[Cite as Yurkovich v. Kessler, 2020-Ohio-4169.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT HURON COUNTY
Bonnie Yurkovich, et al. Court of Appeals No. H-19-023
Appellees Trial Court No. WC 2018 00001
v.
Roberta Kessler, Individually and as Executrix of Estate of Rita Rose Justi DECISION AND JUDGMENT
Appellant Decided: August 21, 2020
*****
Timothy J. Gallagher and Jessica S. Forrest, for appellees.
Reese M. Wineman, for appellant.
ZMUDA, P.J.
I. Introduction
{¶ 1} Appellant, Roberta Kessler, appeals the judgment of the Huron County
Court of Common Pleas, Probate Division, invalidating the last will and testament of Rita
Rose Justi in this will contest action pursuant to a jury’s verdict in favor of appellees,
Bonnie Yurkovich and Pamela Justi. Finding no error in the proceedings below, we
affirm. A. Facts and Procedural Background
{¶ 2} Rita, the mother of appellant and appellees, passed away on November 26,
2016. Four months later, on March 20, 2017, Yurkovich filed an application for authority
to administer Rita’s estate in case No. ES 2017 00058 (the “estate case”). On April 21,
2017, appellant filed objections to Yurkovich’s application, in which she referenced a
“new will & testament” that was executed by Rita on October 23, 2014. Appellant
attached the will to her objections as an exhibit.
{¶ 3} An evidentiary hearing on appellant’s objections was held in the estate case
on June 23, 2017. Thereafter, on July 3, 2017, the probate court issued its judgment entry
admitting the October 23, 2014 last will and testament to probate after finding that it was
facially compliant with applicable law. Consequently, the probate court directed
appellant to file an application for authority to administer Rita’s estate, which appellant
filed on July 25, 2017. On that same day, the probate court issued an entry naming
appellant executrix of Rita’s estate, thereby denying Yurkovich’s application for
authority to administer the estate. Subsequently, the parties commenced discovery in the
estate case.
{¶ 4} As the estate case was proceeding through discovery, on January 25, 2018,
appellees filed a complaint to contest the October 23, 2014 last will and testament
admitted in the estate case. Pretrial discovery and motion practice commenced in the will
contest action, culminating in a jury trial that began on November 18, 2019, and
concluded the next day.
2. {¶ 5} Several witnesses testified at trial. Pamela was first to testify. At the outset
of her testimony, Pamela indicated that she cared for her parents in the years leading up
to and following her father’s death on September 1, 2013. Pamela stated that she visited
her parents on a daily basis. During these visits, Pamela would perform general tasks for
her parents, such as taking out the garbage, doing laundry, cleaning dishes, and cleaning
the house. Further, Pamela routinely took Rita to Wal-Mart on Saturdays to pick up
groceries.
{¶ 6} Pamela described her parents’ condition during the final years of their lives
as “feeble.” According to Pamela, Rita suffered from “diabetes for a lot of years; then
she was diagnosed with Parkinson’s, and she had the onset of dementia or Alzheimer’s.
This was very evident.”
{¶ 7} Describing appellant’s involvement with her parents, Pamela stated: “She
went by on Sunday nights with her granddaughter to visit them. She wasn’t there any
other time, but she had gone by on Sunday nights because that’s the day that I would stay
away.” Pamela testified that appellant began coming around more often once her father
died. According to Pamela, appellant started to assume more responsibility for caring for
Rita at this point. Because Pamela and appellant do not get along well, Pamela decided
to stop visiting Rita.
{¶ 8} Eventually, appellant changed the locks to Rita’s home and changed Rita’s
phone number without informing Pamela. Following a fall in January 2014, Rita began
living with appellant. Pamela lost contact with Rita after she moved into appellant’s
3. home. Pamela testified that appellant directed her to stay away from Rita, and Pamela
complied because she didn’t want to “poke the bear.”
{¶ 9} Concerning the October 23, 2014 last will and testament that was at issue in
this case, Pamela noted that Rita was in a nursing home at the time the will was executed.
Only appellant is named as a beneficiary of Rita’s estate under the October 23, 2014 will.
According to Pamela, Rita never notified her of an intent to disinherit her prior to Rita’s
death. Indeed, Pamela had no knowledge of the October 23, 2014 will until she retained
an attorney to pursue the present action.
