[Cite as Beadle v. O'Konski-Lewis, 2016-Ohio-4749.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


Donald G. Beadle                                      Court of Appeals No. L-15-1216

        Appellant                                     Trial Court No. 2014 ADV 2613

v.

Patricia J. O’Konski-Lewis, etc., et al.              DECISION AND JUDGMENT

        Appellees                                     Decided: June 30, 2016

                                                *****

        John J. McHugh, III, Matthew M. McHugh and Nader O. Sarsour,
        for appellant.

        Douglas A. Wilkins, for appellee Patricia J. O’Konski-Lewis;
        Joseph Weisberg, for appellee Pamela Lewis.

        Thomas W. Heintschel and Douglas W. King, for appellee
        Fifth Third Bank, Successor Trustee.

                                                *****

        PIETRYKOWSKI, J.

        {¶ 1} This is an appeal from the judgment of the Lucas County Court of Common

Pleas, Probate Division, dismissing appellant’s, Donald Beadle, complaint for lack of

jurisdiction. For the reasons that follow, we affirm.
       {¶ 2} The following facts taken from the complaint are presumed true for purposes

of this appeal. This matter involves the planned estate distribution of Isaac Laurence

Lewis. In 1993, appellant met and developed a friendship with Lewis. Over the years,

appellant advised Lewis regarding some IRS investigations and also a real estate transfer,

saving Lewis significant sums of money. In consideration of the services rendered by

appellant, and the kindness shown to Lewis by appellant’s wife, Lewis promised that he

would make appellant the residual beneficiary of his estate. On March 23, 2000, Lewis

executed a will to accomplish this purpose. The next day, Lewis gave appellant a copy of

his will, and promised that he would never make another will, and that he would never

get married again. Lewis continued to make these promises through May 2007.

       {¶ 3} In the summer of 2010, Lewis became seriously ill and was hospitalized.

Lewis eventually was discharged from the hospital, and was tended to by appellee,

Patricia O’Konski-Lewis (“Patricia”). Five days after his discharge, on July 10, 2010,

Lewis and Patricia were married. Shortly thereafter, while Lewis was still recovering,

Patricia took Lewis to a lawyer, and he executed estate planning documents that created a

revocable inter vivos trust and pour-over will. Those documents were finalized on

August 24, 2010. Lewis then transferred all of his possessions to the trust, of which

Lewis was the sole beneficiary. The documents provided that upon Lewis’ death,

Patricia would become the beneficiary of the trust.

       {¶ 4} On October 12, 2012, Lewis was declared incompetent by the Lucas County

Court of Common Pleas, Probate Division, finding that he suffered from schizophrenia




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and Alzheimer’s dementia. The court named Patricia as Lewis’ guardian. Thereafter,

Patricia requested, and was granted, permission to dispense with filing subsequent

statements of expert evaluation because it was determined by the expert to a reasonable

degree of medical certainty that Lewis’ condition would not improve. As of the filing of

this lawsuit, Lewis is still alive.

         {¶ 5} On December 30, 2014, appellant filed a complaint against Patricia, as well

as against appellees Fifth Third Bank, Pamela Lewis, and Toledo Community

Foundation, Inc.1 In his complaint, appellant sought to have the August 24, 2010 trust

and pour-over will declared null and void based on Lewis’ lack of capacity at the time to

execute those documents, as well as the undue and improper influence of Patricia.

Appellant also asserted a claim against Patricia that she intentionally interfered with his

expectation of inheritance as a beneficiary of Lewis’ estate.

         {¶ 6} Subsequently, Patricia, Fifth Third Bank, and Pamela Lewis separately

moved to dismiss the complaint for lack of jurisdiction.2 The parties argued that the will

and trust were ambulatory in nature. Thus, they concluded that the probate court lacked

jurisdiction to resolve appellant’s challenge to those documents while Lewis was still

alive. Regarding the claim of intentional interference with expectation of inheritance, the



1
  Fifth Third Bank was named as the successor trustee upon Lewis’ incapacity. Pamela
Lewis is Lewis’ daughter and a beneficiary of the trust. Toledo Community Foundation
is also a beneficiary of the trust.
2
    Toledo Community Foundation filed an answer with affirmative defenses.




