[Cite as In re Estate of Gordon, 2014-Ohio-2133.]


                                       COURT OF APPEALS
                                    RICHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                            JUDGES:
IN THE MATTER OF THE ESTATE                         :       Hon. W. Scott Gwin, P.J.
OF ESTHER GORDON: CAROLYN                           :       Hon. Sheila G. Farmer, J.
ZARA                                                :       Hon. Craig R. Baldwin, J.
                                                    :
                        Plaintiff-Appellant         :
                                                    :       Case No. 13-CA-78
-vs-                                                :
                                                    :
PATRICIA SHAFFER GORDON, ET                         :       OPINION
AL

                  Defendants-Appellees




CHARACTER OF PROCEEDING:                                Civil appeal from the Richland County Court
                                                        of Common Pleas, Probate Division, Case
                                                        Nos. 20111111, 20111111A, and
                                                        20111111B


JUDGMENT:                                               Affirmed


DATE OF JUDGMENT ENTRY:                                 May 13, 2014

APPEARANCES:

For Plaintiff-Appellant                                 For Defendant-Appellee Patricia Shaffer

ERICA PROBST                                            WILLIAM FITHIAN III
STEVEN ROWE                                             111 N. Main Street
88 West Mound Street                                    Mansfield, OH 44902-7669
Columbus, OH 43215

Administrator/Executor                                  For Defendant-Appellee Joshua Shaffer
JOSEPH L. JERGER                                        DALE M. MUSILLI
Bayer, Jerger & Underwood                               105 Sturges Avenue
362 Lexington Avenue                                    Mansfield, OH 44903
Mansfield, OH 44907
[Cite as In re Estate of Gordon, 2014-Ohio-2133.]


Gwin, P.J.

        {¶1}     Appellant appeals the August 1, 2013 judgment entry of the Richland

County Common Pleas Court, Probate Division, finding decedent possessed sufficient

mental capacity in mid-October of 2008 to designate payable on death, survivorship, or

any other designation on her bank accounts and finding decedent was not unduly

influenced when she designated the payable on death co-beneficiary designations in

mid-October of 2008.

                                          Facts & Procedural History

        {¶2}     Esther Gordon, decedent, (“Esther”) and Ralph Gordon (“Ralph”) were

married and have two daughters, appellant Carolyn Zara (“Carolyn”) and appellee

Patricia Shaffer Gordon (“Patricia”). Ralph died in July of 2006. Ralph had a hidden

room built beneath the stairwell in the basement of the home he shared with Esther

located at 235 West Cook Road in Mansfield, Ohio. The room contained several safes

in which Ralph placed money, documents, and government bonds. Ralph told Carolyn

and Esther about the safes, but not Patricia. Prior to Ralph’s death, Ralph and Esther

had multiple certificates of deposit located in Florida and named Carolyn, her husband

James (“Jim”), and her children Anthony and Lisa as the payable on death beneficiaries.

Very few of the certificates of deposit designated Patricia or her children appellee

Joshua Shaffer (“Joshua”) and daughter Sarah as beneficiaries.

        {¶3}     In August of 2006 after Ralph’s death, Esther went to Richland Bank,

established an account, and designated both Carolyn and Patricia as payable on death

co-beneficiaries. On November 30, 2007, Carolyn accompanied Esther to Richland

Bank where Esther deposited re-issued checks from stale bank checks in the amount of
Richland County, Case No. 13-CA-78                                                  3


$609,718.50 into the account with both Carolyn and Patricia designated as co-

beneficiaries upon Esther’s death. Four days later on December 4, 2007, Carolyn and

Esther returned to Richland Bank and deposited $2,500 into the account established

four days earlier. That same day, a new account was established that was funded by a

transfer of $611,500 in funds from the account established on November 30, 2007. The

new account designated only Carolyn as the payable on death beneficiary. In July of

2008, due to concerns about FDIC insurance limits, Carolyn accompanied Esther to set

up accounts at different banks with $554,901.61 withdrawn from the Richland Bank

account. Carolyn was again listed as the sole payable on death beneficiary on the new

accounts established in July of 2008.

      {¶4}   In March of 2008, Carolyn arranged to take Esther to a new doctor, Dr.

