[Cite as Young v. Kaufman, 2017-Ohio-9015.]


                Court of Appeals of Ohio
                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                 Nos. 104990 and 105359




                         LAUREL K. YOUNG, ET AL.
                                                     PLAINTIFFS-APPELLANTS
                                               vs.

                          JOSH S. KAUFMAN, ET AL.

                                                     DEFENDANTS-APPELLEES




                                    JUDGMENT:
                                REVERSED; REMANDED


                                    Civil Appeal from the
                           Cuyahoga County Court of Common Pleas
                                      Probate Division
                                Case No. 2014-ADV-201972

        BEFORE:        E.A. Gallagher, P.J., Kilbane, J., and Jones, J.

        RELEASED AND JOURNALIZED:                    December 14, 2017
ATTORNEY FOR APPELLANTS

Richard G. Johnson
Richard G. Johnson Co., L.P.A.
220 Crittenden Court Building
955 West St. Clair Avenue
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEES JOSH KAUFMAN, KIM KAUFMAN AND
DOUG KAUFMAN IN THEIR CAPACITIES AS CO-EXECUTORS AND
CO-TRUSTEES

John E. Schiller
Jamie A. Price
Walter Haverfield L.L.P.
1301 East Ninth Street, Suite 3500
Cleveland, Ohio 44114

ATTORNEYS FOR APPELLEE JOSH KAUFMAN

Leon A. Weiss
Adam M. Fried
Paul R. Shugar
Reminger Co., L.P.A.
101 Prospect Avenue, #1400
Cleveland, Ohio 44114

Adriann S. McGee
Reminger Co., L.P.A.
200 Civic Center Drive, Suite 800
Columbus, Ohio 43215

ATTORNEYS FOR APPELLEE KIM KAUFMAN

Jeffrey P. Consolo
Michael G. Latiff
McDonald Hopkins L.L.C.
600 Superior Avenue, East, Suite 2100
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE DOUG KAUFMAN

Joseph C. Weinstein
Rebecca W. Haverstick
Squire Patton Boggs
4900 Key Tower
127 Public Square
Cleveland, Ohio 44114
EILEEN A. GALLAGHER, P.J.:

      {¶1} This consolidated appeal involves a challenge by plaintiffs-appellants Laurel

Young (“Lori”) and James Kaufman (“Jim”) (collectively, “appellants”) to their deceased

mother’s estate plan.   Appellants claim that the estate plan, which disinherited Lori and

Jim — two of the decedent’s five children — is not valid because it was the product of

undue influence by two of their siblings, Josh Kaufman (“Josh”) and Kim Kaufman

(“Kim”) (the “contest claim”).      Appellants also seek to remove Josh and Kim as

co-executors and co-trustees of the decedent’s will and trust based on their alleged

breaches of fiduciary duty (the “removal claim”). Appellants appeal from the Cuyahoga

County Court of Common Pleas, Probate Division’s (the “probate court’s”) orders

entering summary judgment in favor of defendants-appellees Josh, Kim and Doug

Kaufman (“Doug”), individually, and in their capacities as co-executors and co-trustees

of the estate of Joyce Kaufman, deceased (collectively, “appellees”) on appellants’

contest claim (Appeal No. 104990) and removal claim (Appeal No. 105359). For the

reasons that follow, we reverse the trial court’s judgment and remand the matter for

further proceedings.

      Factual and Procedural Background

      The Family and the Family Businesses

      {¶2} The decedent, Joyce Kaufman (“Joyce”), passed away on August 6, 2013.

She had five children — Jim, Lori, Doug, Kim and Josh. David Kaufman (“David”),

Joyce’s second husband, was the biological father of Josh and Kim. David adopted Jim,

Lori and Doug after marrying Joyce.
       {¶3} David was the founder of several family businesses including American

Consolidated Industries, Inc. (“ACI”) (a holding company), Monarch Steel Corporation

(“Monarch”) (a steel business) and Anchor Industries, Inc. (“Anchor”) (a business

supplying aftermarket automotive engine and transmission mounts).            Monarch and

Anchor were originally both subsidiaries of ACI. David gave each of the children stock

in the businesses. Following David’s death in 1997, Joyce became the sole voting

shareholder in the businesses and continued as the sole voting shareholder until her death.

       {¶4} In the late 1990s or 2000, Jim redeemed his shares in the family businesses

for $7 million. In 2002 or 2003, Lori redeemed her shares in the family businesses for a

similar sum. At the end of 2009, Anchor was spun off from ACI. Doug bought Josh’s

shares of Anchor and Josh bought Doug’s shares of Monarch. After the buyouts, Kim

and Joyce remained shareholders of both Anchor and Monarch.

       Joyce’s Estate Plan

       {¶5} In 1993, Joyce executed an estate plan that provided for the disposition of her

assets first to her husband and thereafter to her five children. In 1999, she modified her

estate plan to exclude Jim as a beneficiary except for a $1,000 bequest. Joyce made

additional changes to her estate plan in 2000. Under these modifications to her estate

plan, Joyce’s personal property was to be disposed of at the discretion of Kim, and Lori,

Doug, Kim and Josh were to receive the balance of her assets. In 2000, Joyce also

executed a durable power of attorney, appointing Doug and Kim jointly as her

attorneys-in-fact.
      {¶6} Jim testified that Joyce’s decision to exclude him from her estate plan in 1999

and 2000 was not unexpected, based on a conversation he had had with Joyce in or

around 2000 or 2001. As Jim testified:

      Q. * * * And she talked about her estate plan then?

      A. Not specifically her estate plan, but the idea that she wanted each kid to
      have equal liquidity and I received mine.

      Q. And what did that mean to you?

      A. At that point in time that meant to me that if she was doing a will or
      trust or any estate planning it would probably be divided by four.

      Q. Because you had been bought out?

      A. Correct.

      Q. So that made sense to you, didn’t it?

      A. It did.

      Q. And you knew, you’ve come to learn that you were excluded from your
      mom’s trust?

      A. And I would agree with that and was not necessarily aware of it, but
      was in agreement that that should have been done that way.