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parties contended that it is intertwined with appellant’s attempted will contest, and is

likewise not subject to review while Lewis is living.

       {¶ 7} Appellant opposed the motions to dismiss, arguing that the ambulatory

nature of wills and trusts presumes that the testator/settlor has the capacity to amend or

revoke those instruments during his or her lifetime. In this case, however, because Lewis

has been deemed permanently and irreversibly incompetent by the probate court,

appellant contends that the will and trust are no longer ambulatory. Thus, appellant

concludes that since the will and trust can no longer be changed, the probate court has

jurisdiction to hear his claims.

       {¶ 8} On July 31, 2015, the probate court entered its judgment, granting appellees’

motions to dismiss.

       {¶ 9} Appellant has timely appealed the judgment of the probate court, asserting

one assignment of error for our review:

              I. The trial court erred prejudicially in concluding that a revocable

       trust and companion pour-over will were ambulatory, and susceptible to

       revocation or amendment, given the intervening judicial declaration of

       incompetency of the grantor/testator due to irreversible dementia and

       Alzheimer’s disease.

                                          Analysis

       {¶ 10} Although framed by the parties as a question of subject-matter jurisdiction,

this appeal truly concerns whether appellant’s claims are justiciable. Article IV, Section




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4(B) of the Ohio Constitution provides that “the courts of common pleas and divisions

thereof shall have such original jurisdiction over all justiciable matters.” “For a cause to

be justiciable, there must exist a real controversy presenting issues which are ripe for

judicial resolution and which will have a direct and immediate impact on the parties.”

Stewart v. Stewart, 134 Ohio App.3d 556, 558, 731 N.E.2d 743 (4th Dist.1999). “[T]he

danger or dilemma of the plaintiff must be present, not contingent on the happening of

hypothetical future events * * * and the threat to his position must be actual and genuine

and not merely possible or remote.” Mid-American Fire & Cas. Co. v. Heasley, 113

Ohio St.3d 133, 2007-Ohio-1248, 863 N.E.2d 142, ¶ 9, quoting League for Preservation

of Civil Rights v. Cincinnati, 64 Ohio App. 195, 197, 28 N.E.2d 660 (1st Dist.1940).

“The court is required to raise justiciability sua sponte.” Stewart at 558.

       {¶ 11} “[S]tanding to sue is part of the common understanding of what it takes to

make a justiciable case.” Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d

13, 2012-Ohio-5017, 979 N.E.2d 1214, ¶ 21, quoting Steel Co. v. Citizens for a Better

Environment, 523 U.S. 83, 102, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). Standing has

traditionally been referred to as “[w]hether a party has a sufficient stake in an otherwise

justiciable controversy to obtain judicial resolution of that controversy.” Id., quoting

Cleveland v. Shaker Hts., 30 Ohio St.3d 49, 51, 507 N.E.2d 323 (1987). The

constitutional minimum of standing contains three elements: (1) an “injury in fact,”

which is “an invasion of a legally protected interest which is (a) concrete and

particularized, * * * and (b) ‘actual or imminent, not “conjectural” or “hypothetical;”’”




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(2) a causal connection between the injury and the challenged action, and (3) that it must

be “‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a

favorable decision.’” (Internal citations omitted). Lujan v. Defenders of Wildlife, 504

U.S. 555, 560-561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

       {¶ 12} In addition to standing, “[I]nherent in determining whether a complaint sets

forth a justiciable issue is the question of ripeness.” In re Arnott, 190 Ohio App.3d 493,

2010-Ohio-5392, 942 N.E.2d 1124, ¶ 22 (4th Dist.), quoting Thomson v. Ohio Dept. of