Cowden, because Esther’s previous physician, Dr. Beard, moved out of town.         At

Esther’s insistence, Carolyn took her back to Dr. Beard (who moved to an office

approximately twenty-five miles away) on April 23, 2008, where she continued her care

until October 21, 2008, when Carolyn took Esther back to Dr. Cowden to request an

expert evaluation that Esther was incompetent.

      {¶5}   In October of 2008, Patricia came to town for the birth of her grandchild

and stayed at Esther’s home. At this time, Patricia became aware that Carolyn was the

sole payable on death beneficiary on the bank accounts. On October 10, 2008, Patricia

and Joshua drove Esther to an appointment with Attorney Joseph L. Jerger (“Jerger”),

the son of the attorney who prepared Esther and Ralph’s wills in 1970, to discuss the

establishment of a power of attorney.    Jerger had previously met with Esther after

Ralph’s death in 2006. On October 14, 2008, Esther returned with Patricia and Joshua
Richland County, Case No. 13-CA-78                                                     4


to Jerger’s office where Esther executed a power of attorney designating Joshua as her

attorney-in-fact. Also sometime between October 10th and October 14th of 2008, while

Patricia was staying with Esther, Patricia and Joshua took Esther to various banks in

order to change the payable on death beneficiary designations to Carolyn and Patricia

as payable on death co-beneficiaries.

      {¶6}   After Patricia returned home to Mississippi, Carolyn prepared a revocation

of power of attorney, a power of attorney designating Carolyn as attorney-in-fact and

durable power of healthcare, and a living will for Esther.      Carolyn took Esther to

Mechanics Bank on November 1, 2008 to sign the documents in front of a notary.

Carolyn filed an application for guardianship of Esther on April 23, 2009. Esther was

interviewed by a court investigator in May of 2009 and indicated she did not want a

guardian. Esther hired Jerger to represent her in the guardianship proceeding. At a

June 29, 2009 hearing, Esther consented to the guardianship as long as Jerger would

be appointed the guardian of her estate and Carolyn was appointed as the guardian of

her person. At a February 3, 2011 hearing, Carolyn told the trial court Esther knowingly

and voluntarily executed the durable power of healthcare attorney on November 1, 2008

and thus Carolyn was able to make treatment decisions for Esther. The trial court

allowed Carolyn unrestricted authority to determine Esther’s healthcare decisions.

Esther died on February 11, 2011.

      {¶7}   After Esther’s death, Jerger filed an application to probate will and motion

to be appointed administrator, with will annexed (“WWA”) on March 16, 2011, because

both Carolyn and Patricia, the sole beneficiaries of Esther’s estate, were named parties

in a concealment action filed by Jerger in his capacity as Esther’s guardian of the
Richland County, Case No. 13-CA-78                                                     5


estate. The trial court granted Jerger’s motion on April 20, 2011 and appointed Jerger

administrator, WWA, of Esther’s estate. The will attached to the application to probate

was prepared in 1970 by Esther where she named Ralph as the primary reciprocal

beneficiary and named Carolyn, Patricia, and her son Richard Gordon, as equal

beneficiaries. Richard Gordon died in 1971 without issue. The will was prepared by

Joseph Jerger, Sr.

       {¶8}   On January 6, 2012, Patricia filed objections to inventory. Carolyn filed

her objections to inventory and petition for declaratory judgment on January 11, 2012.

The trial court set the objections and petition for hearing on July 26, 2012. The parties

then jointly stipulated the hearing would also include any other issues of ownership

regarding inventoried or non-inventoried assets of Esther. The probate court held a

joint hearing on the objections to inventory and the separate concealment actions filed

by the parties.

       {¶9}   At the hearing, Carolyn testified she spoke to Esther about establishing a

power of attorney in July of 2008, but Esther did not want one. Carolyn stated she

became concerned about Esther’s mental state in September of 2008 because Esther

was becoming confused about things and having difficulty writing checks. James Zara,

Carolyn’s husband, also testified Esther’s mental capacities changed in the summer of

2008. However, Carolyn testified that, in October of 2008, Esther could live alone,

stayed by herself at night, had no caregivers, and completed daily tasks by herself.

