[Cite as Golub v. Golub, 2012-Ohio-2509.]




                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 97603



                          SAMANTHA GOLUB, ET AL.
                                              PLAINTIFFS-APPELLANTS

                                               vs.

                                JOEL GOLUB, ET AL.
                                              DEFENDANTS-APPELLEES




                                            JUDGMENT:
                                             AFFIRMED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                    Probate Court Division
                                  Case No. 09 ADV 0150622

        BEFORE: Sweeney, P.J., S. Gallagher, J., and Keough, J.
        RELEASED AND JOURNALIZED: June 7, 2012
ATTORNEY FOR APPELLANTS

Kenneth J. Fisher, Esq.
Kenneth J. Fisher Co., L.P.A.
2100 Terminal Tower
50 Public Square
Cleveland, Ohio 44113-2204


ATTORNEYS FOR APPELLEES

Roger M. Synenberg, Esq.
Clare C. Christie, Esq.
Dominic J. Coletta, Esq.
Synenberg & Associates, L.L.C.
55 Public Square, Suite 1200
Cleveland, Ohio 44113
JAMES J. SWEENEY, P.J.:

       {¶1} Plaintiffs-appellants Drew Golub and Samantha Golub (collectively

“plaintiffs”) appeal the court’s granting summary judgment to defendants-appellees Joel

Golub and Mark Golub (collectively “defendants”) in this case contesting the will of

Phoebe Golub (“decedent”), who was plaintiffs’ grandmother and defendants’ mother.

After reviewing the facts of the case and pertinent law, we affirm.

       {¶2} In November 2006, after her husband passed away, decedent revised her

will to bequeath her estate equally between her three sons, Joel, Mark, and Robert Golub.

 On May 15, 2007, Robert died, survived by plaintiffs, who are his children Drew and

Samantha.    On May 18, an argument arose between Mark, his nephew Drew, and

Drew’s mother, who was estranged from the Golub family.

       {¶3} Approximately three weeks later, on June 4, 2007, decedent drafted a new

will through her attorney James Spitz, leaving one third of her estate to Mark, one third to

Joel, and one third to plaintiffs. A copy of this will was sent to Mark and Joel, per

decedent’s instructions. However, this will was never signed.

       {¶4} Approximately five weeks later, on July 10, 2007, Spitz received a call from

decedent instructing him to draft another will, which left half of her estate to Mark and

half to Joel. Plaintiffs were expressly disinherited in this will, which reads in pertinent

part as follows: “I have intentionally left nothing to my grandchildren, DREW JORDAN
GOLUB and E. SAMANTHA JILLIAN GOLUB.” Decedent executed this will on July

20, 2007, and a copy was sent to Mark and Joel, per decedent’s instructions.

      {¶5} On June 15, 2009, decedent died.            Her will was probated, and on

September 3, 2009, plaintiffs contested the will alleging that defendants unduly

influenced decedent.   On November 16, 2011, the court granted defendants’ summary

judgment motion, finding that plaintiffs’ undue influence claim failed, because “[n]o

evidence has been presented to support a finding that Decedent lacked testamentary

capacity and was susceptible to undue influence by Defendants.”

      {¶6} Plaintiffs appeal and raise two assignments of error for our review.     I.

“The Cuyahoga County Court of Common Pleas, Probate Division, erred in granting

Appellees’ Motion for Summary Judgment as genuine issues of material fact are present.”

      {¶7} Appellate review of summary judgment is de novo. Grafton v. Ohio Edison

Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). The Ohio Supreme Court stated the

appropriate test in Zivich v. Mentor Soccer Club, 82 Ohio St.3d 367, 369–370, 696

N.E.2d 201 (1998), as follows:

              Pursuant to Civ.R. 56, summary judgment is appropriate when (1)
      there is no genuine issue of material fact, (2) the moving party is entitled to
      judgment as a matter of law, and (3) reasonable minds can come to but one
      conclusion and that conclusion is adverse to the nonmoving party, said party
      being entitled to have the evidence construed most strongly in his favor.
      Horton v. Harwick Chem. Corp. (1995), 73 Ohio St.3d 679, 653 N.E.2d
      1196, paragraph three of the syllabus. The party moving for summary
      judgment bears the burden of showing that there is no genuine issue of
      material fact and that it is entitled to judgment as a matter of law. Dresher
      v. Burt (1996), 75 Ohio St.3d 280, 292–293, 662 N.E.2d 264, 273-274.

      {¶8} If the party moving for summary judgment satisfies this burden,
       the nonmoving party has a reciprocal burden outlined in * * * Civ.R. 56(E),
       which provides that: “When a motion for summary judgment is made and
       supported as provided in this rule, an adverse party may not rest upon the
       mere allegations or denials of his pleadings, but his response, by affidavit or
       as otherwise provided in this rule, must set forth specific facts showing that
       there is a genuine issue for trial. If he does not so respond, summary
       judgment, if appropriate, shall be entered against him.”

Dresher, 75 Ohio St.3d at 293.

