[Cite as Young v. Bellamy, 2017-Ohio-2994.]


                                      COURT OF APPEALS
                                  DELAWARE COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT

KYMBERLI YOUNG                                   JUDGES:
                                                 Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellant                      Hon. W. Scott Gwin, J.
                                                 Hon. William B. Hoffman, J.
-vs-
                                                 Case No. 16CAF110051
VERONICA DENISE BELLAMY,
EXECUTOR OF THE ESTATE OF
JESSE YOUNG, ET AL.                              OPINION

        Defendants-Appellees




CHARACTER OF PROCEEDING:                      Appeal from the Delaware County Court of
                                              Common Pleas, Probate Division, Case No.
                                              1506 0757 PCI


JUDGMENT:                                     Affirmed

DATE OF JUDGMENT ENTRY:                       May 24, 2017

APPEARANCES:

For Plaintiff-Appellant                       For Defendants-Appellees

THOMAS M. TYACK                               JEFFREY D. MACKEY
The Tyack Law Firm Co., L.P.A.                Fusco, Mackey, Mathews & Gill, LLP
536 South High Street                         655 Cooper Road
Columbus, Ohio 43215                          Westerville, Ohio 43081


                                              TIMOTHY G. CROWLEY
                                              3620 North High Street, Suite 110
                                              Columbus, Ohio 43214
Delaware County, Case No. 16CAF110051                                                    2

Hoffman, J.



      {¶1}    Plaintiff-appellant Kymberli Young appeals the October 18, 2016 Judgment

Entry entered by the Delaware County Court of Common Pleas, Probate Division, which

granted summary judgment in favor of defendants-appellees Veronica Denise Bellamy,

Executor of the Estate of Jesse Young, et al., and dismissed Appellant’s amended

complaint.

                          STATEMENT OF THE FACTS AND CASE

      {¶2}    Appellant is the granddaughter of Jesse Young (“Decedent”). Decedent

died on January 29, 2015, at the age of 96 years. Decedent’s Last Will and Testament,

which was executed on February 20, 2014 (“the Will”), was admitted to probate on March

12, 2015. Pursuant to the terms of the Will, the trial court appointed Appellee Veronica

Denise Bellamy (“Appellee Bellamy”) as the Executor1 of Decedent’s Estate.

      {¶3}    On June 25, 2015, Appellant filed a complaint, contesting the validity of the

Will and naming Appellee Bellamy and Appellee Aris Reeves (“Appellee Reeves”) as

defendants. Appellee Reeves is the daughter of Appellee Bellamy and Anthony Gene

Young, one of Decedent’s sons.2, 3 Appellant filed an amended complaint on September

22, 2015, adding Appellee Bellamy in her fiduciary capacity of Executor of Decedent’s

Estate as a defendant.




1
  Although we believe the proper title for Appellee Bellamy should be “Executrix”, because
the trial court and the parties have used the title “Executor”, we shall do that same.
2
  Appellee Bellamy and Anthony G. Young never married. Anthony G. Young died in
2008.
3
  Paternity of Appellee Reeves was established through a CSEA Administrative Order
filed in Franklin County, Ohio, on October 3, 2002.
Delaware County, Case No. 16CAF110051                                                     3


       {¶4}   Appellees filed a motion for summary judgment on August 4, 2016. In

support of their motion, Appellees attached, inter alia, the Affidavit of Appellee Bellamy;

the Affidavit of Attorney Timothy G. Crowley, who served as Decedent’s attorney from

1986, until his death, and who had drafted the Will; and the Affidavit of Sylvia W. Cover,

who witnessed Decedent execute the Will. Appellees asserted there were no genuine

issues of material fact as to Decedent’s testamentary capacity on the date he executed

the Will. Appellees added there were no genuine issues of material fact as to the

existence of undue influence or the validity of the Will.

