[Cite as Young v. Kaufman, 2020-Ohio-3283.]


                             COURT OF APPEALS OF OHIO

                            EIGHTH APPELLATE DISTRICT
                               COUNTY OF CUYAHOGA

LAUREL K. YOUNG, ET AL.,                        :

                Plaintiffs-Appellants,         :
                                                            No. 108719
                v.                              :

JOSH S. KAUFMAN, ET AL.,                       :

                Defendants-Appellees.           :


                              JOURNAL ENTRY AND OPINION

                JUDGMENT: AFFIRMED
                RELEASED AND JOURNALIZED: June 11, 2020


            Civil Appeal from the Cuyahoga County Court of Common Pleas
                                   Probate Division
                               Case No. 2014ADV201972


                                          Appearances:

                Kushner & Hamed Co., L.P.A., Michael R. Hamed, and
                Philip S. Kushner, for appellants.

                Walter Haverfield, L.L.P., John E. Schiller, and Jamie A.
                Price, for appellees Josh Kaufman, Kim Kaufman, and
                Doug Kaufman.

                Reminger Co., L.P.A., Adam M. Fried, and Leon A. Weiss,
                for appellee Josh Kaufman.
FRANK D. CELEBREZZE, JR., P.J.:

             Plaintiffs-appellants Laurel Young (“Lori”) and James Kaufman (“Jim”)

(collectively, “appellants”) appeal from the trial court’s judgment in favor of

defendants-appellees Josh Kaufman (“Josh”), Kim Kaufman (“Kim”), and Doug

Kaufman (“Doug”) in their will contest action challenging their deceased mother,

Joyce Kaufman’s (“Joyce”) estate plan. Appellants argue that the trial court erred

by excluding statements made by Joyce pertaining to her estate plan and the

circumstances under which the estate plan was executed. After a thorough review

of the record and law, this court affirms.

                         I. Factual and Procedural History

             Appellants and appellees are siblings and Joyce’s children. This appeal

involves the proceedings in the trial court on remand from this court in Young v.

Kaufman, 2017-Ohio-9015, 101 N.E.3d 655 (8th Dist.) (hereinafter “Young v.

Kaufman I”). 1 In Young v. Kaufman I, this court reversed the trial court’s judgment

granting summary judgment in favor of appellees on appellants’ will contest and

removal claims.

             In 1993, Joyce executed an estate plan that first disposed of her assets

to her husband and then to her five children. In 1999, she modified her estate plan,

excluding Jim as a beneficiary, except for a $1,000 bequest. In 2000, Joyce made

additional changes to her estate plan. Pursuant to the 2000 modifications, Joyce’s



      1For a full recitation of the factual and procedural history in this case, see Young
v. Kaufman I.
personal property was to be disposed of at Kim’s discretion, after which Lori, Doug,

Kim, and Josh were to receive the balance of Joyce’s assets. Joyce also executed a

durable power of attorney in 2000. She appointed Doug and Kim jointly as her

attorneys-in-fact.

             Joyce took steps to revise her estate plan in 2009. According to the

attorneys that initially worked on the revision and an accountant that assisted Joyce

with tax-related matters, Joyce only wanted three of her children — Josh, Kim, and

Doug — to inherit under the new estate plan. See Young v. Kaufman I at ¶ 9-10.

“On December 10, 2010, Joyce signed her last will and testament (the ‘2010 will’)

and the third amendment to declaration of trust (Joyce S. Kaufman Revocable Trust

Agreement) dated December 10, 2010 (the ‘2010 trust’) (collectively, the ‘2010

estate plan’), which excluded Jim and Lori as beneficiaries.” Id. at ¶ 23.

             In 2013, after being diagnosed with lung cancer, Joyce took steps to

revise her estate plan again. Young v. Kaufman I, 2017-Ohio-9015, 101 N.E.3d 655,

at ¶ 28. According to the attorney that began working with Joyce in the summer of

2010, Joyce wanted to revise her estate plan at that time to enable all five children

to share the assets of her estate.

