[Cite as Stanek v. Stanek, 2019-Ohio-2841.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                      GREENE COUNTY

 DANIEL G. STANEK, et al.                          :
                                                   :
         Plaintiffs-Appellants                     :   Appellate Case No. 2018-CA-39
                                                   :
 v.                                                :   Trial Court Case No. 11533C
                                                   :
 EDMUND D. STANEK, et al.                          :   (Civil Appeal from
                                                   :    Probate Court)
         Defendants-Appellees                      :
                                                   :

                                              ...........

                                              OPINION

                              Rendered on the 12th day of July, 2019.

                                              ...........

JUD R. MAUGER, Atty. Reg. No. 0063375 and GREGORY P. BARWELL, Atty. Reg. No.
0070545, 100 E. Broad Street, Suite 2350, Columbus, Ohio 43215
     Attorneys for Plaintiffs-Appellants

PETER R. CERTO, JR., Atty. Reg. No. 0018880, One South Main Street, Suite 1590,
Dayton, Ohio 45402
      Attorney for Defendants-Appellees

                                              .............




WELBAUM, P.J.
                                                                                           -2-




       {¶ 1} This appeal arises from a dispute among siblings about their father’s estate.

Appellants, Daniel Stanek, Arlene Bottenfield, and Rosemarie Keenan appeal from a

judgment upholding the will and a transfer on death beneficiary designation made by

Edmund E. Stanek, and finding that Appellee, Edmund D. Stanek, did not exercise undue

influence over his father.1

       {¶ 2} In challenging the judgment, Appellants have raised five assignments of

error. Essentially, they contend that the trial court abused its discretion and that the

judgment was against the manifest weight of the evidence.

       {¶ 3} For the reasons discussed below, we conclude that the trial court did not err

in rejecting Appellants’ attempt to challenge the validity of the will and transfer on death

beneficiary designation due to lack of testamentary capacity and undue influence. The

court’s judgment was not against the manifest weight of the evidence. Accordingly, the

judgment of the trial court will be affirmed.



                               I. Facts and Course of Proceedings

       {¶ 4} As a preliminary matter, we note that our recitation of facts relies primarily on

the testimony of Appellants, because the trial court stated that:

              All the witnesses at trial were credible, except Defendant [Ed]. They

       projected a calm, respectful, and confident demeanor.              They were

       responsive to questions. * * *



1To avoid confusion, we will refer to the decedent as “Stanek” and to his son as “Ed.”
When we refer to the other parties collectively, we will use “Appellants.”
                                                                                         -3-


               Defendant lacked any credibility whatsoever.      His testimony was

      deceptive and was peppered with snide and argumentative comments. He

      was arrogant, flippant and evasive.      Even when others were testifying,

      Defendant’s body language was purposely distractive, rolling his eyes and

      shooting looks of disbelief when others were testifying.         His previous

      blatant lie to this Court in an earlier hearing – stating that the Merrill Lynch

      accounts had been nearly depleted – tainted everything he said during trial.

      Words cannot describe the horrible impression Defendant made on the

      Court.

Doc. #82, Decision and Judgment Entry, p. 6.

      {¶ 5} The decedent, Edmund E. Stanek, was born in 1924 and died on February

1, 2017, at age 92. He and his wife had four children: Daniel, Arlene, Rosemarie, and

Ed. In 1986, Stanek executed a will naming his wife, Maria, as his sole beneficiary. In

the event that Maria predeceased him, each child was to be given an equal share of the

assets. If one of the children also predeceased Stanek, his or her share lapsed and was

to be distributed equally to the remaining children. Maria was named executrix, and in

the event of her death, Ed was named as executor. If Ed could not serve, Daniel was to

be the executor.

      {¶ 6} In 1996, Stanek sent Daniel, Arlene, and Rosemarie a letter listing an

enormous amount of money that he and his wife had spent on Ed. The list was titled

“Expenditures for Ed’s Domestic Violence w/Firearm + Divorce Cases,” and disclosed

more than $43,000 in expenses that had been paid. Plaintiff’s Ex. 2, pp. 2-4. The letter

further stated that “[i]f neither Mom or I receive reimbursement, this sum should be
                                                                                           -4-

deducted from Ed’s share of our estate. It would not be fair otherwise.” Id. at p. 1.

       {¶ 7} In March 2000, Stanek executed a First Codicil to his will. At that time, Maria

had been recently diagnosed with Alzheimer’s, but was still capable.             Due to the

progressive nature of her disease, however, the family had been advised to change

paperwork for the will. The codicil designated Daniel as executor; if he were unable to

serve, Arlene and Rosemarie were to serve as co-executrixes. Daniel made up packets

containing the last will and testament and codicil, along with a power of attorney, and

everyone received a packet. In November 2000, Stanek also sent Daniel and Arlene a

detailed list of all of his and Maria’s property, including their residences, income property,

checking and savings account numbers, insurance policy numbers, life insurance

information, IRA information, and the like.