       {¶5}   Appellant filed a memorandum contra on August 26, 2016.              Therein,

Appellant contended, based upon the totality of the circumstances, jury questions existed

as to Decedent’s capacity as well as to whether he was the victim of undue influence from

Appellee Bellamy. Appellant attached copies of judgment entries memorializing Appellee

Bellamy’s numerous felony convictions and sentences on forgery and theft charges, as

well as her own Affidavit, in support of her position. In her Affidavit, Appellant described

her involvement in the care of Decedent between 2008, and early 2014; Decedent’s

expressed desire to keep his property in his family; Decedent’s acknowledgement he had

no memory of executing a last will and testament in 2008, which left the residuary of his

Estate to Appellee Bellamy; and Decedent’s requesting Appellant contact an attorney to

change the Will.     Appellant further detailed events which she claimed established

Appellee Bellamy was unduly influencing Decedent.

       {¶6}   Appellees filed a reply on September 6, 2016. Appellees attached excerpts

from Appellant’s April 28, 2016 deposition as well as the supplemental affidavit of Attorney

Crowley. The magistrate conducted a pre-trial conference on September 20, 2016, at
Delaware County, Case No. 16CAF110051                                                   4


which time counsel for Appellant was permitted to withdraw and Appellant waived her

right to jury trial.

         {¶7}   The evidence presented during the summary judgment proceedings

established Decedent had executed a number of last wills and testaments during his

lifetime. Decedent executed last wills and testaments on March 30, 1977, and June 23,

1986, both of which named his wife and three children as beneficiaries. Following his

wife’s death on August 12, 20084, Decedent executed a new last will and testament on

August 28, 2008. In that will, Decedent included specific monetary bequests to his

neighbor, John M. Smith; his great-granddaughter, Chyna Young (Appellant’s daughter);

Appellant; his grandson, Arnold Young; his step-daughter, Helen J. Ellis; his step-

granddaughters, Debra K. Peake and Tonya Peake; his step-daughters, Francine

Jackson Martin and Linda Benbow; and his grandson, Robert Earl Young, Jr. Decedent

left his 1991 Buick automobile to Appellee Reeves. In addition, Decedent devised and

bequeathed his entire residuary estate to Appellee Bellamy. Also on August 28, 2008,

Decedent executed a Durable General Power of Attorney, appointing Appellee Bellamy

as his agent and attorney-in fact, and naming Appellee Reeves as the alternate agent.

         {¶8}   On August 11, 2011, Decedent executed a new last will and testament

which did not contain any of the monetary bequests set forth in the 2008 will. Rather,

Decedent bequeathed his 1991 Buick automobile to Chyna Young, and devised and

bequeathed his entire residuary estate to Appellant. Also on August 11, 2011, Decedent

executed a Durable General Power of Attorney, appointing Appellant as his agent and

attorney-in fact, and naming Chyna Young as the alternate agent.



4
    Decedent’s three children had died between February 11, 2006, and March 16, 2007.
Delaware County, Case No. 16CAF110051                                                     5


       {¶9}   On December 17, 2013, Decedent contacted Attorney Crowley and advised

him he wished to remove Appellant as his power of attorney. Subsequently, on January

29, 2014, Decedent instructed Attorney Crowley to prepare a new power of attorney and

a new last will and testament. Decedent indicated he did not want Appellant named as a

beneficiary or appointed Executor of his Estate. Pursuant to Decedent’s directives, the

Will provided a specific bequest of $3,000.00 to his neighbor, and the balance of his estate

through a specific bequest of personality and through the residue, in equal shares to

Appellee Bellamy, whom Decedent referred to as his daughter-in-law, Appellee Reeves,

and Chyna Young. Decedent reviewed a draft of the Will which was sent by e-mail from

Attorney Crowley to Appellee Bellamy. During a conversation on February 19, 2014,

Decedent advised Attorney Crowley no changes were needed to the draft document.

       {¶10} Attorney Crowley and Sylvia Cover, a Notary Public, met with Decedent at

his home on February 20, 2014.        Decedent reviewed the Will and indicated it was

prepared in accordance with his wishes. Appellee Bellamy arrived some time thereafter,

and Decedent executed the Will.

