Young v. Kaufman , 2020 Ohio 3283 ( 2020 )

[Cite as Young v. Kaufman, 2020-Ohio-3283.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
LAUREL K. YOUNG, ET AL., :
Plaintiffs-Appellants, :
No. 108719
v. :
JOSH S. KAUFMAN, ET AL., :
Defendants-Appellees. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: June 11, 2020
Civil Appeal from the Cuyahoga County Court of Common Pleas
Probate Division
Case No. 2014ADV201972
Appearances:
Kushner & Hamed Co., L.P.A., Michael R. Hamed, and
Philip S. Kushner, for appellants.
Walter Haverfield, L.L.P., John E. Schiller, and Jamie A.
Price, for appellees Josh Kaufman, Kim Kaufman, and
Doug Kaufman.
Reminger Co., L.P.A., Adam M. Fried, and Leon A. Weiss,
for appellee Josh Kaufman.
FRANK D. CELEBREZZE, JR., P.J.:
Plaintiffs-appellants Laurel Young (“Lori”) and James Kaufman (“Jim”)
(collectively, “appellants”) appeal from the trial court’s judgment in favor of
defendants-appellees Josh Kaufman (“Josh”), Kim Kaufman (“Kim”), and Doug
Kaufman (“Doug”) in their will contest action challenging their deceased mother,
Joyce Kaufman’s (“Joyce”) estate plan. Appellants argue that the trial court erred
by excluding statements made by Joyce pertaining to her estate plan and the
circumstances under which the estate plan was executed. After a thorough review
of the record and law, this court affirms.
I. Factual and Procedural History
Appellants and appellees are siblings and Joyce’s children. This appeal
involves the proceedings in the trial court on remand from this court in Young v.
Kaufman, 2017-Ohio-9015, 101 N.E.3d 655 (8th Dist.) (hereinafter “Young v.
Kaufman I”). 1 In Young v. Kaufman I, this court reversed the trial court’s judgment
granting summary judgment in favor of appellees on appellants’ will contest and
removal claims.
In 1993, Joyce executed an estate plan that first disposed of her assets
to her husband and then to her five children. In 1999, she modified her estate plan,
excluding Jim as a beneficiary, except for a $1,000 bequest. In 2000, Joyce made
additional changes to her estate plan. Pursuant to the 2000 modifications, Joyce’s
1For a full recitation of the factual and procedural history in this case, see Young
v. Kaufman I.
personal property was to be disposed of at Kim’s discretion, after which Lori, Doug,
Kim, and Josh were to receive the balance of Joyce’s assets. Joyce also executed a
durable power of attorney in 2000. She appointed Doug and Kim jointly as her
attorneys-in-fact.
Joyce took steps to revise her estate plan in 2009. According to the
attorneys that initially worked on the revision and an accountant that assisted Joyce
with tax-related matters, Joyce only wanted three of her children — Josh, Kim, and
Doug — to inherit under the new estate plan. See Young v. Kaufman I at ¶ 9-10.
“On December 10, 2010, Joyce signed her last will and testament (the ‘2010 will’)
and the third amendment to declaration of trust (Joyce S. Kaufman Revocable Trust
Agreement) dated December 10, 2010 (the ‘2010 trust’) (collectively, the ‘2010
estate plan’), which excluded Jim and Lori as beneficiaries.” Id. at ¶ 23.
In 2013, after being diagnosed with lung cancer, Joyce took steps to
revise her estate plan again. Young v. Kaufman I, 2017-Ohio-9015, 101 N.E.3d 655,
at ¶ 28. According to the attorney that began working with Joyce in the summer of
2010, Joyce wanted to revise her estate plan at that time to enable all five children
to share the assets of her estate.
In mid-July 2013, Joyce met with all five of her children (the “July 2013
family meeting”). Jim testified that during this meeting, Joyce told
each of her children that she wanted them all “to get along,” that she
wanted her estate to be divided equally among them and that she
wanted the proceeds of her life insurance policies to be used to pay her
estate taxes. Jim testified that Joyce made all of her children promise
that they would follow her wishes. Joyce died before any new estate
plan was finalized or executed.
On April 7, 2014, appellees filed an application for authority to
administer Joyce’s estate based on the 2010 estate plan and the will was
admitted to probate. Josh, Kim and Doug were designated co-
executors under the will and co-trustees of the trust.
Id. at ¶ 32-33.
Appellants commenced their will contest action on October 10, 2014.
Appellants filed a complaint against appellees asserting (1) a will contest claim and
(2) a claim to remove Josh and Kim as co-executors and co-trustees of Joyce’s 2010
estate plan. In their will contest claim, appellants alleged that Joyce’s 2010 estate
plan is not valid because it was the product of undue influence by Josh and Kim.
Appellants alleged that the 2010 estate plan did not reflect Joyce’s
testamentary intent and that Joyce’s true intent — as she expressed to
all of her children shortly before her death — was for her assets to be
divided equally among her five children. Appellants alleged that Josh
and Kim had improperly influenced Joyce to exclude them under her
2010 estate plan and had impeded Joyce’s efforts to revise her estate
plan in 2013 to include all five children. Appellants further alleged that
after Joyce’s death, Kim and Josh took various actions to benefit
themselves to the detriment of appellants and Joyce’s estate, including
converting Joyce’s personal property to themselves, locking appellants
out of their mother’s homes and failing to use the life insurance
proceeds to pay estate taxes. Appellants sought (1) a declaratory
judgment that the 2010 will and trust be set aside as void due to
appellees’ self-dealing and/or exertion of undue influence over Joyce,
(2) removal of Josh and Kim as co-executors and co-trustees due to
their alleged breaches of fiduciary duty, (3) recovery of their attorney
fees and costs and (4) “any other relief that the Court deems just and
proper.”