With regards to Esther’s doctors, Carolyn stated she took Esther to Dr. Cowden, a new

physician, in March and April of 2008 after Dr. Beard, Esther’s original physician, moved

away. At Esther’s insistence, Carolyn took her back to Dr. Beard in the summer of
Richland County, Case No. 13-CA-78                                                    6


2008, but then took her back to Dr. Cowden in October of 2008 after Patricia returned to

Mississippi. Carolyn testified Esther never specifically told her Carolyn was the sole

payable on death beneficiary on the bank accounts but always told her she and her

family would be taken care of. Carolyn testified she found out Esther changed the

payable on death designations in mid-October of 2008 when Esther told Carolyn she

was not allowed in the house anymore and Joshua was going to take care of

everything. Carolyn said Esther told her she did not understand what was going on and

that Patricia and Joshua tricked her into changing the payable on death designations on

the bank accounts and into establishing the power of attorney.

      {¶10} After Patricia returned to Mississppi, Carolyn prepared a revocation of

power of attorney, a power of attorney designating Carolyn as attorney-in-fact and

durable power of healthcare, and a living will for Esther.       Carolyn took Esther to

Mechanics Bank on November 1, 2008 to sign the documents in front of a notary.

When questioned on cross-examination, Carolyn stated she thought Esther was aware

of the documents she signed but probably was not competent to execute these

documents. Carolyn testified as follows: “this had nothing to do with competence. This

had everything to do with my mother trying to remove the power of attorney.” Carolyn

also stated that, “all I know is that my mother did not want the power of attorney with

Josh. She said she never wanted it. She didn’t understand what was going on, and

she wanted it revoked.” Carolyn testified she let Esther sign these documents knowing

she was probably not competent to execute them and gave these documents to the

probate court at a February 2011 Do Not Resuscitate / Comfort Care hearing. Carolyn

believed Esther was susceptible to influence in October of 2008 because Esther was
Richland County, Case No. 13-CA-78                                                     7


trying to maintain her independence but was getting confused very easily and was

extremely vulnerable. Carolyn believed Patricia took advantage of Esther’s vulnerability

by convincing Esther that Carolyn was not going to assist her anymore on October 10,

2008.    On cross-examination, Carolyn stated she and Esther visited several of the

banks where the changed beneficiary designation accounts were located after October

14, 2008, but Esther never requested any aspects or the beneficiaries on any of the

accounts be changed.

        {¶11} Patricia testified that in October of 2008 when she came home to visit her

new grandchild, Esther asked her to take her to Jerger’s office. When Jerger spoke to

Patricia and Esther together, Esther had concerns about staying out of a nursing home

and also was concerned Carolyn was manipulating her bank accounts. Patricia stated

that when she and Esther went to leave Jerger’s office, he recommended checking

Esther’s bank accounts and he specifically mentioned checking all payable on death

accounts to make sure the beneficiary information conformed to Esther’s wishes. After

Esther made a list of the banks, Patricia went with her to the banks and Esther changed

the beneficiary designations on the accounts.     Patricia testified she did not instruct

Esther to do anything at the banks and it was Esther who told the bank employees she

wanted Carolyn and Patricia both to be equal payable on death beneficiaries on the

accounts, just like Esther stated in her will. Patricia stated when Esther changed the

beneficiary designations, Esther was not exhausted, confused, frightened, or shaken.

Patricia disputed Carolyn’s opinion that Esther was decreasing in memory in October of

2008.
Richland County, Case No. 13-CA-78                                                    8


      {¶12} Joshua testified he drove Esther and Patricia to the various banks in

October 2008, but stayed in the car while Esther and Patricia went into the banks.

Joshua stated Esther requested he and Patricia assist her in changing the bank account

designations and Esther changed the beneficiary designations of her own free will.

According to Joshua, Esther expressed concern about Carolyn manipulating Esther’s

money. Joshua testified when he took Esther to Jerger’s office, Esther was not upset or

confused and was just her normal self. Esther told him on October 10, 2008 that there

were lots of accounts just in Carolyn’s name as the beneficiary and she added Patricia

to them. Joshua stated he only utilized the power of attorney once to cash a check on

October 14th or 15th of 2008.

