[Cite as Hutchison v. Kaforey, 2016-Ohio-3541.]


STATE OF OHIO                    )                    IN THE COURT OF APPEALS
                                 )ss:                 NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

MARK A. HUTCHISON, et al.                             C.A. No.      27761

        Appellant

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
ELLEN C. KAFOREY, etc., et al.                        COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellees                                     CASE No.   2013 CV 00069

                                DECISION AND JOURNAL ENTRY

Dated: June 22, 2016



        WHITMORE, Judge.

        {¶1}    Appellant Mary Hutchison Barnes appeals from the trial court’s grant of summary

judgment in this will contest. We affirm in part and reverse in part.

                                                  I

        {¶2}    At issue is the 2008 will of Michael Hutchison. Michael died in 2012, apparently

from a heroin overdose.        He was unmarried and did not have children.     Michael’s estate

consisted of substantial sums received from the settlement of a lawsuit over sexual abuse by a

priest that Michael suffered as a child.

        {¶3}    Michael’s 2008 will was substantially similar to wills he executed in 2007 and

2006, except that the 2008 will added beneficiaries. The 2008 will bestowed monetary gifts upon

various family members, acquaintances, the “Altoona Childrens’ Services Board” of

Pennsylvania, and “St. Jude’s Children’s Cancer Hospital.” Beneficiaries of the 2008 will
                                                2


included Michael’s father, his three brothers (James, Sam, and Mark Hutchison), his biological

nephew (now adopted), and his now-late girlfriend.

       {¶4}    The 2008 will and Michael’s prior wills did not name Barnes, who was Michael’s

mother, or Michael’s sister. Michael told his attorney and guardian, Ellen Kaforey, that he did

not wish to name Barnes in his will because she already had money.

       {¶5}    Kaforey drafted the 2008 will and Michael’s prior wills. She is the executrix of

Michael’s estate. She served as Michael’s legal guardian from 2005 to 2008.

       {¶6}    Kaforey testified that, although it was unusual for a guardian to draft a ward’s

will, it was neither unheard of nor prohibited by law or ethical considerations. She testified that

guardians infrequently draft wills for their wards because persons under guardianship often

resent their guardians for controlling their finances and other aspects of their daily living.

Kaforey testified that Michael requested her to draft his will and that they generally enjoyed a

good relationship because Michael understood her rules. She testified that she had drafted wills

for other wards on a few occasions.

       {¶7}    Kaforey testified that she had served as guardian to hundreds of wards.          In

addition to a law license, she holds an active nursing license. She practiced as a public health

nurse for a number of years before devoting herself to the full-time practice of law. While

working as a nurse, Kaforey gained experience caring for patients with mental illnesses and

substance abuse problems.

       {¶8}    Michael required a guardian because he was incapable of managing his own

finances, healthcare, and living arrangements. Michael suffered from schizophrenia and post-

traumatic stress disorder. He had a low I.Q. and no more than a seventh grade education.

Michael was a frequent drug user. Cocaine and heroin were among the substances he abused.
                                                3


Michael was hospitalized on multiple occasions and had run-ins with the criminal justice system.

Although Barnes repeatedly referred to Michael in her deposition as “mentally retarded,” there is

no evidence in the record to support that contention.

       {¶9}    Barnes was Michael’s guardian prior to Kaforey’s appointment in 2005. Barnes

moved out of state to pursue a relationship and relinquished her guardianship.

       {¶10} Approximately four months after drafting the 2008 will for Michael, Kaforey

resigned as Michael’s guardian. In a letter to the probate court asking the court to remove her,

she wrote that Michael “persists in making inappropriate decisions, like taking illegal drugs, not

taking his medications properly, and keeping company with the wrong people.” Kaforey wrote

that the “final straw” was when Michael “slashed his throat with a razor” prior to entering a

rehab program. Kaforey claimed that Michael was not able to enter rehab due to his “bizarre

behaviors.” Kaforey testified in deposition that these behaviors began after she drafted the 2008

will and were triggered in part by Michael’s anxiety about attending a rehab program out of

state. The probate court granted Kaforey’s request to be removed as Michael’s guardian and

appointed a new guardian for him.

