[Cite as In re The Estate of Adams, 2013-Ohio-5824.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY, OHIO
ESTATE OF: MARY E. ADAMS, : OPINION DECEASED. :
: CASE NO. 2013-A-0042
:
Appeal from the Ashtabula County Court of Common Pleas, Probate Division, Case No. 2013 ES 00035.
Judgment: Reversed and remanded.
Nicholas A. Iarocci, The Iarocci Law Firm, L.L.C., 213 Washington Street, Conneaut, OH 44030 (For Appellant-Gregory W. Johnson).
Luke P. Gallagher, 326-A West Main Road, Conneaut, OH 44030 (For Appellee- Chester J. Adams).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Gregory W. Johnson, executor of the estate of Mary E. Adams,
appeals from the judgment of the Ashtabula County Court of Common Pleas, Probate
Division, denying his motion to set aside a magistrate’s order relating to Chester
Adams’, the decedent’s surviving spouse and appellee herein, election to take against
the decedent’s will. For the reasons discussed below, we reverse and remand the
judgment of the trial court.
{¶2} The decedent passed away on January 8, 2012. At the time of her death,
she was married to appellee. On January 28, 2013, appellant, the decedent’s adult son from a previous marriage, was appointed executor of the decedent’s estate. The next
day, the trial court issued a citation to appellee, notifying him of his right to elect to take
against the will, or accept the terms of the decedent’s will. A hearing was set for May
28, 2013 to determine whether appellee would exercise his elective rights.
{¶3} On February 14, 2013, appellee’s attorney sent appellant’s attorney a
correspondence indicating appellee intended to take against the decedent’s will at the
May 2013 hearing. On March 17, 2013, appellant’s attorney sent appellee’s attorney a
copy of the estate’s Inventory/Appraisal and Schedule of Assets. Appellant filed the
inventory and appraisal on March 18, 2013.
{¶4} On March 25, 2013, appellee’s attorney sent appellant’s attorney a letter
indicating appellee intended to elect against the will and, in an attempt to expedite the
process, enclosed a stipulation and waiver of hearing on election. On April 1, 2013,
appellant’s counsel responded by letter stating, inter alia, that an election by surviving
spouse to take against the will must be made in person, as a matter of law. Appellant’s
counsel recommended appellee’s counsel contact the magistrate to facilitate the
process of electing to take against the will.
{¶5} On May 16, 2013, the trial court notified the parties that a hearing on the
inventory and appraisal would take place on June 25, 2013. Meanwhile, the May 28,
2013 hearing that was set to determine whether appellee would exercise his elective
rights did not go forward. And, despite appellee’s apparent desire to elect to take
against the will, he did not file a motion, or otherwise contact the court, to expedite this
procedure.
2 {¶6} An inventory and appraisement hearing was held, as scheduled, on June
25, 2013. Because no exceptions were filed, the trial court approved the estate’s
inventory and appraisement on that date. On July 1, 2013, the magistrate issued an
order resetting the hearing to determine whether appellee would take against the will for
July 9, 2013. On that date, appellee met with the magistrate and elected to exercise his
right to take against the will of the decedent. The magistrate issued an order
acknowledging appellee’s decision.
{¶7} On July 15, 2013, appellant filed a motion to set aside the magistrate’s
order and a motion to strike appellee’s attempt to take against the will. Appellant
argued appellee failed to exercise his rights within five months of the executor’s
appointment, pursuant to R.C. 2106.25. On July 24, 2013, the trial court entered
judgment denying the motion; it acknowledged that appellee failed to timely exercise his
right to take against the will by 11 days; the court, however, determined it had the
discretion to extend the statutory timeframe because the inventory was not approved
until three days prior to the expiration of the five month period. This appeal followed.
{¶8} Appellant assigns the following error:
{¶9} “The trial court committed prejudicial error by overruling Appellant-
Executor’s Motion to Set Aside July 9, 2013 Magistrate’s Order and Motion to Strike
Election of Surviving Spouse to Take Against the Will of Decedent based on the
premises that an election against the Will cannot be made after the inventory is filed and
approved by the trial court, and that it was in the trial court’s discretion to extend the
five-month election period under R.C. 2106.25.”
