[Cite as Kinchen v. A.R. Mays, Etc., 2014-Ohio-3325.]



                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 100672



                               KATHRYN R. KINCHEN
                                                              PLAINTIFF-APPELLANT

                                                        vs.

                              A.R. MAYS, ETC., ET AL.
                                                              DEFENDANTS-APPELLEES




                                           JUDGMENT:
                                            AFFIRMED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                        Probate Division
                                  Case No. 2012 ADV 178703

        BEFORE: S. Gallagher, P.J., E.A. Gallagher, J., and Blackmon, J.

        RELEASED AND JOURNALIZED:                             July 31, 2014
ATTORNEY FOR APPELLANT

David P. Bertsch
Stark & Knoll Co., L.P.A.
3475 Ridgewood Road
Akron, OH 44333



ATTORNEYS FOR APPELLEE

For A.R. Mays, etc.

Franklin C. Malemud
Adriann S. McGee
Brian D. Sullivan
Reminger Co., L.P.A.
101 W. Prospect Avenue
Suite 1400
Cleveland, OH 44115

For Alex Kinchen, et al.

Ryan P. Nowlin
James D. Vail
Schneider, Smeltz, Ranney & LaFond
1111 Superior Avenue
Suite 1000
Cleveland, OH 44114
SEAN C. GALLAGHER, P.J.:

       {¶1} Plaintiff Kathryn Kinchen (“Kathryn”) appeals from the trial court’s decision

granting summary judgment upon Kathryn’s undue influence claim, in favor of A.R.

Mays, as the trustee of the decedent Gilbert Kinchen’s trust (“Trust”), and Gilbert

Kinchen’s children, who are the beneficiaries of the family trust portion of the Trust, and

denying Kathryn’s motion to amend the complaint to include a claim for reformation of

the Trust pursuant to R.C. 5804.15. For the following reasons, we affirm.

       {¶2} The Trust, established in 2007, had two distinct portions, a family trust

designating Gilbert Kinchen’s (“Gilbert”) five children as beneficiaries, and a marital

trust for Kathryn’s benefit. All Gilbert’s assets were intended to flow through the Trust

instrument upon his death. As originally drafted, Gilbert funded the family trust with a

$2 million distribution from Gilbert’s estate. The rest of his assets would fund a marital,

Q-TIP trust.

       {¶3} The events giving rise to the current case largely occurred in the last two

weeks of Gilbert’s life.   On July 31, 2010, Kathryn had to travel to care for her elderly

parents.   Unable, or unwilling, to leave Gilbert alone, Kathryn arranged for one of his

daughters, Hope Kinchen, to care for Gilbert in Kathryn’s absence.       According to his

primary care physician, Gilbert suffered from Sundowner Syndrome (confusing day and

night) and other intermittent episodes of confusion and senility.

       {¶4} According to Kathryn, as supported solely through her own affidavit, during

the week in which Gilbert’s daughter visited, he withdrew approximately $70,000 from a
joint account he shared with Kathryn and hundreds of thousands of dollars in certificates

of deposit from a safe deposit box. It is undisputed that Gilbert also spoke with his

attorney, Michelle Yeh, about amending his Trust instrument to increase the funding

amount for the family trust from $2 million to $4 million. Attorney Yeh complied and

drafted the amendment that Gilbert executed on August 4, 2010.

       {¶5} Attorney Yeh testified that Gilbert requested the amendment in order to

maximize the distribution of assets to his children, up to the maximum federal estate

exemption. Without getting into the political details, in 2010, there was no estate tax,

but it was anticipated that Congress would enact legislation reinstating the estate tax, with

a $3 million to $4 million exemption. Gilbert sought to maximize the benefit of the

anticipated exemption level, but if the amount were less than the $4 million funding,

Gilbert would use the marital trust to shelter any amount of the estate exceeding the estate

tax exemption.    The purpose of the marital trust, according to Attorney Yeh, was to

transfer any remaining assets tax free, so as to limit the amount of federal taxes and

maximize the distribution to his children.