{¶ 10} Bonnie was the second witness to testify. Bonnie stated that Rita’s health
deteriorated following the death of Bonnie’s father in September 2013. According to
Bonnie, Rita suffered from Parkinson’s and tremors, and also started exhibiting “paranoid
behaviors.”
{¶ 11} Concerning estate planning matters, Bonnie explained that she took Rita to
an attorney in December 2013 to rewrite her will. Bonnie testified that the rewritten will
removed reference to Bonnie’s father who had already passed away, and left the entire
estate to Rita’s three daughters equally. At this time, Rita also executed a power of
attorney document naming Bonnie as her power of attorney for financial and healthcare
matters. Unbeknownst to Bonnie, Rita, with appellant’s assistance, changed her estate
plan on October 23, 2014, when she executed a new last will and testament naming
appellant as the sole beneficiary of the estate. Bonnie testified that she did not become
aware of this change until she retained an attorney to pursue the present action, and
4. further stated that Rita never expressed an intention to disinherit her and Pamela prior to
her death.
{¶ 12} After Rita suffered the fall that caused a fractured hip in January 2014,
Bonnie stated that she and Pamela assumed caretaker roles for Rita’s benefit. Rita
suffered another fall at some point between April and June 2014 while home by herself.
By this time, Bonnie had noticed that Rita’s mental faculties were further degrading.
Bonnie recounted an instance in which the indoor temperature of Rita’s residence rose to
87 degrees because Rita was “afraid someone was going to come in and get her. She
refused to open doors, refused to open windows, she refused to turn on the air
conditioner. She didn’t want anyone to get her.” Bonnie stated that Rita was unable to
manage her medications and was easily confused. Bonnie also stated that Rita was
paranoid about financial matters and unreasonably concerned that people were taking her
money.
{¶ 13} On September 5, 2014, Rita was admitted to the hospital with a urinary
tract infection. While in the hospital, Rita was diagnosed with dementia. According to
Bonnie, appellant was caring for Rita at this time and was thus aware of the dementia
diagnosis at the time of Rita’s execution of the October 23, 2014 last will and testament
that prompted the filing of this action.
{¶ 14} The third witness to testify in this matter was Catherine Thayer. Thayer
was the legal secretary for the attorney who drafted Rita’s October 23, 2014 last will and
testament. At trial, Thayer testified that although she was one of the witnesses whose
5. signature appears on the will, she did not specifically recall the details of Rita’s execution
of the will, nor could she remember whether Rita was exhibiting signs of dementia at the
time.
{¶ 15} Following Thayer’s testimony, appellees’ counsel called appellant to the
stand for cross-examination. When asked about the incident in which the indoor
temperature of Rita’s home reached 87 degrees, appellant explained that the cause of the
excessive temperature was a broken air conditioning system that was subsequently fixed
by Pamela.
{¶ 16} Appellant went on to affirm that she took Rita to a May 29, 2014
appointment at which Rita executed a power of attorney for financial matters appointing
appellant as her agent. Regarding her appointment as power of attorney, appellant
explained that she “talked to Bonnie about it and she wasn’t too happy; other than that,
[Pamela and Bonnie] didn’t get a copy of it.”
{¶ 17} In October 2014, appellant took Rita to her bank, where Rita submitted a
change of beneficiary form related to her annuity through the Forethought Life Insurance
Company. Appellant, who filled out the form for Rita, became the sole beneficiary of the
annuity following the completion of the form.
{¶ 18} As to her involvement in Rita’s execution of the October 23, 2014 last will
and testament, appellant testified that she drove Rita to the appointment with her estate
planning attorney. Appellant stated that she informed Bonnie of Rita’s execution of a
6. new will after the appointment, but did not disclose to Bonnie the fact that she was the
sole beneficiary under the new will.
{¶ 19} As appellant’s cross-examination continued, she acknowledged having
written several checks to herself from Rita’s account from 2014 until Rita’s death in
2016. In particular, appellant agreed that she wrote two checks totaling $15,200 to
herself less than one week prior to Rita’s death, and after Rita suffered the stroke that
ultimately took her life. Additionally, appellant confirmed that Rita gifted her the family
farmhouse prior to her death. After Rita died, appellant received the entirety of Rita’s
Forethought annuity, totaling $295,667.57.
