[Cite as My Father's House #1 v. McCardle, 2013-Ohio-420.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              MARION COUNTY




MY FATHER’S HOUSE #1, INC.,
ET AL.,

        PLAINTIFFS-APPELLANTS,                               CASE NO. 9-11-35

        v.

H. MICHAEL McCARDLE, ET AL.,                                 OPINION

        DEFENDANTS-APPELLEES.




                Appeal from Marion County Common Pleas Court
                                 Probate Division
                          Trial Court No. 08 CIV 51666

      Judgment Affirmed in Part, Reversed in Part and Cause Remanded

                         Date of Decision:       February 11, 2013




APPEARANCES:

        Richard Kolb for Appellants

        George Q.B. Vaile for Appellees

        Andromeda McGregor Attorney for State of Ohio, ex rel.
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PRESTON, J.

       {¶1} Plaintiffs-appellants, My Father’s House #1, Inc. and Lois Beringer,

appeal the Marion County Court of Common Pleas, Probate Division’s judgment

determining that appellants lacked standing to challenge Donald Beringer’s

conveyance of his real property to defendants-appellees, Michael and Lynda

McCardle. Appellants claim the trial court erred by piercing the corporate veil to

determine My Father’s House and Lois operated as one and the same entity, and

erred by deciding that they both lacked standing as a result of Lois’ antenuptial

agreement with Donald. For the reasons that follow, we affirm in part and reverse

in part.

       {¶2} On April 2, 1996, Donald and Lois entered into an antenuptial

agreement enabling them to pass their respective estates without any marital

claims, but permitting them to make gifts or bequests to each other. (Antenuptial

Agreement, Joint Ex. 1). Donald and Lois were subsequently married. (Oct. 27,

2010 Tr. at 254).

       {¶3} Donald and Lois filed incorporation papers for My Father’s House, the

church they operated, on or after December 30, 2000. (Pl. Ex. 11). The name of

the church was originally My Father’s House Full Gospel Fellowship. (Id.). In

2005, Donald and Lois changed the church’s name to My Father’s House #1, Inc.

(Oct. 27, 2010, 2011 Tr. at 270).


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       {¶4} On July 28, 2005, Donald signed a will that primarily left his real

property to named trustees for the benefit of My Father’s House. (2005 Will, Joint

Ex. 2). Donald also made a small life estate bequest to Lois. (Id.). On November

28, 2006, Donald signed a second will, which left all of his assets to Michael,

Lois’ foster child. (2006 Will, Pl. Ex. 4).

       {¶5} On September 18, 2007, Donald conveyed 31 acres of land to Michael

and his wife, Lynda. (Quit Claim Deed, Pl. Ex. 6). Lois signed off any dower

interest in the property. (Id.).

       {¶6} On December 12, 2007, Donald signed a transfer on death deed to

Michael for the remainder of his farm, which consisted of approximately 175

acres. (Transfer on Death Deed, Pl. Ex. 7). Lois again signed off any dower

interest. (Id.). Donald died on June 26, 2008. (Oct. 27, 2010 Tr. at 324).

       {¶7} On November 14, 2008, Lois and My Father’s House filed a

complaint in the Marion County Court of Common Pleas, Probate Division,

against: (1) Michael and Lynda, the primary beneficiaries under Donald’s will, (2)

Michael, as the executor of the will, (3) Laura Leigh Elsrod, the contingent

beneficiary under Donald’s will, (4) Brent Harraman, the attorney that prepared

the will, and (5) the Ohio attorney general, as statutorily required. (Doc. No. 1).

Lois and My Father’s House contested the validity of Donald’s 2006 will. (Id.).




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       {¶8} On December 8, 2008, the Ohio attorney general filed an answer to

the complaint. (Doc. No. 10). On January 10, 2009, Harraman filed his answer to

the complaint. (Doc. No. 14). On March 16, 2009, Michael and Lynda filed their

answer asserting, among other things, that Lois and My Father’s House lacked

standing, that My Father’s House was Lois’ alter ego, and that My Father’s House

was not a legitimate legal entity. (Doc. No. 16).

       {¶9} On April 16, 2009, the trial court dismissed Elsrod as a party to the

proceedings. (Doc. No. 18). On January 19, 2010, the trial court dismissed

Harraman as a party to the case. (Doc. No. 30).