Id. at ¶ 34.
The will contest and removal claims were bifurcated on December 9,
2015. In bifurcating appellants’ claims, the trial court determined that the only
issues relevant to appellants’ will contest claim were (1) Joyce’s mental condition in
December 2010 when she executed the 2010 estate plan, and (2) whether Joyce’s
2010 estate plan was executed as a result of undue influence. The trial court held
that appellants’ removal claim would fail for lack of standing unless appellants
prevailed on their will contest claim, demonstrating that they were interested parties
to Joyce’s estate.
On April 28, 2016, appellees filed a motion for partial summary
judgment on appellants’ will contest claim. Therein, appellees argued that they were
entitled to judgment as a matter of law because Joyce did not lack testamentary
capacity at the time she executed the 2010 estate plan, and that the 2010 estate plan
was not the product of undue influence exercised by Josh or Kim.
Appellants filed a brief in opposition, arguing that the “full evidentiary
record” shows that at the time Joyce executed her 2010 estate plan, Josh and Kim
had a confidential relationship with Joyce and exercised undue influence “to skew
her true estate wishes in their favor.” Young v. Kaufman I, 2017-Ohio-9015, 101
N.E.3d 655, at ¶ 38. Appellants argued that Josh’s and Kim’s confidential
relationship with Joyce gave rise to a presumption of undue influence. Finally,
appellants asserted that “genuine issues of material fact existed regarding Joyce’s
‘true wishes’ with respect to her 2010 estate plan, her susceptibility to undue
influence and whether, in fact, she was unduly influenced.” Id. Regarding the “full
evidentiary record” at the summary judgment stage, and the evidence upon which
appellants opposed appellees’ summary judgment motion on the will contest claim,
appellants submitted the following:
excerpts of the depositions of Lori, Jim, Josh, Kim, Gariepy, Gross,
Oscar and Baptiste, copies of the 1993 estate plan, the 1999 and 2000
modifications to the 1993 estate plan and the 2010 estate plan, portions
of Joyce’s cell phone records, copies of Hahn Loeser’s billing records,
copies of documents relating to various promissory notes, portions of
Gariepy’s notes, Gross’ February 10, 2009 memorandum, Gariepy’s
communications with the Kaufman family relating to Joyce’s estate
plan and Josh’s responses in 2010 and 2011, a KeyBank power-of-
attorney designation and payable-on-death designation in favor of Kim
dated November 25, 2010, email communications among Hahn Loeser
attorneys regarding Joyce’s estate planning work from 2010, an
affidavit from attorney Leslie Vargo, Lori’s counsel, authenticating
certain documents and an affidavit and expert report from attorney
Michael Murman, addressing the conduct of Joyce’s attorneys, her
attorneys’ alleged conflicts of interest and Joyce’s alleged susceptibility
to undue influence by her attorneys.
Id. at ¶ 38, fn. 10.
On June 24, 2016, the trial court granted appellees’ motion for partial
summary judgment on the will contest claim. The trial court concluded,
appellants had failed to present any evidence establishing that Joyce
was susceptible to undue influence at the time she executed the 2010
estate plan, that there was no evidence of any connection between
Kim’s actions and the 2010 estate plan and that the case law did not
support a finding that Josh was in a confidential relationship with
Joyce so as to give rise to a presumption of undue influence. The [trial]
court further found that undisputed evidence established that Joyce’s
2010 estate plan reflected her “consistent stated objectives over a
period of time,” that there was no evidence that Josh or Kim exerted
any influence over Joyce that made her exclude Jim and Lori from her
estate plan and that there were no genuine issues of material fact as to
Joyce’s testamentary capacity at the time she executed her 2010 estate
plan.
Id. at ¶ 39. Appellants filed a motion for reconsideration that the trial court denied.
Appellees filed a motion for summary judgment on the remaining
removal claim in July 2016. Therein, appellees argued that based on the trial court’s
judgment in favor of appellees on appellants’ will contest claim, appellants failed to
establish that they were beneficiaries of the 2010 estate plan, and as a result,
appellants lacked standing to pursue their removal claim. Appellees also asserted
that appellants failed to present any evidence of any self-dealing or that appellees
breached a fiduciary duty.
Appellants filed a brief in opposition to appellees’ summary judgment
motion on the removal claim. Appellants argued an oral trust was created at the
July 2013 family meeting, during which Joyce purportedly advised the five children
that she wanted them to share her estate assets equally. Appellants maintained that
they did, in fact, have standing to pursue the removal claim based on the oral trust.
Appellants attached the following evidence to their brief in opposition: (1) an
affidavit from Jim, detailing the events leading up to the July 2013 family meeting
and the steps taken by Joyce in 2013 to revise her estate plan, and (2) several emails
relating to Joyce’s intent to revise her estate plan in 2013, allowing Jim and Lori to
share in her estate.
On January 5, 2017, the trial court granted appellees’ motion for
summary judgment on the removal claim, rejecting appellants’ assertion that they
had standing to pursue their removal claim on the basis of their “newly created oral
trust theory[.]” Young v. Kaufman I, 2017-Ohio-9015, 101 N.E.3d 655, at ¶ 42. In
granting appellees’ motion, the trial court explained,
(1) appellants had failed to plead the existence of an oral trust or that
they were beneficiaries of Joyce’s estate by virtue of an oral trust in
their complaint, (2) had made no argument, when opposing summary
judgment on the [will] contest claim, that the 2010 estate plan was
invalid due to the creation of a subsequent oral trust and the probate
court had already determined, in granting appellees’ motion for
summary judgment on the contest claim, that the 2010 will and trust
were valid and (3) could not establish the existence of an oral trust
based on the applicable law.
Id.