{¶ 20} Upon conclusion of appellees’ cross-examination of appellant, the matter
proceeded to appellant’s case in chief. For her first witness, appellant called her longtime
friend, Tammy Michaels. During her brief testimony, Michaels stated that appellant has
a reputation for being an honest person. Michaels also stated that she had observed
appellant’s interaction with Rita and never found appellant to be dominating in her
relationship with Rita. On cross-examination, Michaels testified that she was unaware of
Rita’s feelings about appellees and unfamiliar with Rita’s financial affairs or estate
planning documents.
{¶ 21} As her second witness, appellant called her daughter, Brittany Kessler.
Brittany stated that appellant’s relationship with Rita became closer after Rita’s husband
passed away. According to Brittany, appellant made frequent visits to Rita’s home and
“made sure [Rita] had everything she needed.” Brittany rebuffed appellees’ allegations
7. of undue influence, noting that Rita “was pretty strong-willed, so anything [she] said, she
got.” Brittany responded in the negative when asked whether she had ever observed
appellant attempting to override Rita’s decisions. Moreover, Brittany testified as to
Rita’s mental faculties, stating that Rita “knew who I was every time I went [to visit
Rita.] She could tell you both my kids’ names.”
{¶ 22} Following Brittany’s testimony, appellant took the stand. Appellant
testified regarding her relationship with Rita, noting that she cared for Rita when Bonnie
was unavailable. Appellant stated that Rita appeared coherent in the months leading up
to her execution of the October 23, 2014 last will and testament. Appellant explained
that Rita “would tell you what she wanted to eat, when she would want to do something,
when she would want like the laundry done. * * * She made her own decisions on
everything.”
{¶ 23} Regarding her involvement with Rita’s execution of the October 23, 2014
last will and testament, appellant testified that she drove Rita to her estate planning
attorney’s office at Rita’s request. Appellant noted that she was not present in the room
when the will was executed. Further, appellant stated that she did not tell Rita what to
include in the will. Appellant recounted an interaction with Rita in which Rita told her
that the change in her estate plan “would probably be a fight later, but she told [appellant]
that she did it for her reasons.”
{¶ 24} As her testimony continued, appellant explained that there were certain
periods of time where Rita would argue with Bonnie and Pamela. According to
8. appellant, Pamela refused to allow Rita to live with her because she was upset with Rita
disinheriting her. Regarding the breakdown in Rita’s relationship with Bonnie, appellant
stated:
With Bonnie, it was more over her money and everything. Bonnie
had told her that she got a debit card. Mom thought it was a credit card.
When mom called and talked to the bank, she found out that it was attached
to her checking and savings and my mom didn’t want that. She was old
school.
She was afraid that within due time, Bonnie would help herself or do
whatever; she was going to do that. Because Bonnie knew mom was old
fashioned and didn’t believe in all that, the cards and all. So, they argued
and fought over that.
{¶ 25} On cross-examination, appellant acknowledged that Rita’s doctor
diagnosed her with memory loss at a September 17, 2014 appointment, at which
appellant was present. Moreover, appellant conceded that the argument between Pamela
and Rita in which Pamela allegedly referenced her disinheritance occurred in the spring
of 2014, several months prior to Rita’s execution of the October 23, 2014 last will and
testament that removed Pamela as a beneficiary of Rita’s estate.
{¶ 26} Appellant rested at the close of her testimony. Thereafter, appellees each
took the stand in rebuttal and testified that they first became aware of the change to Rita’s
9. estate plan when they retained legal counsel in this matter. Additionally, Pamela denied
having an argument with Rita in the spring of 2014.
{¶ 27} At the close of evidence, the parties provided closing statements and the
trial court instructed the jury. After deliberating, the jury returned a verdict in favor of
appellees and a finding that Rita’s October 23, 2014 last will and testament is not a valid
will. Pursuant to the jury’s verdict in the present action, the probate court issued a
judgment entry on November 22, 2019, in which it found that the October 23, 2014 last
will and testament previously submitted to probate by appellant is invalid. Appellant’s
timely notice of appeal followed.
B. Assignments of Error
{¶ 28} On appeal, appellant assigns the following error for our review:
The verdict and the decision of the trial court below constituted
judgments that were against the manifest weight of the evidence based
upon the fact that the plaintiffs provided insufficient evidence to overcome
the presumed validity of the last will and testament of Rita Rose Justi,
executed on October 23, 2014.