       {¶10} On January 12, 2010, Lois and My Father’s House filed a motion for

leave to file an amended complaint. (Doc. No. 27). On February 12, 2010,

Michael and Lynda filed a memorandum in opposition of appellants’ motion to

file an amended complaint and a motion to dismiss the complaint. (Doc. No. 33).

On February 19, 2010, the trial court granted appellants leave to file an amended

complaint. (Doc. No. 35). Appellants filed an amended complaint and jury

demand on February 19, 2010, asserting the conveyance of the deeds was also

invalid. (Doc. No. 36).

       {¶11} The Ohio attorney general filed its second answer on February 25,

2010. (Doc. No. 39). Michael and Lynda filed their second answer on March 5,

2010. (Doc. No. 42).


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       {¶12} The trial court held hearings on the issue of Lois and My Father’s

House’s standing on October 27, 2010 and February 7, 2011, after the parties had

submitted pre-hearing briefs on the issue. (Doc. Nos. 54, 55, 56, 63, 94). The

parties subsequently submitted briefs to the trial court again addressing the

standing issue. (Doc. Nos. 83, 86, 87, 88, 91, 92). On May 2, 2011, the trial court

issued its judgment entry determining both Lois and My Father’s House had

standing to challenge Donald’s will, but neither Lois nor My Father’s House had

standing to challenge the real estate transfers to Michael. (Doc. No. 94).

       {¶13} On May 27, 2011, Lois and My Father’s House filed a notice of

appeal. (Doc. No. 112). On June 20, 2011, this Court dismissed the appeal for

lack of a final, appealable order. (Doc. No. 117).

       {¶14} On August 3, 2011, the trial court issued a second judgment entry

dismissing Lois and My Father’s House’s claim that the deed transfer was invalid

and certifying that its judgment was a final, appealable order. (Doc. No. 120). On

August 16, 2011, Lois and My Father’s House filed a second notice of appeal.

(Doc. No. 121). Appellants now raise one assignment of error for our review.

                               Assignment of Error

       The trial court erred in finding that Plaintiffs, My Father’s
       House #1, Inc. and Lois Beringer, lacked standing to challenge
       the real estate transfers.




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       {¶15} In their sole assignment of error, appellants argue the trial court erred

by finding that Lois and My Father’s House lacked standing to challenge Donald’s

conveyance of his real property to Michael. Appellants contend that they do have

standing to challenge the transfer because they were beneficiaries under Donald’s

original will. Appellants argue that, as a result, the trial court erred in determining

Lois lacked standing based on the antenuptial agreement.           Appellants further

contend that the trial court erred by deciding that Lois and My Father’s House

“operated as one and the same,” and since Lois did not have standing to challenge

the conveyance, My Father’s House also lacked standing.

       {¶16} As a preliminary matter, we must determine the appropriate standard

of review. The trial court considered the issue of appellants’ standing in response

to Michael’s motion to dismiss. (Doc. No. 33). However, it is clear the trial court

treated Michael’s motion to dismiss as a motion for summary judgment. First,

standing is an affirmative defense. Everhome Mortgage Co. v. Behrens, 11th Dist.

No. 2011-L-128, ¶ 12 (March 30, 2012). As an affirmative defense, the issue of

standing is more appropriately raised in a motion for summary judgment.

Goodwin v. T.J. Schimmoeller Trucking, 3d Dist. No. 16-07-08, 2008-Ohio-163, ¶

10. Second, if the trial court wishes to consider evidence outside of the pleadings

on a motion to dismiss, the court must convert the motion to a motion for

summary judgment and provide the parties with an opportunity to present the


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pertinent materials. Id., citing State ex rel. The V Cos. v. Marshall, 81 Ohio St.3d

467, 470 (1998); Civ.R. 12(B). In the present case, the parties submitted pre-

hearing briefs regarding the standing issue, submitted evidence during a two-day

hearing, and submitted post-hearing briefs on the issue. (Doc. Nos. 54, 55, 56, 63,

64, 66, 83, 86, 87, 88, 91, 92). The trial court thus considered evidence outside of

the pleadings, and the parties had ample opportunity to present the relevant

materials. Consequently, we will review the trial court’s judgment as we would a

ruling on a motion for summary judgment.

       {¶17} We review a decision to grant summary judgment de novo. Doe v.