Appellants filed appeals challenging the trial court’s summary
judgment rulings in favor of appellees, which this court consolidated for purposes of
disposition. On appeal, this court acknowledged that based on the evidence in the
record, there is no indication that Joyce had any diminished mental or physical
capacity, nor any significant health issues when she executed the 2010 estate plan
in December. This court explained, “[t]he evidence presented by both parties
showed that as of December 2010, Joyce was in good health, astute, intelligent,
independent and took care of her own needs. Although Joyce retained various
advisors to assist her with financial, legal and business matters, the record reflects
that she generally made her own decisions.” Id. at ¶ 54.
On appeal, appellants argued that Josh and Kim had a confidential or
fiduciary relationship with Joyce that gave rise to a presumption of undue influence.
This court rejected appellants’ argument as it pertained to Kim. Id. at ¶ 61-62.
However, this court found merit to appellants’ argument as it pertained to Josh.
This court explained,
[b]ased on Josh’s role as intermediary and spokesperson for his mother
with respect to her 2010 estate plan, we believe reasonable minds could
disagree as to whether Josh had a confidential relationship with Joyce
that would entitle appellants to a presumption of undue influence by
Josh. Although there is evidence in the record upon which this
presumption could potentially be rebutted, we find that genuine issues
of fact exist with respect to whether Josh’s relationship with Joyce was
free of undue influence and whether Joyce acted voluntarily, with full
knowledge and understanding of her actions and their consequences,
in executing her 2010 estate plan. Accordingly, the probate court erred
by not affording appellants the opportunity to litigate the presumption
of undue influence in granting summary judgment on the contest
claim.
Id. at ¶ 64, citing Sigler v. Burk, 3d Dist. Crawford No. 3-16-19, 2017-Ohio-5486,
¶ 86-90.
This court concluded that the trial court erred in granting summary
judgment in favor of appellees on appellants’ will contest claim because a genuine
issue of material fact existed as to the validity of Joyce’s 2010 estate plan. Young v.
Kaufman I, 2017-Ohio-9015, 101 N.E.3d 655, at ¶ 65. Because summary judgment
was improper on the will contest claim, this court also held that the trial court erred
in granting appellees’ motion for summary judgment on the removal claim because
a genuine issue of material fact existed as to whether appellants have standing. Id.
This court reversed the trial court’s judgment granting summary judgment in favor
of appellees and remanded the matter to the trial court “for further proceedings
consistent with this opinion.” Id. at ¶ 66.
Appellees filed an appeal to the Ohio Supreme Court challenging this
court’s judgment. Young v. Kaufman, 152 Ohio St. 3d 1465, 2018-Ohio-1795, 97
N.E.3d 501. In May 2018, the Ohio Supreme Court declined to accept the matter for
review.
The matter was returned to the trial court’s docket on May 30, 2018,
and pretrial proceedings resumed. Appellants filed a “submission concerning legal
and factual issues to be addressed at will contest trial” on September 25, 2018.
Therein, appellants asserted that this court’s opinion in Young v. Kaufman I
provided “a roadmap of the legal and factual issues to be addressed at trial.”
Appellants specifically referenced evidence pertaining to 2013 after Joyce was
diagnosed with cancer, including (1) the July 2013 family meeting during which
Joyce met with all five children and (2) Jim’s testimony that Joyce indicated she
wanted her estate to be divided equally among all five children. Appellants indicated
that they “are prepared to stipulate to all of the facts” set forth in this court’s opinion.
Appellees did not enter a pretrial stipulation to the evidence, including
the evidence pertaining to Joyce’s statements in 2013, that appellants sought to
introduce at trial. Rather, in response to appellants’ September 25, 2018 brief, the
parties filed motions in limine regarding evidence in anticipation of trial and Joyce’s
purported statements in 2013.
Appellants filed motions in limine to (1) “admit testimony as to the
intent of [Joyce] regarding her estate plan”; (2) “preclude authentication of
documents obtained by defendant’s attorney from Kim Kaufman’s house”; (3) “to
preclude testimony regarding [Joyce’s] intent and knowledge from attorney Stephen
H[.] Gariepy”; and (4) “admit admissions against interest against [Josh].”
Regarding Josh’s purported admissions, appellants alleged that Josh admitted to
attorneys Gariepy and Gary Zwick,2 in 2013 and 2014, that Joyce wanted all five
2 Zwick represented co-executors Josh, Kim, and Doug.
children to inherit equally. See appellants’ brief in opposition to appellees’ motion
for summary judgment on the removal claim, filed September 2, 2016.
Appellees filed motions in limine to (1) exclude the expert report and
testimony of appellants’ expert witness in the field of legal ethics;3 (2) “exclude
evidence after February 1, 2011”; and (3) “exclude evidence of an alleged oral trust.”
In opposing appellees’ motion in limine to exclude evidence after February 1, 2011,
appellants argued that the trial court would be disregarding this court’s judgment in
Young v. Kaufman I by excluding the evidence.
The trial court granted appellees’ motion to exclude evidence after
February 1, 2011, in part. The trial court precluded appellants from presenting
arguments or evidence at trial regarding statements and activities in 2013 related to
Joyce’s 2010 estate plan. The trial court determined that appellants would be
precluded from presenting arguments or evidence occurring after December 10,
2010, unless the evidence is directly related to (1) whether Josh was in a confidential
or fiduciary relationship with Joyce, and (2) whether Joyce’s 2010 estate plan was
the product of undue influence. The trial court determined that “although evidence
of activity in 2013 is not relevant and not admissible at trial,” February 1, 2011, was
an arbitrary cutoff date. The court concluded that it would not use a specific cutoff
date; rather, it would limit admissibility of evidence pertaining to events that
occurred after December 10, 2010, when Joyce executed the 2010 estate plan, to
3 In addition to the will contest action, appellants filed a legal malpractice action
against the attorneys that handled Joyce’s estate planning.
evidence that was directly relevant to (1) whether Josh was in fiduciary relationship
with Joyce and (2) whether Joyce’s 2010 estate plan was the product of undue
influence.