II. Analysis
{¶ 29} In her sole assignment of error, appellant argues that the jury’s verdict was
against the manifest weight of the evidence.
{¶ 30} The standard of review for manifest weight is the same in a civil case as in
a criminal case. Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d
10. 517, ¶ 17. Accordingly, we weigh the evidence and all reasonable inferences, consider
the credibility of witnesses, and determine whether in resolving conflicts in the evidence,
the finder of fact clearly lost its way and created such a manifest miscarriage of justice
that the judgment must be reversed and a new trial ordered. Id. at ¶ 20. In so doing, “the
court of appeals must always be mindful of the presumption in favor of the finder of
fact.” Id. at ¶ 21.
{¶ 31} Here, appellant argues that appellees did not meet their burden of
demonstrating that Rita was incompetent at the time of her execution of the October 3,
2014 last will and testament. In response, appellees assert that their evidence was
sufficient to demonstrate Rita’s lack of testamentary capacity and appellant’s exercise of
undue influence over Rita.
{¶ 32} The test of testamentary capacity is whether the person “has sufficient mind
and memory: First, to understand the nature of the business in which [she] is engaged;
Second, to comprehend generally the nature and extent of [her] property; Third, to hold in
[her] mind the names and identity of those who have natural claims upon [her] bounty;
[and] Fourth, to be able to appreciate [her] relation to the members of [her] family.”
Niemes v. Niemes, 97 Ohio St. 145, 119 N.E. 503 (1917), paragraph four of the syllabus.
There is a rebuttable presumption that a person is competent unless they have been legally
declared mentally incompetent. In re Estate of Flowers, 2017-Ohio-1310, 88 N.E.3d 599,
¶ 85 (6th Dist.), citing Cameron v. State Teachers Retirement Bd. of Ohio, 10th Dist.
Franklin No. 00AP-425, 2000 WL 1753116, *11 (Nov. 30, 2000), Buzzard v. Public
11. Employees Retirement Sys. of Ohio, 139 Ohio App.3d 632, 637, 745 N.E.2d 442 (10th
Dist.2000), and Dover v. Durkoske, 11th Dist. Lake No. 92-L-067, 1993 WL 262620, *3
(June 30, 1993). Therefore, appellees had the burden to overcome the presumption with
clear and convincing evidence. Id.
{¶ 33} The issue of competency is determined by reference to the mental condition
of the testatrix at the time of her execution of the will. In re Estate of Fruchtman v.
Fruchtman, 6th Dist. Lucas No. L-84-234, 1985 WL 8383, *2 (Feb. 1, 1985).
Incompetency may be established by a lay witness who observed the mental state of the
testatrix and could assess whether the person was of sound mind to make a testamentary
disposition. Flowers at ¶ 86, citing Weis v. Weis, 147 Ohio St. 416, 72 N.E.2d 245
(1947), at paragraph two of the syllabus.
{¶ 34} At trial, Pamela stated that Rita’s dementia had become very evident during
the final years of her life. Likewise, Bonnie stated that Rita’s health deteriorated
following the death of Bonnie’s father in September 2013. According to Bonnie, Rita
started exhibiting “paranoid behaviors” and, by the summer of 2014, Bonnie noticed that
Rita’s mental faculties were further degrading. As an example of Rita’s mental
degradation and paranoia, Bonnie pointed to the instance in which the indoor temperature
of Rita’s residence rose to 87 degrees because Rita was “afraid someone was going to
come in and get her.” Bonnie further testified that Rita was unable to manage her
medications, was easily confused, and was paranoid about financial matters and
unreasonably concerned that people were taking her money.
12. {¶ 35} Upon consideration, we find that the foregoing evidence of Rita’s mental
degradation does not establish Rita’s lack of testamentary capacity to execute the
October 23, 2014 last will and testament in this case. Bonnie and Pamela’s testimony
concerning Rita’s mental condition established that Rita was suffering from dementia at
the time of the execution of the will. However, “[e]vidence of dementia alone is
insufficient to establish a lack of testamentary capacity; there must be evidence of how
the dementia impacted the person’s testamentary capacity.” Flowers at ¶ 86, citing
Stewart v. Boland, 2015-Ohio-1712, 33 N.E.3d 551, ¶ 15 (1st Dist.).