Shaffer, 90 Ohio St.3d 388, 390 (2000). Summary judgment is proper where there

is no genuine issue of material fact, the moving party is entitled to judgment as a

matter of law, reasonable minds can reach but one conclusion when viewing the

evidence in favor of the non-moving party, and the conclusion is adverse to the

non-moving party. Civ.R. 56(C); State ex rel. Cassels v. Dayton City School Dist.

Bd. of Edn., 69 Ohio St.3d 217, 219 (1994).

       {¶18} A plaintiff must have standing to assert a claim against a defendant.

Camp St. Mary’s Assn. of the West Ohio Conference of the United Methodist

Church, Inc. v. Otterbein Homes, 176 Ohio App.3d 54, 2008-Ohio-1490, ¶ 13 (3d

Dist.). In order to have standing, a party must have an actual or imminent injury,

there must be causal connection between the injury and the conduct the party is


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addressing, and the court must be capable of redressing the injury with its

decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130

(1992). Thus, “the injury must be traceable to the challenged action, and the

injury must likely be redressed by a favorable decision.”             Ahrns v. SBA

Communications Corp., 3d Dist. No. 2-01-12, *2 (Sept. 28, 2001), citing Eng.

Technicians Assn. v. Ohio Dept. of Transp., 72 Ohio App.3d 106, 110-111 (10th

Dist.1991). Additionally, a nonprofit corporation may sue and be sued. R.C.

1702.12(A).

       {¶19} We must examine each of Lois and My Father’s House’s claims to

determine whether they have standing. Lois and My Father’s House argue they

have standing to challenge Donald’s transfer of the deeds to Michael because they

were beneficiaries of Donald’s property under his 2005 will.           R.C. 2107.71

permits “a person interested” in the will to challenge the will. In re Estate of

Scanlon, 8th Dist. No. 95264, 2011-Ohio-1097, ¶ 12. An interested person is

“‘any person who has such a direct, immediate and legally ascertained pecuniary

interest in the devolution of the testator’s estate as would be impaired or defeated

by the probate of the will, or be benefitted by setting aside the will.’” Id., quoting

York v. Nunley, 80 Ohio App.3d 697 (8th Dist.1992).

       {¶20} In the present case, Donald’s 2005 will granted Lois the right to live

in Donald’s home on Newmans-Cardington Road for as long as she chose. (Joint


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Ex. 2). The will did not grant Lois the right to assign or transfer her interest in the

home. (Id.). The will further granted Lois the right to use Donald’s miscellaneous

household goods, furnishings, and farm equipment. (Id.). Donald’s 2005 will also

granted My Father’s House’s trustees the real property on Newmans-Cardington

Road and the real property on Merkle Avenue. (Id.). The will created a charitable

trust and directed the nominated trustees to use Donald’s real and personal

property for the benefit of My Father’s House. (Id.). The trial court determined

that Lois and My Father’s House had standing to challenge the 2007 will because

they were beneficiaries under the 2005 will, but did not have standing to challenge

the subsequent deed transfers. (Doc. No. 94).

       {¶21} Lois and My Father’s House argue that they also have the right to

contest the deed transfers because they had a right to the real property under the

2005 will. Appellants contend that Michael fraudulently induced Donald to alter

his will and convey his property to Michael under the belief that Michael would

use it for the church’s benefit. Appellants argue that Donald left them his real

property in his 2005 will, and if Michael acted fraudulently as they allege, the

2007 will and subsequent deed transfers are invalid. In that case, appellants

contend they have the right to the real property. Michael argues that appellants

lack standing because Lois signed an antenuptial agreement preventing her from

claiming any marital property, and My Father’s House is an invalid corporation.


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Michael also contends that the trial court correctly concluded My Father’s House

lacked standing because it and Lois are “one and the same.” We agree that Lois

lacks standing as a result of the antenuptial agreement, but disagree that My

Father’s House lacks standing. We will now address each argument in turn.