       {¶11} After Michael died in 2012, his 2008 will was admitted to probate. Barnes and

two of Michael’s brothers, Mark and Sam, filed a will contest. They asserted that the will was

invalid because Michael lacked testamentary capacity and had been unduly influenced. In their

respective depositions, Barnes and Mark testified that they believed that Michael did not possess

testamentary capacity to draft the 2008 will or either of the prior wills. They asserted that

Kaforey had told them that the 2007 and 2008 wills were invalid because Michael was

incompetent and could never draft a will. They claimed that Kaforey told them that she only

drafted the wills to appease Michael because he was insistent and she was afraid of him.
                                                4


According to Barnes and Mark, Kaforey told them that Michael would come to her law office

and frighten her ailing mother who worked for her. Kaforey allegedly told Barnes and Mark that

a court would not uphold any will that Michael executed and that Michael’s entire estate would

revert to the family. After the 2008 will was admitted to probate, Kaforey purportedly advised

Barnes and Mark to file a will contest and referred them to an attorney.

       {¶12} In her deposition, Kaforey denied saying that Michael lacked testamentary

capacity when he executed the wills. She testified that she spoke at length with Michael about

his bequests and was satisfied that he did have the capacity to make a will. She further testified

that she could recognize when Michael was on drugs or noncompliant with his medications.

Kaforey stated that when Michael was not on his medications, he suffered from auditory

hallucinations and was unkempt and agitated. Kaforey testified that Michael was not impaired

by drugs and was compliant with his medications when he signed the wills.

       {¶13} Following motion practice, the trial court granted summary judgment against

Barnes and her sons. The court found that the evidence did not give rise to a genuine issue of

material fact as to whether Michael lacked testamentary capacity or was unduly influenced in the

creation of his 2008 will.

       {¶14} Only Barnes appealed from the trial court judgment. She raises two assignments

of error for our review.

                                                II

                                    Assignment of Error One

       THE PROBATE COURT ERRED AS A MATTER OF LAW IN
       DETERMINING THAT REASONABLE MINDS COULD COME TO BUT
       ONE CONCLUSION ADVERSE TO THE WILL CONTESTANTS.
       CONSTRUING THE EVIDENCE IN THE LIGHT MOST FAVORABLE TO
       THEM THE CONTESTANTS MADE A SUFFICIENT SHOWING THAT THE
       TESTATOR MAY HAVE LACKED CAPACITY TO EXECUTE THE
                                                 5


       CONTESTED WILL SUCH THAT ADVERSE MOTIONS FOR SUMMARY
       JUDGMENT SHOULD HAVE BEEN DENIED.

       {¶15} In her first assignment of error, Barnes claims that the trial court erroneously

concluded that the evidence does not give rise to a genuine issue of material fact regarding

Michael’s testamentary capacity. We agree.

       {¶16} This Court reviews an award of summary judgment de novo. Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 105 (1996). Summary judgment is proper under Civ.R. 56(C) if:

“(1) [n]o genuine issue as to any material fact remains to be litigated; (2) the moving party is

entitled to judgment as a matter of law; and (3) * * * reasonable minds can come to but one

conclusion” adverse to the nonmovant when the evidence is viewed most strongly in favor of the

nonmovant. Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977).

       {¶17} The party moving for summary judgment bears the initial burden of informing the

trial court of the basis for the motion and pointing to parts of the record that show the absence of

a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 292-293 (1996). The

moving party must support the motion by pointing to some evidence in the record of the type

listed in Civ.R. 56(C). Id. Once this burden is satisfied, the nonmoving party bears the burden

of offering specific facts to show a genuine issue for trial. Id. at 293. The nonmoving party may

not rest upon the mere allegations and denials in the pleadings but instead must point to, or

provide, some evidentiary material that demonstrates a genuine dispute over a material fact. In

re Fike Trust, 9th Dist. Wayne No. 06CA0018, 2006-Ohio-6332, ¶ 10.