       {¶ 8} At the time of Maria’s diagnosis, Stanek and Maria lived in Cleveland and

also owned a condo in Florida. Ed had lived with them in Cleveland for significant

periods of time, including after his 1976 divorce; during the late 1980’s; and during and

after his second divorce, from around 1996 to 2001.          In the 2000-2001 time-frame,

Arlene had discussions with her parents about moving to Dayton, Ohio, where she lived.

This was due to Maria’s Alzheimer’s diagnosis and the desire to keep Maria at home. As

a result, Stanek and Maria came to Dayton in 2001 to look at properties. They then built

a condo and moved into it in April 2002.

       {¶ 9} Ed lived with Maria and Stanek in their Cleveland house until it was sold.

When Maria and Stanek moved to Dayton from Cleveland, they told Daniel to tell Ed that

he was not expected and was not welcome to move with them to Dayton. Subsequently,

Ed moved in with Arlene and lived with her for several months.
                                                                                          -5-


       {¶ 10} After the move and until 2005, Maria and Stanek were living on their own

with some assistance from Arlene, who typically went over every day, first to make sure

Maria got up, and then in the evening, to make meals. After Stanek had surgery in 2005,

Ed and his girlfriend/fiancée moved in with his parents. During that time, Stanek paid

the girlfriend about $1,500 per week to compensate for her lost income. While these

payments were anticipated to be made only for a short time, they lasted longer due to

Stanek’s illness. Ed did not specifically say at trial how long this lasted, but his comments

in medical records indicate that his fiancée left after a couple of years, which would have

been sometime in 2007. See Plaintiff’s Ex. 1.

       {¶ 11} In September 2007, Ed was arrested and removed from his parents’ home

after assaulting his father. Shortly after the incident, Ed returned to get his belongings.

Arlene and her husband were there, and her parents were outside the house. At that

time, Ed said to Arlene and her husband: “you think this -- this is all about money; and

if you think you’re going to get away with me being gone, I’ll make sure that you don’t see

a penny of dad’s money ever.” Transcript of Bench Trial, (“Tr. 1”), p. 182.      During the

six to eight months that Ed was gone, the family had home care, and Arlene was also

there daily to care for her mother. At that time, the care was for Maria; Stanek did not

really need care.

       {¶ 12} In 2008, Ed returned to his parents’ home. According to Arlene, Ed was

living in a breezeway of another home and asked his father if he could move back in. Ed

claimed, in contrast, that his father “begged” him to come back.          In any event, Ed

returned and remained in the home until February 2017, when his father died. Maria had

previously died on June 4, 2012.
                                                                                            -6-


         {¶ 13} From 2005 until his death, Stanek had a number of hospitalizations and

medical problems, including bladder and prostate cancer; a triple bypass; diabetes;

essential hypertension; anemia; a cholecystectomy in July 2010 with a complicated post-

operative course, including respiratory failure and cardiac arrest; delirium in September

2010 due to conditions classified elsewhere; chronic kidney disease; MRSA in a sternal

incision; loss of peripheral vision due to stroke; retinopathy; a cataract; mild cognitive

impairment; and a hearing impairment. Stanek was also overweight and had significant

mobility issues.    In February 2012, the medical notes indicate that Stanek was not

capable of managing his medications and that he was “[i]ncapable of handling money.”

Plaintiff’s Ex. 1 at p. 2. These issues remained the same throughout the rest of Stanek’s

life.2

         {¶ 14} In 2014 alone, Stanek had several hospitalizations. On April 30, 2014, he

had a gastrointestinal bleed and lost six pints of blood. During the hospitalization, he

had three cardiac arrests, was sent to Kindred Care from May 16 to June 4, 2014, and

was then sent to Dayton Rehab, where he remained until around the last week of June

2014. See Defendant’s Ex. D.

         {¶ 15} On June 4, 2015, Stanek signed several documents that had been prepared

by Attorney Pete Rife. These included: (1) a last will and testament, which made Ed the

sole beneficiary of Stanek’s estate and effectively disinherited the other siblings; (2) a

living will (naming Ed as first in priority to be notified if an attending physician determined



2The medical records that were submitted ended on June 30, 2016, several months
before Stanek died. See Defendant’s Ex. G. There is no indication that his health got
better; in fact, Arlene stated that Stanek’s worst time was the several months before he
passed away in February 2017.
                                                                                        -7-


that life-sustaining treatment should be withheld; Arlene was listed second); (3) a power

of attorney granting Ed the power to act on Stanek’s behalf concerning all his affairs; and

(4) a durable power of attorney for health care granting Ed the power to act in all health

care decisions, and rejecting the designation of an alternate beneficiary. See Plaintiff’s

Exs. 3, 5, 6, and 7. In addition, Stanek brought a Merrill Lynch power of attorney form to

Rife’s office. This form had already been filled in. Stanek signed this power of attorney

as well, giving Ed the power to withdraw and transfer any amount of money from Stanek’s

account to himself or to third parties. See Plaintiff’s Ex. 4. Notably, the new will and

other documents were signed on the anniversary of Maria’s death, which was a significant

day for Stanek.