      {¶13} Jerger, an attorney for twenty-one years and a guardian for approximately

fifty-four individuals, stated he had no concerns about Esther’s competence in October

of 2008 and observed nothing to indicate Esther was forced or coerced to do something

she did not want to do. Jerger had met with Esther in 2006 after Ralph’s death. Jerger

testified that, at the October 2008 appointment, he spoke with Esther and Patricia and

then spoke with Esther separately for approximately thirty to forty minutes. Esther told

Jerger she was afraid Carolyn was taking over too much and not informing Esther about

financial information. Further, that Esther wanted to write her own checks and pay her

own bills, but Carolyn was stepping on her toes. Jerger suggested Esther set up a

power of attorney other than Carolyn and further suggested Esther go to the banks

where she had accounts and check to see if the accounts and their payable on death

beneficiary designations were set up the way Esther wanted them set up. Jerger stated

he spent time making sure Esther had the ability to grant a power of attorney because
Richland County, Case No. 13-CA-78                                                      9


Carolyn had told him a few months prior that Esther’s mind was slipping.        Jerger

testified he felt confident Esther knew who her family was, who she wanted to benefit,

what assets she had, what day of the week it was, the year, who the president was, and

that Esther was not frightened, confused, or tired. Though Esther did not tell Jerger

about the cash and bonds in the basement safes, she told him about her real estate in

Mansfield and Florida and disclosed general information about her bank accounts.

Esther wrote the check out to Jerger herself without assistance. Jerger stated Esther

wanted the power of attorney and Jerger felt she had the ability to understand what a

power of attorney was. Jerger testified that, in October of 2008, he had no problem

thinking Esther was competent to make the power of attorney. Jerger stated when

Carolyn contacted him to revoke the power of attorney, Jerger told her Esther would

have to come into the office to complete this because he had concerns about revoking

something Esther had been so adamant about several days prior to Carolyn’s call.

Esther never came to his office to revoke the power of attorney.      In 2009, Esther

contacted Jerger to represent her in the guardianship hearing

      {¶14} Amy Stentz (“Stentz”), Jerger’s legal assistant, notarized the power of

attorney Esther granted to Joshua in October of 2008. Stentz testified she asked Esther

if she had any questions about the document and Esther did not. Further, Esther said

she understood the document and, after Stentz placed her under oath, affirmed she

wanted to execute the power of attorney and signed the document of her own free will.

      {¶15} Mary Williams (“Williams”) was the notary at Mechanics Bank who

notarized the documents prepared by Carolyn and signed by Esther on November 1,

2008. Williams testified someone came in with Esther on November 1, 2008, but she
Richland County, Case No. 13-CA-78                                                   10


did not remember who it was.      Williams stated she notarized the documents after

placing Esther under oath. Williams felt Esther was signing the documents of her own

free will and that Esther appeared to be of sound mind and seemed normal to her.

      {¶16} Condrea Corley (“Corley”), a probate court investigator, met with Esther in

May of 2009 after Carolyn filed an application for guardianship. Corley testified Esther

felt she did not need a guardian and felt Carolyn thought she knew everything and just

wanted to control her money. Corley saw several signs around the house such as “do

not open the door” and “do not let Josh in.”       Corley thought Esther’s mind was

reasonably sharp and Esther was pretty mentally sharp when she interviewed her.

      {¶17} The trial court admitted portions of the office records of Dr. Julie Beard,

Dr. Deborah Cowden, Dr. Raymond Baddour, and Dr. A.J. Chawla. However, none of

the doctors testified at the evidentiary hearing or were deposed by any of the parties

involved in this proceeding. Dr. Baddour commenced treatment of Esther on March 27,

2009 as a result of a referral from Esther’s heart doctor. Baddour performed a mini-

mental status exam and scored Esther a 25 out of 30, just above the baseline from

mental impairment, and opined moderate dementia.          The notes indicate Carolyn

reported cognitive decline of Esther for six (6) years.     Dr. Beard, Esther’s family

physician for many years, first mentions confusion in her office notes in April of 2008.