       {¶9} Pursuant to Civ.R. 56(C), the only evidence that may be considered by a

trial court ruling on a summary judgment motion is “the pleadings, depositions, answers

to interrogatories, written admissions, transcripts of evidence, and written stipulations of

fact, if any, timely filed in the action * * *.”

       {¶10}    In West v. Henry, 173 Ohio St. 498, 501, 184 N.E.2d 200 (1962), the Ohio

Supreme Court outlined the essential elements of undue influence as related to a

contested will: 1)a susceptible testator; 2) another’s opportunity to exert undue influence;

3) undue influence actually exerted or attempted; and 4)    the resulting effect.

       {¶11}    In the instant case, the parties essentially concede that there is evidence in

the record of the second and fourth elements of undue influence.         However, plaintiffs

assert that there are unresolved factual issues in the record regarding whether decedent

was susceptible and whether defendants actually exerted or         attempted to exert undue

influence over her.

       {¶12}    In support of their contention that decedent was a susceptible testator,

plaintiffs’ argument is twofold. First, that decedent “never got over” the loss of her
husband and, less than a year later, the loss of her son.       Second, that there was a

“dramatic and significant change” in the July 2007 will.

      {¶13}    The record shows that, in general, decedent was a “vibrant” and “feisty”

woman who was the matriarch of her family. Decedent suffered no physical or mental

health issues in the summer of 2007 when she changed the beneficiaries of her will.

Decedent’s longtime housekeeper witnessed decedent’s execution of the July 2007 will

and described decedent’s demeanor at the time as follows: “She looked good. * * * She

looked like she knew what she was doing.       She was aware.    Of everything.   She was

her normal self. A little, she was a little — what would you call it — stressed out, but

she was her normal self.”

      {¶14}      According to Spitz, who prepared decedent’s will, decedent was

self-sufficient and did not need assistance.   Asked to describe decedent’s demeanor in

June 2007, Spitz stated the following:

      * * * [S]he didn’t appear to be any different than she was before. She was
      basically all business. She had her checklist of stuff she wanted to get
      through in our meeting. And I didn’t notice anything out of the ordinary.

      {¶15}    Upon review, we find that evidence that decedent was in mourning is

insufficient to create a factual issue regarding her susceptibility to undue influence in a

testamentary capacity.

      {¶16}    Turning to the third element of undue influence, we review whether there

is a factual dispute in the evidence concerning whether defendants improperly influenced
decedent to disinherit plaintiffs. In West, 173 Ohio St. at 501–502, the Ohio Supreme

Court analyzed the nuances of actually exerting undue influence:

              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.

               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, but
       such influence must be actually exerted on the mind of the testator with
       respect to the execution of the will in question. It must be shown that such
       influence, whether exerted at the time of the making of the will or prior
       thereto, was operative at the time of its execution or was directly connected
       therewith. It must be shown that undue influence was exercised with the
       object of procuring a will in favor of particular parties.

              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.

       {¶17}     Seven “facts” are brought to this court’s attention by plaintiffs in the

instant case: 1) defendants’ daily phone conversations with decedent; 2)          defendants’

receipt of decedent’s June 2007 draft and July 2007 will; 3) Spitz’s lack of recollection

as to decedent’s reason for significantly revising her will; 4)      the altercation between

Mark, Drew, and Drew’s mother as evidence of Mark’s “ill will”; 5)         Mark’s testimony

that he has been having financial difficulty since 2000; 6)   Mark’s testimony that he read

portions of Joel’s deposition transcripts in preparation for his own deposition; and 7) the

inconceivability of defendants receiving copies of decedent’s wills but not discussing

with her that plaintiffs were being disinherited.
       {¶18}      Defendants’ daily phone conversations with decedent are evidence of an

opportunity to influence, rather than actual influence.             Likewise, evidence that

defendants received copies of the wills does not show that their influence “was operative”

in procuring the wills.

       {¶19}     Contrary to plaintiffs’ assertion, Spitz testified that decedent told him that

she was disinheriting plaintiffs for the following reason: “[S]he indicated to me her

displeasure with her grandchildren, and that she didn’t want them to get anything because

she had previously given a lot of funds to their father and didn’t want to compound the

unequal distribution by giving them additional monies.”

       {¶20}     Mark’s testimony of ill will and financial difficulty merely shows the

opportunity or motive to exert influence over decedent.          Furthermore, evidence that

Mark prepared for his deposition in 2011 has no bearing on whether he improperly

influenced decedent to change her will in 2007.

       {¶21}     Plaintiffs’ final argument — whether defendants discussed with decedent

plaintiffs’ disinheritance — goes to the heart of the allegation that defendants actually

exerted undue influence over decedent.        We review this evidence to determine if there is

a factual issue for trial.

       {¶22}     Mark testified that he “pretty much never discussed finances or things like

that” with decedent.         “[She]never questioned it, [she] never offered it.    It was just

something we never did.”          According to Mark, he did not read the draft or will in

question that was mailed to him until he became involved in this litigation.
       {¶23}   Joel testified that he did not know what circumstances changed between

June and July 2007 as far as decedent and her will were concerned.      Additionally, Joel

testified that he did not discuss the will in question with decedent other than her

informing him that “she was not leaving anything for the grandchildren.” According to

Joel, he never spoke with Spitz until after decedent’s death, and he did not read

decedent’s will despite being mailed a copy.