The trial court granted appellees’ motion to “exclude evidence of an
alleged oral trust” in which appellees sought to preclude appellants from arguing or
eliciting testimony that Joyce created an oral trust in 2013. The trial court denied
appellants’ motion to preclude testimony from attorney Stephen Gariepy regarding
Joyce’s intent and knowledge.
Appellants filed a motion for reconsideration on the trial court’s
rulings on the motions in limine. The trial court heard oral arguments from the
parties on appellants’ motion for reconsideration on January 28, 2019.
Regarding appellees’ motion in limine to exclude evidence after
February 1, 2011, the trial court opined that the evidence appellants sought to
introduce merely suggested that Joyce had a different state of mind in 2013 than she
did when she executed her 2010 estate plan. The trial court determined that it was
not going to open the door and permit appellants to introduce evidence from 2013
without limit. The trial court explained that the relevant time period was 2010, and
Joyce’s intent when she executed the 2010 estate plan on December 10, 2010, and
that references to 2013 could confuse the jury.
The trial court denied appellants’ motion for reconsideration as it
pertained to all of the evidentiary rulings, with the exception of the testimony of
appellants’ expert witness. The trial court determined that if appellants could
demonstrate that the witness was an expert in the area of probate practice, the
expert would be permitted to testify regarding whether a breach of duty occurred
and whether the breach resulted in the exercise of undue influence on Joyce.
On January 28, 2019, trial commenced on the will contest claim. At
the beginning of trial, the trial court indicated that it was willing to reconsider the
rulings on the motions in limine. (Tr. 20.) Appellants called nine witnesses at trial,
including Jim, Doug, and Josh.
Jim testified at trial that Josh “was a challenge our whole lives.” He
explained that Josh got kicked out of one or two schools and got in trouble with the
police. Jim asserted that Joyce never discussed her estate planning with him. Jim
had one conversation with his parents about estate planning that he initiated, to get
guidance when his three children were born.
Doug testified at trial about Joyce’s relationship with Josh:
[I]t was always a very troubling relationship.
With Josh it was — Josh was always doing something wrong. I don’t
have a relationship with Josh, and I haven’t had a relationship with
Josh in a very long time.
My mom — Josh was my mom’s errand boy for a very long time. Josh
did a lot of things that were very dishonest in the business, in his
personal life, and it was obviously very troubling to my mom, as it
would be in any family, as it would be to me or anybody else who is a
parent.
(Tr. 325.)
Joyce voiced these concerns about Josh to Doug on a regular basis.
Doug explained, “my mom knew that [Josh] couldn’t solve things.” (Tr. 325.) Doug
testified that Joyce never relied on Josh for important tasks, such as estate planning.
Doug asserted that he did not discuss Joyce’s estate planning with her in 2009.
The testimony of appellants’ witnesses demonstrated that (1) Joyce
did not have trust or confidence in Josh, and she would not have relied on Josh to
handle important matters. The evidence demonstrated that Joyce only trusted Josh
to handle routine tasks such as running errands. Appellants’ evidence established
that Joyce was not susceptible to undue influence and Josh did not exercise undue
influence over Joyce. Finally, the evidence showed that Joyce communicated with
business advisors, accountants, and attorneys throughout the estate planning
process, and Joyce’s communications about her intent to these third party advisors
were consistent with the 2010 estate plan.
At the end of appellants’ case-in-chief, appellants’ trial counsel
attempted to proffer evidence regarding facts and circumstances after February 1,
2011, that had previously been excluded by the trial court. Appellants’ counsel
sought to proffer the following evidence: (1) David Stith’s opinion testimony about
whether Joyce would have signed the 2010 estate plan;4 (2) Kim’s testimony
regarding Joyce’s statements about wanting to find Lori a house in Florida and how
the house would be funded; (3) Doug’s testimony about Joyce’s statements during
the family meeting in July 2013; (4) Lori’s testimony regarding Joyce’s statements
in May or June 2013 about the vacation home in Florida and Joyce’s statements
4 Stith, Joyce’s business advisor, met with Joyce in January 2009 to discuss Joyce’s
objectives for her new estate plan. See Young v. Kaufman I at ¶ 10.
during the family meeting in July 2013; (5) Jim’s testimony about Joyce’s
statements during the family meeting; (6) Larry Oscar’s testimony about a 2013
email in which Josh purportedly admitted that all five of Joyce’s children were
supposed to inherit equally;5 and (7) Gariepy’s testimony about Josh’s purported
admission that all five children were supposed to inherit equally. Appellants’ trial
counsel asserted that Doug, Lori, and Jim would have testified to facts and
circumstances after February 1, 2011, pertaining to the July 2013 family meeting
where Joyce purportedly said she wanted her children to share everything equally.
Appellees’ counsel objected to the evidence that appellants’ counsel
sought to present. The trial court excluded the evidence pertaining to Joyce’s 2013
statements. Thereafter, appellees moved for a directed verdict on the will contest
claim.
The trial court granted appellees’ motion for a directed verdict on the
will contest claim. The trial court explained that the fact that Joyce may have had a
change of heart, or the fact that Josh may have admitted, after Joyce became sick in
2013, that she actually wanted the five children to share everything equally, “has
absolutely nothing to do with what went on in 2009 and 2010.” (Tr. 16, directed
verdict hearing.)
The trial court’s February 1, 2019 judgment entry granting appellees’
motion for a directed verdict on the will contest claim provides, in relevant part,
5
Oscar is an attorney that attended the January 2009 meeting where Joyce
discussed her objectives for hew new estate plan. See Young v. Kaufman I at ¶ 10.