       {¶11} In her Affidavit in support of Appellees’ motion for summary judgment,

Sylvia Cover averred she conversed with Decedent on February 20, 2014, and found him

to be “an engaging elderly man”. Affidavit of Sylvia W. Cover at para. 5. Cover further

stated Decedent understood the purpose of her and Attorney Crowley’s visit. Id. Cover

noted Decedent “appeared to be of sound mind and memory and he was not under

restraint or duress of any kind whatsoever.” Id. at para. 7. In his Affidavit in support of

Appellees’ motion for summary judgment, Attorney Crowley detailed his relationship with

Decedent, which dated back to the 1970s. Attorney Crowley described Decedent’s
Delaware County, Case No. 16CAF110051                                                    6


various last wills and testaments and the contents thereof. Attorney Crowley recalled

Decedent called him on December 17, 2013, wishing to revoke the power of attorney he

had given to Appellant. In a subsequent call on January 29, 2014, Decedent advised

Attorney Crowley he wished to remove Appellant as a beneficiary to, and the Executor of,

his will. Attorney Crowley stated he drafted a new last will and testament according to

Decedent’s wishes. Attorney Crowley further noted Decedent had referred to Appellee

Bellamy as his daughter-in-law as far back as 2008. Attorney Crowley reiterated Sylvia

Cover’s position Decedent was of sound mind and memory and not under restraint or

duress of any kind when he executed the Will.

      {¶12} Via judgment entry filed October 18, 2016, the trial court granted summary

judgment in favor of Appellees. The trial court found Appellant failed to establish genuine

issues of material fact existed as to whether Decedent was subject to undue influence

and whether Decedent had the requisite capacity to make the Will.

       {¶13} It is from this judgment entry, Appellant appeals, raising as her sole

assignment of error:

       {¶14} THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN

THE WITHIN CAUSE TO THE DEFENDANT [SIC] WHERE THERE ARE DISPUTED

ISSUES OF FACT MAKING SUMMARY JUDGMENT INAPPROPRIATE (JUDGMENT

ENTRY FILED OCTOBER 19 [SIC], 2016).

                                                I

       {¶15} Civ.R. 56(C) provides:
Delaware County, Case No. 16CAF110051                                                      7


              Summary judgment shall be rendered forthwith if the pleadings,

      depositions, answers to interrogatories, written admissions, affidavits,

      transcripts of evidence, and written stipulations of fact, if any, timely filed in

      the action, show that there is no genuine issue as to any material fact and

      that the moving party is entitled to judgment as a matter of law. * * * A

      summary judgment shall not be rendered unless it appears from the

      evidence or stipulation, and only from the evidence or stipulation, that

      reasonable minds can come to but one conclusion and that conclusion is

      adverse to the party against whom the motion for summary judgment is

      made, that party being entitled to have the evidence or stipulation construed

      most strongly in the party's favor. * * *.



      {¶16} As an appellate court reviewing summary judgment issues, we must stand

in the shoes of the trial court and conduct our review on the same standard and evidence

as the trial court. Porter v. Ward, Richland App. No. 07 CA 33, 2007-Ohio-5301, 2007 WL

2874308, ¶ 34, citing Smiddy v. Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 30 OBR

78, 506 N.E.2d 212. The party moving for summary judgment bears the initial burden of

informing the trial court of the basis for its motion and identifying those portions of the

record that demonstrate the absence of a genuine issue of material fact. The moving party

may not make a conclusory assertion that the nonmoving party has no evidence to prove

its case. The moving party must specifically point to some evidence that demonstrates

that the nonmoving party cannot support its claim. If the moving party satisfies this

requirement, the burden shifts to the nonmoving party to set forth specific facts
Delaware County, Case No. 16CAF110051                                                       8

demonstrating that there is a genuine issue of material fact for trial. Vahila v. Hall (1997),

77 Ohio St.3d 421, 429, 674 N.E.2d 1164, citing Dresher v. Burt (1996), 75 Ohio St.3d

280, 662 N.E.2d 264. A fact is material when it affects the outcome of the suit under the

applicable substantive law. Russell v. Interim Personnel, Inc. (1999), 135 Ohio App.3d

301, 304, 733 N.E.2d 1186.