      Q. What do you mean it was an agreement?

      A. I didn’t know that she did that, but I had no dispute with that being

      done * * * [b]ecause she had explained to me about the liquidity and I was

      okay with that.

      Joyce Revises Her Estate Plan

      {¶7} In 2009, Joyce took steps to revise her estate plan. Joyce initially worked

with attorney Joan Gross, a partner with the law firm Hahn Loeser & Parks, L.L.P.
(“Hahn Loeser”), to revise her estate plan. Although it was not involved in her 1993

estate plan or the modifications thereto, Hahn Loeser had previously done legal work for

other family members and certain of the family businesses, including Monarch.1

       {¶8} Around the time Joyce began working with Gross, she also began working

with accountant Phil Baptiste, who assisted her with tax-related issues. According to

Baptiste, Joyce and ACI had been clients of his accounting firm, Cohen & Company, for

a number of years but the family had become unhappy with them. In an effort to retain

the family as a client, in early 2009, Baptiste met first with Josh, then with Joyce, to

discuss the family’s issues.

       {¶9} Baptiste testified that when he first met with Joyce, he inquired about the

state of her estate planning. He testified that Joyce indicated that she wanted to update

her estate plan. According to Baptiste, Joyce did not indicate specifically what changes

she wanted to make, but that, “in broad terms,” “[s]he was well kind of settled that * * *

Jim and Lori had both been bought out of the businesses, so they sort of had received

their money already.” Baptiste testified that “from day one” Joyce was “very clear” that

her beneficiaries would be Josh, Kim and Doug and that the details that were being

worked out from April 2009 until her estate plan was finalized in 2010 were “smaller but




       1
        In addition to assisting Joyce with her estate planning, Hahn Loeser had
served as counsel for Monarch beginning in the 1990s. The firm also later served
as “counsel for the transaction” when Doug and Josh separated their business
interests from one another in 2009 and advised Kim on certain issues during the
early stages of her divorce.
emotional type items that had to be resolved.” Baptiste testified that Joyce did not use

email and that he communicated with her via telephone or in-person meetings.

        {¶10} In January 2009, Joyce had a meeting with Gross, Baptiste, Gross’ partner

Larry Oscar, and Joyce’s business advisor, David Stith, to discuss her objectives for her

new estate plan. Gross testified that, at the meeting, Joyce stated that she wanted only

three of her children to inherit under her new estate plan — Josh, Kim and Doug — and

that she documented this in her notes. According to Gross, Joyce explained that she did

not intend to include Jim and Lori as beneficiaries in her new estate plan because they had

already received their share of the family’s wealth when they redeemed their company

stock.2 Oscar similarly testified that Joyce had informed him that Jim and Lori were to

be excluded from her estate plan because they had already received their inheritance

through the buyout of their interests in the family businesses.

        {¶11} Following the January 2009 meeting, Gross sent Joyce a summary of a

proposed estate plan and a flow chart showing how the estate plan would work. The

summary excluded Jim and Lori from inheriting under the new estate plan. After a

second meeting in February, Gross sent Joyce a revised summary and flow chart.                      The


        2
           Gross testified that Oscar refreshed her recollection regarding why Jim and Lori were to be
excluded from Joyce’s estate plan in 2009 when she was preparing for her deposition. Gross
testified that prior to her deposition, she had a brief conversation with Oscar in which they discussed
what they each remembered regarding the preparation of Joyce’s estate plan. Gross testified that,
initially, she could not recall “why Joyce had prepared her estate plan the way she prepared it,” but
that after Oscar told her what he recollected, i.e., that Jim and Lori were excluded from the estate plan
because they had already received their share of the family’s wealth when they were bought out of the
family businesses, “that refreshed my memory and I remembered clearly that that is what she had
said.”
revisions involved changing the order in which the three children who were beneficiaries

served as fiduciaries and setting up a trust for Joyce’s grandchildren. None of Joyce’s

children were present during Gross’ meetings with Joyce or otherwise a party to Gross’

communications with Joyce.

      {¶12} In April 2009, Gross forwarded draft estate planning documents that

excluded Jim and Lori as beneficiaries to Joyce for her review. Joyce, however, never

signed them. Gross testified that Joyce informed her that she would not sign the estate

planning documents Gross had prepared until some of her children repaid several

outstanding promissory notes they owed her.3          According to Gross, Joyce wanted to use

the proceeds of the notes to fund a trust for her grandchildren and refused to sign the

estate planning documents as Joan had drafted them because she was considering making

additional changes to her estate plan once the promissory notes were repaid. Joyce did

not indicate to Gross what those changes might be.                    Gross testified that she

communicated with Joyce via mail, federal express, in-person meetings or telephone.

      {¶13} In the summer of 2010, Joyce began working with another Hahn Loeser

attorney, Steve Gariepy, on her new estate plan. Oscar testified that in August 2010,

Josh informed him that Joyce was not comfortable moving forward with Gross and

wanted to retain another attorney to complete her estate plan. As to why Joyce decided

to switch counsel, Oscar testified that, according to Josh, Joyce was displeased with the

time and expense Gross had dedicated to a potential gift tax issue that, after additional


      3
          It appears that Josh, Kim and Doug each had outstanding promissary notes.
facts were known, allegedly proved not to be a significant concern.4 After interviewing

several attorneys, Josh informed Oscar that Joyce had selected Gariepy to complete her

estate plan. Gariepy testified that in addition to completing Joyce’s estate plan, it was

also originally contemplated that he would assist Josh and Kim in the development of

their estate plans and would assist with a buyout of Kim and Joyce’s stock in Anchor.

Josh and Kim later retained separate counsel to prepare their individual estate plans.

       {¶14} On August 26, 2010, Gariepy had his first meeting with Joyce, Kim and

Josh. His notes from the meeting include a notation, “Joyce Oh. resident; five children

but only three bens. No e.p. [estate plan], just handwritten, and HLP drafts. 72.”