       {¶ 16} Rife had virtually no recollection of the transaction. His paralegal, who

prepared the documents, indicated that they were prepared and signed very quickly,

within a day or so after the office was contacted. No copies of any documents were sent

to Appellants, nor did Ed ever notify them of any changes in the will. Rife was not the

attorney for the prior will and codicil.

       {¶ 17} Both Daniel and Arlene were aware that their father had a significant

amount of money in a Merrill Lynch account. Daniel became aware of this in 2007 when

Ed was not living in the house and Daniel was assisting his father with financial matters.

The account had a transfer-on-death (“TOD”) designation, so that it would transfer to

Maria if Stanek predeceased her. If Maria died before Stanek, the account would be

included in the estate and would be divided equally among the children.

       {¶ 18} On July 8, 2016, Stanek signed a new TOD beneficiary designation, naming

Ed as the sole beneficiary on his Merrill Lynch account. Ed believed that his father had
                                                                                        -8-


previously signed a form on June 5, 2015 changing the TOD beneficiary from Maria to

Ed. However, that was an incorrect form. After Ed and Stanek made several trips to

Merrill Lynch, the correct form to change the TOD designation was ultimately signed on

July 8, 2016. According to Ed, the Merrill Lynch account was valued in June 2015 at

$180,000 to $189,000. At the time of Stanek’s death in 2017, the account was valued at

$198,000.

       {¶ 19} Previously, in 2014, when Stanek was in a nursing home, Daniel,

Rosemarie, and Ed went to dinner after visiting their father. Daniel and Rosemarie were

concerned about bills and were also concerned because Ed had gone to great lengths to

keep their father in the nursing facility after he had been discharged. As a result, a bill

of about $17,000 was owed. They asked Ed specifically what had happened to the

Merrill Lynch account; Ed said it had been “wiped out” in the 2008 stock market crash,

and very little was left in the account.

       {¶ 20} Arlene had also seen the Merrill Lynch portfolio when it contained around

$240,000. However, between October and November 2016, Ed told her there was very

little money in the account. This representation occurred in front of Stanek. Stanek

worried about money, and, at some point earlier, had also stopped paying for gifts for his

children and grandchildren.

       {¶ 21} Between 2013 and 2017, Ed restricted Appellants’ personal and telephone

contacts with their father.      Taking the telephone contacts first, Stanek’s hearing

impairment inhibited conversation even when contact was allowed. At trial, Stanek’s

medical records were admitted. These records began in July 26, 2011 (although they

included information about prior medical history). Even at that time, the doctor indicated
                                                                                        -9-


that Stanek had “limited use” of the phone because of his hearing impairment.

Defendant's Ex. A., p. 1.    The hearing situation did not improve, and later entries

indicated that Stanek was deaf or had serious difficulty hearing, that his hearing was

“markedly impaired,” that he did not or could not dial the phone, and that he did not hear

well. Defendant’s Exs. B, C, D, E, F, and G; Deposition of Dr. Lawhorne, pp. 26-34.

      {¶ 22} All the Appellants testified that communicating with their father by telephone

was very challenging due to his hearing issues. Furthermore, even before 2015, Ed had

told his siblings that they should not even bother to talk to their father on the phone.

Although Arlene had provided a phone for her father, Stanek did not hear it ring and would

not answer it. As a result, in the 2015 time period, Arlene called Ed’s phone to speak to

her father, because that was the only one her father would use.             However, the

discussions were frustrating because Stanek could not hear.

      {¶ 23} As to visits, Daniel testified that when he visited his father from 2013 to

2017, Ed did not leave him alone with Stanek. While Ed walked out of the room at times,

Daniel had to shout so his father could hear.      Daniel knew Ed was monitoring the

conversations because when he said something, Ed would suddenly pop in from the other

room and start talking about that subject. Arlene also said that she was not able to visit

alone with her father; Ed was always there and was in earshot. When they asked if they

could go out alone with their father, Ed would get upset.

      {¶ 24} Although Rosemarie lived in another state most of her adult life, she lived

in Ohio from the middle of 2013 to the beginning of 2015. She was living with Daniel

part-time, in Columbus, Ohio, and tried to see her father every week; if he were ill, she

came every day.     According to Rosemarie, there were many times that she was not
                                                                                       -10-


allowed to see her father. Every time she called, Ed said that Stanek was sleeping, and

also said he would call back, but he did not. When Rosemarie was permitted to visit,

she was not allowed to see her father alone.