       {¶17} Appellant specifically asserts the trial court erred in granting summary

judgment to Appellees as genuine issues of material fact existed as to whether Decedent

was unduly influenced and whether he possessed the requisite testamentary capacity.

                                       UNDUE INFLUENCE

       {¶18} A will which has been admitted to probate is presumed to have been made

free from restraint. Krischbaum v. Dillon (1991), 58 Ohio St.3d 58, 64, 567 N.E.2d 1291.

The contestants have the burden to prove undue influence. Id.

       {¶19} To invalidate a will, undue influence “must so overpower and subjugate the

mind of the testator as to destroy his free agency and make him express the will of another

rather than his own, and the mere presence of influence is not sufficient.” West v. Henry,

173 Ohio St. 498, 501, 184 N.E.2d 200 (1962). In addition, the “[u]ndue influence must

be present or operative at the time of the execution of the will resulting in dispositions

which the testator would not otherwise have made.” Id. Proof of undue influence requires:

(1) a susceptible testator; (2) another's opportunity to exert influence on the testator; (3)

the fact of improper influence exerted or attempted; and (4) a result showing the effect of

such influence. Id. at 510–511.

       {¶20} The three affidavits Appellees filed in support of their motion for summary

judgment underscore the trial court’s finding Decedent was not under restraint or duress
Delaware County, Case No. 16CAF110051                                                   9


when he executed the Will on February 20, 2014. All three affiants observed Decedent

on the day he executed the Will. Decedent indicated to them the Will was prepared in

accordance with his wishes. Decedent was talkative and aware of the goings-on around

him. Appellant failed to present any evidence to refute the testimony of the witnesses to

the signing of the Will Decedent did so free of coercion or duress.

      {¶21} Appellant contends Decedent’s inaccurately referring to Appellee Bellamy

as his “daughter-in-law” evidences Appellee Bellamy’s undue influence over him, and

demonstrates Decedent was acting under a fraudulent misrepresentation. Appellant

submits Appellee Bellamy acknowledged she was never married to Decedent’s son,

Anthony, yet she perpetuated Decedent’s misrepresentation of her as his daughter-in-

law. We find Decedent’s referring to Appellee Bellamy as his daughter-in-law to have

little probative value as to the issue of undue influence. Decedent had referred to

Appellee Bellamy as his daughter-in-law many years prior to the execution of the Will.

Attorney Crowley, who had known Decedent for decades, accepted the label as

Decedent’s polite and affectionate way of describing his relationship with the mother of

one of his grandchildren, not out of confusion. The evidence revealed Decedent assisted

Appellant Bellamy while she was incarcerated in 2000, by providing financial assistance

to her older daughter for the care of Appellee Reaves. Decedent was clearly fond of

Appellee Bellamy.

      {¶22} We further note despite referring to Appellee Bellamy as his daughter-in-

law as early as 2008, Decedent, nevertheless, removed Appellee Bellamy as the residual

beneficiary in his 2008 last will and testament, and named Appellant the residual

beneficiary in his 2011 last will and testament. Such fact supports the concept Decedent’s
Delaware County, Case No. 16CAF110051                                                  10


reference to Appellee Bellamy as his daughter-in-law, although legally incorrect, did not

so influence his decision making process to change his last will and testament in 2011,

to remove her as residual beneficiary.

        {¶23} Appellant further asserts Appellee Bellamy’s undue influence over

Decedent is demonstrated by the fact, in 2014, she convinced Decedent Appellant was

stealing money from him. Appellant maintains such a claim was false. Appellant refers

to Appellee Bellamy’s numerous felony convictions and sentences on forgery and theft

charges, implying Appellee Bellamy is untrustworthy and capable of falsifying information.