Following the meeting, Gariepy sent a memorandum to Joyce, Kim and Josh (by fax to

Joyce to her home fax5 and by email to Josh) summarizing their meeting and identifying

the open issues that remained with respect to Joyce’s estate plan (the “August 30, 2010

memorandum”).         Under the heading “Joyce’s Will and Revocable Trust,” the

memorandum indicated that Joyce would leave her tangible personal property to Kim and

that the balance of her estate would be divided equally into three separate trusts for Kim,

Doug and Josh.


       4
         Specifically, after reviewing the buyout agreements for Jim and Lori, Gross was concerned
that Joyce may have forgiven certain debt Jim and Lori owed her without consideration and, therefore,
owed gift tax, including penalties and interest, on that sum.
       5
        There was no testimony regarding the extent to which Joyce used her home fax machine
during this time period. However, in support of their motion for summary judgment, appellees
submitted an affidavit of John Schiller, counsel for the estate, attaching a copy of Gariepy’s August
30, 2010 memorandum with handwritten notes. Schiller stated in his affidavit that he collected the
document along with others from Joyce’s home in September 2016.
       {¶15} On September 7, 2010, Josh emailed Gariepy and asked several questions

regarding the memorandum“after discussing this with my [m]om.” Josh testified that

because Joyce “didn’t do email,” he handled many of the communications with Gariepy

on her behalf. Joyce was not copied on Josh’s email to Gariepy. A week later, Gariepy

emailed Josh a response, copying Joyce by fax. Gariepy could not recall whether he had

any discussions with Joyce regarding the issues raised in Josh’s email.

       {¶16} On November 16, 2010, Gariepy faxed a progress report and engagement

letter to Joyce, copying Josh and Kim, updating them regarding the progress he had made

towards Joyce’s estate plan and the proposed buyout of the Anchor stock. He indicated

that “[a]t our August 26th meeting I could see that your goals and decisions are still in a

state of flux and that you were not ready to make some basic decisions.” He further

indicated that he had “not heard back yet on the basic questions, such as whom you would

like to name as executor and beneficiaries, raised in my August 30th memo.” Gariepy

indicated that he could “now see that your thinking on your estate plan objectives and

fiduciaries has changed” and provided fee estimates for the work that remained to be

performed on Joyce’s estate plan and related issues.6 He requested that Joyce “confirm

that all of the above meets with your approval by return fax or email.”

       {¶17} Josh responded by email, copying Baptiste but not Joyce. Josh stated that

he and Baptiste had met with Joyce the previous day and responded to each of the issues

raised by Gariepy. Specifically, he indicated that Kim, Josh and Doug would be the


       6
           His fee estimate for the work that remained to be done on the will and revocable trust was
$19,000.
executors of Joyce’s estate, that Kim would receive all of Joyce’s jewelry and that the

balance of Joyce’s estate would “be split evenly between [sic] Josh, Kim and Doug

(excluding the 2 homes which will be handled separately).” Josh concluded his email by

stating, “I believe we have answered most if not all of the questions regarding my

[m]om’s intent” and requested that Gariepy let him know “if there is anything additional

in regards to this.” Although he could not recall how or when he did so, Gariepy

testified that he knows, based on his “[p]rotocol, 30 years,” that he verified with Joyce

that Josh’s email accurately reflected her intent. However, there is nothing in his notes

or billing records that documents this nor is there any indication in his billing records

that he traveled to meet with Joyce.

       {¶18} Gariepy responded to Josh via email, copying Baptiste via email and Joyce

via fax. He addressed the concerns Josh had raised regarding his estimated fees and

indicated that he “will need Joyce’s approval as the client to the engagement letter with

the estimates * * * in order for me to proceed.”

       {¶19} Two weeks later, on December 2, 2010, Josh emailed Gariepy, complaining

about his lack of response to “the two voicemails I left this week” and asking him “to

confirm where we are with the will and trust for my mom today.” Gariepy responded

that “as requested in my last e-mail, your Mom [sic] as the client will need to fax her

confirmation approving my fee estimates.” Josh replied, “That was the purpose of the

voicemail she and I left you Monday.” Joyce was not copied on any of these emails. A

couple of hours later, Gariepy sent an email, thanking Joyce “for approving the go ahead

on the will and trust and related fee estimates” and indicated that he would have the will
and trust ready for signature on December 15, 2010. Gariepy could not recall how it was

that he got the “go ahead” from Joyce to move forward with the will and trust.

       {¶20} Josh responded to Gariepy’s email, copying Joyce via fax and email, and

stated that the signing needed to be moved up a week because Joyce was leaving for

Florida on December 14. The execution of the will and trust was then scheduled for

December 10, 2010.

       {¶21} Gross drafted Joyce’s 2010 estate plan for Gariepy. Gross testified that the

2010 estate plan involved “a very simple change” from the estate plan she had prepared

for Joyce a year earlier, i.e., removing the trust for the grandchildren from the estate plan.

 Gross testified that because she was no longer in contact with Joyce or any other member

of the Kaufman family, she relied on Gariepy to ensure that the 2010 estate planning

documents accomplished what Joyce intended.

       {¶22} On December 7, 2010, Gariepy attempted to fax a summary of the will and

trust to Joyce, copying Josh via email, but the fax did not go through. He, therefore,

emailed the document to Joyce and Josh and asked Josh to deliver a copy to her. Josh

confirmed that he had received the document, indicated that he had faxed the document to

his mother and that they planned on “reviewing it together” the following morning.

       {¶23} 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”),7 which excluded Jim and Lori as beneficiaries. Josh accompanied Joyce to the

meeting in which she executed the 2010 estate plan.                The 2010 trust included an

“excluded persons” provision that stated, “I have intentionally made no provision herein

for my son, JAMES S. KAUFMAN, and my daughter, LAUREL K. YOUNG.” 8

However, there was no explanation in the will or trust as to specifically why Jim and Lori

were excluded as beneficiaries. The 2010 will also included an in terrorem provision,

providing that if any beneficiary contested the will or trust that they would no longer

receive any inheritance under the 2010 estate plan.