The Court finds that even if reasonable minds could differ as to whether
[appellants’ evidence was] sufficient to establish a “confidential
relationship” and even if this Court assumes that the relationship is
established thereby raising a presumption of undue influence, the
Plaintiffs set forth no evidence by which the jury could find that undue
influence actually occurred. * * *
The Court finds that Plaintiffs offered no evidence indicating that Joyce
Kaufman was susceptible to undue influence and finds that the
evidence presented by Plaintiffs showed that in fact she was not
susceptible.
The Court further finds that Plaintiffs offered no evidence that
improper influence was exerted or attempted. The testimony and
exhibits presented by the Plaintiffs made clear that Joyce was meeting
with, and communicating with, her business advisor, her accountant
and her attorneys throughout her estate planning process. None of
these people testified that Josh was in any way influencing Joyce in her
estate planning.
Finally, Plaintiffs offered no evidence that there was a result showing
the effect of undue influence. The evidence presented by Plaintiffs
shows that in 2009, with no involvement by Josh, Joyce instructed her
estate planning attorney to draft a plan that excluded Plaintiffs from
her Will and Trust. The evidence showed that Joyce’s plan was
consistent with her prior estate planning done in 2000 with regard to
the exclusion of Plaintiff Jim Kaufman as beneficiary. The evidence
showed that the 2010 estate plan was consistent with her stated
intentions in 2009.
Even assuming that there was a presumption of undue influence for
Defendants to rebut, there was no evidence of undue influence for
Defendants to rebut. Plaintiffs’ own case made clear that Joyce was
capable of making her intentions known, that she did so consistently
and with the guidance and advice of her long trusted business advisor,
her accountant, and her attorneys.
The Court finds that after construing the evidence most strongly in
favor of Plaintiffs there is no evidence upon which reasonable minds
could find that the essential elements of undue influence were met.
On February 4, 2019, appellants filed a motion in this court to show
cause as to why the trial judge should not be held in contempt for failing to comply
with this court’s judgment in Young v. Kaufman I. This court denied appellants’
motion to show cause on February 6, 2019, for lack of jurisdiction.
Appellants filed a motion for a new trial on February 26, 2019.
Therein, appellants argued that by precluding appellants from presenting evidence
of Joyce’s statements in 2013, the trial court “prohibited [appellants] from offering
evidence that was considered by [this court in Young v. Kaufman I].” Furthermore,
appellants argued that the trial court’s evidentiary rulings were “hardly consistent
with [Young v. Kaufman I’s] mandate.” Appellants did not argue that the trial court
erred in limiting or excluding Doug’s testimony in their new trial motion. The trial
court denied appellants’ motion for a new trial.
On June 20, 2019, the trial court entered judgment in favor of
appellees on appellants’ removal claim. The trial court’s June 20, 2019 judgment
entry provides, in relevant part, “the Court again finds that Plaintiffs lack standing
to pursue the removal claims because they failed to prove their claims that the 2010
estate plan was invalid. Defendants are entitled to judgment on the removal claims.”
Appellants filed the instant appeal on June 25, 2019, challenging the
trial court’s June 20, 2019 judgment. Appellants assign one error for review:
I. Whether the trial court erred on remand by excluding evidence that
this Court of Appeals previously held created a genuine issue of
material fact as to whether the decedent’s estate plan was the result of
undue influence, and then entering a directed verdict based on the
absence of that evidence.
II. Law and Analysis
A. Scope of Appeal
In their sole assignment of error, appellants argue that the trial court
erred by “excluding evidence that [this court] previously held created a genuine issue
of material fact as to whether [Joyce’s] estate plan was the result of undue influence,
and then entering a directed verdict based on the absence of that evidence.”
Appellants’ brief at 1. Although appellants reference the trial court’s judgment
granting a directed verdict in favor of appellees, it is evident that appellants are
primarily challenging the trial court’s evidentiary rulings — particularly the trial
court’s decision to exclude the statements Joyce purportedly made in 2013.
Accordingly, the scope of this appeal will focus on the trial court’s
evidentiary rulings, rather than the trial court’s judgment granting a directed verdict
in favor of appellees on the will contest claim and subsequent dismissal of the
removal claim for lack of standing.
B. Evidentiary Rulings
1. Evidence at Issue
In this appeal, appellants argue that the trial court erred by
prohibiting Jim’s testimony about the following statements that Joyce purportedly
made to him in May 2013: (1) that the 2010 estate plan was a “sin,” (2) that
“everything was supposed to be equal,” and (3) that Joyce had been under “intense”
pressure from Josh when she executed the 2010 estate plan.
Appellants further argue that the trial court erred by limiting Doug’s
testimony. Specifically, appellants contend that the trial court erred by prohibiting
Doug from testifying about (1) events that occurred after December 2010,
(2) statements Joyce made to him about her 2010 estate plan, (3) whether Joyce’s
2010 estate plan was consistent with what Joyce told Doug about her intentions, and
(4) whether Doug believed Josh had unduly influenced Joyce with respect to the
2010 estate plan. In their reply brief, appellants acknowledged that Doug testified
for the first time at trial. Appellants did not present Doug’s testimony at the
summary judgment stage of the proceedings.
Finally, the trial court prohibited appellants from introducing Joyce’s
alleged statements, made during the July 2013 family meeting, that she wanted
them to get along, she wanted her estate to be divided equally among the five
children, and she wanted the proceeds of her life insurance policy to pay estate taxes.
2. Standard of Review
“Whether specific evidence will be admitted is a matter left to the
considerable, but not unlimited, discretion of the trial court.” State v. Morris, 132
Ohio St. 3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 19. This court will not reverse
a trial court’s decision to admit or exclude evidence absent an abuse of that
discretion.