      {¶ 25} When asked whether Ed exerted undue influence, Daniel stated:

             Yes. You know, he [Stanek] was * * * a very fragile man toward the

      end of his life.   He had an enormous amount of dependency.            As we

      indicated, * * * he had already been struck in 2007, 2008. He * * * had had

      a certain amount of, intimidation and feelings of – Well, I think anybody

      would. I know we all felt intimidated by Eddie at times. And then you add

      to it that he was basically completely dependent on Eddie for all his

      appointments, his food, his medicines. There were a lot of opportunities

      to, you know, not care for him if Eddie so chose. And I think that – I think

      that my father also – and I’m not going to deny it. Eddie took very good

      medical care of my father, and I think he appreciated that. And it got to the

      point where he really felt like, you know, * * * I’m going to completely wait

      for Eddie’s approval on whether I get up, whether I sit down, whether I eat.

             ***

             * * * [T]he notion that I had was that [Stanek] was quite dependent

      on him, on Eddie, for virtually every move, whether or not he would go visit

      family, whether or not he would show up at social events, whether or not he

      was able to go to dinner. These were all decisions that essentially Eddie

      made and did it on my dad’s behalf. * * * [I]t got to be particularly acute as

      time went on and to the point where when I would converse with him[,] he
                                                                                        -11-


       would actually look past me and look to Eddie as if looking for approval and

       would speak in almost a robotic form, almost like he was being coached.

Tr. 1 at p. 141-142.

       {¶ 26} As noted, the last will and other documents were signed on June 4, 2015,

and the final TOD designation was signed on July 8, 2016. Daniel’s first impression that

something may have changed was after Stanek died, when the funeral director asked

who the executor was. Based on his knowledge of the 1986 will and 2000 codicil, Daniel

was about to identify himself, but Ed jumped in immediately and said he was the executor.

Because he felt it was an inappropriate time to debate the matter, Daniel waited and

called Ed on February 15, 2017.

       {¶ 27} The first question Ed asked was whether their conversation was being

taped. Daniel thought this was odd, and said no, that he was just calling from work.

Daniel shared with Ed that they were all very surprised when Ed had said he was the

executor. Then, Daniel asked what was going on, whether there was another will. Ed

said yes, and attempted to change the subject. During the conversation, Ed also said, “I

asked dad for certain things and he gave them to me.” Id. at p.117. When Daniel asked

where the will was, Ed said, “in due time.” Id. at p. 118. Appellants then did not see the

will until after Daniel filed the 1986 will and 2000 codicil on March 3, 2017.

       {¶ 28} In the meantime, on February 17, 2017, Ed arranged to have the money in

Stanek’s Merrill Lynch account transferred to his new account. See Plaintiff’s Ex. 10.

Ed did not inform anyone of these facts or about the fact that the Merrill Lynch account

had assets; to the contrary, he actively concealed this from everyone and lied to the court

about the assets.
                                                                                             -12-


       {¶ 29} After Daniel filed the will and codicil, Ed filed an application with the court

on March 31, 2017, seeking to probate the June 4, 2015 will. Subsequently, in May

2017, Appellants filed the present action to contest the will, to obtain an accounting, and

for a temporary restraining order. The trial court construed the complaint as one for a

preliminary injunction and set a hearing for June 20, 2017. During the hearing, the trial

court discussed filing an entry (to which the attorneys had agreed), so that Ed could pay

ordinary and necessary bills of the estate, while preserving the assets until the merits of

the case could be decided. See Plaintiff’s Ex. 9 (Transcript of Preliminary Injunction

Hearing), pp. 3-9.

       {¶ 30} During the hearing, the following exchange occurred:

              The Court: Have you liquidated anything yet? Sold anything yet?

              Mr. Edmund Stanek:         My problem is assets, my dad was not a

       millionaire.

              The Court: I understand that.

              Mr. Edmund Stanek:         He had a very small pension and Social

       Security, that’s the total assets he lived on for all of his life since he retired.

       We are not talking about massive amounts of money.

Ex. 9 at pp. 9-10.

       {¶ 31} As noted, the trial court later characterized this as a “blatant lie.” Doc. #82

at p. 6. After conducting discovery, Appellants sought and were granted leave to file an

amended complaint, based on their discovery of the June 4, 2015 Merrill Lynch power of

attorney, the change in the TOD beneficiary, and the fact that Ed had misled the court.

The amended complaint eliminated the request for a restraining order and added a count
                                                                                      -13-


seeking to invalidate the TOD beneficiary designation on the Merrill Lynch account.

       {¶ 32} In August 2018, the court held a two-day bench trial. The court then issued

a judgment in September 2018, concluding that Stanek did not lack testamentary capacity

and that Ed did not exercise undue influence. Appellants timely appealed from the

court’s decision.



                                  II. Testamentary Capacity

       {¶ 33} Appellants have presented two assignments of error specifically related to

the court’s findings on testamentary capacity, two assignments of error related to undue

influence, and a combined assignment of error addressing both issues. We will consider

the errors pertaining to testamentary capacity together. These assignments of error are

as follows:

              The Trial Court Abused Its Discretion in Not Finding that the

       Decedent Lacked Testamentary Capacity to Change His Will and Transfer

       on Death Designation of His Merrill Lynch Account.