       {¶24} Gariepy could not recall whether Joyce was sent copies of the completed

estate plan documents for her review before she signed them. He testified that, based on

“protocol,” he knows that he met with Joyce alone to discuss her intentions at some point

prior to her execution of the estate planning documents — but he could not recall where

or when they met. He also testified that he had an additional in-person meeting with

Joyce to discuss her estate plan sometime between December 7, 2010, when he emailed

the summary to her and Josh, and December 10, 2010, when Joyce executed the estate

plan but he could not recall when it occurred, where it occurred, who was present or what

was discussed regarding the estate plan.           His billing records do not reflect these

meetings. Gariepy testified that although he could not specifically recall having done so,


       7
        In December 2010, Joyce also executed a living will, a durable power of attorney naming
Kim, then Josh, then Doug, as her attorney-in-fact and a health care power of attorney naming Kim as
her agent for health care, with Josh as the first alternate and Doug as the second alternate.

       The 2010 will was a pour-over will, such that the trust disposed of Joyce’s
       8

assets rather than the will.
he believed he reviewed the estate plan with Joyce again before she signed the documents

on December 10, 2010 because it’s what he “always do[es] as a matter of protocol” and

he had no reason to believe he did anything differently in this case.

        {¶25} Gariepy and Cheryl Mosback, a Hahn Loeser legal assistant, witnessed

Joyce’s signatures on the will and trust.      Gariepy testified that, consistent with his

attestation, he believed Joyce was “of sound and vigorous mind and memory” at the time

she signed the 2010 estate plan and that she understood every aspect of the distribution of

her estate.

        {¶26} After Joyce executed the 2010 estate plan, Gariepy sent an email to Josh and

fax to Joyce reminding them that Joyce needed to transfer her bank accounts to the trust.

The following week, Josh emailed a KeyBank relationship manager and requested that his

mother’s accounts be re-titled in the name of the trust. Another KeyBank representative

responded and advised him of the procedure for doing so, i.e., that they needed copies of

pages from the trust and a new signature card signed by Joyce. Joyce was not copied on

these exchanges.

        {¶27} Gariepy mailed a copy of the executed 2010 estate plan to Joyce in January

2011.    Gariepy    requested that Joyce sign and return a copy of the cover letter

acknowledging her receipt of the documents, but there is nothing in the record that

indicates that she did so.

        {¶28} In the spring of 2013, Joyce was diagnosed with Stage IV lung cancer.

After her diagnosis, she once again took steps to revise her estate plan. Gariepy testified

that on April 19, 2013, he had a meeting with Joyce, Josh and Kim in which Joyce
indicated that she wanted to revise her estate plan so that all five children would share in

the assets of her estate. On April 23, 2013, Gariepy emailed Joyce an outline and

diagram of a new estate plan, copying Josh, pursuant to which the balance of Joyce’s

assets, after specific distributions were made, was to be shared by “all five children

equally.”

       {¶29} The next day, Josh emailed Gariepy. Josh stated that “my mom asked that

you not include her on emails” and inquired if there was “a way to send a copy of the

billing as you currently do along with another that does not contain quite the detail * * *

.” On April 28, 2013, Gariepy emailed an updated outline and chart to Josh “to pass

along to Joyce.” Joyce was not copied on the email. In the updated draft of the new

estate plan, the balance of Joyce’s assets after specific distributions were made was to be

shared by “all five children equally.” Gariepy testified that he heard nothing further from

the Kaufman family regarding Joyce’s estate plan for the next two months.

       {¶30} Jim testified that in mid-May 2013, he had a conversation with Joyce in

which she told him that he needed to “get down and see Gariepy, what he did was a sin.”

Jim claims that his mother told him that “everything was supposed to be equal” and that

when she executed her 2010 estate plan, she had been under “intense” pressure from Josh.

 Jim testified that Joyce then called Josh over and told her that he needed to set up a

meeting with him, Jim and Gariepy “to get done what I asked you to get done.” Jim

testified that by June 2013, Joyce was frustrated and upset regarding the lack of progress

on her new estate plan.
          {¶31} In early July 2013, Gariepy had a meeting with Jim and Josh regarding

Joyce’s proposed revised estate plan and emailed them an updated “checklist” of

outstanding issues. Jim and Josh also contacted Squire, Sanders & Dempsey, L.L.P.

attorney Jim Spallino to discuss him taking over Joyce’s estate planning work. Jim

claimed that Joyce directed him to change attorneys because Gariepy was not moving

quickly enough on her new estate plan and that Josh was supposed to make the

arrangements with Gariepy to forward Joyce’s estate planning file to Spallino but never

did so.

          {¶32} 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.

          {¶33} 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.

          The Litigation

          {¶34} On October 10, 2014, appellants filed a “will contest” complaint against

appellees, individually and in their capacities as co-executors of Joyce’s estate and

co-trustees of the trust, challenging the validity of the 2010 will and trust and seeking to
remove Josh and Kim as executors and trustees. 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.”

       {¶35} Josh, Kim and Doug filed a joint answer to appellants’ complaint in their

capacities as co-executors and co-trustees and separate answers to appellants’ complaint

in their individual capacities. They denied appellants’ allegations of self-dealing and

undue influence and asserted various affirmative defenses. In his separate answer, Doug

admitted that (1) Joyce was dissatisfied with the 2010 estate plan prepared by Hahn

Loeser and (2) had advised all of her children prior to her death that her estate was to be

divided equally among them. Josh and Kim denied these allegations.
       {¶36} On September 16, 2015, Josh filed a motion for a protective order and to

bifurcate the contest claim from the removal claim. The parties had been involved in

discovery disputes regarding access to financial records relating to Josh’s personal

finances and the businesses that were assets of the estate. Josh argued that appellants

should be required to demonstrate a genuine issue of material fact with respect to the

contest claim before they were permitted to obtain discovery regarding financial matters.