Appellee Bellamy was incarcerated at least a decade before this alleged incident.

Decedent was aware of Appellee Bellamy’s incarceration and, in fact, provided financial

assistance to Appellee Reeves during that time. Appellant has failed to present any

evidence Appellee Bellamy’s criminal past weaved its way into her relationship with

Decedent sufficient to support the claim of undue influence.

                                TESTAMENTARY CAPACITY

        {¶24} The burden of proof in determining testamentary capacity is on the party

contesting the will. Kennedy v. Walcutt (1928), 118 Ohio St. 442, 161 N.E. 336, para. 6

of syllabus. R.C. 2107.74 creates a presumption of the validity of a will, and included in

this presumption is that the testator was of sound mind and possessed testamentary

capacity to execute the will. Doyle v. Schott (1989), 65 Ohio App.3d 92, 94, 582 N.E.2d

1057.    “The law recognizes that a testator whose mind is impaired “by disease or

otherwise” can still have capacity to make a will. West v. Knoppenberger (Ohio

Cir.Ct.1903), 16 Ohio C.D. 168, 179.
Delaware County, Case No. 16CAF110051                                                     11


       {¶25} Testamentary capacity exists when the testator has sufficient mind to: (1)

understand the nature of the business in which he is engaged; (2) comprehend generally

the nature and extent of the property which constitutes his estate; (3) hold in his mind the

names and identity of those who have natural claims on his bounty; and (4) appreciate

his relation to the members of his family. Niemes v. Niemes (1917), 97 Ohio St. 145, 119

N.E. 503, para. 4 of syllabus.

       {¶26} The general rule is “[t]he mental condition of the testator at the time of

making a will determines the testamentary capacity of the testator.” Oehlke v. Marks

(1964), 2 Ohio App.2d 264, 265–266, 207 N.E.2d 676, quoting Kennedy, supra, at para.

2 of syllabus, overruled on other grounds by Krischbaum, supra.            Evidence of the

testator's condition “ ‘within a reasonable time before and after the making of the will is

admissible as throwing light on his mental condition at the time of the execution of the will

in question’. ” Id. What constitutes a “reasonable time” depends on the circumstances of

the particular case. Oehlke, supra, at 266, 207 N.E.2d 676. The burden of proof in

determining testamentary capacity is on the party contesting the will. Kennedy, supra, at

para. 6 of syllabus.

       {¶27} Attorney Crowley, Sylvia Cover, and Appellee Bellamy were with Decedent

on the day he executed the Will. All three individuals stated Decedent confirmed the Will

was prepared in accordance with his wishes. Not one of these individuals observed any

indication Decedent lacked the capacity to execute the document.            In her Affidavit,

Appellant stated Decedent’s “intellectual ability varied”, however, Appellant failed to

present any evidence to establish on or around the day the Will was executed Decedent

lacked capacity. There was simply no evidence Decedent had insufficient capacity to
Delaware County, Case No. 16CAF110051                                                  12


execute the Will. The evidence presented by Appellant does not demonstrate the Will as

finally executed failed to express the wishes and desires of Decedent.

       {¶28} Further, in independently reviewing the record, we find Appellant relies

solely on the self-serving allegations in her Affidavit that either Appellee Bellamy

influenced Decedent into executing the Will or Decedent lacked the capacity to

understand the distribution of his property under the Will. It is undisputed Appellant was

not present on February 20, 2014; therefore, is not otherwise competent to testify about

Decedent's mental faculties at that time.

       {¶29} Based upon the foregoing, we find the trial court did not err in granting

summary judgment in favor of Appellees.

       {¶30} Appellant’s sole assignment of error is overruled.

       {¶31} The judgment of the Delaware County Court of Common Pleas, Probate

Division, is affirmed.

By: Hoffman, J.

Delaney, P.J. and

Gwin, J. concur