Despite several requests from Carolyn, including an October 29, 2008 request from

Carolyn for a letter that Esther was confused, Dr. Beard told Carolyn that Esther needed

to be evaluated by a psychiatrist or neurologist because Dr. Beard was not an expert in

competency evaluation.
Richland County, Case No. 13-CA-78                                                    11


      {¶18} Carolyn took Esther to Dr. Cowden in March of 2008. The notes indicate

Esther’s judgment was not intact, she had some deficits, and that Esther was arguing

with Carolyn. At Esther’s insistence, Carolyn took Esther back to Dr. Beard from April

2008 to October 21, 2008 when Carolyn took Esther back to Dr. Cowden. On October

21 2008, Dr. Cowden conducted a short exam of mental status. On this same date, Dr.

Cowden filled out a statement of expert evaluation indicating Esther needed a guardian

because of dementia and impaired judgment. Carolyn did not file an application for

guardianship in October of 2008.       On October 28, 2008, Carolyn contacted Dr.

Cowden’s office to report a large amount of cash and bonds missing from Esther’s safe

also informed Dr. Cowden’s office about the change in the payable on death

designations on Esther’s bank accounts. Carolyn told the doctor’s office the doctor’s

previous notes made it look very bad for Carolyn with her mom due to Esther’s desire to

return to see Dr. Beard. On October 28, 2008, Dr. Cowden conducted a mini-mental

status exam on Esther and scored Esther at fourteen (14). Dr. Cowden corrected the

score approximately five months later and rescored Esther at an eighteen (18) and

noted this increase occurred after Dr. Cowden reviewed how to score the test.

      {¶19} On January 13, 2009, Dr. Cowden noted at an office visit that Esther’s

“judgment was noted to appear intact.” Dr. Cowden administered a mini-mental status

exam, but the final score was left blank. One test stated a score of eighteen (18), but

the individual answers added to twenty-one (21). The other test appears to add to

eighteen (18) and there is no explanation in the variance of the numbers.

      {¶20} After the hearing, the trial court issued a judgment entry on August 1,

2013. The trial court overruled the objections to inventory, found Carolyn failed to meet
Richland County, Case No. 13-CA-78                                                    12


her burden in proving that Esther did not possess the mental capacity to re-designate

the payable on death beneficiaries on her various bank accounts in October of 2008,

and found no persuasive evidence of undue influence. The trial court thus determined

that the designations on Esther’s bank accounts, IRA’s, and other accounts should be

as of the last date Esther designated the payable on death beneficiaries.

      {¶21} Appellant appeals the August 1, 2013 judgment entry of the Richland

County Court of Common Pleas, Probate Division, and assigns the following as error:

      {¶22} “I. THE JUDGMENT ENTERED BY THE TRIAL COURT WAS NOT

SUPPORTED BY THE SUFFICIENCY OF THE EVIDENCE AND SHOULD BE

REVERSED.

      {¶23} "II. THE JUDGMENT ENTERED BY THE TRIAL COURT [WAS] AGAINST

THE MANIFEST WEIGHT OF THE EVIDENCE AND SHOULD BE REVERSED.”

                                            I. & II.

                        Manifest Weight & Sufficiency of the Evidence

      {¶24} Appellant argues the trial court’s judgment was against the manifest

weight and sufficiency of the evidence. Specifically, appellant contends that at the time

Esther executed the power of attorney and changed the payable on death designations

of several bank accounts, she was incompetent and subject to the undue influence of

Patricia and Joshua.

      {¶25} In Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d

517, the Ohio Supreme Court clarified the standard of review appellate courts should

apply when assessing the manifest weight of the evidence in a civil case. The Ohio

Supreme Court held the standard of review for manifest weight of the evidence for
Richland County, Case No. 13-CA-78                                                      13

criminal cases stated in State v. Thompkins, 78 Ohio St.3d 380, 678 N.E. 2d 541 (1997)

is also applicable in civil cases. Eastley, 132 Ohio St.3d.       A reviewing court is to

examine the entire record, weigh the evidence and all reasonable inferences, consider

the credibility of the witnesses and determine “whether in resolving conflicts in the

evidence, the finder 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.” Id; see also

Sheet Metal Workers Local Union No. 33 v. Sutton, 5th Dist. Stark No. 2011 CA 00262,

2012-Ohio-3549.     “In a civil case, in which the burden of persuasion is only by a

preponderance of the evidence, rather than beyond a reasonable doubt, evidence must

still exist on each element (sufficiency) and the evidence on each element must satisfy

the burden of persuasion (weight).” Eastley, supra, 2012-Ohio-2179.