3 {¶10} The instant matter requires this court to determine whether the applicable
statutory scheme permitted the trial court to extend the limitation period for a surviving
spouse to exercise his elective rights. In its judgment, the court expressed its belief that
it possessed the discretion to act. The issue of the court’s authority to act, however, is a
question of law. We therefore review this issue de novo. See e.g. Carothers v. Ohio
Bd. of Speech-Language Pathology & Audiology, 11th Dist. Geauga No. 2004-G-2559,
2004-Ohio-6695, ¶7.
{¶11} R.C. 2106.25 governs the time limits for a surviving spouse to exercise
any rights under R.C. Chapter 2106. It provides:
{¶12} Unless otherwise specified by a provision of the Revised Code or
this section, a surviving spouse shall exercise all rights under
Chapter 2106. of the Revised Code within five months of the initial
appointment of an executor or administrator of the estate. It is
conclusively presumed that a surviving spouse has waived any
right not exercised within that five-month period or within any longer
period of time allowed by the court pursuant to this section. Upon
the filing of a motion to extend the time for exercising a right under
Chapter 2106. of the Revised Code and for good cause shown, the
court may allow further time for exercising the right that is the
subject of the motion.
{¶13} Moreover, R.C. 2106.01(E) specifically addresses the timeframe for a
surviving spouse to elect to take against the will. It provides:
4 {¶14} The election of a surviving spouse to take under a will or under
section 2105.06 of the Revised Code may be made at any time
after the death of the decedent, but the surviving spouse shall not
make the election later than five months from the date of the initial
appointment of an administrator or executor of the estate. On a
motion filed before the expiration of the five-month period, and for
good cause shown, the court may allow further time for the making
of the election. If no action is taken by the surviving spouse before
the expiration of the five-month period, it is conclusively presumed
that the surviving spouse elects to take under the will. The election
shall be entered on the journal of the court.
{¶15} When proceedings for advice or to contest the validity of a will are
begun within the time allowed by this division for making the
election, the election may be made within three months after the
final disposition of the proceedings, if the will is not set aside.
{¶16} Further, R.C. 2106.06 requires the election of a surviving spouse to be
made in person before the judge or magistrate. See e.g. In re Estate of Woods, 194
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[Cite as In re The Estate of Adams, 2013-Ohio-5824.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY, OHIO
ESTATE OF: MARY E. ADAMS, : OPINION DECEASED. :
: CASE NO. 2013-A-0042
:
Appeal from the Ashtabula County Court of Common Pleas, Probate Division, Case No. 2013 ES 00035.
Judgment: Reversed and remanded.
Nicholas A. Iarocci, The Iarocci Law Firm, L.L.C., 213 Washington Street, Conneaut, OH 44030 (For Appellant-Gregory W. Johnson).
Luke P. Gallagher, 326-A West Main Road, Conneaut, OH 44030 (For Appellee- Chester J. Adams).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Gregory W. Johnson, executor of the estate of Mary E. Adams,
appeals from the judgment of the Ashtabula County Court of Common Pleas, Probate
Division, denying his motion to set aside a magistrate’s order relating to Chester
Adams’, the decedent’s surviving spouse and appellee herein, election to take against
the decedent’s will. For the reasons discussed below, we reverse and remand the
judgment of the trial court.
{¶2} The decedent passed away on January 8, 2012. At the time of her death,
she was married to appellee. On January 28, 2013, appellant, the decedent’s adult son from a previous marriage, was appointed executor of the decedent’s estate. The next
day, the trial court issued a citation to appellee, notifying him of his right to elect to take
against the will, or accept the terms of the decedent’s will. A hearing was set for May
28, 2013 to determine whether appellee would exercise his elective rights.
{¶3} On February 14, 2013, appellee’s attorney sent appellant’s attorney a
correspondence indicating appellee intended to take against the decedent’s will at the
May 2013 hearing. On March 17, 2013, appellant’s attorney sent appellee’s attorney a
copy of the estate’s Inventory/Appraisal and Schedule of Assets. Appellant filed the
inventory and appraisal on March 18, 2013.
{¶4} On March 25, 2013, appellee’s attorney sent appellant’s attorney a letter
indicating appellee intended to elect against the will and, in an attempt to expedite the
process, enclosed a stipulation and waiver of hearing on election. On April 1, 2013,
appellant’s counsel responded by letter stating, inter alia, that an election by surviving
spouse to take against the will must be made in person, as a matter of law. Appellant’s
counsel recommended appellee’s counsel contact the magistrate to facilitate the
process of electing to take against the will.
