, 2013-Ohio-2878, ¶ 11 (7th Dist.),

quoting Goldberg v. Maloney, 2006-Ohio-5485, ¶ 33. Importantly, a probate court’s

jurisdiction extends to non-probate assets if it determines the underlying inter vivos

transfer was invalid, making the property retrievable under R.C. 2109.50. Goldberg

at ¶ 34. Indeed, “[a] probate court has jurisdiction over an action brought pursuant

to R.C. 2109.50 to recover funds passed to a third party by inter vivos transaction

where the validity of the underlying transfer is challenged.” Burwell v. Rains, 2005-

Ohio-1893, ¶ 15 (11th Dist.). That is, “[a] probate court has jurisdiction to entertain

an action against an attorney-in-fact for concealed or embezzled assets withdrawn

with a power of attorney.” Id.

{¶75} In this case, after reviewing the evidence available in the record, we

conclude that the probate court properly exercised its jurisdiction to determine that

the defendants were guilty of wrongful concealment, embezzlement, and

conveyance of assets under R.C. 2109.50 even though the underlying assets were

non-probate assets. See Fox v. Stockmaster, 2002-Ohio-2824, ¶ 63 (3d Dist.)

(resolving “that the probate court had jurisdiction to entertain an action for

concealed or embezzled assets under 2109.50” “for actions by an attorney in fact

committed during the life of the decedent”). This jurisdiction applies because the

central issue is not the nature of the accounts themselves, but rather the pre-death,

inter vivos transfers from those accounts, which Thomas effectuated while acting in

his fiduciary capacity as Johnston’s attorney-in-fact. See In re Estate of Harmon,

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2016-Ohio-2617, at ¶ 29 (5th Dist.) (explaining that a probate court has jurisdiction

under R.C. 2109.50 over non-probate assets, such as those in a TOD account, when

it finds the inter vivos transfers from that account were themselves wrongful and

invalid, thereby making the assets retrievable by the estate). Thus, the defendants’

argument that the non-probate nature of the original accounts shielded the assets

from a concealment action fails as a matter of law.

{¶76} We further reject the defendants’ contention that the quasi-criminal

nature of an R.C. 2109.50 action automatically requires a trial and precludes

summary judgment. See In re Estate of Beatley v. Fisher, 2024-Ohio-5109, ¶ 21

(10th Dist.). Critically, while an action under R.C. 2109.50 is considered quasi-

criminal because it involves a charge of wrongful conduct, it is not a criminal

prosecution. Harmon, 2017-Ohio-320, at ¶ 16 (5th Dist.). Indeed, the Supreme

Court of Ohio has clarified that despite this characterization, the proceeding is a

special action to recover assets, not to litigate a criminal act. Id. In other words, it

is intended solely to provide a speedy and effective method for the probate court to

discover assets belonging to the estate and to promptly secure those assets for the

purpose of administration. Id.

{¶77} Since there is no absolute right to a trial where no genuine issue of

material fact exists for a jury to consider, we conclude that the probate court did not

err by resolving this issue at the summary judgment stage. Accord In re Estate of

Harmon at ¶ 35. See also In re Estate of Popp, 94 Ohio App.3d 640, 649 (8th Dist.

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1994) (“Summary judgment, being one of the procedures available in the probate

court in the adjudication of cases, may be used in an R.C. 2109.50 proceeding if all

the elements apply.”).

{¶78} Finally, we conclude that there is no genuine issue of material fact that

the defendants are guilty of concealment, embezzlement, or conveyance of assets.

That is, we conclude there is no triable issue that the defendants wrongfully

conveyed assets originating from Johnston’s Hamilton Capital investment accounts

by transferring them out of his Huntington Bank account for their own use. In

particular, the evidence in this case revealed that Thomas (from 2017-2021), acting

as Johnston’s attorney-in-fact, directed the transfer of assets (belonging to Johnston)

that resulted in a final judgment against him and his wife for $1,861,617.36 owed

to the estate.4 These transfers primarily originated from Johnston’s Hamilton

Capital investment account and were moved into Johnston’s Huntington Bank

checking account.

{¶79} The evidence in the record reveals that the transfers from the Hamilton

Capital investment account were characterized by a “withdrawal and promise to

replenish” cycle, which involved Thomas repeatedly demanding transfers from

Johnston’s account by emailing Hamilton Capital with promises to replenish the

funds—promises the record indicates he had neither the intention nor the ability to

4 This sum is composed of two parts: the $1,375,302.00 in funds that the parties stipulated were embezzled, plus an additional $486,315.36 that the probate court assessed for lost capital growth.

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keep. This pattern began with the very first withdrawal in November 2017, just one

month after the account was opened, at which time Thomas’s son, Andrew, was the

financial advisor managing the account. These repeated requests did not go

unnoticed by the financial firm; internal emails from a Hamilton Capital employee

to supervisor Eric Marquardt (“Marquardt”) in early 2019 noted that “something

seems strange” and that Thomas’s withdrawal requests were “starting to come

almost weekly,” questioning if they raised a concern. (Marquardt Depo. at 57, 62).