 Appellants opposed the motion. On December 9, 2015, the probate court granted the

motion to bifurcate, concluding that the only issues relevant to the contest claim were (1)

Joyce’s mental condition at the time she executed the 2010 estate plan and (2) whether

undue influence was exercised that caused her to execute the 2010 estate plan. The

probate court further held that appellants would not have standing to pursue the removal

claim unless they could first establish that they were interested parties to the estate. The

probate court stayed any efforts by appellants to obtain financial information from Josh,

the businesses or any banks that had entered into loan agreements with the businesses.

       Motions for Summary Judgment

       {¶37} On April 28, 2016, appellees filed a motion for partial summary judgment

on appellants’ contest claim, asserting that there was no genuine issue of material fact that

Joyce did not lack testamentary capacity when she executed the 2010 estate plan and that

the estate plan was not the product of undue influence.9


       9
         In support of their motion for summary judgment, appellees submitted excerpts of the
depositions of Lori, Jim, Josh, Kim, Gariepy, Gross, Oscar, Baptiste and Stith, copies of the 1993
estate plan, the 1999 and 2000 modifications to the 1993 estate plan, the 2010 estate plan, Gross’
February 10, 2009 memorandum, Gariepy’s August 30, 2010 and December 7, 2010 memoranda and
       {¶38} Appellants opposed the motion, asserting that the “full evidentiary record”

shows that Josh and Kim had a confidential relationship with Joyce and exerted undue

influence over her “to skew her true estate wishes in their favor” when she executed her

2010 estate plan. Appellants argued that a presumption of undue influence applied based

on Josh and Kim’s relationship with Joyce, their active involvement in the preparation of

her estate plan and the conflicts of interest among the Hahn Loeser attorneys who

prepared her estate plan. They also argued 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.10

       {¶39} On June 24, 2016, the probate court granted appellees’ motion for partial

summary judgment on the contest claim. The probate court found that appellants had

failed to present any evidence establishing that Joyce was susceptible to undue influence



related emails, a medical examination report for Joyce dated December 3, 2010, an affidavit from
Baptiste regarding his involvement in Joyce’s estate planning and related matter and an affidavit from
attorney John Schiller, counsel for the estate, authenticating certain documents.
       10
          In support of their opposition to appellees’ motion for summary judgment, appellants
submitted 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.
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 probate 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.

       {¶40} On June 30, 2016, appellants filed a motion for reconsideration or, in the

alternative, request for a final order, asserting that the probate court had made various

“mistakes” and “misstatements” that warranted reconsideration of its summary judgment

ruling. The probate court denied the motion for reconsideration. On August 23, 2016,

the probate court entered a judgment entry stating that its prior judgment entry on

summary judgment was a final, appealable order, certifying that there was no just reason

for delay under Civ.R. 54(B). Appellants appealed the probate court’s order.

       {¶41} In July 2016, appellees filed a second motion for summary judgment on the

removal claim, arguing that (1) in light of the court’s ruling granting summary judgment

on the contest claim, appellants lacked standing to seek removal of appellees as

co-executors and co-trustees because appellants were not beneficiaries of the 2010 will

and trust and (2) there was no evidence of any self- dealing by appellees in breach of their

fiduciary duties. Appellants opposed the motion, asserting that they had standing based
on an oral trust that was created at the July 2013 family meeting when Joyce allegedly

informed her children that she wanted them to share equally in the assets of her estate. In

support of their opposition, appellants attached an affidavit from Jim, detailing the events

leading up to the July 2013 family meeting and Joyce’s efforts to revise her estate plan in

2013, and several emails relating to Joyce’s intent in 2013 to revise her estate plan to

allow Jim and Lori to share in her estate.

       {¶42} On January 5, 2017, the probate court granted appellees’ second motion for

summary judgment, rejecting appellants’ “newly created oral trust theory” as a basis for

standing on their removal claim.        The probate court reasoned that appellants (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 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. Once again, appellants appealed.      This court granted

appellants’ motion to consolidate the appeals.

       {¶43} In their appeals, appellants have raised the following ten assignments of

error for review:

       Assignment of Error No. 1:
       The Trial Court erred when, on or about December 9, 2015, it granted the
       Defendants’ Motions for a Protective Order and to Bifurcate the Claims.

       Assignment of Error No. 2:
      The Trial Court erred when, on or about May 25, 2016, it denied the Plaintiffs’
      Motion for Leave to Amend the Complaint.

      Assignment of Error No. 3:
      The Trial Court erred when, on or about May 26, 2016, it denied the Plaintiffs’
      Motion to Compel against non-party Hahn Loeser & Parks L.L.P.

      Assignment of Error No. 4:
      The Trial Court erred when, on or about May 26, 2016, it granted in part the
      Defendants’ Motion to Quash against non-party Cohen & Co., Ltd.

      Assignment of Error No. 5:
      The Trial Court erred when, on or about May 26, 2016, it denied the Plaintiffs’
      Civil Rule 56(F) Motion for an Extension of Time.

      Assignment of Error No. 6:
      The Trial Court erred when, on or about June 24, 2016, it denied the Plaintiffs’
      Omnibus Motion for Clarification and Reconsideration.

      Assignment of Error No. 7:
      The Trial Court erred when, on or about June 24, 2016, it granted the Defendants’
      First Motion for Partial Summary Judgment.

      Assignment of Error No. 8:
      The Trial Court erred when, on or about August 11, 2016, it denied the Plaintiffs’
      Motion for Reconsideration.

      Assignment of Error No. 9:
      The Trial Court erred when, on or about August 23, 2016, it granted the Plaintiffs’
      Request for a Final Order.

      Assignment of Error No. 10:
      The Trial Court erred when, on or about January 5, 2017, it granted the
      Defendants’ Second Motion for Summary Judgment.