       {¶18} The parties that moved for summary judgment included Kaforey as executrix of

the 2008 will and multiple other beneficiaries of the 2008 will who were named as defendants in

the will contest. The movants claimed that there was no triable issue of fact regarding whether

Michael lacked testamentary capacity and whether he was unduly influenced.
                                                6


       {¶19} The law recognizes that a testator whose mind is impaired “by disease or

otherwise” can still have capacity to make a will. West v. Knoppenberger, 16 Ohio C.D. 168,

179 (Ohio Cir. Ct. 1903). Testamentary capacity exists when the testator has sufficient mind to:

(1) understand the nature of the business in which he is engaged; (2) comprehend generally the

nature and extent of the property which constitutes his estate; (3) hold in his mind the names and

identity of those who have natural claims on his bounty; and (4) appreciate his relation to the

members of his family. Niemes v. Niemes, 97 Ohio St. 145 (1917), paragraph four of the

syllabus. The general rule is that “[t]he mental condition of the testator at the time of making a

will determines the testamentary capacity of the testator.” Oehlke v. Marks, 2 Ohio App.2d 264,

265-266 (9th Dist.1964), quoting Kennedy v. Walcutt, 118 Ohio St. 442 (1928), paragraph two of

the syllabus, overruled on other grounds by Krishbaum v. Dillon, 58 Ohio St.3d 58 (1991).

Evidence of the testator’s condition “’within a reasonable time before and after the making of the

will is admissible as throwing light on his mental condition at the time of the execution of the

will in question.’” Id. What constitutes a “reasonable time” depends on the circumstances of the

particular case. Oehlke at 266. The burden of proof in determining testamentary capacity is on

the party contesting the will. Kennedy at paragraph six of the syllabus.

       {¶20} A rebuttable presumption exists that a person under guardianship lacks the

testamentary capacity to write a valid will. See Taylor v. Garinger, 30 Ohio App.3d 184, 186

(12th Dist.1986). The degree of proof necessary to rebut this presumption is not high. See id. at

186-187. Instead, the degrees of proof necessary to both rebut the presumption of incompetency

and establish capacity are coterminous, and, as discussed, can be met by showing that the

decedent had sufficient mind and memory to: (1) understand the nature of the business in which

he is engaged; (2) comprehend generally the nature and extent of his property; (3) hold in his
                                                7


mind the names and identity of those who had natural claims upon his bounty; and (4) be able to

appreciate his relation to the members of his family. Id. at 187, citing Niemes at paragraph four

of the syllabus.

       {¶21} In this case, the moving parties argue that there was no question of fact regarding

whether Michael had the requisite capacity to execute the 2008 will. In support, the movants

point to the deposition testimony of Kaforey.

       {¶22} Kaforey testified in her capacity as a nurse and lawyer that Michael possessed

testamentary capacity to make the 2008 will. She had been Michael’s guardian for about three

years when she drafted the 2008 will.

       {¶23} Kaforey stated that Michael was compliant with his medications and was not

under the influence of drugs when he executed the 2008 will. She testified that she was familiar

with signs that Michael was not compliant with his medications for schizophrenia or on drugs.

When Michael was not taking his medications properly he suffered from, and would react to,

auditory hallucinations. He would also be dirty or unkempt and agitated. Kaforey testified that

there were times during her guardianship of Michael when he was not competent to execute a

will because he was not taking his medications or was using drugs. However, she testified that

Michael did not exhibit any of the signs of noncompliance with his medications or of being

under the influence of drugs when he made the 2008 will.