                                1. Antenuptial Agreement

       {¶22} Appellants argue the trial court erred by determining Lois lacks

standing because she signed an antenuptial agreement disclaiming any right to

Donald’s property.    The Supreme Court of Ohio has defined an antenuptial

agreement as “a contract entered into between a man and a woman in

contemplation, and in consideration, of their future marriage whereby the property

rights and economic interest of either the prospective wife or husband, or both, are

determined and set forth in such instrument.” Gross v. Gross, 11 Ohio St.3d 99,

102 (1984). Antenuptial agreements are contracts. Wolf-Sabatino v. Sabatino,

10th Dist. No. 10AP-1161, 2011-Ohio-6819, ¶ 14, citing Fletcher v. Fletcher, 68

Ohio St.3d 464, 466 (1994). Consequently, the law of contracts applies to their

interpretation and application. Wolf-Sabatino at ¶ 14, citing Fletcher at 466. The

court will presume the contract’s language represents the parties’ intent. Wolf-

Sabatino at ¶15, citing Skivolocki v. E. Ohio Gas Co., 38 Ohio St.2d 244 (1974).

       {¶23} In the present case, Donald and Lois entered into an antenuptial

agreement that allowed them to pass their estates free from marital claims, but also


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permitted them to make gifts or bequests to each other. (Joint Ex. 1). Section 1a

of the agreement explicitly states, “[t]he surviving party shall not present, make, or

assert any claim or right whatsoever to share or participate in any matter in the

other party’s estate.”   (Id.).   Section 3 of the antenuptial agreement further

provides that “[e]ach party may freely make such disposition of his/her property of

whatever kind or nature, acquired before or during the parties’ marriage, by sale,

gift, will, or otherwise during his/her lifetime as he/she may desire.” (Id.). During

the trial court’s hearing, the parties also stipulated that the antenuptial agreement

is a valid, enforceable contract that gave Donald the right to transfer his real

property free of any claim from Lois. (Feb. 7, 2011 Tr. at 16).

       {¶24} After reviewing the record, we agree with the trial court that the

antenuptial agreement permitted Donald to transfer his real property to whomever

he chose. (Joint Ex. 1). Consequently, we cannot find that Lois now has standing

to assert a claim that Donald’s transfer to Michael was invalid. Since Lois agreed

to permit Donald to transfer the property to whomever he chose, she did not suffer

any injury when he exercised that right. Furthermore, this Court cannot find any

legal support for Lois’ contention that she has a claim to the property based on

Donald’s 2005 will, even though that claim conflicts with the antenuptial

agreement. See In re Estate of Dawson, 117 Ohio App.3d 51 (2d Dist.1996)

(Antenuptial agreement required the testator to bequeath her entire estate to her


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stepchildren; however, by her will, she divided the estate between her

stepchildren, nephews, and nieces. Antenuptial agreement was upheld.).

       {¶25} The dissent argues that because the will in question was subsequent

to the antenuptial agreement, R.C. 2107.71 grants Lois standing to challenge the

will as a beneficiary. We disagree. In the antenuptial agreement, Lois agreed not

to “present, make, or assert any claim or right whatsoever to share or participate in

any matter in the other party’s estate,” which is what she now attempts to do by

challenging Donald’s bequest to Michael.         (Joint Ex. 1).    Furthermore, the

antenuptial agreement specifically permits the parties to dispose of their property

by will, and does not contain any provisions preventing them from making

bequests to each other. (Id.). The antenuptial agreement thus authorizes the

parties to leave their property to anyone, including the surviving spouse, but still

prevents the surviving spouse from asserting any other claims to the estate. (Id.).

Granting Lois standing pursuant to R.C. 2107.71 is in direct contradiction with

section 1a of the antenuptial agreement prohibiting Lois from making such a

claim. As a result, we conclude that Lois’ antenuptial agreement with Donald

prevents her from having standing to contest his subsequent deed transfers.




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                           2. Piercing the Corporate Veil

       {¶26} Appellants next argue that the trial court erred by determining that

since Lois lacked standing, My Father’s House also lacked standing because they

“operated as one and the same.” In its judgment entry, the trial court stated:

       While this Court recognizes that My Father’s House, #1, Inc. is a

       separate legal entity from Lois Beringer in the eyes of the law, it is

       clear based upon how My Father’s House, #1, Inc. was incorporated

       and conducted business, this corporate entity and Lois Beringer

       operated as one and the same. This is evidenced in every aspect of

       the corporation’s affairs operated solely under the direction and

       approval of Lois Beringer.

(Doc. No. 94). The trial court thus determined that My Father’s House lacked

standing because although it was a separate legal entity from Lois, it did not

operate as a separate entity. Appellants argue this language indicates the trial

court decided My Father’s House was Lois’ alter ego, and that the trial court

incorrectly pierced the corporate veil to determine My Father’s House lacked

standing.