              The Trial Court's Conclusions Regarding the Testamentary Capacity

       of Decedent to Change His Will and Transfer on Death Designations Were

       Unsupported by the Evidence and Are Clearly Erroneous and Contrary to

       the Weight of the Evidence.

              There was No Evidence Presented at Trial to Support Appellee’s

       Assertions Regarding Testator’s Testamentary Capacity * * *.

       {¶ 34} Under these assignments of error, Appellants contend that the trial court

erred by focusing on Stanek’s mental competence rather than on the fact that Stanek was
                                                                                           -14-


unaware of the extent of his property, which Ed intentionally concealed from him.

       {¶ 35} Under R.C. 2107.71(A), persons “interested in a will or codicil admitted to

probate * * * that has not been declared valid by judgment of a court * * * may contest its

validity by filing a complaint in the probate court in the county in which the will or codicil

was admitted to probate.” “On the trial of any will contest under section 2107.71 of the

Revised Code, the order of probate is prima-facie evidence of the attestation, execution,

and validity of the will or codicil.”    R.C. 2107.74.     “ ‘Prima facie evidence’ is not

conclusive. The term denotes evidence which will support, but not require, a verdict in

favor of the party offering the evidence.” Krischbaum v. Dillon, 58 Ohio St.3d 58, 64, 567

N.E.2d 1291 (1991). “Once the presumption of validity and testamentary capacity arises,

the burden of proof shifts to the contestant, who must prove undue influence or lack of

testamentary capacity by a preponderance of the evidence.” Bustinduy v. Bustinduy, 2d

Dist. Champaign No. 98-CA-21, 1998 WL 879121, *2 (Dec. 18, 1998), citing Golding v.

Ohio Natl. Bank of Columbus, 115 Ohio App. 465, 466, 185 N.E.2d 577, (10th Dist.1962).

(Other citation omitted.) “The evidence must outweigh the presumption of probate as

well as all evidence in favor of the will.” Id.

       {¶ 36} “A testator has capacity to make a will when he has sufficient mind and

memory (1) to understand the nature of the business in which he is engaged, (2) to

comprehend generally the nature and extent of his property, (3) to hold in his mind the

names and identities of those who had natural claims upon his bounty, and (4) to be able

to appreciate his relation to members of his family.” In re Estate of Worstell, 2d Dist.

Montgomery No. 19133, 2002-Ohio-5385, ¶ 17, citing Niemes v. Niemes, 97 Ohio St. 145,

119 N.E. 503 (1917).
                                                                                       -15-


      {¶ 37} “Whether a testator was competent to make a will is not subject to direct

proof; competence must be proved inferentially from other evidence.” Worstell at ¶ 62.

“Evidence of the testator's mental and physical condition, both at the time the will is

executed and within a reasonable time before and after its execution, is admissible as

casting light on testamentary capacity.”   Sigler v. Burk, 3d Dist. Crawford No. 3-16-19,

2017-Ohio-5486, ¶ 7, citing Kennedy v. Walcutt, 118 Ohio St. 442, 161 N.E. 336 (1928),

paragraph two of the syllabus, overruled on other grounds, Krischbaum, 58 Ohio St.3d

58, 567 N.E.2d 1291. Accord Worstell at ¶ 46 (“it is the mental condition of the testator

at the time of making a will that determines his testamentary capacity”).

      {¶ 38} Furthermore, while changing a beneficiary designation is a contractual act,

courts have held that “the test of testamentary capacity can also be used as a standard

for mental capacity to execute a beneficiary designation.” In re Estate of Flowers, 2017-

Ohio-1310, 88 N.E.3d 599, ¶ 84 (6th Dist.), citing Schiavoni v. Roy, 9th Dist. Medina No.

11CA0108-M, 2012-Ohio-4435, ¶ 17, and Rogers v. Frayer, 11th Dist. Geauga No. 94-

G-1854, 1995 WL 408196, *4 (June 16, 1995).

      {¶ 39} The trial court concluded that Appellants failed to prove that Stanek was

incompetent or lacked testamentary capacity when he signed the will and the Merrill

Lynch forms. In this regard, the trial court found that Dr. Lawhorne’s testimony failed to

support the proposition that Stanek was incompetent; instead, the testimony

substantiated that Stanek had infirmities that were not debilitating and were only what

one would associate with a 90-year old person. The court also found that Stanek’s loss

of hearing and vision did “not equate to lack of testamentary capacity.” Doc. #82 at p. 7.

Finally, the court did not find relevance in whether Stanek read every word of the legal
                                                                                         -16-


documents, noting that this is not a condition of testamentary capacity.