      {¶26} As an appellate court, we are not fact finders; we neither weigh the

evidence nor judge the credibility of witnesses. Markel v. Wright, 5th Dist. Coshocton

No. 2013CA0004, 2013-Ohio-5274. Further, “an appellate court should not substitute

its judgment for that of the trial court when there exists * * * competent and credible

evidence supporting the findings of fact and conclusion of law.” Seasons Coal Co. v.

Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). The underlying rationale for

giving deference to the findings of the trial court rests with the knowledge that the trial

judge is best able to view the witnesses and observe their demeanor, gestures, and

voice inflections, and use these observations in weighing the credibility of the proffered

testimony. Id. Accordingly, a trial court may believe all, part, or none of the testimony

of any witness who appears before it. Rogers v. Hill, 124 Ohio App.3d 468, 706 N.E.2d

438 (4th Dist. 1998).
Richland County, Case No. 13-CA-78                                                     14

                                        Mental Capacity

      {¶27} Appellant argues the trial court’s determination that Esther possessed

sufficient mental capacity in mid-October of 2008 to designate payable on death

designations on her bank accounts was not supported by the sufficiency of the evidence

and was against the manifest weight of the evidence. Appellant specifically argues the

statements of Dr. Cowden and other physicians were not contradicted and that the trial

court improperly weighed the testimony of Jerger as compared with the medical

professionals. We disagree.

      {¶28} The burden of proof in determining mental or testamentary capacity is on

the party contesting a will or other testamentary instrument such as a beneficiary

designation.    Kennedy v. Walcutt, 118 Ohio St. 442, 161 N.E. 336 (1928).

Testamentary or mental capacity exists when a person has sufficient mind and memory:

first, to understand the nature of the business in which she is engaged; second, to

comprehend generally the nature and extent of her property; third, to hold in her mind

the names and identity of those who have natural claims upon his bounty; and fourth, to

be able to appreciate her relation to the members of her family. Birman v. Sproat, 47

Ohio App.3d 65, 67-68, 546 N.E.2d 1354 (2nd Dist. 1988). It is not enough to show the

individual had deteriorating health, even if the individual suffered from poor medical

health at the time the documents were executed. Martin v. Drew, 10th Dist. No. 03AP-

734, 2004-Ohio-2520.      Appellant must also show that the health decline actually

affected the testator’s capacity to execute the beneficiary designation. Id (“[E]vidence

that [the] decedent suffered from dementia or Alzheimer’s disease on [the] day she

executed [her] will, standing alone, is insufficient to raise a fact issue as to a lack of
Richland County, Case No. 13-CA-78                                                      15


testamentary capacity without some evidence that the disease rendered her incapable

of knowing her family or her estate or understanding the effect of her actions.”); see also

Neumeyer v. Estate of Penick, 5th Dist. Licking No. 07-CA-146, 2009-Ohio-321.

      {¶29} We find competent and credible evidence exists to support the trial court’s

determination that Carolyn failed to meet her burden of proof that Esther did not

possess the mental capacity to re-designate the payable on death beneficiaries on her

banks accounts in mid-October of 2008.         While the medical records show a slow

deterioration of Esther’s mental ability, the records are not complete and are

contradictory.    Only the records from 2010 of Chawla’s were introduced.         Further,

though Beard noted mental confusion of Esther in April of 2008, she repeatedly

informed Carolyn that Esther should be evaluated by a psychiatrist or neurologist

because Beard was not an expert in mental competency.             On October 28, 2008,

Cowden conducted a mini-mental status exam and scored Esther at fourteen (14) and

indicated Esther’s judgment appeared not to be intact. Approximately five months later,

Cowden revised and rescored the October 2008 mini-mental status exam to an

eighteen (18) and indicated this increase was due to her review of how to property

score the test.    At a January 13, 2009 office visit, Dr. Cowden stated that Esther’s

“judgment was noted to appear intact” and conducted a mini-mental status exam.