{¶5} On May 16, 2013, the trial court notified the parties that a hearing on the
inventory and appraisal would take place on June 25, 2013. Meanwhile, the May 28,
2013 hearing that was set to determine whether appellee would exercise his elective
rights did not go forward. And, despite appellee’s apparent desire to elect to take
against the will, he did not file a motion, or otherwise contact the court, to expedite this
procedure.
2 {¶6} An inventory and appraisement hearing was held, as scheduled, on June
25, 2013. Because no exceptions were filed, the trial court approved the estate’s
inventory and appraisement on that date. On July 1, 2013, the magistrate issued an
order resetting the hearing to determine whether appellee would take against the will for
July 9, 2013. On that date, appellee met with the magistrate and elected to exercise his
right to take against the will of the decedent. The magistrate issued an order
acknowledging appellee’s decision.
{¶7} On July 15, 2013, appellant filed a motion to set aside the magistrate’s
order and a motion to strike appellee’s attempt to take against the will. Appellant
argued appellee failed to exercise his rights within five months of the executor’s
appointment, pursuant to R.C. 2106.25. On July 24, 2013, the trial court entered
judgment denying the motion; it acknowledged that appellee failed to timely exercise his
right to take against the will by 11 days; the court, however, determined it had the
discretion to extend the statutory timeframe because the inventory was not approved
until three days prior to the expiration of the five month period. This appeal followed.
{¶8} Appellant assigns the following error:
{¶9} “The trial court committed prejudicial error by overruling Appellant-
Executor’s Motion to Set Aside July 9, 2013 Magistrate’s Order and Motion to Strike
Election of Surviving Spouse to Take Against the Will of Decedent based on the
premises that an election against the Will cannot be made after the inventory is filed and
approved by the trial court, and that it was in the trial court’s discretion to extend the
five-month election period under R.C. 2106.25.”
3 {¶10} The instant matter requires this court to determine whether the applicable
statutory scheme permitted the trial court to extend the limitation period for a surviving
spouse to exercise his elective rights. In its judgment, the court expressed its belief that
it possessed the discretion to act. The issue of the court’s authority to act, however, is a
question of law. We therefore review this issue de novo. See e.g. Carothers v. Ohio
Bd. of Speech-Language Pathology & Audiology, 11th Dist. Geauga No. 2004-G-2559,
2004-Ohio-6695, ¶7.
{¶11} R.C. 2106.25 governs the time limits for a surviving spouse to exercise
any rights under R.C. Chapter 2106. It provides:
{¶12} Unless otherwise specified by a provision of the Revised Code or
this section, a surviving spouse shall exercise all rights under
Chapter 2106. of the Revised Code within five months of the initial
appointment of an executor or administrator of the estate. It is
conclusively presumed that a surviving spouse has waived any
right not exercised within that five-month period or within any longer
period of time allowed by the court pursuant to this section. Upon
the filing of a motion to extend the time for exercising a right under
Chapter 2106. of the Revised Code and for good cause shown, the
court may allow further time for exercising the right that is the
subject of the motion.
{¶13} Moreover, R.C. 2106.01(E) specifically addresses the timeframe for a
surviving spouse to elect to take against the will. It provides:
4 {¶14} The election of a surviving spouse to take under a will or under
section 2105.06 of the Revised Code may be made at any time
after the death of the decedent, but the surviving spouse shall not
make the election later than five months from the date of the initial
appointment of an administrator or executor of the estate. On a
motion filed before the expiration of the five-month period, and for
good cause shown, the court may allow further time for the making
of the election. If no action is taken by the surviving spouse before
the expiration of the five-month period, it is conclusively presumed
that the surviving spouse elects to take under the will. The election
shall be entered on the journal of the court.
{¶15} When proceedings for advice or to contest the validity of a will are
begun within the time allowed by this division for making the
election, the election may be made within three months after the
final disposition of the proceedings, if the will is not set aside.
{¶16} Further, R.C. 2106.06 requires the election of a surviving spouse to be
made in person before the judge or magistrate. See e.g. In re Estate of Woods, 194
Ohio App.3d 371, 2011-Ohio-1831, ¶20 (2d Dist.).
{¶17} Given the foregoing, a surviving spouse has five months from the
appointment of the executor to either personally elect against the will, move for an
extension prior to the expiration of the five-month period, or contest the will. If none of
these options are taken, the law conclusively presumes the surviving spouse will take
pursuant to the will.