       {¶27} It is well settled that a corporation is a separate legal entity from its

shareholders, even when the corporation only has one shareholder. LeRoux’s

Billyle Supper Club v. MA, 77 Ohio App.3d 417, 421 (6th Dist.1991), citing First


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Natl. Bank of Chicago v. Trebein Co., 59 Ohio St. 316 (1898). “Nevertheless, in

certain circumstances, courts can ‘pierce the corporate veil,’ that is, disregard the

corporate entity, and treat the shareholder and his corporation as a single entity.”

LeRoux’s at 421, citing E.S. Preston Assoc., Inc. v. Preston, 24 Ohio St.3d 7, 11

(1986). The Supreme Court of Ohio has adopted a three-pronged test to determine

when a court should pierce the corporate veil. Belvedere Condominium Unit

Owners’ Assn. v. R.E. Roark Cos., Inc., 67 Ohio St.3d 274 (1993). According to

the Belvedere test, a court may pierce the corporate veil when:

       (1) control over the corporation by those to be held liable was so

       complete that the corporation has no separate mind, will, or

       existence of its own, (2) control over the corporation by those to be

       held liable was exercised in such a manner as to commit fraud or an

       illegal act against the person seeking to disregard the corporate

       entity, and (3) injury or unjust loss resulted to the plaintiff from such

       control and wrong.

Id. at paragraph three of the syllabus. The Supreme Court of Ohio subsequently

clarified that the second prong of the Belvedere test refers specifically to fraud or

illegal acts, rather than unjust or inequitable acts that do not rise to the level of

fraud. Dombroski v. WellPoint, Inc., 119 Ohio St.3d 506, 2008-Ohio-4827, ¶ 18

(“To fulfill the second prong of the Belvedere test for piercing the corporate veil,


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the plaintiff must demonstrate that the defendant shareholder exercised control

over the corporation in such a manner as to commit fraud, an illegal act, or a

similarly unlawful act.”). All three prongs of the test must be met for the court to

pierce the corporate veil. State ex rel. Cordray v. U.S. Technology Corporation,

5th Dist. No. 11AP060025, 2012-Ohio-855, ¶ 19.

       {¶28} The first prong of the Belvedere test is essentially the “alter ego

doctrine.” Pottschmidt v. Thomas J. Klosterman, M.D., Inc., 169 Ohio App.3d

824, 2006-Ohio-6964, ¶ 37 (9th Dist.). A corporation is an individual’s alter ego

when “the individual and the corporation are fundamentally indistinguishable.”

Belvedere at 288. “Some of the factors used to determine if this standard has been

met include (1) whether corporate formalities were observed, (2) whether

corporate records were kept, (3) whether corporate funds were commingled with

personal funds, and (4) whether corporate property was used for a personal

purpose.” Pottschmidt at ¶ 37, citing LeRoux’s Billyle Supper Club, 77 Ohio

App.3d at 422-423.

       {¶29} In the present case, Michael presented evidence indicating that Lois

comingled funds and failed to observe the corporate formalities. (Oct. 27, 2010

Tr. at 26, 79, 263, 280). However, all three prongs of the Belvedere test must be

met to pierce the corporate veil. Cordray, 5th Dist. No. 11AP060025, 2012-Ohio-

855 at ¶ 19.    Even assuming Michael demonstrated that My Father’s House


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functioned as Lois’ alter ego, Michael failed to provide any evidence regarding the

remaining two prongs of the Belvedere test by demonstrating Lois exerted her

control to commit fraud or an illegal act, and that Michael was injured by Lois’

wrongful act. Since all three prongs of the Belvedere test were not met, the trial

court erred by piercing the corporate veil. Id.

                              3. Corporation’s Validity

       {¶30} Michael argues that even if the trial court erred by determining My

Father’s House lacked standing because it is Lois’ alter ego, My Father’s House

still lacks standing because it is an invalid legal entity. Michael contends that My

Father’s House submitted invalid articles of incorporation, has failed to adhere to

the corporate formalities, and lost its corporate status, so it does not have standing

to bring the suit.

       {¶31} R.C. 1702.53(A) states:

       A copy of the articles or amended articles filed in the office of the

       secretary of state, certified by the secretary of state, shall be

       conclusive evidence, except as against the state, that the corporation

       has been incorporated under the laws of this state, and a copy duly

       certified by the secretary of state of any certificate of amendment or

       other certificate filed in the secretary of state’s office shall be prima-

       facie evidence of such amendment or of the facts stated in any such


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       certificate, and of the observance and performance of all antecedent

       conditions necessary to the action which such certificate purports to

       evidence.