       {¶24} Kaforey also testified that Michael wanted to make the will. She explained that

she met with Michael on multiple occasions and discussed with him at length who the

beneficiaries of the will would be. Michael specifically requested to add his girlfriend as a

beneficiary of the 2008 will. He also requested to add St. Jude’s Hospital as a beneficiary

because he wanted to contribute to the hospital’s care for children. Kaforey testified that she
                                                8


discussed with Michael that he did not want Barnes to take under the will because Barnes was

already financially stable.

       {¶25} Kaforey further testified that she specifically assessed Michael’s capacity to make

the 2008 will on the day he executed the will. She had no doubt that he possessed testamentary

capacity. She testified that Michael was of sufficient mind and memory to understand the nature

of what he was doing and the nature or extent of his property. According to Kaforey, Michael

knew the identities of those he wanted to name as beneficiaries, and also understood and

appreciated his relationship to family members. Having concluded that Michael possessed

testamentary capacity to make the 2008 will, Kaforey permitted Michael to execute the will in

the presence of two witnesses.

       {¶26} Based upon Kaforey’s testimony, we conclude that the movants successfully

rebutted the presumption that Michael lacked testamentary capacity because he was under

guardianship and also met their initial Dresher burden of “informing the trial court of the basis

for the motion, and identifying those portions of the record that show the absence of a genuine

issue of material fact” in regard to testamentary capacity. See Dresher, 75 Ohio St.3d at 293.

Therefore, Barnes bore the reciprocal burden of establishing the existence of a material fact. See

id.

       {¶27} In response to the motions for summary judgment, Barnes argues that a question

of fact exists as to whether Michael lacked capacity to execute the 2008 will (and the 2007 and

2006 wills). She argues, inter alia, that Michael’s extensive medical records show that Michael

could not have possessed testamentary capacity at the time he made the will. However, the

medical records to which Barnes refers apparently were never placed in the record. Moreover,

Barnes does not discuss the contents of the medical records with any particularity, nor did she
                                                 9


testify regarding any specific facts in those records that would show that Michael lacked

testamentary capacity at the time he made the 2008 will. Accordingly, there is no basis to

conclude that the medical records created an issue of fact sufficient to overcome summary

judgment.

       {¶28} Barnes also points to evaluations of Michael by his psychiatrist to establish that

Michael lacked testamentary capacity. However, while the psychiatrist opined that Michael

should remain under guardianship because he had chronic mental illness and poor insight and

judgment, the psychiatrist did not address any of the criteria necessary to determine testamentary

capacity. To the extent Barnes claims that the psychiatrist told her that Michael could not make

a will, her claim consists of inadmissible hearsay that was not properly before the court on

summary judgment. Accordingly, the psychiatric evaluations upon which Barnes relies do not

create a triable issue of fact regarding Michael’s testamentary capacity.

       {¶29} Barnes further argues that the fact that Michael remained under guardianship is

evidence sufficient to overcome summary judgment. Her reliance on Michael’s status as a ward

under guardianship is misplaced, however. The presumption that a person under guardianship

lacks testamentary capacity is a rebuttable one. See Garinger, 30 Ohio App.3d at 186; Meek v.

Cowman, 4th Dist. Washington No. 07CA31, 2008-Ohio-1123, ¶ 10. Once evidence is produced

sufficient to rebut the presumption, the presumption disappears and “does not carry forward as

evidence. * * * Thus, once the presumption is met with sufficient countervailing evidence, it fails

and serves no further evidentiary purpose.” (Internal citations omitted.) Meek at ¶ 10, quoting

Horsley v. Essman, 145 Ohio App.3d 438, 444 (4th Dist. 2001). As already discussed, we

conclude that the movants presented sufficient evidence to rebut the presumption that Michael

lacked testamentary capacity because he was under guardianship. Accordingly, Barnes cannot
                                                10


rely on the fact of Michael’s continuing guardianship to create a genuine issue of material fact on

the question of Michael’s testamentary capacity. See id.

       {¶30} Barnes also relies on her roles as Michael’s mother and former guardian to

support her contention that Michael could not have had testamentary capacity to make a will.