{¶ 36} Here, the evidence introduced by appellees did not show how Rita’s
dementia rendered her unable to understand the nature of the business in which she was
engaged, comprehend the nature and extent of her property, hold in her mind the names
and identity of those who have natural claims upon her bounty, or appreciate her relation
to the members of her family. Rather, the evidence of Rita’s dementia was used to
explain Rita’s irrational paranoia of the world around her.
{¶ 37} Because the record lacks clear and convincing evidence that Rita lacked
testamentary capacity, we find that appellees failed to overcome the presumption that
Rita was competent to execute her October 23, 2014 last will and testament. However,
that does not end our analysis, because appellees also argued that the October 23, 2014
last will and testament was the product of appellant’s undue influence over Rita.
{¶ 38} In order to prove undue influence, appellees were required to establish
“(1) a susceptible party; (2) another’s opportunity to exert [influence]; (3) the fact of
13. improper influence exerted or attempted; and (4) the result showing the effect of such
influence.” West v. Henry, 173 Ohio St. 498, 510-511, 184 N.E.2d 200 (1962).
{¶ 39} At trial, appellees introduced evidence going to each of the foregoing
elements of undue influence. As to Rita’s susceptibility, Pamela stated that Rita suffered
from dementia and described Rita’s condition as “feeble.” Rita’s medical records
confirm the dementia diagnosis. Further, Bonnie stated that Rita had become paranoid
about her finances in the months leading up to her execution of the October 23, 2014 last
will and testament. Bonnie testified that Rita was easily confused and unreasonably
concerned that people were taking her money. Taken together, this evidence supports the
conclusion that Rita was a susceptible testatrix on October 23, 2014.
{¶ 40} Concerning appellant’s opportunity to exert influence over Rita, the
evidence introduced at trial established that appellant began to live with Rita after Rita
suffered a fall in January 2014. Thereafter, appellant began to take control of Rita’s
financial affairs, ultimately becoming Rita’s power of attorney for financial matters in
May 2014, five months before Rita’s will was executed. Under these circumstances,
appellant had a clear opportunity to exert influence over Rita.
{¶ 41} Turning to the third element of undue influence, the fact of improper
influence exerted, there was evidence introduced at trial from which the jury could have
concluded that appellant improperly influenced Rita to execute the October 23, 2014 last
will and testament. Specifically, appellant acknowledged that she took Rita to the
May 29, 2014 appointment at which Rita completed the power of attorney document
14. naming appellant as Rita’s agent. Appellant also indicated that she took Rita to the bank
in October 2014 so that Rita could submit a change of beneficiary form, which was
completed by appellant, naming appellant as the sole beneficiary of Rita’s Forethought
annuity account. As to her involvement in Rita’s execution of the October 23, 2014 last
will and testament, appellant testified that she drove Rita to the appointment with her
estate planning attorney. Taken together, this evidence supports the notion that appellant
took an active role in facilitating Rita’s changes to her estate plan in the fall of 2014.
{¶ 42} Finally, the result of appellant’s influence is obvious. The net effect of the
changes to Rita’s estate planning was the complete disinheritance of Bonnie and Pamela
from their mother’s estate. There is no dispute that, prior to the changes, Rita’s estate
was to be divided equally among Rita’s daughters. However, pursuant to the changes
Rita made under appellant’s influence, appellant is now the sole owner of the family
farmhouse, the sole recipient of the proceeds of Rita’s Forethought annuity, and the sole
beneficiary of Rita’s estate under the October 23, 2014 last will and testament. This
distribution is suspicious in light of Rita’s relationship with Pamela and Bonnie, both of
whom helped to care for her at various points in time during her final years.
{¶ 43} In sum, the jury was presented with evidence that, if believed, could
establish that Rita’s execution of the October 23, 2014 last will and testament was the
product of appellant’s exercise of undue influence over Rita. Therefore, we cannot say
that the jury clearly lost its way when it invalidated the October 23, 2014 last will and
15. testament, and we do not find that the jury’s verdict was against the manifest weight of
the evidence. Accordingly, we find appellant’s sole assignment of error not well-taken.
III. Conclusion
{¶ 44} In light of the foregoing, the judgment of the Huron County Court of
Common Pleas, Probate Division, is affirmed. Appellant is ordered to pay the costs of
this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Arlene Singer, J. _______________________________ JUDGE Thomas J. Osowik, J. _______________________________ Gene A. Zmuda, P.J. JUDGE CONCUR. _______________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.
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