{¶80} “The analysis of a R.C. 2109.50 claim begins with whether the

complainant has established a prima facie case of concealment by a preponderance

of the evidence.” Lance v. Boldman, 2018-Ohio-44, ¶ 37 (9th Dist.). See also id.

at ¶ 34 (observing that “the complainant must prove more than ‘mere possession’ of

the estate assets”), quoting Longworth v. Childers, 2008-Ohio-4927, ¶ 21 (2d Dist.);

In re Estate of Harmon, 2016-Ohio-2617, at ¶ 42 (5th Dist.) (clarifying that “R.C.

2109.52 . . . does not require the complaining party to establish fraud or undue

influence”). If the complaint establishes a prima face case of concealment, “then,

the respondent may rebut and overcome the prima facie case of concealment by

presenting clear and convincing evidence of ‘a present intention on the part of the

donor to make a gift’ to the suspected person.” Lance at ¶ 37, quoting Brooks v.

Bell, 1998 WL 165024, *4 (1st Dist. Apr. 10, 1998). To prove a valid inter vivos

gift, the recipient must show that the donor intended to transfer title and possession,

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and that this intent was fulfilled through the actual delivery of the property and the

complete surrender of all ownership, dominion, and control. Id.

{¶81} Based on our review of the record before us, we conclude that the

probate court did not err by granting summary judgment in favor of Daniel after

determining that there was no genuine issue of material fact that the defendants were

guilty of wrongful concealment, embezzlement, and conveyance of assets. Indeed,

Daniel established a prima facie case of concealment and wrongful conveyance by

presenting evidence that Thomas used his fiduciary position as Johnston’s attorney-

in-fact to transfer significant estate assets to himself, an act of self-dealing that is

presumptively improper.

{¶82} A power of attorney is a written document that authorizes an agent,

known as an attorney-in-fact, to perform specific acts on behalf the principal. Id. at

¶ 35. “The power of attorney creates a fiduciary relationship between the attorney-

in-fact and the principal.” Id. “Because ‘[t]he holder of a power of attorney has a

fiduciary relationship with the principal,’ the ‘fiduciary relationship imposes a duty

of loyalty to the principal.’” Thomas, 2022-Ohio-4235, at ¶ 28 (3d Dist.), quoting

Temple v. Temple, 2015-Ohio-2311, ¶ 29 (3d Dist.). “‘The law is zealous in

guarding against abuse of such a relationship.’” Id. at ¶ 29, quoting Bacon v.

Donnet, 2003-Ohio-1301, ¶ 30 (9th Dist.). “Any transfer of property from a

principal to his attorney-in-fact is viewed with some suspicion.” Id., quoting Bacon

at ¶ 30. “Indeed, ‘attorneys-in-fact act outside the scope of their authority when

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they use a general, durable power of attorney to make gifts to themselves.’” Id.,

quoting MacEwen v. Jordan, 2003-Ohio-1547, ¶ 11 (1st Dist.).

{¶83} “Importantly, ‘a general, durable power of attorney does not authorize

attorneys-in-fact to transfer the principal’s property to themselves or to others,

unless the power of attorney explicitly confers this power.’” Id. at ¶ 30, quoting

MacEwen at ¶ 12. See also Hutchings v. Hutchings, 2019-Ohio-5362, ¶ 28 (6th

Dist.) (observing that “without the express authority to self-deal, any transfer of

assets using a power of attorney [is] presumptively invalid”); Temple at ¶ 29; R.C.

2109.44. “‘This rule applies to both transfers made to the attorney-in-fact and gifts

to third parties.’” Thomas at ¶ 30, quoting Lance at ¶ 38. “‘In such a case, the

attorney-in-fact is obligated to demonstrate the fairness of his conduct.’” Id.,

quoting Bacon at ¶ 30.

{¶84} “‘Notwithstanding any express authority included in a power of

attorney to make gifts to oneself and to create trusts, a fiduciary remains subject to

a standard of care.’” Id. at ¶ 31, quoting Bacon at ¶ 44. “‘The fiduciary, therefore,

continues to be bound by the overriding duty of loyalty to act for the benefit of the

principal and not for the benefit of himself.’” (Emphasis added.) Id., quoting Bacon

at ¶ 44. “‘Any gifts must be made in the best interests of the principal and solely to

further the interests of the principal, even at the expense of the agent’s interests.’”

Id., quoting Bacon at ¶ 44. “That is, ‘[a] fiduciary may not use the special

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confidence and trust which a fiduciary duty imposes to acquire or retain property

for himself.’” Id., quoting Bacon at ¶ 45.

{¶85} “When ‘determining the validity of such a transfer, a court must first

look to the express grant of authority in the text of the power of attorney. Absent

that grant, the transfer is presumptively invalid.’” Id. at ¶ 33, quoting MacEwen at

¶ 14.