       {¶ 40} In challenging the court’s judgment, Appellants allege abuse of discretion

and that the judgment was against the manifest weight of the evidence. Typically abuse

of discretion in will contest cases involves matters like continuances, evidentiary rulings,

and the like. See Bland v. Graves, 99 Ohio App.3d 123, 129, 650 N.E.2d 117 (9th

Dist.1994); Waldecker v. Pfefferle, 6th Dist. Erie No. E-02-002, 2002-Ohio-6187, ¶ 35

(admission of evidence); Flowers at ¶ 75-76 (admission of opinion testimony).

       {¶ 41} In contrast, a manifest weight challenge involves “whether the greater

amount of credible evidence” supported the judgment. Flowers at ¶ 94, citing Eastley v.

Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 17-19, and State v.

Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). Since Appellants challenge

the evidentiary basis for the trial court’s decision, we will apply this standard.

       {¶ 42} “[I]n civil cases, ‘[w]hen a [judgment] is challenged on appeal as being

against the weight of the evidence, an appellate court must review the entire record, weigh

the evidence and all reasonable inferences, consider witness credibility, and determine

whether, in resolving conflicts in the evidence, the trier of fact “clearly lost its way and

created such a manifest miscarriage of justice that the [judgment] must be reversed and

a new trial ordered.” ’ ” Bayes v. Dornon, 2015-Ohio-3053, 37 N.E.3d 181, ¶ 46 (2d

Dist.), quoting State v. Hill, 2d Dist. Montgomery No. 25172, 2013-Ohio-717, ¶ 8, which,

in turn, quotes Thompkins at 387.

       {¶ 43} After reviewing the record, we cannot find that the court’s judgment with

respect to testamentary capacity was against the manifest weight of the evidence. Dr.

Lawhorne, who treated Stanek during the relevant times, testified that he did not have
                                                                                       -17-


any concerns with Stanek’s mental competency. Ex. 1 (Dr. Lawhorne Deposition), pp.

18-19. Furthermore, Stanek’s hearing instrument specialist, Jeff Lough, had dealt with

Stanek for seven to eight years prior to July 8, 2016. Lough last saw Stanek on this date

(which coincidentally occurred the same day the final TOD was signed and was also

Stanek’s last visit to Lough). Lough testified that during this last appointment, he and

Stanek conversed about various things, and that Stanek was able to give appropriate

answers to questions that he asked.

      {¶ 44} Appellants’ own testimony indicated that Stanek was still able to recognize

them and other family members during the last two or three years of his life. Daniel, who

lived out of town, visited at least once a month; Arlene, who lived in the Dayton area,

visited at least once a week during the last few years of her father’s life; and Rosemarie

visited weekly in 2014 and 2015 when she lived in the area. If her father were ill, she

visited daily. From this testimony, it is apparent that Stanek was able to appreciate his

family members and to know those who had a natural claim to his bounty. Worstell, 2d

Dist. Montgomery No. 19133, 2002-Ohio-5385, at ¶ 17.

      {¶ 45} Moreover, while the lawyer who prepared the June 2015 will had little

recollection of his meeting with Stanek, he said he would not have let Stanek execute the

will if he had questions about competency. The secretary who witnessed the signing of

this will also testified that she would not have signed if she questioned Stanek’s

competency. Likewise, the witness to the July 8, 2016 TOD stated that while Stanek had

difficulty hearing, she was able to communicate with him by speaking loudly. She also

said she did not see anyone coerce him or make him sign the TOD.

      {¶ 46} Although Appellants contend that Stanek’s unawareness of the content of
                                                                                        -18-


his Merrill Lynch accounts was evidence of his incompetence, we disagree. Stanek may

have been misled by Ed’s lies about the money in the Merrill Lynch account, but this does

not mean he was incompetent to make the will or to sign a TOD. Appellants were misled

as well, and there is no question that they were competent. In addition, Stanek was

aware that he owned a condo in Florida, as he discussed it with Rosemarie in November

2015.

        {¶ 47} Based on the preceding discussion, the trial court’s finding of testamentary

capacity was not against the manifest weight of the evidence. Accordingly, the First

Assignment of Error, the Second Assignment of Error, and the part of the Fifth Assignment

of Error dealing with testamentary capacity are overruled.



                                        III. Undue Influence

        {¶ 48} The Third, Fourth, and Fifth Assignments of Error, which deal with undue

influence, state, respectively, that:

              The Trial Court Abused Its Discretion in Not Finding that Decedent

        Was Unduly Influenced by Appellee Edmund D. Stanek With Regard to the

        Changing of His Will and Transfer on Death Designations.

              The Trial Court’s Conclusions Regarding the Lack of Actual Undue

        Influence by Appellee on Decedent to Change His Will and Transfer on

        Death Designation Was [sic] Unsupported by the Evidence and Are Clearly

        Erroneous and Contrary to the Weight of the Evidence.

              There was No Evidence Presented at Trial to Support * * * the Trial

        Court’s Conclusion that Appellee Edmund Stanek Did Not Impose Improper
                                                                                          -19-


       Influence on Testator to Change His Will and Transfer on Death

       Designation.