However, the final score of the test was left blank. One test stated a score of eighteen

(18), but the answers added up to twenty-one (21), while a second test added up to

eighteen (18) and there is no explanation of this variance in the numbers. Dr. Baddour

performed a mini-mental status exam on Esther in March of 2009 and scored her 25 out
Richland County, Case No. 13-CA-78                                                    16


of 30, just above the baseline from mental impairment. Dr. Baddour indicated in his

notes the information about Esther’s cognitive decline for six years came from Carolyn.

      {¶30} None of the doctors were deposed or testified at the evidentiary hearing

and thus were unable to explain the inconsistencies in the varying scores on the mini-

mental status exams, the inconsistencies in their opinions about Esther’s judgment, or

indicate their opinion of Esther’s mental competency on October 10th through October

14th of 2008. Further, the various notes by the medical professionals are devoid of any

indication that Esther’s health decline actually affected her capacity to execute the

beneficiary designations on the dates in question. As noted above, it is not enough to

show Esther suffered from dementia on the dates in question, but there must be some

evidence the disease rendered her incapable of knowing her family or her estate or

understanding the effect of her actions.     Appellant has not demonstrated Esther’s

deteriorating health actually affected her capacity to change the beneficiary

designations.

      {¶31} We further disagree with appellant’s contention that Dr. Cowden’s opinion

was not rebutted by other evidence. Jerger had extensive experience with wards and

guardians and further was aware of the Ohio Rules of Professional Conduct for

attorneys, including Rule 1.14, “Client with Diminished Capacity.”      Jerger met with

Esther alone on October 10, 2008 and testified Esther possessed the mental faculties

necessary to make decisions regarding the execution of a power of attorney and that

Esther was not confused, fearful, or threatened. Jerger stated that, based on his history

with Esther and his experience of being a guardian in numerous cases, Esther had the

ability to know what she wanted to do, why she wanted to do it, and was competent.
Richland County, Case No. 13-CA-78                                                  17


Jerger testified he felt confident Esther knew who was her family, who she wanted to

benefit, what assets she had, what day of the week it was, the year, and who the

president was. Jerger testified he suggested to Esther that she check the payable on

death beneficiaries on her bank accounts to make sure they were set up in accordance

with her wishes. Stentz testified that on October 14, 2008, Esther understood the power

of attorney to Joshua and signed the document of her own free will. Corley, the probate

court investigator, found Esther to be reasonably mentally sharp when she interviewed

her in May of 2009 and felt Esther needed someone to assist her with finances, but not

a guardian of her person.

      {¶32} In addition, after the October 10 – October 14, 2008 dates in question,

Carolyn herself created a revocation of power of attorney, a power of attorney

designating Carolyn as attorney-in-fact and durable power of healthcare, and a living

will for Esther. Carolyn took Esther to Mechanics Bank on November 1, 2008 to sign

the documents in front of a notary. These documents were given to the trial court by

Carolyn at a February 2011 Do Not Resuscitate / Comfort Care hearing. Williams, the

notary at the bank who notarized the documents on November 1, 2008, testified Esther

appeared to be of sound mind and seemed normal to her.

      {¶33} Further, though Esther had the opportunity to return to the banks in

question and change the payable on death beneficiary information until a guardianship

was establish in June of 2009, she declined to do so. Esther even failed to change the

beneficiary information on the account she had with Mechanics Bank when she went

there with Carolyn on November 1, 2008. The payable on death split of the bank

accounts between Carolyn and Patricia was in accord with Esther’s general estate plan
Richland County, Case No. 13-CA-78                                                      18


as evidenced by the equal split between Carolyn and Patricia in Esther’s will and in her

IRA distributions.

       {¶34} Given the inconsistent and incomplete medical records with the lack of

testimony from any medical professional about Esther’s mental capacity on the dates in

question, the testimony of Jerger, Stentz, and Williams, the fact that the payable on

death designations coincide with Esther’s will and IRA division, and the fact that Esther

never returned to the banks to change the designations, we find the trial court’s

determination that Carolyn failed to meet her burden that Esther lacked the mental

capacity to change the payable on death beneficiaries on her bank accounts in mid-

October of 2008 was not against the manifest weight or sufficiency of the evidence. As

noted, above, we are not fact finders; we neither weigh the evidence nor judge the

credibility of witnesses. Markel v. Wright, 5th Dist. Coshocton No. 2013CA0004, 2013-

Ohio-5274.