Barnes is required to present evidence of Michael’s condition “’within a reasonable time before

and after the making of the will’” in order to create an issue of fact regarding Michael’s

testamentary capacity at the time he executed the 2008 will. See Oehlke, 2 Ohio App.2d at 266,

quoting Kennedy, 118 Ohio St. 442, at paragraph two of the syllabus. However, Barnes testified

in her deposition that she could not recall the last time that she had either seen Michael or spent

significant time with him before he executed the 2008 will, or when she next saw him after he

signed the will. Barnes admitted in her deposition that Kaforey was in a better position than she

was to evaluate Michael’s testamentary capacity when he signed the 2008 will. Moreover, Mark

testified that he could not recall when he last saw or spent time with Michael before and after he

executed the 2008 will. Neither Barnes nor Mark observed Michael’s condition at the time he

signed the 2008 will. Accordingly, Barnes has not pointed to any evidence that anyone other

than Kaforey had personal knowledge of Michael’s condition “’within a reasonable time before

or after the making of the will’” that would give rise to an issue of fact as to Michael’s

testamentary capacity when he signed the 2008 will. See id.

       {¶31} Barnes further argues that summary judgment is inappropriate because Kaforey

admitted to her and to Mark that Michael was incompetent to write a will. Barnes and Mark both

testified that Kaforey specifically discussed with them Michael’s testamentary capacity and told

them that Michael could never make a will. Barnes testified that Kaforey told her before

Michael’s death that the 2007 will was invalid. Mark testified that he and his mother met with
                                                11


Kaforey after Michael’s death and Kaforey informed them that Michael’s 2008 will was invalid

“[b]ecause Michael was incompetent * * *.” Kaforey allegedly told them that a court would not

uphold any will that Michael executed and that Michael’s entire estate would revert to the

family. According to Mark, Kaforey told them that submitting the will to the probate court was

“a matter of process that she had to go through.” Mark testified that Kaforey advised them to file

a will contest and referred them to legal counsel.

       {¶32} Kaforey denied ever stating that Michael lacked testamentary capacity when he

executed the 2008 will. She also denied telling Barnes and Mark that Michael’s entire estate

would revert to the family.

       {¶33} Despite the testimony of Barnes and Mark that Kaforey told them that Michael

lacked testamentary capacity, the trial court found that “the only evidence as to [Michael’s]

testamentary capacity in the relevant time period is the testimony of Kaforey that [Michael] had

sufficient testamentary capacity when he signed the [2008 will].” In so holding, the court

emphasized that “Kaforey is an experienced probate attorney with a medical background who

has repeatedly dealt with clients with mental health and/or substance abuse issues.” The court

did not address the assertions that Kaforey told Michael’s family members that he was not

competent to make a will, but rather disregarded that testimony.

       {¶34} We find that the trial court improperly weighed the credibility of testimony in

disregarding the assertions of Barnes and Mark that Kaforey told them that Michael was

incompetent. A trial court is not permitted to weigh credibility when considering evidentiary

material presented in favor of, or in opposition to, summary judgment. Helms v. Cahoon, 9th

Dist. Summit No. 20527, 2002 WL 57978, *2 (Jan. 16, 2002). Here, if Kaforey did tell Barnes

and Mark that she believed that Michael lacked testamentary capacity, her statement was an
                                                12


admission that would support Barnes’ claim that Michael was not competent to make the 2008

will. Thus, it would constitute evidence that Michael lacked testamentary capacity. The trial

court was not entitled to ignore such evidence, even if the court felt that it was contrived or that

Kaforey’s testimony was more credible. See id.

        {¶35} In light of Kaforey’s alleged admission that Michael lacked testamentary capacity

to make the 2008 will, the evidence adduced both for and against the motions for summary

judgment presented the trial court with competing reasonable inferences as to Michael’s

testamentary capacity. The trial court, in granting summary judgment to the movants, resolved

this conflict by improperly weighing the evidence and the credibility of witnesses and choosing

the inferences that favored the movants.      See id. Rather than weighing the evidence or the

credibility of the parties, the trial court was obligated to make all permissible inferences and

resolve credibility in favor of Barnes, the nonmoving party. See Harry London Candies, Inc. v.