5 {¶18} In this case, appellant was appointed to serve as executor on January 28,
2013. Appellee had five months, i.e., until June 28, 2013, to either personally exercise
his elective rights or move the court for an extension. It is undisputed that appellee
neither personally elected to take against the will nor did he move the court for an
extension. Pursuant to the plain language of the statute, the conclusive presumption
was triggered and appellee was barred from electing to take after June 28, 2013.
{¶19} Nothing in the statute indicates a trial court has the authority to sua sponte
extend the statutory limitation period and we find no authority to support the proposition
that such authority exists. The only means of extending the period is by way of a
surviving spouse’s motion, based upon good cause, prior to the expiration of the five-
month period. The requirement that the motion be supported by good cause
demonstrates that a surviving spouse shoulders a burden to produce some evidence
sufficient to establish an extension is warranted. This shows the legislature intended the
surviving spouse to advance some persuasive basis for obtaining an extension before a
court, in its discretion, rules on the motion. We therefore hold that although a court
possesses the discretion to grant a motion to extend, it does not have the authority to
sua sponte extend the statute of limitations set forth under R.C. Chapter 2106. for a
surviving spouse to exercise his or her elective rights.1 The extension was therefore
legally invalid.
1. It is worth noting the extension was entered 11 days after the expiration of the five-month period. The statute requires motions to extend to be filed prior to the expiration of the limitations period. Even if this court determined the court had general authority to enter an extension sua sponte, the language of the statute implies the order in the instant case would be void because it occurred after the five-month period expired. In short, therefore, the conclusive presumption had already attached when the court entered the sua sponte extension.
6 {¶20} Appellee argues, however, that he cannot be barred from exercising his
right to election because the conclusive presumption to elect to take under the will is
triggered only “if no action is taken by the surviving spouse before the expiration of the
five month period.” R.C. 2106.01(E). Appellee asserts action was taken when his
attorney disclosed appellee’s intention to take against the will during his
correspondences with appellant’s attorney. While appellee did take measures
indicating he intended to exercise his elective rights, we do not agree that the
correspondences constitute “action” as contemplated under R.C. 2106.01(E).
{¶21} As discussed above, a surviving spouse is conclusively presumed,
pursuant to a statutory mandate, to have elected to take under a will unless he or she
personally elects to take against the will within five months of the appointment of the
executor, moves the court, prior to the expiration of the five month period, for an
extension of time, or contests the will. No alternative options are listed. Even though
appellee took some action to indicate he would elect to take against the will, he did not
follow the statutory directives in place for preserving his elective right. Appellee’s
actions were tantamount to mere intentions to formally act under the statute. Appellee’s
argument, therefore, is not well taken.
{¶22} Although we are sympathetic to the position in which appellee finds
himself, the applicable statute in this case sets forth a clear and definitive procedure for
avoiding this outcome. Appellee could have moved for an extension within the limitation
period, especially if he was concerned about “eleventh hour” inventory approval.
{¶23} Alternatively, appellee could have, by his own motion, requested the court
to proceed with the election process without the inventory approval. The R.C.
7 2106.01(E) permits a surviving spouse to elect to take against the will “at any time after
the death of the decedent.” And, in this case, appellee was aware of the contents of the
inventory as well as the amount of the appraisal. Further, the record indicates no
interested parties objected to the filing. Pursuant to the correspondences between
counsel for both parties, appellee was prepared to exercise his elective rights after the
inventory was filed. Accordingly, nothing prevented appellee from moving the court to
expedite the election process in light of the uncontested inventory prior to its approval.
Unfortunately, however, appellee failed to comport with the procedural options
available. As a result, he is conclusively presumed to take under the will.
{¶24} Given the foregoing, we conclude the trial court erred when it extended
the time frame for appellee to take against the will without being properly moved to do
so. The limitation period set forth under R.C. 2106.01(E) passed on June 28, 2013
without being properly extended. We therefore hold appellee is bound to take under the
will.
{¶25} Appellant’s assignment of error is sustained.
{¶26} For the reasons discussed above, the judgment of the Ashtabula County
Court of Common Pleas, Probate Division, is reversed and remanded.
TIMOTHY P. CANNON, P.J.,
THOMAS R. WRIGHT, J.,
concur.