       {¶ 49} Under these assignments of error, Appellants contend that the trial court

erred in concluding that they failed to prove undue influence. According to Appellants,

the trial court’s decision was improperly based on speculative inferences like the

“possibility” that the decedent had a “change or heart” when he disinherited three of his

adult children and changed his TOD beneficiary. The issue of undue influence presents

a far more difficult question than the question of testamentary capacity.

       {¶ 50} “ ‘Undue influence’ is ‘[a]ny improper or wrongful constraint, machination, or

urgency of persuasion whereby the will of a person is overpowered and he is induced to

do or forbear an act which he would not do or would do if left to act freely. * * * ’ ” Marich

v. Knox Cty. Dept. of Human Services/Children Services Unit, 45 Ohio St.3d 163, 166,

543 N.E.2d 776 (1989), quoting Black’s Law Dictionary 1370 (5th Ed.1979). Undue

influence “has also been described as a form of influence that would destroy the free

agency of the mind and cause people to act against their will.” Ross v. Barker, 101 Ohio

App.3d 611, 618, 656 N.E.2d 363 (2d Dist.1995), citing Raymond v. Hearon, 30 Ohio

App. 184, 164 N.E. 644 (1st Dist.). (Other citation omitted.)

       {¶ 51} “The essential elements of undue influence are a susceptible testator,

another's opportunity to exert it, the fact of improper influence exerted or attempted, and

the result showing the effect of such influence.” West v. Henry, 173 Ohio St. 498, 501,

184 N.E.2d 200 (1962). “ ‘The mere existence of undue influence or an opportunity to

exercise it, although coupled with an interest or motive to do so, is not sufficient to

invalidate a will; such influence must actually be exerted on the mind of the testator with
                                                                                         -20-


respect to the execution of the will and, in order to invalidate the will, it must be shown

that the undue influence resulted in the making of testamentary dispositions which the

testator would not otherwise have made.’ ” Kidwell v. Pitts, 2d Dist. Montgomery No.

22370, 2008-Ohio-4395, ¶ 10, quoting Buckingham v. Middlestetter, 2d Dist. Montgomery

No. 13575, 1993 WL 81827, *6 (Mar. 22, 1993).

      {¶ 52} In its judgment, the trial court found that Appellants established three of the

elements of undue influence, but found insufficient evidence that Ed “actually imposed

improper influence” on Stanek. Doc. #82 at pp. 8-9. In this regard, the court stated that:

             * * * The circumstantial evidence creates suspicion and inferences of

      potential improper conduct by Defendant [Ed]. However, the Court finds

      those inferences to be speculative and not supported by substantial

      probative evidence that those inferences are the most probable or

      reasonable explanation of what occurred.

             The totality of the evidence creates other inferences that are equally

      plausible. It is entirely possible that Decedent’s change of heart resulted

      from his gratitude that Defendant devoted nine years attending to the

      personal care of his parents when they needed it most – care which

      undisputedly was extensive and of good quality. Plaintiff’s circumstantial

      evidence is simply insufficient to overcome other equally reasonable

      inferences from all the evidence.

             Unfortunately, as in most will contest actions, we will never know the

      true reason Decedent made the changes to his will in 2015.            Despite

      Defendant’s complete lack of credibility, it is not his burden to prove
                                                                                        -21-


      anything. The burden falls squarely on Plaintiffs. It is the Court’s opinion

      that Plaintiffs failed to sustain that burden.

Doc. #82 at p. 9.

      {¶ 53} Again, while Appellants raise abuse of discretion and a manifest weight

challenge, their argument is based on the evidence (and alleged lack of it).

Consequently, we will apply the manifest weight standard. As noted, a manifest weight

challenge involves “whether the greater amount of credible evidence” supported the

judgment.” Flowers, 2017-Ohio-1310, 88 N.E.3d 599, at ¶ 94. Given the trial court’s

credibility findings, one must look for credible evidence to support the judgment in places

other than Ed’s testimony.

      {¶ 54} This case is very troubling in view of the deceit that Ed showed to his family

and the court. In addition, difficulty is caused by the fact that evidence of improper

influence is rarely direct; most evidence is circumstantial.        Buckingham, 2d Dist.

Montgomery No. 13575, 1993 WL 81827, at *8 (Fain, J., concurring in judgment).

However, “[c]ircumstantial evidence and direct evidence are of equal value, especially

because some facts can only be proved by circumstantial evidence.” In re Estate of

Marsh, 2d Dist. Greene No. 2010 CA 78, 2011-Ohio-5554, ¶ 53, citing State v. Jenks, 61

Ohio St.3d 259, 272, 574 N.E.2d 492 (1991).            Whether “circumstantial evidence is

conjectural and the inference speculative is essentially ‘the distinction between a

reasonable inference and a guess.’ ” Id., quoting Mid-America Tire, Inc. v. PTZ Trading

Ltd., 95 Ohio St.3d 367, 2002-Ohio-2427, 768 N.E.2d 619, ¶ 156.