       {¶24}    Spitz testified that neither defendant was ever present when he met with

decedent and that he had “no conversations with them at all” regarding decedent’s wills.

       {¶25}    According to decedent’s housekeeper, decedent

       didn’t want [plaintiffs’ mother] to have a penny of her money. Not a
       penny. She didn’t even want [plaintiffs’ mother] to step foot on her
       premises. She had her locks changed. Yes, she did. * * * She didn’t
       want [plaintiffs’ mother] to have no money. Now, that’s why the
       grandkids here was taken out the will. Because I guess she felt that if the
       grandkids get the money, [plaintiffs’ mother] will get ahold of it. But it
       wasn’t her intentions, you know, she didn’t want — she wanted them to
       have it. But she was blocking [plaintiffs’ mother].

       {¶26}   Drew testified that he did not have any “firsthand information or evidence

or knowledge” that defendants influenced decedent to disinherit plaintiffs. Asked why

he should be a beneficiary under the will, Drew replied because “[i]t would be fair.”

       {¶27}   Similarly, Samantha testified that she had no evidence to support the

allegation that defendants applied undue influence on decedent.         Asked to explain,

Samantha testified that “I only know that our — my relationship with my grandmother did

not change at all, so that did not reflect her will, in my opinion.” Samantha “assumed”

defendants coerced decedent to change her will.
       {¶28}     Upon review, we find no factual issues for trial concerning plaintiffs’

claim of undue influence. Although the opportunity was arguably there, plaintiffs failed

to produce evidence that defendants improperly influenced decedent.

       [T]he testator * * * has the sole right, if of sound mind and under no undue
       restraint, to dispose of [his or her property] in any way he [or she] sees fit,
       provided such disposition is not repugnant to law; and * * * neither the
       court nor the beneficiaries in a will can amend or change the will simply
       because they might think another disposition more desirable, equitable or
       just.

Feiler v. Feiler, 149 Ohio St. 17, 24, 77 N.E.2d 237 (1948).

       {¶29}     Accordingly, plaintiffs’ first assignment of error is overruled.

       {¶30}     In plaintiffs’ second assignment of error, they argue as follows:

       {¶31} II. “The Cuyahoga County Court of Common Pleas, Probate Division,

erred in granting Appellees’ Motion for Summary Judgment by applying the incorrect

undue influence legal standard.”

       {¶32}     Specifically, plaintiffs argue that the court applied the incorrect standard

by determining that they failed to present evidence that decedent lacked testamentary

capacity, in addition to determining that they failed to present evidence that she was a

susceptible testator.   As indicated, the correct standard concerns whether decedent was a

susceptible testator.   Adding an unnecessary element to its analysis does not render the

court’s proper analysis deficient, and plaintiffs point to no legal authority to show

otherwise.     Therefore, we find as a matter of law that the court applied the correct

standard.
       {¶33}     Although not raised at the trial court level, plaintiffs also argue on appeal

that there was a question for the trier of fact as to whether there was a confidential

relationship between defendants and decedent, giving rise to a presumption of undue

influence.   “A confidential relationship exists whenever trust and confidence are placed

in the integrity and fidelity of another.” Ament v. Reassure Am. Life Ins. Co., 180 Ohio

App.3d 440, 2009-Ohio-36, 905 N.E.2d 1246, ¶ 39.

       {¶34}   Plaintiffs allege that a confidential relationship could be inferred from the

following facts: Defendants received copies of the drafts of decedent’s will, and

defendants and decedent spoke on the phone on a daily basis.          However, under Ohio

case law, these facts do not give rise to an inference of a confidential relationship.

Compare Guardianship of Blumetti, 2d Dist. No. 92-T-4752 (Jan. 14, 1994) (holding that

a confidential and “fiduciary” relationship arose between mother and daughter when

daughter was mother’s attorney-in-fact, assisted mother in paying her bills and writing

checks, and established “gifts” to the family).

       {¶35}   While decedent and defendants are obviously family members, nothing in

the record suggests a fiduciary relationship between decedent and her sons. Decedent

spoke on the phone everyday with Joel, who resides in Cincinnati, and Mark, who lives in

Phoenix, AZ.    Decedent was in charge of her own finances until her death.       According

to Joel, he and decedant never “discussed” her will, other than her informing him of any

changes after the fact.    Therefore, we find that no confidential relationship existed

between decedent and defendants.
      {¶36}     Accordingly, the court did not err in granting defendants’ summary

judgment motion, and plaintiffs’ second assignment of error is overruled.

      {¶37}     Judgment affirmed.

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

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said court 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.




JAMES J. SWEENEY, PRESIDING JUDGE

SEAN C. GALLAGHER, J., and
KATHLEEN ANN KEOUGH, J., CONCUR