Once a corporation is established, it continues to exist until it is dissolved. Athens

Cty. Property Owners Assn., Inc. v. City of Athens, 4th Dist. No. 1482, *2 (Aug.

26, 1992).

       {¶32} Appellants submitted a copy of My Father’s House’s articles of

incorporation as well as a certification from the secretary of state that it is a

corporation in good standing to the trial court. (Pl. Exs. 11, 11A). There is

nothing in the record to indicate that My Father’s House was voluntarily dissolved

pursuant to R.C. 1702.47 or judicially dissolved pursuant to R.C. 1702.52.

Additionally, no evidence of the secretary of state cancelling My Father’s House’s

corporate status was presented to the trial court. Our review is limited to the

record that was before the trial court; consequently, we cannot consider Michael’s

additional evidence that My Father’s House’s corporate status was cancelled.

Wedemeyer v. U.S.S. F.D.R. (CV-42) Reunion Assoc., 3d Dist. No. 1-09-57, 2010-

Ohio-1502, ¶ 44. Appellant’s articles of incorporation and certificate of good

standing are thus conclusive evidence pursuant to R.C. 1702.53(A) that My

Father’s House was incorporated. As a corporation that was a beneficiary of

Donald’s real property under his 2005 will, My Father’s House suffered an injury


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by Donald’s conveyance of the property to Michael.            That injury could be

remedied were the trial court to determine that the 2007 will and subsequent

conveyances were invalid; consequently, My Father’s House has standing to

challenge the deed transfers.

       {¶33} For the aforementioned reasons, the trial court did not err by

determining Lois lacked standing to challenge the deed transfers to Michael but

did err by determining My Father’s House lacked standing to challenge the

transfers.

       {¶34} Appellants’ assignment of error is sustained to the extent expressly

stated in this opinion.

       {¶35} We, therefore, affirm the judgment of the trial court as to Lois

Beringer, but we reverse the judgment of the trial court as to My Father’s House

#1, Inc. as it pertains to the challenge of the real estate transaction and remand for

further proceedings consistent with this opinion.

                                                        Judgment Affirmed in Part,
                                                             Reversed in Part and
                                                                Cause Remanded

SHAW, P.J., concurs.

/jlr




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WILLAMOWSKI, J., Dissenting in Part and Concurring in Part.

       {¶36} I concur in the portion of the judgment which reverses the judgment

of the trial court as to the standing of My Father’s House. However, I dissent from

the majority as to the affirmation of the judgment as to Lois.            Due to the

antenuptial agreement I agree that Lois is unable to challenge the will in her

capacity as the surviving spouse of Donald. I also agree that the antenuptial

agreement would prohibit Lois from taking against the will and thereby collecting

up to one half of the net estate or exercising any of the other statutory rights of a

surviving spouse granted pursuant to R.C. 2106. If that was the only way that Lois

had standing, I would concur fully with the majority. It is not. In addition to

being the surviving spouse, Lois was also a beneficiary of the will. Lois was to

inherit a life estate pursuant to the terms of the will. A life estate is an asset that

has value. See Cook v. Ohio Dept. of Job and Family Services, 4th Dist. No.

02CA22, 2003-Ohio-3479; OAC 5101:1-39-32(E) (identifying life estates as

resources for Medicaid purposes); and Holdren v. Holdren, 78 Ohio St. 276

(1908).

       {¶37} An antenuptial agreement is merely a contract by the parties that

limits the marital rights. Gross v. Gross, 11 Ohio St.3d 99 (1984). Like any other

contract, an antenuptial agreement can be modified. It is not a document that


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controls all future documents and prohibits one spouse from later giving rights to

the other.

       {¶38} Here, the will was made by the testator AFTER the antenuptial

agreement. This makes a tremendous difference. Although Donald knew that by

virtue of the antenuptial agreement Lois had no intestate rights as a surviving

spouse, he chose to name her as a beneficiary of his will. Since it was made

subsequent to the antenuptial agreement, it gives Lois rights that she would

otherwise not have. She does not have the rights because of her status as a

surviving spouse. She does however have these rights due to her status as a

beneficiary under the will, which status was granted to her by the testator

subsequent to the antenuptial agreement.