      Law and Analysis

      Assignments of Error Not Argued

      {¶44} As an initial matter, we note that in their opening brief, appellants have

only included separate argument relating to their seventh, eighth and tenth assignments of
error.     As to the remaining assignments of error, appellants simply “incorporate by

reference their motions and briefs related to the same.”          An appellant’s brief must

include “[a]n argument containing the contentions of the appellant with respect to each

assignment of error presented for review and the reasons in support of the contentions,

with citations to the authorities, statutes, and parts of the record on which appellant

relies.”    (Emphasis added.)    App.R. 16(A)(7).      Pursuant to App.R. 16(A)(7), such

arguments are to be presented within the body of the merit brief. “[P]arties cannot

simply incorporate by reference arguments that they made to the trial court in their

appellate brief.” State ex rel. Midview Local School Dist. Bd. of Edn. v. Ohio School

Facilities Comm. 9th Dist. Lorain No. 16CA010991, 2017-Ohio-6928, ¶ 20, quoting

Deutsche Bank Natl. Trust Co. v. Taylor, 9th Dist. Summit No. 28069, 2016-Ohio-7090, ¶

14. Where an appellant fails to comply with this rule, the appellate court may disregard

the assignment of error. App.R. 12(A)(2) (“The court may disregard an assignment of

error presented for review if the party raising it fails to identify in the record the error on

which the assignment of error is based or fails to argue the assignment separately in the

brief, as required under App.R. 16(A).”). “If evidence, authority, and arguments exist

that can support an assignment of error, it is not the duty of the appellate court to root it

out.” Sutton v. Ohio Dept. of Edn., 2017-Ohio-105, 80 N.E.3d 1238, ¶ 35 (8th Dist.).

Likewise, although appellants mention a few of these other assignments of error —

without any citation to legal authority — in their reply brief, we are not obliged to

consider them. Pursuant to App.R. 16(C), reply briefs are to be used to rebut arguments

raised in the appellee’s brief; an appellant may not use a reply brief to raise new issues or
assignments of error not addressed in the appellant’s opening brief. See, e.g., Harris v.

Harris, 5th Dist. Stark No. 2014CA00107, 2015-Ohio-1000, ¶ 39.

       {¶45} Accordingly, we disregard and overrule appellants’ first, second, third,

fourth, fifth, sixth and ninth assignments of error for failure to comply with App.R.

16(A)(7). See, e.g., Barry v. Rolfe, 8th Dist. Cuyahoga Nos. 88459, 88460, 88676,

88680, 88681, 88682, 88683, 88684, 88685, 88686, 88908, 88909, 88910, 88911,

2008-Ohio-3131, ¶ 47-48 (overruling assignments of error where appellant, without

providing any argument or supporting authority, simply incorporated motion filed below).

       Motions for Summary Judgment

       {¶46} Appellants’ seventh, eighth and tenth assignments of error relate to the trial

court’s rulings on appellees’ motions for summary judgment.

       Standard of Review

       {¶47} We review summary judgment rulings de novo, applying the same standard

as the trial court. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241

(1996). We accord no deference to the trial court’s decision and conduct an independent

review of the record to determine whether summary judgment is appropriate.

       {¶48} Under Civ.R. 56, summary judgment is appropriate when no genuine issue

as to any material fact exists and, viewing the evidence most strongly in favor of the

nonmoving party, reasonable minds can reach only one conclusion that is adverse to the

nonmoving party, entitling the moving party to judgment as a matter of law.

       {¶49} On a motion for summary judgment, the moving party carries an initial

burden of identifying specific facts in the record that demonstrate his or her entitlement to
summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264

(1996).     If the moving party fails to meet this burden, summary judgment is not

appropriate; if the moving party meets this burden, the nonmoving party has the

reciprocal burden to point to evidence of specific facts in the record demonstrating the

existence of a genuine issue of material fact for trial. Id. at 293. Summary judgment is

appropriate if the nonmoving party fails to meet this burden. Id.       Where there are no

genuine issues of material fact, summary judgment is “an appropriate method by which to

resolve a will contest.”        Black v. Watson, 8th Dist. Cuyahoga No. 103600,

2016-Ohio-1470, ¶ 7.

         Contest Claim

         {¶50} In their seventh and eighth assignments of error, appellants contend that the

trial court erred in entering summary judgment on their contest claim in favor of

appellees, and thereafter denying their motion for reconsideration, because there are

genuine issues of material fact as to whether appellants exerted undue influence over

Joyce.

         Presumption of Validity and Claims of Undue Influence

         {¶51} When a will is admitted to probate, there is a presumption of validity,

including that the testator was free from restraint. Johnson v. Johnson, 5th Dist. Stark

No. 2016CA00184, 2017-Ohio-4153, ¶ 15, citing Krischbaum v. Dillon, 58 Ohio St.3d

58, 64, 567 N.E.2d 1291 (1991); R.C. 2107.74. The burden of proving undue influence

is on the party challenging the will. Kryder v. Kryder, 9th Dist. Summit No. 25665,

2012-Ohio-2280, ¶ 29.
       {¶52} To establish undue influence, the challenging party must prove by clear and

convincing evidence: (1) the testator was susceptible to undue influence, (2) another

person had an opportunity to exert influence over the susceptible testator, (3) improper

influence was exerted or attempted and (4) a result showing the effect of such influence.

Black, 2016-Ohio-1470, at ¶ 11, citing West v. Henry, 173 Ohio St. 498, 501, 184 N.E.2d

200 (1962), and Ament v. Reassure Am. Life Ins. Co., 180 Ohio App.3d 440,

2009-Ohio-36, 905 N.E.2d 1246, ¶ 38 (8th Dist.).           The same standard applies in

establishing undue influence with respect to a trust.   See R.C. 5804.06 (“A trust is void

to the extent its creation was induced by fraud, duress, or undue influence. As used in

this section, ‘fraud,’ ‘duress,’ and ‘undue influence’ have the same meanings for trust

validity purposes as they have for purposes of determining the validity of a will.”).

“Clear and convincing evidence” is more than a preponderance of the evidence, but does

not rise to the level of certainty required by the beyond a reasonable doubt standard in

criminal cases. See, e.g., In re Estate of Haynes, 25 Ohio St.3d 101, 104, 495 N.E.2d 23

(1986); In re M.S., 8th Dist. Cuyahoga Nos. 101693 and 101694, 2015-Ohio-1028, ¶ 8.