A trial court’s determination regarding the relevance of any evidence
is also reviewed for an abuse of discretion. State v. Allen, 73 Ohio St. 3d 626, 633,
653 N.E.2d 675 (1995). Absent an abuse of discretion that affects the substantial
rights of the adverse party or is inconsistent with substantial justice, this court will
uphold a trial court’s evidentiary decision. Beard v. Meridia Huron Hosp., 106 Ohio
St.3d 237, 2005-Ohio-4787, 834 N.E.2d 323, ¶ 20.
3. Young v. Kaufman
As an initial matter, we address appellants’ argument that the trial
court was required to admit the 2013 evidence based on this court’s holding in
Young v. Kaufman I, 2017-Ohio-9015, 101 N.E.3d 655. As noted above, this court
held that genuine issues of material fact existed regarding (1) whether Josh had a
confidential relationship with Joyce that would give rise to a presumption of undue
influence by Josh, and (2) whether Josh’s relationship with Joyce was free of undue
influence. Id. at ¶ 64.
In this appeal, appellants appear to argue that because this court
concluded that genuine issues of material fact existed on the issue of undue
influence that precluded the grant of summary judgment, the trial court was
required to admit all of the evidence on remand in adjudicating the will contest and
removal claims. Appellants’ argument is misplaced.
Regarding the “full evidentiary record” upon which appellants relied
in opposing appellees’ motion for summary judgment on the will contest claim, and
the record that was before this court in Young v. Kaufman I, appellees did not
challenge the admissibility of any of the evidence appellants submitted in opposing
appellees’ summary judgment motion. As a result, the trial court did not consider
the admissibility of this evidence in ruling on the summary judgment motions.
Because the issue was not raised below or on appeal from the trial court’s summary
judgment rulings, this court also did not consider the admissibility of any evidence
in reversing the trial court’s summary judgment rulings — much less order the trial
court on remand to admit “the full evidentiary record” into evidence at trial.
Contrary to appellants’ assertions, this court made no determination
regarding the admissibility of any evidence, nor did this court order the trial court
to admit any evidence on remand. This court’s decision was issued in a summary
judgment context under Civ.R. 56, and applying a de novo standard of review. In
the 2017 appeal, the sole issue before this court was whether appellants had
presented enough evidence at that time to raise a genuine issue of material fact on
the will contest or removal claims. This court held that based on the evidence that
had been presented at the summary judgment stage, the matter should be remanded
to litigate the undue influence issue as it pertained to appellants’ will contest claim.
The rules governing the admissibility of evidence are entirely different
from the summary judgment standard under Civ.R. 56. Unlike summary judgment
rulings that we review de novo, this court reviews evidentiary rulings for an abuse of
discretion.
For all of these reasons, we overrule appellants’ assignment of error to
the extent that appellants contend that the trial court was required to admit all of
the evidence that had been submitted by the parties with respect to the summary
judgment motions based on this court’s holding in Young v. Kaufman I.
4. Hearsay
Appellants argue that the aforementioned evidence — Jim’s testimony
about Joyce’s statements in 2013 and Doug’s testimony — is admissible under the
hearsay exception set forth in Evid.R. 803(3) for “[t]hen existing, mental, emotional,
or physical condition.”
Hearsay is defined as “a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the
truth of the matter asserted.” Evid.R. 801(C). “Pursuant to Evid.R. 802, hearsay is
inadmissible unless it falls within an exception provided by the rules of evidence.”
State v. Wright, 8th Dist. Cuyahoga No. 100803, 2014-Ohio-5424, ¶ 32.
Evid.R. 803(3) provides an exception to the hearsay rule for “[a]
statement of the declarant’s then existing state of mind, emotion, sensation, or
physical condition.” Evid.R. 803(3) provides that the following is not excluded by
the rule against hearsay, regardless of whether the declarant is available as a
witness:
A statement of the declarant’s then existing state of mind, emotion,
sensation, or physical condition (such as intent, plan, motive, design,
mental feeling, pain, and bodily health), but not including a statement
of memory or belief to prove the fact remembered or believed unless it
relates to the execution, revocation, identification, or terms of
declarant’s will.
“The state of mind exception under Evid.R. 803(3) ‘does not include
statements of belief of past events by declarant. To include statements of belief
about a past event would negate the entire proscription against hearsay evidence.’”
State v. Thomas, 8th Dist. Cuyahoga No. 106194, 2018-Ohio-2841, ¶ 30, quoting
1980 Staff Notes, Evid.R. 803(3).
The testimony sought to be introduced under Evid.R. 803(3) “must
point towards the future rather than the past. When the state of mind is relevant it
may be proved by contemporaneous declarations of feeling or intent.” State v.
Apanovitch, 33 Ohio St. 3d 19, 21-22, 514 N.E.2d 394 (1987), citing Shepard v.
United States, 290 U.S. 96, 54 S. Ct. 22, 78 L. Ed. 196 (1933).
These precepts of caution are a guide to judgment here. There are times
when a state of mind, if relevant, may be proved by contemporaneous
declarations of feeling or intent. Mutual Life Ins. Co. v. Hillmon, 145
U.S. 285, 295[, 12 S. Ct. 909, 36 L. Ed. 706 (1892)]; Shailer v. Bumstead,
99 Mass. 112 [(1868)]; Wigmore, §§ 1725, 1726, 1730. Thus, in
proceedings for the probate of a will, where the issue is undue
influence, the declarations of a testator are competent to prove his
feelings for his relatives, but are incompetent as evidence of his conduct
or of theirs. Throckmorton v. Holt, 180 U.S. 552, 571[-573, 21 S. Ct. 474,
45 L. Ed. 663 (1901)]; Waterman v. Whitney, 11 N.Y. 157 [(1854)];
Matter of Kennedy, 167 N.Y. 163, 172[,] 60 N.E. 442 [(1901)].
Shepard at 104-105.