       {¶39} R.C. 2107.71 sets forth who has standing to contest the validity of a

will. The statute provides that the persons interested in a will that has not been

previously declared valid may challenge the validity of the will filed.        R.C.

2107.71(A). An interested party is one who has a direct, pecuniary interest in the

estate of the testator that would be defeated by the admission of the instrument

challenged. Steinberg v. Central Trust Co., 18 Ohio St.2d 33 (1969). Any person

who has a direct, immediate and legally ascertainable pecuniary interest in the will

that would be benefitted by the setting aside of the will is a person of interest.

Donovan v. Decker, 98 Ohio App. 183 (2d Dist. 1953).


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       {¶40} As discussed above, Lois is a beneficiary under the will with a

pecuniary interest that would be benefited by the setting aside of the will being

challenged. This makes her an interested party under R.C. 2107.71. For the same

reason that My Father’s House has the right to challenge the will due to its status

as a beneficiary, Lois also has the right to challenge the will. To treat them

differently ignores the intent of the testator, i.e. Donald, to provide the life estate

for Lois. Since the will was made after the antenuptial agreement, its distribution

to named beneficiaries is not affected by the antenuptial agreement. Instead, it

gives Lois a second type of standing, the standing of a specifically named

beneficiary.

       {¶41} A testator can give the status of beneficiary to anyone, including a

complete stranger.     Donald gave such status to Lois.         Beneficiary status is

completely separate from Lois’ status as spouse. To find because Lois is the

spouse who gave up her spousal rights to take against the will via the antenuptial

agreement that she also gave up her rights as a specifically named beneficiary in a

subsequently drafted will would be to place her in a lower position than even a

complete stranger.

       {¶42} The majority is focused on the Dawson case to claim that the prior

antenuptial agreement terminates Lois’ standing to challenge the new will.

However, the Dawson case does not stand for this proposition. In Dawson, the


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parties entered into an antenuptial agreement. Part of the antenuptial agreement

contained a provision requiring mutual wills in which the husband would place his

entire estate into a trust. Dawson, supra at 53. The wife then was given the use

and benefit of the trust assets and the husband’s home until she either remarried or

died. Id. at 54. In exchange, the wife agreed that upon her death, her will would

leave her entire estate to her step-children. Id. The husband died in 1985. In

1990, the wife executed a new will that left part of her estate to her nieces and

nephews as well as her step-children. The step-children contested the new will.

Upon review, the court held that due to the antenuptial agreement, the entire estate

belonged to the step-children and invalidated the new will. The dispute before the

appellate court in Dawson was whether the executor could require the estate to pay

the attorney fees for defending the will that was declared invalid. The appellate

court upheld the payment of the fees pursuant to a statutory provision. That is not

the dispute in this case.

       {¶43} Unlike the antenuptial agreement in Dawson, the antenuptial

agreement in this case provides that both parties may distribute their estates at they

wish. The majority concedes that this allows the testator to name Lois as a

beneficiary under the will without violating the terms of the antenuptial

agreement. However, they argue that it prevents her from challenging the validity

of the newest will. I disagree. Another way of looking at the question raised is to


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ask what affect the antenuptial agreement has on the will itself. Assuming for the

sake of argument that the newest will was procured through fraud, it would be

invalid.   Then Lois would have been a beneficiary under the former (post

antenuptial) will even with the antenuptial agreement in place. The antenuptial

agreement would have no effect on her status as a beneficiary. She would be

allowed to inherit. Since the antenuptial agreement would not affect her status as

beneficiary absent the newest will, it is illogical to argue that it affects her status as

beneficiary under the former (post antenuptial) will when it comes to challenging

the validity of the newest will.

       {¶44} Finally, if the logic of the majority is followed, a party could

conceivably commit a fraud and leave a named beneficiary under a prior will with

no legal remedy. If Donald had chosen to leave all of his estate to Lois and not

just a life estate, she would inherit fully, even with the antenuptial agreement. If

then a party had procured a new will through the use of fraud or undue influence

which excluded Lois from inheritance, the logic of the majority’s opinion would

be that no one would have standing to challenge the will. This is not the intent of

the statute and would certainly be against public policy.

       {¶45} Thus, I would find that in addition to My Father’s House, Lois has

standing as well. I would reverse the matter for further proceedings.




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