It is that measure or degree of proof that produces in the mind of the trier of fact a firm

belief or conviction as to the facts sought to be established. Haynes at id.   Because “the

person who can give the best evidence is dead,” most evidence of undue influence “will

be circumstantial, leaving the factfinder to draw permissible inferences.” Redman v.

Watch Tower Bible & Tract Soc. of Pennsylvania, 69 Ohio St.3d 98, 102, 630 N.E.2d 676

(1994).
       {¶53} In Black, this court explained what is and is not undue influence sufficient to

invalidate a will as follows:

       The mere existence of undue influence or an opportunity to exercise it, even
       coupled with an interest or motive to do so, is not sufficient to invalidate a
       will. [West at 501.] Rather, the influence must be actually exerted in the
       mind of the testator with respect to the execution of the will at issue. Id.
       That is, it must be shown that the undue influence resulted in the making of
       testamentary dispositions that the testator otherwise would not have made.
       Id.

Black at ¶ 11.   “‘The fact that the testator * * * disposes of his property in an unnatural

manner, unjustly, or unequally, and however much at variance with expressions by the

testator concerning relatives or the natural objects of his bounty, does not invalidate the

will, unless undue influence was actually exercised on the testator.’” West at 502, quoting

94 Corpus Juris Secundum, 1074, at Section 224.        “General influence, however strong

or controlling, is not undue influence unless brought to bear directly upon the act of

making the will. If the will or codicil, as finally executed, expresses the will, wishes and

desires of the testator, the will is not void because of undue influence.” (Emphasis

omitted.) West at 501.

       {¶54} In this case, there is no evidence that Joyce had any diminished mental or

physical capacity or had any significant health issues as of December 2010 when she

executed her 2010 estate plan.   The 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. 11      Although Joyce retained various advisors to assist her with



        Although Jim testified that when his mother visited him in May 2010 she
       11

told him that she was “physically and mentally beat to a crisp” and that she looked
financial, legal and business matters, the record reflects that she generally made her own

decisions.

       {¶55} However, undue influence is presumed if the challenging party establishes

that a fiduciary or confidential relationship existed between the decedent and a

beneficiary.    See, e.g., In re Estate of Kiefer, 2d Dist. Miami No. 2016-CA-12,

2017-Ohio-6997, ¶ 8; Diamond v. Creager, 2d Dist. Montgomery No. 18819, 2002 Ohio

App. LEXIS 844, at *9-*10 (Mar. 1, 2002).            Where such a relationship exists, “‘the

transfer is looked upon with some suspicion that undue influence may have been brought

to bear on the donor by the donee.’” Bayes v. Dornon, 2015-Ohio-3053, 37 N.E.3d 181,

¶ 48 (2d Dist.), quoting Studniewski v. Krzyzanowski, 65 Ohio App.3d 628, 632, 584

N.E.2d 1297 (6th Dist.1989).

       {¶56}    Appellants contend that the evidence establishes that Josh and Kim had a

confidential or fiduciary relationship with Joyce, giving rise to a presumption of undue

influence, based on the fact that (1) Kim was an attorney-in-fact for Joyce and an

authorized user or signer on certain of Joyce’s bank and credit card accounts, (2) Josh

assisted Joyce with her financial affairs and communicated with her estate planning


“horrible” and unhealthy, there is no evidence that Joyce was in such a state six months later
when she executed the 2010 estate plan. To the contrary, appellees presented evidence
that days before she executed the 2010 estate plan, Joyce underwent a medical
examination in connection with an application for life insurance. The report from
that examination indicates that Joyce was active with no major health concerns and
that she had no “cognitive issues” or “deficits.” Likewise, Murman’s inaccurate and
demeaning depiction of Joyce in his affidavit and expert report as “an elderly widowed woman” who
was “not qualified to design an estate plan to take into account her many business and family
interests” and “completely dependent upon [her] attorneys for independent and sound advice”
regarding the distribution of her estate is not supported by the record.
attorneys on her behalf and (3) Josh and Kim were “constantly around” Joyce and

“incessantly communicating” with her.         They further contend that this “shifted the

burden” to appellees to disprove that Joyce’s 2010 estate plan was the product of undue

influence, precluding summary judgment.

       {¶57} A “fiduciary relationship” is a relationship in which “‘special confidence

and trust is reposed in the integrity and fidelity of another and there is a resulting position

of superiority or influence, acquired by virtue of this special trust.” Ryerson v. White,

8th Dist. Cuyahoga No. 100547, 2014-Ohio-3233, ¶ 18, citing Landskroner v.

Landskroner, 154 Ohio App.3d 471, 2003-Ohio-5077, 797 N.E.2d 1002, ¶ 32 (8th Dist.);

see also In re Estate of Kiefer at ¶ 8.   The holder of a power of attorney has a fiduciary

relationship with his or her principal and is not required to have used the power of

attorney for a confidential or fiduciary relationship to arise. In re Estate of Kiefer at ¶

12; Bayes, 2015-Ohio-3053, at ¶ 48, 50.

       {¶58} A “confidential relationship” exists “‘whenever trust and confidence is

placed in the integrity and fidelity of another.’” Ryerson at ¶ 19, quoting Golub v.

Golub, 8th Dist. Cuyahoga No. 97603, 2012-Ohio-2509, ¶ 33; Ament, 180 Ohio App.3d

440, 2009-Ohio-36, 905 N.E.2d 1246, at ¶ 39. “A confidential relationship can be

moral, social, domestic, or merely personal in nature.” Diamond at *9, citing Thorp v.

Cross, 11th Dist. Portage No. 97-P-0079, 1998 Ohio App. LEXIS 4885 (Oct. 16, 1998).