       {¶6} On August 11, 2010, Gilbert was admitted to a hospital where, at the age of

83, he succumbed to illness. It was not until after his death that Kathryn was notified of

the amendment to the Trust. At that time, Kathryn was also notified that Gilbert lacked

sufficient assets to fully fund the $4 million family trust, which resulted in Kathryn

receiving nothing through the marital trust.
       {¶7} Kathryn challenged the amendment to the Trust, claiming that Hope Kinchen

exerted undue influence upon Gilbert.          Further, Kathryn filed a motion to amend the

complaint to include a claim for reformation of the trust pursuant to R.C. 5804.15, based

on the mistake of the drafter.        Kathryn claimed that Gilbert had always intended to

provide Kathryn half of his assets and that on August 4, 2010, due to his infirmity, Gilbert

was mistaken as to his net worth.            According to Kathryn, Gilbert would not have

amended the family trust had Gilbert fully appreciated his economic position.

       {¶8} The trial court denied Kathryn leave to amend the complaint to include a

claim for reformation and, shortly thereafter, granted the defendants’ motion for summary

judgment upon the undue influence claim and lack of capacity claim.1 Kathryn timely

appealed, advancing three assignments of error, two of which are interrelated and shall be

addressed first.

       {¶9} In her second and third assignments of error, Kathryn claims the trial court

erred in granting summary judgment in favor of the defendants and upon Kathryn’s

claims that the amendment to the Trust was invalid as a product of undue influence or that

Gilbert lacked capacity to execute the document.2              We find no merit to Kathryn’s

arguments.


       1
         Kathryn’s complaint is limited to directly stating an undue influence claim, but the lack of
capacity could be inferred from a generous reading of the factual allegations. In the abundance of
caution, we will treat the lack of capacity as properly pleaded for the purposes of the appeal.
       2
          Kathryn’s third assignment of error challenges the dismissal of the allegations against Mays
for allegedly mismanaging the Trust assets. Kathryn concedes that the allegations against Mays are
intrinsically linked to the validity of the amendment. If the amended Trust is deemed valid, no
        {¶10} Generally, in Ohio, a finding of undue influence requires (1) a susceptible

testator, (2) another’s opportunity to exert undue influence on the testator, (3) improper

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

Redman v. Watch Tower Bible & Tract Soc. of Pennsylvania, 69 Ohio St.3d 98, 101, 630

N.E.2d 676 (1994).       The influence must bear directly on the act of making and executing

the testamentary disposition. West v. Henry, 173 Ohio St. 498, 501, 184 N.E.2d 200

(1962). As succinctly stated, it is insufficient to rely on “the mere existence of undue

influence, or an opportunity to exercise it,” even with a substantiated motive to interfere.

Rich v. Quinn, 13 Ohio App.3d 102, 103, 468 N.E.2d 365 (12th Dist.1983).                           Undue

influence “must be actually exerted on the mind of the testator with respect to the

execution of the will in question,” and “so overpower and subjugate the mind of the

testator as to destroy his free agency and make him express another’s will rather than his

own.”     Id.

        {¶11} In the alternative, testamentary capacity exists when the testator sufficiently

understands the nature of the business in which he is engaged, comprehends the nature

and extent of his property, knows the names and identity of those who could inherit, and

appreciates his relation to the members of his family.                   In re Goehring, 7th Dist.

Columbiana No. 05 CO 27, 2007-Ohio-1133, ¶ 49, citing Birman v. Sproat, 47 Ohio

App.3d 65, 67-68, 546 N.E.2d 1354 (2d Dist.1988).                        “Testamentary capacity is


claims against the trustee exist because Gilbert’s assets were insufficient to fully fund the family trust,
for which Kathryn is not a beneficiary. She therefore lacked standing to challenge the administration
of the family trust portion of the Trust.
determined as of the time of the execution of the will.” Smith v. Gold-Kaplan, 8th Dist.