In support of their argument that the trial court erred by excluding the
aforementioned evidence, appellants direct this court to the 2006 Staff Notes to
Evid.R. 803(3), which provide, in relevant part,
the [then existing mental, emotional, or physical condition] exception
does not include statements of belief of past events by declarant. To
include statements of belief about a past event would negate the entire
proscription against hearsay evidence.
In one instance, statements of belief by declarant are rendered
admissible under this exception. Where the statement is by a testator
concerning the execution, revocation, identification or terms of a will,
such statement though constituting a belief about a past event is
admissible. The declaration in this specific instance is highly
trustworthy since it relates so closely to the testator-declarant’s affairs,
and the general prohibition against statements of belief about past
events is unnecessary.
Appellants further direct this court to Ament v. Reassure Am. Life Ins.
Co., 180 Ohio App. 3d 440, 2009-Ohio-36, 905 N.E.2d 1246 (8th Dist.), for the
proposition that Joyce’s statements are admissible to determine whether the 2010
estate plan reflects Joyce’s wishes or was the result of undue influence.
In Ament, the plaintiff-appellant, as trustee of a trust agreement
between him and his deceased wife, sued his wife’s younger sister, Young Hee Shin
Kim (“Young Hee”). Id. at ¶ 1. Appellant alleged that Young Hee and his cousin had
caused the decedent, through undue influence, fraudulent concealment, and
fraudulent inducement, to change the beneficiary designation on a $500,000 life
insurance policy from appellant, as trustee, to Young Hee.
Appellant filed a pretrial motion in limine to exclude hearsay
statements decedent made to any witnesses who would testify at trial. The trial court
denied the motion.
On appeal, appellant argued that the trial court erred in denying his
motion in limine and permitting decedent’s insurance agent and appellant’s cousin
to testify regarding what decedent told them. First, appellant objected to appellant’s
cousin’s testimony that decedent told her in or around August 2004, following a
meeting with an estate attorney, during which the structure of decedent’s estate plan
was discussed, that decedent intended to grant the proceeds of one insurance policy
to her sister, and the other policies, plus the balance of her estate, to her appellant-
husband. This court found that the cousin’s testimony was admissible under
Evid.R. 803(3) as a statement of decedent’s intent in granting the proceeds of one
insurance policy to her sister. Ament, 180 Ohio App. 3d 440, 2009-Ohio-36, 905
N.E.2d 1246, at ¶ 27.
Second, appellant objected to the admission of decedent’s statement
in or around July 2005 to her insurance agent explaining why she designated Young
Hee, and not her other sister, as beneficiary of one of the insurance policies. The
insurance agent testified that in June 2005, decedent called her and told her that
she wanted to change the beneficiary on her life insurance policy. The agency sent
the form to decedent on July 1, 2005; decedent completed and returned the form on
July 4, 2005. Shortly after decedent completed and returned the form, decedent
told the agent that the new beneficiary on the policy was her sister, Young Hee.
Decedent told her that Young Hee did not have a husband, house, or money like the
other sister. In September 2005, decedent gave Young Hee an envelope that
contained the change of beneficiary form. On appeal, this court held that the trial
court did not err in admitting this statement because it was admissible under
Evid.R. 803(3) to explain decedent’s motive in designating Young Hee, and not her
other sister, as beneficiary, as it constitutes an exception under Evid.R. 803 to the
hearsay rule. Id. at ¶ 29. Decedent’s statement was made shortly after decedent
completed the change of beneficiary form.
After reviewing the record, we find this case to be distinguishable from
Ament. In Ament, the decedent’s statements that appellant challenged on appeal
constituted decedent’s then existing state of mind: her intent in granting the
proceeds of a life insurance policy to her sister, and her motive in designating her
younger sister as beneficiary. These statements were made at the time decedent
granted the life insurance proceeds to her sister in August 2004, and at the time
decedent changed the beneficiary of her life insurance policy in July 2005.
In this case, Joyce’s statements in 2013 were not made at or around
the time Joyce executed her estate plan in December 2010. Nor did appellants
attempt to introduce Joyce’s 2013 statements to demonstrate Joyce’s then existing
(i.e., at the time she executed the 2010 estate plan) state of mind — her intent or
motive — in excluding appellants as beneficiaries.
In order to use Evid.R. 803(3) to admit hearsay testimony, the
statement must refer to a present condition, not a past condition, i.e.
“I am afraid of X.” McGrew v. Popham, 5th Dist. [Licking] No. 05 CA
129, 2007-Ohio-428, ¶ 28, citing Apanovitch, 33 Ohio St. 3d 19, 514
N.E.2d 394. Additionally, Evid.R. 803(3) does not permit testimony
regarding the declarant’s statements as to why he or she held a
particular state of mind. State v. Stewart, 75 Ohio App. 3d 141, 152, 598
N.E.2d 1275 (11th Dist.1991), citing Apanovitch[at 21].
(Emphasis added.) Brown v. Ralston, 2016-Ohio-4916, 67 N.E.3d 15, ¶ 42 (7th
Dist.).
Here, to the extent that appellants sought to present Joyce’s 2013
statement as evidence that the 2010 estate plan was the result of undue influence,
the 2013 statement is not “I am under intense pressure from Josh.” Rather, the 2013
statement is Joyce was under intense pressure from Josh when she executed her
estate plan in 2010. Therefore, the hearsay testimony refers to a past condition, not
a present condition.
Furthermore, Jim’s testimony about his May 2013 conversation with
Joyce and Joyce’s statement that she needed to meet with Steve Gariepy,6 and
Joyce’s statement to Gariepy in April 2013 that she wanted to revise her estate plan
so that all five children would share equally in her estate is inadmissible because it
constitutes a statement as to why Joyce held a particular state of mind (purportedly
wanting to revise her estate plan).