“A court must next look to other considerations, based upon the unique facts of the case, which may include whether a transfer depleted assets necessary to maintain the principal’s lifestyle; whether the principal knew of the gift and authorized it in some manner; whether the recipient of the transfer was the natural object of the principal’s bounty and affection; whether the transfer was consistent with the principal’s estate plan; whether the gift was a continuation of the principal’s pattern of making gifts; and whether the transfer was made for another legitimate goal, such as the reduction of estate taxes.”

Id., quoting MacEwen at ¶ 14.

{¶86} Here, it is undisputed that Thomas served as Johnston’s attorney-in-

fact under a general durable power of attorney (executed in 2018) that did not

expressly grant him the authority to make inter vivos gifts to himself or to third

parties.5 Consequently, the transfers were presumptively invalid and Thomas was

required to prove the fairness of his conduct. Accord Mancz v. McHenry, 2012-

Ohio-3285, ¶ 52 (2d Dist.); Lance at ¶ 42.

5 Under a 2017 non-durable power of attorney for the Schwab account, while Thomas had the authority to transfer funds, including to himself, this power did not grant him the authority to engage in self-dealing transactions that were not in Johnston’s best interest or that violated his overriding fiduciary duty of loyalty.

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{¶87} To rebut the presumption of invalid self-dealing, the defendants

pointed to Thomas’s own affidavit as well as his own and Ann’s self-serving

testimony, asserting that Johnston was fully aware of and authorized all transactions.

Compare Thomas, 2022-Ohio-4235, at ¶ 39 (3d Dist.) (noting that the only evidence

presented to justify the fiduciary’s self-dealing transfers consisted of the fiduciary’s

own self-serving statements asserting the decedent had instructed him to make the

gifts). They supported their assertion by pointing to bank statements mailed to

Johnston’s home and the existence of a 2019 promissory note, characterizing the

transfers at different times as either gifts or loans.

{¶88} However, this evidence, even when viewed in a light most favorable

to the defendants, is insufficient to create a genuine issue of material fact regarding

the fairness and validity of Thomas’s self-dealing conduct. To begin with, the

defendants’ position on appeal is arguably rendered untenable by their own post-

judgment stipulation. In that filing, the parties stipulated that Thomas improperly

transferred $1,375,302.00 from Johnston’s account to his family and waived any

right to argue that the amount retrievable by the estate was less. Importantly, by

stipulating to the amount that was improperly transferred and must be returned, the

defendants potentially conceded the existence of the wrongful conveyance that is

the core of the R.C. 2109.50 claim, thereby extinguishing the factual dispute they

now raise.

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{¶89} Nevertheless, even if we set aside the stipulation and analyze only the

evidence before the probate court at the time of its summary judgment

determination, Thomas failed to present sufficient evidence to rebut the presumption

of invalid self-dealing. Decisively, Thomas’s shifting characterization of the funds

undermines his position. That is, the “gift” theory is contradicted by the lack of any

corroborating evidence, such as gift tax returns, which Johnston, a seasoned

attorney, would have known to file for such large sums. Similarly, the “loan” theory

is undermined by the 2019 promissory note itself, which documented only a fraction

of the amount transferred, suggesting the vast majority of funds were not part of an

open and acknowledged loan arrangement. Furthermore, merely showing that bank

statements were mailed to Johnston’s home does not establish his informed consent

or ratify the fiduciary’s self-dealing, particularly given Johnston’s documented

reliance on Thomas for his daily affairs. Thus, because Thomas’s self-serving

explanations are inconsistent and not supported by sufficient objective evidence to

prove the fairness of his conduct, the defendants failed to meet their burden to rebut

the presumption that the transfers were invalid.

{¶90} Therefore, based on our de novo review of the record, and after

construing the facts in light most favorable to the defendants (as we are required to

do), we conclude that no genuine issues of material fact remain as whether the

defendants are guilty of wrongful concealment, embezzlement, and conveyance of

assets. Accordingly, we conclude that the probate court did not err by granting

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summary judgment in favor of Daniel as to his wrongful concealment,

embezzlement, and conveyance of assets claim.6

{¶91} The defendants’ assignments of error are overruled.

{¶92} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the probate court.

MILLER and WILLAMOWSKI, J.J., concur.

6 The defendants contend within their third assignment of error that the probate court exhibited judicial bias that violated their due process rights. However, because the defendants failed to properly assign this issue as error, we decline to address the argument. See App.R. 16(A)(3).

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JUDGMENT ENTRY

For the reasons stated in the opinion of this Court, the assignments of error

are overruled and it is the judgment and order of this Court that the judgment of the

trial court is affirmed with costs assessed to Appellant for which judgment is hereby

rendered. The cause is hereby remanded to the trial court for execution of the

judgment for costs.

It is further ordered that the Clerk of this Court certify a copy of this Court’s

judgment entry and opinion to the trial court as the mandate prescribed by App.R.

27; and serve a copy of this Court’s judgment entry and opinion on each party to the

proceedings and note the date of service in the docket. See App.R. 30.

William R. Zimmerman, Judge

Mark C. Miller, Judge

John R. Willamowski, Judge

DATED: /hls

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