Cuyahoga No. 100015, 2014-Ohio-1424, citing Meek v. Cowman, 4th Dist. Washington

No. 07CA31, 2008-Ohio-1123, ¶ 9.

       {¶12} Regardless of the standard, the burden of proof for the purposes of

determining the lack of testamentary capacity or undue influence is on the party

contesting the will or testamentary instrument. Kennedy v. Walcutt, 118 Ohio St. 442,

161 N.E. 336 (1928), paragraph six of the syllabus. Further, R.C. 5804.06 specifically

adopts the undue influence standards from will contest actions for the purposes of

determining the validity of a trust.

       {¶13} As this court recently recognized, it is not enough to submit an unsupported,

self-serving affidavit detailing a party’s own personal observations of the decedent

exhibiting signs of being anxious, uncharacteristically abusive, confused, or paranoid,

especially when that party is both contesting the will admitted to probate and has no other

corroborating material introduced pursuant to Civ.R. 56. Gold-Kaplan at ¶ 34.          This

court’s decision in Gold-Kaplan is instructive.         Although generally detailing the

decedent’s anxious, confused, or paranoid state, the plaintiff was unable to testify that on

or around the day the will was executed, the testator lacked capacity or was unduly

influenced into executing the document.     Id. It was therefore undisputed, according to

the drafter of the will and a social worker present for the execution of the document, that

the testator was of sound mind, knew the nature and extent of his property, knew the

names of his relatives, and was not under any duress.    Id. at ¶ 4; see also Martin v. Dew,
10th Dist. Franklin No. 03AP-734, 2004-Ohio-2520 (demonstrating the testator suffered

from dementia is insufficient unless coupled with evidence demonstrating the lack of

lucidity at the time the documents were executed); Robinson v. Harmon, 107 Ohio App.

206, 157 N.E.2d 749 (2d Dist.1958) (infirmities of old age are insufficient alone to prove

a lack of testamentary capacity); compare Stravarace v. Johnston, 8th Dist. Cuyahoga No.

41640, 1980 Ohio App. LEXIS 12255 (May 30, 1980) (the basis for invalidating the will

based on lack of capacity was because the testator at the time of execution was a

terminally ill, hospitalized cancer patient, who was heavily medicated with drugs and

unable to talk or communicate).

      {¶14} In the current case, Kathryn failed to cite any evidence demonstrating a

genuine issue of material fact supporting her claim that the trial court erred in granting

summary judgment. App.R. 16(A)(7). Further, in independently reviewing the record,

Kathryn solely relies on her self-serving allegations that either Hope Kinchen influenced

her father into amending the trust or Gilbert lacked the capacity to understand the extent

of his net worth on August 4, 2010. It is undisputed that Kathryn was not present on

August 4, 2010, and, therefore, is not otherwise competent to testify about Gilbert’s

mental faculties at that time.       Gold-Kaplan, 8th Dist. Cuyahoga No. 100015,

2014-Ohio-1424, at ¶ 34.     The evidence from the affidavit of Gilbert’s primary care

physician suffers the same fate. Although Gilbert exhibited signs of confusion and

senility, it was intermittent. Such evidence alone is insufficient to demonstrate that
Gilbert lacked capacity at the time he executed the amendment. See Martin, 10th Dist.

Franklin No. 03AP-734, 2004-Ohio-2520.

       {¶15} Further, even if the mere opportunity to exert influence were enough to

substantiate the allegation of undue influence, defendants’ undisputed evidence

demonstrated that Gilbert consciously sought to amend the Trust to increase the funding

to the family trust pursuant to his discussion with Attorney Yeh.3 Kathryn’s second and

third assignments of error are overruled.