Several courts have found a decedent’s statements regarding a party’s
future inheritance to be admissible under Evid.R. 803(3) as reflecting
the decedent’s then-existing state of mind and intent for the future.
See, e.g., [Knowlton v. Schultz, 179 Ohio App. 3d 497, 2008-Ohio-5984,
902 N.E.2d 548, ¶ 39 (1st Dist.)] (involving a decedent’s statement to
his daughter that she would receive income from a trust after his
death); McGrew [at] ¶ 30 (involving a decedent’s statement regarding
her intent that property be transferred to certain individuals upon her
death); Brown [at ¶ 48] (involving a decedent’s statements regarding
his intent to transfer property to his granddaughter upon his death);
Ament[, 180 Ohio App. 3d 440, 2009-Ohio-36, 905 N.E.2d 1246,] at
¶ 29 (involving a decedent’s statements of intent to grant proceeds of
insurance policies to certain family members).
(Emphasis added.) Pirock v. Cain, 11th Dist. Trumbull No. 2019-T-0027, 2020-
Ohio-869, ¶ 86. Here, Joyce’s 2013 statements are not relevant to the validity of the
2010 estate plan, nor do Joyce’s 2013 statements pertain to her then-existing state
of mind and intent for future inheritance. Joyce’s 2013 statements do not relate to
the future, they relate to the past.
6 Gariepy is the attorney Joyce began working with in the summer of 2010 on her
new estate plan. See Young v. Kaufman I at ¶ 13.
For all of these reasons, Joyce’s 2013 statements do not fall within the
exception to the hearsay rule under Evid.R. 803(3). In challenging Joyce’s 2010
estate plan, appellants attempted to present Joyce’s 2013 statements regarding her
intent to divide her assets equally among the five children and Joyce’s feeling that
she was under intense pressure from Josh. Appellants sought to introduce these
statements as evidence of Joyce’s intent, motive, or feeling in the past, at the time
she executed the 2010 estate plan. The 2013 statements refer to a past condition,
state of mind, or mental feeling and do not reflect Joyce’s then existing state of mind
in 2010. See McGrew, 5th Dist. Licking No. 05 CA 129, 2007-Ohio-428, at ¶ 30.
Accordingly, Joyce’s 2013 statements were not admissible under Evid.R. 803(3).
Finally, regarding appellants’ argument that the trial court erred in
limiting Doug’s testimony at trial, Doug testified that he and Joyce talked “all the
time” about Joyce’s stock in the family business. However, Doug testified that he
did not discuss Joyce’s estate planning with her prior to her execution of the 2010
estate plan. As noted above, Doug asserted that Josh was Joyce’s errand boy, he was
dishonest personally and professionally, and Josh’s dishonesty was very troubling
to Joyce. Doug explained that Joyce “knew that [Josh] couldn’t solve things,” and
Doug unequivocally testified that Joyce did not rely on Josh for important tasks like
estate planning.
The trial court permitted Doug to testify about Joyce’s intentions
regarding her stock in the family company. Doug was confident that he and Joyce
would get to a point where he was controlling the business, and he testified that it
was not Joyce’s intention for her stock in the business to get tied up in her estate.
When appellants’ counsel attempted to elicit testimony from Doug
regarding what Joyce told him about her estate plan, defense counsel objected on
the basis that the testimony was inadmissible hearsay. The trial court called the
parties to sidebar. Appellants’ counsel argued that Joyce’s statements to Doug about
her estate plan were relevant and admissible under the “present intent” exception to
the hearsay rule. The trial court prohibited Doug from testifying about what Joyce
told him about her estate plan, concluding that Doug testified that Joyce did not
discuss her estate with him, the present intent hearsay exception was inapplicable,
and appellants’ counsel could not elicit testimony speculating about Joyce’s intent
regarding the 2010 estate plan.
The trial court did not permit Doug to testify about (1) what Joyce told
him regarding her intentions with respect to the 2010 estate plan, (2) whether he
believed the 2010 estate plan expressed Joyce’s intentions, (3) whether he was
convinced that Josh exercised undue influence against Joyce, or (4) whether Josh
or Kim threatened him not to testify against them at trial.
After review, we find that the trial court did not err or abuse its
discretion in limiting the scope of Doug’s testimony. Just as Jim’s testimony about
Joyce’s statements in 2013 was not admissible under Evid.R. 803(3), Doug’s
testimony about the same — events that occurred after Joyce executed the 2010
estate plan, and the statements Joyce purportedly made to Doug about her 2010
estate plan (i.e., whether Joyce’s 2010 estate plan was consistent with what Joyce
told Doug about her intentions) — was not admissible under the Evid.R. 803(3)
exception to the hearsay rule. The testimony that appellants’ counsel attempted to
elicit from Doug was overly speculative in regard to the timeframe that Joyce
purportedly made the statements, and the context in which the statements were
purportedly made (i.e., in the context of her stock in the family company, her 2010
estate plan, or both).
Based on the record before this court, we are unable to conclude that
the trial court’s decision to exclude Joyce’s 2013 statements — which appellants
attempted to introduce at trial through the testimony of Jim and Doug — was
unreasonable, arbitrary, or unconscionable. Therefore, appellant’s sole assignment
of error is overruled.
III. Conclusion
After thoroughly reviewing the record, we affirm the trial court’s
judgment. We find no basis upon which to conclude that the trial court’s decision
to exclude the statements purportedly made by Joyce in 2013 was unreasonable,
arbitrary, or unconscionable, and we cannot find that the trial court’s evidentiary
ruling affected appellants’ substantial rights.
Judgment affirmed.
It is ordered that appellees recover from appellants costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment
into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., PRESIDING JUDGE
KATHLEEN ANN KEOUGH, J., and
EILEEN A. GALLAGHER, J., CONCUR