[Cite as In re The Estate of Adams, 2013-Ohio-5824.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                   ASHTABULA COUNTY, OHIO


ESTATE OF: MARY E. ADAMS,                              :   OPINION
DECEASED.
                                                       :

                                                       :   CASE NO. 2013-A-0042

                                                       :

Appeal from the Ashtabula County Court of Common Pleas, Probate Division, Case
No. 2013 ES 00035.

Judgment: Reversed and remanded.


Nicholas A. Iarocci, The Iarocci Law Firm, L.L.C., 213 Washington Street, Conneaut,
OH 44030 (For Appellant-Gregory W. Johnson).

Luke P. Gallagher, 326-A West Main Road, Conneaut, OH              44030 (For Appellee-
Chester J. Adams).



CYNTHIA WESTCOTT RICE, J.

        {¶1}    Appellant, Gregory W. Johnson, executor of the estate of Mary E. Adams,

appeals from the judgment of the Ashtabula County Court of Common Pleas, Probate

Division, denying his motion to set aside a magistrate’s order relating to Chester

Adams’, the decedent’s surviving spouse and appellee herein, election to take against

the decedent’s will. For the reasons discussed below, we reverse and remand the

judgment of the trial court.

        {¶2}    The decedent passed away on January 8, 2012. At the time of her death,

she was married to appellee. On January 28, 2013, appellant, the decedent’s adult son
from a previous marriage, was appointed executor of the decedent’s estate. The next

day, the trial court issued a citation to appellee, notifying him of his right to elect to take

against the will, or accept the terms of the decedent’s will. A hearing was set for May

28, 2013 to determine whether appellee would exercise his elective rights.

       {¶3}   On February 14, 2013, appellee’s attorney sent appellant’s attorney a

correspondence indicating appellee intended to take against the decedent’s will at the

May 2013 hearing. On March 17, 2013, appellant’s attorney sent appellee’s attorney a

copy of the estate’s Inventory/Appraisal and Schedule of Assets. Appellant filed the

inventory and appraisal on March 18, 2013.

       {¶4}   On March 25, 2013, appellee’s attorney sent appellant’s attorney a letter

indicating appellee intended to elect against the will and, in an attempt to expedite the

process, enclosed a stipulation and waiver of hearing on election. On April 1, 2013,

appellant’s counsel responded by letter stating, inter alia, that an election by surviving

spouse to take against the will must be made in person, as a matter of law. Appellant’s

counsel recommended appellee’s counsel contact the magistrate to facilitate the

process of electing to take against the will.

       {¶5}   On May 16, 2013, the trial court notified the parties that a hearing on the

inventory and appraisal would take place on June 25, 2013. Meanwhile, the May 28,

2013 hearing that was set to determine whether appellee would exercise his elective

rights did not go forward.     And, despite appellee’s apparent desire to elect to take

against the will, he did not file a motion, or otherwise contact the court, to expedite this

procedure.




                                                2
       {¶6}    An inventory and appraisement hearing was held, as scheduled, on June

25, 2013.     Because no exceptions were filed, the trial court approved the estate’s

inventory and appraisement on that date. On July 1, 2013, the magistrate issued an

order resetting the hearing to determine whether appellee would take against the will for

July 9, 2013. On that date, appellee met with the magistrate and elected to exercise his

right to take against the will of the decedent.         The magistrate issued an order

acknowledging appellee’s decision.

       {¶7}    On July 15, 2013, appellant filed a motion to set aside the magistrate’s

order and a motion to strike appellee’s attempt to take against the will.        Appellant

argued appellee failed to exercise his rights within five months of the executor’s

appointment, pursuant to R.C. 2106.25.        On July 24, 2013, the trial court entered

judgment denying the motion; it acknowledged that appellee failed to timely exercise his

right to take against the will by 11 days; the court, however, determined it had the

discretion to extend the statutory timeframe because the inventory was not approved

until three days prior to the expiration of the five month period. This appeal followed.

       {¶8}    Appellant assigns the following error:

       {¶9}    “The trial court committed prejudicial error by overruling Appellant-

Executor’s Motion to Set Aside July 9, 2013 Magistrate’s Order and Motion to Strike

Election of Surviving Spouse to Take Against the Will of Decedent based on the

premises that an election against the Will cannot be made after the inventory is filed and

approved by the trial court, and that it was in the trial court’s discretion to extend the

five-month election period under R.C. 2106.25.”




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       {¶10} The instant matter requires this court to determine whether the applicable

statutory scheme permitted the trial court to extend the limitation period for a surviving

spouse to exercise his elective rights. In its judgment, the court expressed its belief that

it possessed the discretion to act. The issue of the court’s authority to act, however, is a

question of law.   We therefore review this issue de novo. See e.g. Carothers v. Ohio

Bd. of Speech-Language Pathology & Audiology, 11th Dist. Geauga No. 2004-G-2559,

2004-Ohio-6695, ¶7.

       {¶11} R.C. 2106.25 governs the time limits for a surviving spouse to exercise

any rights under R.C. Chapter 2106. It provides:

       {¶12} Unless otherwise specified by a provision of the Revised Code or

              this section, a surviving spouse shall exercise all rights under

              Chapter 2106. of the Revised Code within five months of the initial

              appointment of an executor or administrator of the estate. It is

              conclusively presumed that a surviving spouse has waived any

              right not exercised within that five-month period or within any longer

              period of time allowed by the court pursuant to this section. Upon

              the filing of a motion to extend the time for exercising a right under

              Chapter 2106. of the Revised Code and for good cause shown, the

              court may allow further time for exercising the right that is the

              subject of the motion.