Rehab. & Corr., 10th Dist. Franklin No. 09AP-782, 2010-Ohio-416, ¶ 10. “Ripeness ‘is

peculiarly a question of timing.’” State ex rel. Elyria Foundry Co. v. Indus. Comm., 82

Ohio St.3d 88, 89, 694 N.E.2d 459 (1998), quoting Regional Rail Reorganization Act

Cases, 419 U.S. 102, 140, 95 S.Ct. 335, 42 L.Ed.2d 320 (1974). “The ripeness doctrine

is motivated in part by the desire ‘to prevent the courts, through avoidance of premature

adjudication, from entangling themselves in abstract disagreements * * *.’” Id., quoting

Abbott Laboratories v. Gardner, 387 U.S. 136, 148, 87 S.Ct. 1507, 18 L.Ed.2d 681

(1967). “The prerequisite of ripeness is a limitation on jurisdiction that is nevertheless

basically optimistic as regards the prospects of a day in court: the time for judicial relief

is simply not yet arrived, even though the alleged action of the defendant foretells legal

injury to the plaintiff.” Id., quoting Comment, Mootness and Ripeness: The Postman

Always Rings Twice, 65 Colum.L.Rev. 867, 876 (1965).




6.
        {¶ 13} Here, appellant’s complaint comprises three aspects: (1) challenging the

August 24, 2010 will, (2) challenging the August 24, 2010 inter vivos trust, and

(3) asserting a claim for intentional interference with expectancy of inheritance.

        {¶ 14} As to the first two, appellant lacks standing to seek a declaration that the

August 24, 2010 will and trust are null and void. Appellant’s only interest in the property

that is controlled by those documents is as a beneficiary under Lewis’ prior March 23,

2000 will. However, it is well-settled that “[a] will is ambulatory in nature, and until the

death of the testator, and until the law admits such instrument to probate, it gives no

accrued rights to the potential takers of benefit.” Corron v. Corron, 40 Ohio St.3d 75, 78,

531 N.E.2d 708 (1988). Thus, the March 23, 2000 will, even if it is the last valid will,

does not create in appellant a “legally protected interest” in Lewis’ property until Lewis

dies.

        {¶ 15} Appellant attempts to circumvent this result by creatively arguing that the

August 24, 2010 will and trust are no longer ambulatory on account of Lewis’

irreversible incompetence. Initially, we note that the ambulatory nature of the August 24,

2010 will and trust is of no concern as it relates to appellant’s standing to contest those

documents. Indeed, appellant is bringing his claims precisely because he has no rights

under those documents. Instead, appellant’s standing to bring his claims rises and falls

on the March 23, 2000 will. Consequently, we will address his arguments as if they were

directed toward the March 23, 2000 will.




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       {¶ 16} Appellant claims that the law contains a well-defined exception where the

testator is permanently incompetent that would, in essence, vest him with rights in the

property as if Lewis were dead. We find no such exception, nor do we think that it would

be good policy to create one. Appellant cites R.C. 2107.33(G) and First Natl. Bank of

Cincinnati v. Oppenheimer, 190 N.E.2d 70 (P.C.1963) for the proposition that the same

capacity is required to revoke a will or trust, respectively, as is required to create one.

We agree that this is an accurate statement of the law. However, the cited material does

not stand for, nor does it follow that because the March 23, 2000 will cannot be revoked

at this point due to Lewis’ incompetence, that the will should be treated as vesting in

appellant the rights to Lewis’ property. First, such a conclusion does not account for

future advances in medicine that, while unfortunately not likely in Lewis’ case, may be

able to reverse the effects of mental degeneration. Second, and more importantly, vesting

the beneficiary with legal property rights would, among other things, place him or her in

a position adverse to the guardian or trustee of the incompetent testator as it relates to the

funds expended for the care of the testator, which would undoubtedly incite litigation

even in the absence of fraud or some other breach of fiduciary duty by the guardian or

trustee. Therefore, we reassert the rule in Corron, 40 Ohio St.3d at 78, 531 N.E.2d 708,

that “until the death of the testator, and until the law admits such instrument to probate, it

gives no accrued rights to the potential takers of benefit,” and we hold that no exception

exists that would vest property rights in the named beneficiaries where the testator is




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deemed permanently incompetent. Accordingly, we conclude that appellant lacks

standing to seek a declaration that the August 24, 2010 will and trust are null and void.