 The determination of whether a relationship is a confidential relationship is a question of

fact dependent upon the circumstances in each case.            See, e.g., Ryerson at ¶ 19;

Ciszewski v. Kolaczewski, 9th Dist. Summit No. 26508, 2013-Ohio-1765, ¶ 10.
       {¶59} Where a presumption of undue influence arises based on the existence of a

confidential or fiduciary relationship between a donor and a beneficiary, “the burden of

going forward with evidence” shifts to the beneficiary accused of exercising undue

influence to show that his or her conduct was free from undue influence. Landin v.

Lavrisiuk, 8th Dist. Cuyahoga No. 84893, 2005-Ohio-4991, ¶ 23; Ryerson at ¶ 17.

The beneficiary may rebut the presumption by demonstrating that the donor acted

voluntarily, in an exercise of his or her free will, with a full understanding of his or her

actions and their consequences. See, e.g., In re Guardianship of Simmons, 6th Dist.

Wood No. WD-02-039, 2003-Ohio-5416, ¶ 26.              “[T]he party attacking the transfer

retains the ultimate burden of proving undue influence by clear and convincing

evidence.” Ament at ¶ 38, 40; In re Estate of Eyrich, 11th Dist. Trumbull No.

2016-T-0002, 2016-Ohio-7165,¶ 25, quoting           Estate of Niemi v. Niemi, 11th Dist.

Trumbull No. 2008-T-0082, 2009-Ohio-209; see also Evid.R. 301 (“‘In all civil actions *

* * a presumption imposes on the party against whom it is directed the burden of going

forward with evidence to rebut or meet the presumption, but does not shift the burden to

such party in the sense of the risk of non-persuasion, which remains throughout the trial

upon the party on whom it was originally cast.”).

       {¶60}    A parent-child relationship in and of itself is insufficient to create a

confidential or fiduciary relationship.   See, e.g., Ryerson, 2014-Ohio-3233, at ¶ 18;

Ciszewski, 2013-Ohio-1765, at ¶ 10; see also Jeffreys v. Dennis, 5th Dist. Guernsey No.

96CA25, 1996 Ohio App. LEXIS 6122, *4, *7 (Dec. 2, 1996) (indicating that to support a

presumption of undue influence between a parent and a child, a confidential or fiduciary
relationship must exist “separate and apart” from the parent-child relationship).

However, in this case, there was evidence of more than a mere parent-child relationship

between Joyce and Kim and Joyce and Josh.

       Kim’s Relationship with Joyce

       {¶61} With respect to Kim, it is undisputed that Kim was her mother’s

attorney-in-fact for a number of years before Joyce executed her 2010 estate plan.

Because Kim was her mother’s attorney-in-fact, a fiduciary relationship existed between

Kim and Joyce at the time she executed her 2010 estate plan, giving rise to a presumption

of undue influence by Kim. Thus, the issue is whether Kim successfully rebutted the

presumption of undue influence. We believe that there is no genuine issue of material

fact that she did so.

       {¶62} Viewing the evidence presented in the light most favorable to appellants, it

could not support a finding that any influence Kim may have exerted over Joyce “so

overpower[ed] and subjugate[d]” Joyce “as to destroy [her] free agency and make [her]

express [Kim’s] will rather than [her] own” with respect to her estate plan. West, 173

Ohio St. 498, 501, 184 N.E.2d 200 at 501. In this case, although Kim was Joyce’s

attorney-in-fact and had access to certain of Joyce’s bank and credit card accounts, there

was no evidence she used them to benefit herself. Likewise, although Kim may have

spent a lot of time with, and communicated frequently with, her mother, there is no

evidence that these communications related to her estate plan or that Kim exerted any

influence — much less undue influence — over Joyce with respect to her estate plan.

The record reflects that Kim accompanied her mother on a couple of meetings with her
attorneys to discuss estate planning and the possible buyout of Kim’s and Joyce’s shares

in the companies, but there is no evidence from which it could be reasonably inferred that

Kim was involved in or directing any decisions related to Joyce’s 2010 estate plan.

       Josh’s Relationship with Joyce

       {¶63} Josh’s actions are more troublesome.    The record reflects that beginning in

August 2010, Josh was regularly involved in and, in many instances, was the exclusive

conduit for, communications between Joyce and her estate planning attorneys.          After

Gross was removed as the contact for Joyce’s estate plan, virtually every communication

with her attorneys relating to Joyce’s new estate plan and Joyce’s intent with respect to

that estate plan went through or included Josh. Other than Gariepy’s assumption that he

did so based on years of practice and “protocol,” there is no evidence that Gariepy had

any direct, independent communications with Joyce confirming that what Josh had told

him — and what was ultimately included in the 2010 estate plan — accurately reflected

Joyce’s intent.   Gariepy could not recall what communications he had with Joyce and his

billing records do not reflect any meetings or other communications with Joyce regarding

her estate plan that did not include Josh. Further, it is questionable whether Joyce even

received a number of the communications Gariepy sent her. It was undisputed that Joyce

“didn’t do email.”       Whereas Gross and Baptiste testified that they generally

communicated with Joyce by mail, federal express, telephone or in person, Gariepy’s

communications with Joyce were primarily by email or fax.

       {¶64} Based 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. See, e.g., Sigler

v. Burk, 3d Dist. Crawford No. 3-16-19, 2017-Ohio-5486, ¶ 86-90.

       {¶65} We sustain appellants’ seventh assignment of error. Given that a genuine

issue of material fact exists as to the validity of the 2010 estate plan, a genuine issue of

material fact likewise exists as to whether appellants have standing to assert their removal

claim. Accordingly, we also sustain appellants’ tenth assignment of error.

       {¶66} Given our resolution of appellants’ seventh assignment of error, appellant’s

eighth assignment of error is moot.   We reverse the probate court’s granting of summary

judgment on the contest and removal claims and remand the matter to the trial court for

further proceedings consistent with this opinion.

       {¶67} Judgment reversed; remanded.

       It is ordered that appellants recover from appellees the costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to Cuyahoga County Court of Common

Pleas, Probate Division, 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.


_______________________________________________
EILEEN A. GALLAGHER, PRESIDING JUDGE

MARY EILEEN KILBANE, J., and
LARRY A. JONES, SR., J., CONCUR