       {¶13} Moreover, R.C. 2106.01(E) specifically addresses the timeframe for a

surviving spouse to elect to take against the will. It provides:




                                             4
       {¶14} The election of a surviving spouse to take under a will or under

              section 2105.06 of the Revised Code may be made at any time

              after the death of the decedent, but the surviving spouse shall not

              make the election later than five months from the date of the initial

              appointment of an administrator or executor of the estate. On a

              motion filed before the expiration of the five-month period, and for

              good cause shown, the court may allow further time for the making

              of the election. If no action is taken by the surviving spouse before

              the expiration of the five-month period, it is conclusively presumed

              that the surviving spouse elects to take under the will. The election

              shall be entered on the journal of the court.

       {¶15} When proceedings for advice or to contest the validity of a will are

              begun within the time allowed by this division for making the

              election, the election may be made within three months after the

              final disposition of the proceedings, if the will is not set aside.

       {¶16} Further, R.C. 2106.06 requires the election of a surviving spouse to be

made in person before the judge or magistrate. See e.g. In re Estate of Woods, 194

Ohio App.3d 371, 2011-Ohio-1831, ¶20 (2d Dist.).

       {¶17} Given the foregoing, a surviving spouse has five months from the

appointment of the executor to either personally elect against the will, move for an

extension prior to the expiration of the five-month period, or contest the will. If none of

these options are taken, the law conclusively presumes the surviving spouse will take

pursuant to the will.




                                              5
        {¶18} In this case, appellant was appointed to serve as executor on January 28,

2013. Appellee had five months, i.e., until June 28, 2013, to either personally exercise

his elective rights or move the court for an extension.                 It is undisputed that appellee

neither personally elected to take against the will nor did he move the court for an

extension. Pursuant to the plain language of the statute, the conclusive presumption

was triggered and appellee was barred from electing to take after June 28, 2013.

        {¶19} Nothing in the statute indicates a trial court has the authority to sua sponte

extend the statutory limitation period and we find no authority to support the proposition

that such authority exists. The only means of extending the period is by way of a

surviving spouse’s motion, based upon good cause, prior to the expiration of the five-

month period.         The requirement that the motion be supported by good cause

demonstrates that a surviving spouse shoulders a burden to produce some evidence

sufficient to establish an extension is warranted. This shows the legislature intended the

surviving spouse to advance some persuasive basis for obtaining an extension before a

court, in its discretion, rules on the motion. We therefore hold that although a court

possesses the discretion to grant a motion to extend, it does not have the authority to

sua sponte extend the statute of limitations set forth under R.C. Chapter 2106. for a

surviving spouse to exercise his or her elective rights.1 The extension was therefore

legally invalid.




1. It is worth noting the extension was entered 11 days after the expiration of the five-month period. The
statute requires motions to extend to be filed prior to the expiration of the limitations period. Even if this
court determined the court had general authority to enter an extension sua sponte, the language of the
statute implies the order in the instant case would be void because it occurred after the five-month period
expired. In short, therefore, the conclusive presumption had already attached when the court entered the
sua sponte extension.


                                                      6
       {¶20} Appellee argues, however, that he cannot be barred from exercising his

right to election because the conclusive presumption to elect to take under the will is

triggered only “if no action is taken by the surviving spouse before the expiration of the

five month period.” R.C. 2106.01(E).       Appellee asserts action was taken when his

attorney   disclosed   appellee’s   intention       to   take   against   the   will   during   his

correspondences with appellant’s attorney.               While appellee did take measures

indicating he intended to exercise his elective rights, we do not agree that the

correspondences constitute “action” as contemplated under R.C. 2106.01(E).

       {¶21} As discussed above, a surviving spouse is conclusively presumed,

pursuant to a statutory mandate, to have elected to take under a will unless he or she

personally elects to take against the will within five months of the appointment of the

executor, moves the court, prior to the expiration of the five month period, for an

extension of time, or contests the will. No alternative options are listed. Even though

appellee took some action to indicate he would elect to take against the will, he did not

follow the statutory directives in place for preserving his elective right.            Appellee’s

actions were tantamount to mere intentions to formally act under the statute. Appellee’s

argument, therefore, is not well taken.

       {¶22} Although we are sympathetic to the position in which appellee finds

himself, the applicable statute in this case sets forth a clear and definitive procedure for

avoiding this outcome. Appellee could have moved for an extension within the limitation

period, especially if he was concerned about “eleventh hour” inventory approval.

       {¶23} Alternatively, appellee could have, by his own motion, requested the court

to proceed with the election process without the inventory approval. The R.C.




                                                7
2106.01(E) permits a surviving spouse to elect to take against the will “at any time after

the death of the decedent.” And, in this case, appellee was aware of the contents of the

inventory as well as the amount of the appraisal.       Further, the record indicates no

interested parties objected to the filing.   Pursuant to the correspondences between

counsel for both parties, appellee was prepared to exercise his elective rights after the

inventory was filed. Accordingly, nothing prevented appellee from moving the court to

expedite the election process in light of the uncontested inventory prior to its approval.

Unfortunately, however, appellee failed to comport with the procedural options

available. As a result, he is conclusively presumed to take under the will.

        {¶24} Given the foregoing, we conclude the trial court erred when it extended

the time frame for appellee to take against the will without being properly moved to do

so. The limitation period set forth under R.C. 2106.01(E) passed on June 28, 2013

without being properly extended. We therefore hold appellee is bound to take under the

will.

        {¶25} Appellant’s assignment of error is sustained.

        {¶26} For the reasons discussed above, the judgment of the Ashtabula County

Court of Common Pleas, Probate Division, is reversed and remanded.



TIMOTHY P. CANNON, P.J.,

THOMAS R. WRIGHT, J.,

concur.




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