       {¶16} In her first assignment of error, Kathryn claims the trial court erred in

denying her leave to amend the complaint to include a claim for reformation.                 Kathryn

claims that Gilbert was mistaken about his net worth when amending the Trust because he

was worth less than $4 million, and there were no remaining assets with which to fund the

marital trust. Kathryn’s first assignment of error is without merit.

       {¶17} We review a trial court’s decision granting or denying a motion for leave to

amend a complaint under an abuse of discretion standard. Demmings v. Cuyahoga Cty.,

8th Dist. Cuyahoga No. 98958, 2013-Ohio-499, ¶ 6, citing Csejpes v. Cleveland Catholic

Diocese, 109 Ohio App.3d 533, 541, 672 N.E.2d 724 (8th Dist.1996). Although Civ.R.

15(A) expressly provides that leave of court shall be freely given when justice so requires,

there is no absolute right to amend a complaint. Id. “[W]here a plaintiff fails to make a


       3
         The record is replete with testimony demonstrating marital tension between Gilbert and
Kathryn. In light of the fact that we find no merit to Kathryn’s first assignment of error, we need not
get into the evidentiary submissions substantiating the marital discord that may have precipitated the
amendment to the trust.
prima facie showing of support for new matters sought to be pleaded, a trial court acts

within its discretion to deny a motion to amend the pleading.” Id., quoting Wilmington

Steel Prods., Inc. v. Cleveland Elec. Illum. Co., 60 Ohio St.3d 120, 123, 573 N.E.2d 622

(1991). “Where an amendment to the complaint would have been futile, the trial court

also does not abuse its discretion in denying the motion.” Id., citing Perrin v. Bishop,

8th Dist. Cuyahoga No. 64266, 1993 Ohio App. LEXIS 5736 (Dec. 2, 1993).

       {¶18} In this case, Kathryn contends that reformation was necessary because

Gilbert was mistaken about his net worth at the time he executed the amendment to the

Trust. According to Kathryn’s affidavit, Gilbert intended to leave her with half his

estate. Gilbert’s attorney, however, testified that the purpose of increasing the funding

amount of the family trust was to pass the most tax-free money to his children based on

the ever-changing federal estate tax deduction. According to Attorney Yeh, the sole

purpose of including the marital trust was to reduce any tax burden, and thus, was an

inclusion of convenience rather than testamentary intent. There was no discussion about

the extent of Gilbert’s net worth.

       {¶19} Further, there is no evidence in the record that Gilbert intended an equal

distribution of assets between the two portions of the Trust. Specifically, there is no

evidence that the $2 million originally set to fund the family trust represented half

Gilbert’s estate, and reverting to the original trust would not have resulted in the marital

trust being funded with half the estate’s assets either.   The estate was valued at less than

$3 million. Accordingly, it is irrelevant whether Gilbert told Kathryn that he intended
that the marital trust be funded with half the estate’s assets; that result would not be

achieved by reverting to the original trust language.   Dividing his estate evenly between

the two trusts would have been simple if Gilbert had specified the funding amounts in

terms of percentages rather than definitive sums.    Reforming the trust to fund the marital

trust with half of the estate’s assets would, therefore, severely alter the terms of the

original Trust as drafted, with no evidence that Gilbert intended such a distribution, much

less the clear and convincing evidence required by R.C. 5804.15.

       {¶20} In light of the uncontested evidence, Kathryn’s first assignment of error is

overruled. A trial court does not err in denying leave to amend a complaint for which the

plaintiff is unable to demonstrate the factual basis for the newly asserted claim.

       {¶21} The trial court did not err in denying Kathryn leave to amend her complaint

to include a claim for reformation of the Trust, or in granting summary judgment in favor

of defendants upon all claims. The decision of the trial court is affirmed.

       It is ordered that appellees recover of appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court, 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.



SEAN C. GALLAGHER, PRESIDING JUDGE
EILEEN A. GALLAGHER, J., and
PATRICIA ANN BLACKMON, J., CONCUR