      {¶ 55} In explaining its comment about inferences, the Supreme Court of Ohio

referenced two cases that a defendant (PTZ) had cited for the proposition that “where
                                                                                         -22-


different inferences are equally deductible from the same proved facts, neither inference

may be indulged.” Mid-America Tire at ¶ 155, discussing Dunkle v. Std. Life & Acc. Ins.

Co., 114 Ohio App. 65, 69, 180 N.E.2d 198 (4th Dist.1961), and Zeigler Milling Co. v.

Denman, 79 Ohio App. 250, 252, 72 N.E.2d 686 (5th Dist.1946).

       {¶ 56} In Mid-America Tire, PTZ argued that another party (who made false

promises to the plaintiffs about a transaction) was not its agent since there was no direct

evidence that PTZ made the party its agent. Id. Because the plaintiffs had allegedly

tried to meet their burden by pointing to “ ‘ inferences drawn from neutral facts,’ ” PTZ

argued, based on Dunkle and Denman that “where different inferences are equally

deductible from the same proved facts, neither inference may be indulged.” Id.

       {¶ 57} The Supreme Court of Ohio disagreed, stating that:

              PTZ has succeeded in showing only that the evidence going to [the

       alleged agent’s] status in the underlying transaction is circumstantial and

       would have been sufficient to support differing conclusions. But not all

       circumstantial evidence is conjectural, and not every inference is

       speculative. The difference lies essentially in the distinction between a

       reasonable inference and a guess. Dunkle and Denman do not, nor could

       they, proscribe the drawing of reasonable inferences from proved facts.

       Instead, they preclude the trier of fact from engaging in speculation, that is,

       theorizing about a matter upon which the evidence is insufficient to support

       a conclusion either way.

Mid-America Tire, 95 Ohio St.3d 367, 2002-Ohio-2427, 768 N.E.2d 619, at ¶ 156.

       {¶ 58} Here, the “proved facts” were that Ed had lived with and had been financially
                                                                                          -23-


supported by his parents for much of his adult life.        Their relationship was difficult,

contradictory, and volatile at times, with his parents bailing Ed out of legal troubles by

expending large sums of money, but also ejecting him from their home on two different

occasions – one of which involved Ed’s assault of his father. Yet, when Stanek added

the 2000 codicil that excluded Ed as an executor, he chose not to decrease Ed’s share

of the inheritance. Ed’s parents also let him back in their home after the 2007 assault,

and he lived there until his father’s death in 2017.

       {¶ 59} Other examples of the contradictory nature of the relationship are reflected

in the medical records. The February 21, 2012 medical notes indicated that the doctor

listened to a “taped conversation” between Ed and his father “when they discussed in a

heated argument their difficult relationship.”     Plaintiff’s Ex. 1 at p. 1.     Previously,

however, a July 26, 2011 medical note indicated that Stanek had described Ed as a

“terrific help.” Defendant’s Ex. A at p. 1. Other medical notes indicated that Ed and

Stanek “were getting along well,” and that Ed provided “24/7 care for [Stanek] and

continues to do an excellent job.” Defendant’s Exs. B, p. 1 (July 24, 2012), and G, p. 1

(June 30, 2016).

       {¶ 60} Likewise, Daniel testified that “I think that my father also – And I’m not going

to deny it.   Eddie took very good medical care of my father, and I think that he

appreciated that.” Tr. 1 at p. 141. This is not to say that the other three children did not

care for their father – they did so to the extent of their ability, given their proximity.

Nonetheless, Ed was the primary caretaker of both his parents between 2008 and 2017,

and apparently took very good medical care of them.

       {¶ 61} Unfortunately, in light of these facts, we cannot say the trial court’s
                                                                                          -24-


comments were speculative and should be disregarded. While we may have made a

different decision, the trial court’s observations were based on a reasonable inference

from the evidence. Ed and Stanek appeared to have had a co-dependent relationship

that Stanek did not have with his other children. Stanek may have reasonably decided

that Ed was incapable of supporting himself and that he should continue financially

supporting Ed after death, as he had done in life.

       {¶ 62} Accordingly, while the result is troubling, we have no option but to affirm the

trial court’s judgment. As the court observed, Ed did not have the burden of proof. See

Hamilton v. Hector, 117 Ohio App.3d 816, 820, 691 N.E.2d 745 (3d Dist.1997) (party

claiming undue influence has the burden of establishing the elements).

       {¶ 63} Accordingly, the Third and Fourth Assignments of Error, and the part of the

Fifth Assignment of Error relating to undue influence, are overruled.



                                         IV. Conclusion

       {¶ 64} All of Appellant’s assignments of error having been overruled, the judgment

of the trial court is affirmed.

                                      .............



FROELICH, J. and TUCKER, J., concur.


Copies sent to:

Jud R. Mauger
Gregory P. Barwell
Peter R. Certo, Jr.
Hon. Thomas M. O’Diam