Bernie J. Kosar Greeting Card Co., 9th Dist. Summit No. 20655, 2002 WL 185305, *3 (Feb. 6,

2002), citing Dupler v. Mansfield Journal Co., 64 Ohio St.2d 116, 121 (1980).

        {¶36} When the evidence in this matter is viewed in a light most favorable to Barnes,

the nonmoving party, reasonable minds could come to differing conclusions regarding Michael’s

testamentary capacity to execute the 2008 will. Accordingly, a genuine issue of material fact

exists, and the trial court’s award of summary judgment was improper. Barnes’ first assignment

of error is sustained.

                                    Assignment of Error Two

        THE PROBATE COURT ERRED AS A MATTER OF LAW IN
        DETERMINING THAT REASONBLE MINDS COULD COME TO BUT ONE
        CONCLUSION ADVERSE TO THE WILL CONTESTANTS. CONSTRUING
        THE EVIDENCE IN THE LIGHT MOST FAVORABLE TO THEM THE
        CONTESTANTS MADE A SUFFICIENT SHOWING THAT THE
        CONTESTED WILL MAY HAVE BEEN THE PRODUCT OF UNDUE
                                                13


         INFLUENCE SUCH THAT ADVERSE MOTIONS FOR SUMMARY
         JUDGMENT SHOULD HAVE BEEN DENIED.

         {¶37} In her second assignment of error, Barnes argues that the trial court improperly

granted summary judgment on her claim that Michael’s 2008 will was the product of undue

influence. We disagree.

         {¶38} A will that has been admitted to probate is presumed to have been made free from

restraint. Krischbaum, 58 Ohio St.3d at 64. The contestants have the burden to prove undue

influence. See id.

         {¶39} To invalidate a will, undue influence “must so overpower and subjugate the mind

of the testator as to destroy his free agency and make him express the will of another rather than

his own, and the mere presence of influence is not sufficient.” West v. Henry, 173 Ohio St. 498,

501 (1962). In addition, the “[u]ndue influence must be present or operative at the time of the

execution of the will resulting in dispositions which the testator would not otherwise have

made.”     Id.   Proof of undue influence requires: (1) a susceptible testator; (2) another’s

opportunity to exert influence on the testator; (3) the fact of improper influence exerted or

attempted; and (4) a result showing the effect of such influence. Id. at 510-511.

         {¶40} Barnes claims that Michael’s brother James unduly influenced Michael in making

the 2008 will. When asked at deposition about the basis of her belief, she responded only that

James and Michael had always been close, used drugs together, and “[t]hey connived everything

* * * [t]hey connived money out of you constantly for drugs.”

         {¶41} In James’ deposition, he testified that he was in prison when Michael made the

2008 will but communicated with Michael during visits and by letter. James said that he

discussed Michael’s will with him, but was unable to articulate what specifically he may have

said to Michael other than that he “mentioned names and stuff, but not from 2006, 2007[,] or
                                                  14


2008.” James testified that he did not unduly influence Michael in the making of any of his

wills. His testimony was as follows:

               Q.      * * * Relative to the ’06, ’07 and ’08 wills, you didn’t
                       unduly influence your brother to do anything relative to
                       those wills, did you?

               A.      I can’t really say [that] I did.

        {¶42} In view of the testimony, we find that the movants have met their Dresher burden

to point to an absence of evidence on an essential element of Barnes’ claim that James unduly

influenced Michael. They have shown an absence of evidence of “the fact of improper influence

exerted or attempted” by James. See West, 173 Ohio St.3d at 511. Thus, it becomes Barnes’

burden to demonstrate that a material issue of fact remains as to this element. See Dresher, 75

Ohio St.3d at 293.