       {¶ 17} Turning to appellant’s claim for intentional interference with expectancy of

inheritance, we find that it is not justiciable because it is not yet ripe. The Ohio Supreme

Court held that the elements of the tort of intentional interference of expectancy of

inheritance are:

       (1) an existence of an expectancy of inheritance in the plaintiff; (2) an

       intentional interference by a defendant(s) with that expectancy of

       inheritance; (3) conduct by the defendant involving the interference which

       is tortious, such as fraud, duress or undue influence, in nature; (4) a

       reasonable certainty that the expectancy of inheritance would have been

       realized, but for the interference by the defendant; and (5) damage resulting

       from the interference. Firestone v. Galbreath, 67 Ohio St.3d 87, 88, 616

       N.E.2d 202 (1993).

Furthermore, the court stated, “[A]ny person who can prove the elements of the tort of

intentional interference with expectancy of inheritance has the right to maintain the cause

of action.” Id.

       {¶ 18} We first note that, unlike his claims challenging the validity of the

August 24, 2010 will and trust, appellant has standing to pursue his claim of intentional

interference with expectancy of inheritance. As recognized by the Sixth Circuit Court of

Appeals in the subsequent action in federal court, “[C]ertain probate-related causes of




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action may only be brought by parties with a vested claim to the estate. A cause of action

for tortious interference with expectancy of inheritance, however, protects a more

attenuated claim to the decedent’s property—a claim which need not rise to the level of a

vested interest in order to be protected as a legitimate expectancy.” Firestone v.

Galbreath, 25 F.3d 323, 325-26 (6th Cir.1994). Here, accepting the allegations in the

complaint as true, appellant has an expectancy of inheritance by virtue of the March 23,

2000 will; Patricia intentionally interfered with that inheritance through her undue

influence in having Lewis execute the August 24, 2010 will and trust; and due to the

permanent incompetency of Lewis, which prevents him from executing a new will or

otherwise revoking the March 23, 2000 will, there is a reasonable certainty that the

inheritance would have been realized.

       {¶ 19} Nevertheless, appellant has not yet suffered any damages. Although the

funds to which appellant claims an expectancy have been transferred from Lewis’

possession to the trust, there is no meaningful distinction as it pertains to Lewis’

relationship to the funds for purposes of appellant’s claim. In this case, the funds are

being held in a trust solely for the benefit of Lewis during his lifetime. This is not a

situation where the property is being diverted to a third party. The damages do not arise

until Lewis dies and Patricia becomes the beneficiary of the trust. Therefore, we hold

that appellant’s claim for intentional interference with expectancy of inheritance is not

ripe for judicial review.




10.
       {¶ 20} Accordingly, because appellant does not have standing to pursue his

challenges to the August 24, 2010 will and trust, and because his claim for intentional

interference with expectancy of inheritance is not ripe, we hold that his claims are not

justiciable, and the trial court did not err in dismissing them.

       {¶ 21} Appellant’s assignment of error is not well-taken.

                                         Conclusion

       {¶ 22} For the foregoing reasons, we find that substantial justice has been done the

party complaining and the judgment of the Lucas County Court of Common Pleas,

Probate Division, is affirmed. Pursuant to App.R. 24, appellant is ordered to pay the

costs of this appeal.

                                                                        Judgment affirmed.


       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.


Mark L. Pietrykowski, J.                         _______________________________
                                                             JUDGE
Arlene Singer, J.
                                                 _______________________________
Thomas J. Osowik, J.                                         JUDGE
CONCUR.
                                                 _______________________________
                                                             JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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