                                        Undue Influence

       {¶35} Appellant also argues the trial court’s conclusion that Patricia and Joshua

did not exercise undue influence on Esther during the first two weeks of October of

2008 was not supported by the sufficiency of the evidence and was against the manifest

weight of the evidence. We disagree.

       {¶36} The Ohio Supreme Court has stated that, “[g]eneral 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.” West v.

Henry, 173 Ohio St. 498, 501, 184 N.E.2d 200 (1962). A finding of undue influence
Richland County, Case No. 13-CA-78                                                      19


requires the following: (1) the influenced individual is/was susceptible, (2) another’s

opportunity to exert undue influence, (3) the fact of improper influence exerted or

attempted, and (4) a result showing the effect of such influence. Redman v. Watch

Tower Bible & Tract Soc. of Pennsylvania, 69 Ohio St.3d 98, 630 N.E.2d 676 (1994).

Further, “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 actually be exerted on the mind of the testator * * * [i]t 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.” West v.

Henry, 173 Ohio St. 498, 501, 184 N.E. 2d 200 (1962).

      {¶37} In reviewing the record, we find there is competent and credible evidence

to support the trial court’s decision that Patricia and Joshua did not unduly influence

Esther in October of 2008 to change the bank account beneficiary designations or

execute the power of attorney. Jerger observed nothing to indicate Esther was being

forced, pressured, coerced, or compelled to do something she did not want to do and

testified that Esther was concerned about Carolyn manipulating her finances. Jerger

spoke with Esther by herself, without Patricia or Joshua present in the room. Stentz

testified when Esther returned to execute the power of attorney, Esther swore she was

signing the document of her own free will. Most notably, Esther never returned to the

banks to change the payable on death designations, even though Carolyn testified that

she took Esther to at least some of these banks after October of 2008, including

Mechanics Bank on November 1, 2008, when Carolyn took Esther there to execute the

documents Carolyn prepared. While Carolyn testified Esther was very upset about the
Richland County, Case No. 13-CA-78                                                     20


power of attorney and felt Patricia and Joshua tricked her into changing the beneficiary

designations, Esther had approximately six months between the October 2008

designations and June of 2009 when Carolyn and Jerger became her guardians to

change the beneficiary designations on the bank accounts. However, Esther did not do

so. According to the testimony of Corley, in May of 2009, Esther was still concerned

about Carolyn having control over her finances. Esther’s will, established in 1970, listed

both Carolyn and Patricia as beneficiaries and Esther never revoked this will. The

placement of both Carolyn and Patricia as payable on death beneficiaries on the bank

accounts coincides with her general estate plan. Any concern by Patricia was solely

that Carolyn was going to control Esther’s money which was upsetting to Patricia

because the two sisters were constantly at odds with each other. However, there is no

evidence this general influence or concern was improper, was exerted on Esther, or

resulted in the changing of the bank account designations.

      {¶38} Accordingly, we find the evidence does not demonstrate that Patricia or

Joshua submitted their will for that of Esther. Based on the above, we find the trial

court’s determination that no actual improper or undue influence was exerted upon

Esther relative to the changing of the payable on death beneficiaries on the bank

accounts was not against the manifest weight or sufficiency of the evidence.
Richland County, Case No. 13-CA-78                                                  21


      {¶39} Based on the foregoing, we find the trial court did not err in its judgment

entry on August 1, 2013 in finding Esther possessed sufficient mental capacity in mid-

October 2008 to designate payable on death, survivorship, or any other designation on

her bank accounts and in finding Esther was not unduly influenced when she

designated the payable on death designations in mid-October 2008. Appellant’s first

and second assignments of error are overruled and the August 1, 2013 judgment entry

of the Richland County Court of Common Pleas, Probate Division, is affirmed.

By Gwin, P.J.,

Farmer, J., and

Baldwin, J., concur