        {¶43} Barnes does not point to any fact that would demonstrate that James influenced or

attempted to influence Michael in making the 2008 will. Instead, Barnes focuses upon Michael’s

mental health and substance abuse issues and his status as a susceptible testator. Because Barnes

bears the burden of proof in this matter, and because she fails to meet her reciprocal Dresher

burden of proof on the third essential element of undue influence, the trial court properly granted

summary judgment on her claim that James unduly influenced Michael with respect to the 2008

will.

        {¶44} Barnes also asserts that Kaforey unduly influenced Michael with respect to the

making of his will. On appeal, Barnes argues that a presumption of undue influence arises

because “Kaforey was a guardian and acted as the ward’s attorney while naming herself

[e]xecutrix in the contested will * * *.”
                                               15


       {¶45} Barnes contends that a presumption of undue influence arises because Kaforey

and Michael had a confidential relationship, and Kaforey will benefit from her position as

executrix of the will. We are not persuaded by Barnes’ argument. In the cases that Barnes cites

where a confidential relationship gave rise to a presumption of undue influence, the confidential

relationship existed between the decedent and a beneficiary of the will.        See Diamond v.

Creager, 2d Dist. Montgomery No. 18819, 2002 WL 313137 *3 (Mar. 1, 2002); Thorp v. Cross,

11th Dist. Portage No. 97-P-0079, 1998 WL 35264418 *1 (Oct. 16, 1998). Here, Kaforey was

not a beneficiary of Michael’s will. The mere fact that Kaforey is executrix of the will does not,

by itself, give rise to a presumption of undue influence. See Gannett v. Booher, 12 Ohio App.3d

49, 57 (6th Dist.1983).

       {¶46} The movants argue that there is no evidence to support undue influence by

Kaforey. In support of their Dresher burden, they point to a complete lack evidence in the

record that Kaforey either exerted or attempted improper influence.

       {¶47} In response, Barnes fails to point to any fact that could give rise to a reasonable

inference that Kaforey exerted or attempted improper influence in relation to Michael’s 2008

will. In fact, Barnes argues that Kaforey was frightened of Michael, and that she drafted the

2008 will without regard for Michael’s testamentary capacity because she was intimidated by

him. Rather than demonstrate that Michael was either unduly influenced or the target of undue

influence by Kaforey, these alleged facts, if true, would tend to show that Kaforey drafted the

2008 will under some degree of duress from Michael.

       {¶48} Barnes has not pointed to any evidence that would raise a question whether

Kaforey “so overpower[ed] and subjugate[d] the mind of the testator as to destroy [Michael’s]

free agency and make him express the will of another rather than his own.” See West, 173 Ohio
                                                 16


St. at 50. Barnes bore the burden of proof on her claim of undue influence. Because Barnes

failed to meet her reciprocal Dresher burden to show any evidence of “the fact of improper

influence exerted or attempted,” the trial court did not err in determining that there was no triable

issue of fact on Barnes’ claim of undue influence by Kaforey. See id. at 511.

       {¶49} We find that the probate court properly granted summary judgment to the

movants on Barnes’ claim that Michael suffered undue influence in making the 2008 will. On

this basis, Barnes’ second assignment of error is overruled.

                                                 III

       {¶50} Barnes’ first assignment of error is sustained. Her second assignment of error is

overruled. The judgment of the Summit County Court of Common Pleas, Probate Division is

reversed in part and affirmed in part. This matter is remanded for further proceedings consistent

with this opinion.

                                                                     Judgment affirmed in part and
                                                                                  reversed in part.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
                                                17


instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed equally to both parties.




                                                     BETH WHITMORE
                                                     FOR THE COURT



CARR, P. J.
SCHAFER, J.
CONCUR.


APPEARANCES:

MARK H. LUDWIG, Attorney at Law, for Appellant.

RICHARD P. KUTUCHIEF, Attorney at Law, for Appellee.