      In mid-July 2013, Joyce met with all five of her children (the “July 2013
      family meeting”). Jim testified that during this meeting, Joyce told
      each of her children that she wanted them all “to get along,” that she
      wanted her estate to be divided equally among them and that she
      wanted the proceeds of her life insurance policies to be used to pay her
      estate taxes. Jim testified that Joyce made all of her children promise
      that they would follow her wishes. Joyce died before any new estate
      plan was finalized or executed.
       On April 7, 2014, appellees filed an application for authority to
       administer Joyce’s estate based on the 2010 estate plan and the will was
       admitted to probate. Josh, Kim and Doug were designated co-
       executors under the will and co-trustees of the trust.

Id. at ¶ 32-33.

               Appellants commenced their will contest action on October 10, 2014.

Appellants filed a complaint against appellees asserting (1) a will contest claim and

(2) a claim to remove Josh and Kim as co-executors and co-trustees of Joyce’s 2010

estate plan. In their will contest claim, appellants alleged that Joyce’s 2010 estate

plan is not valid because it was the product of undue influence by Josh and Kim.

       Appellants alleged that the 2010 estate plan did not reflect Joyce’s
       testamentary intent and that Joyce’s true intent — as she expressed to
       all of her children shortly before her death — was for her assets to be
       divided equally among her five children. Appellants alleged that Josh
       and Kim had improperly influenced Joyce to exclude them under her
       2010 estate plan and had impeded Joyce’s efforts to revise her estate
       plan in 2013 to include all five children. Appellants further alleged that
       after Joyce’s death, Kim and Josh took various actions to benefit
       themselves to the detriment of appellants and Joyce’s estate, including
       converting Joyce’s personal property to themselves, locking appellants
       out of their mother’s homes and failing to use the life insurance
       proceeds to pay estate taxes. Appellants sought (1) a declaratory
       judgment that the 2010 will and trust be set aside as void due to
       appellees’ self-dealing and/or exertion of undue influence over Joyce,
       (2) removal of Josh and Kim as co-executors and co-trustees due to
       their alleged breaches of fiduciary duty, (3) recovery of their attorney
       fees and costs and (4) “any other relief that the Court deems just and
       proper.”

Id. at ¶ 34.

               The will contest and removal claims were bifurcated on December 9,

2015. In bifurcating appellants’ claims, the trial court determined that the only

issues relevant to appellants’ will contest claim were (1) Joyce’s mental condition in
December 2010 when she executed the 2010 estate plan, and (2) whether Joyce’s

2010 estate plan was executed as a result of undue influence. The trial court held

that appellants’ removal claim would fail for lack of standing unless appellants

prevailed on their will contest claim, demonstrating that they were interested parties

to Joyce’s estate.

             On April 28, 2016, appellees filed a motion for partial summary

judgment on appellants’ will contest claim. Therein, appellees argued that they were

entitled to judgment as a matter of law because Joyce did not lack testamentary

capacity at the time she executed the 2010 estate plan, and that the 2010 estate plan

was not the product of undue influence exercised by Josh or Kim.

             Appellants filed a brief in opposition, arguing that the “full evidentiary

record” shows that at the time Joyce executed her 2010 estate plan, Josh and Kim

had a confidential relationship with Joyce and exercised undue influence “to skew

her true estate wishes in their favor.” Young v. Kaufman I, 2017-Ohio-9015, 101

N.E.3d 655, at ¶ 38.      Appellants argued that Josh’s and Kim’s confidential

relationship with Joyce gave rise to a presumption of undue influence. Finally,

appellants asserted that “genuine issues of material fact existed regarding Joyce’s

‘true wishes’ with respect to her 2010 estate plan, her susceptibility to undue

influence and whether, in fact, she was unduly influenced.” Id. Regarding the “full

evidentiary record” at the summary judgment stage, and the evidence upon which

appellants opposed appellees’ summary judgment motion on the will contest claim,

appellants submitted the following:
       excerpts of the depositions of Lori, Jim, Josh, Kim, Gariepy, Gross,
       Oscar and Baptiste, copies of the 1993 estate plan, the 1999 and 2000
       modifications to the 1993 estate plan and the 2010 estate plan, portions
       of Joyce’s cell phone records, copies of Hahn Loeser’s billing records,
       copies of documents relating to various promissory notes, portions of
       Gariepy’s notes, Gross’ February 10, 2009 memorandum, Gariepy’s
       communications with the Kaufman family relating to Joyce’s estate
       plan and Josh’s responses in 2010 and 2011, a KeyBank power-of-
       attorney designation and payable-on-death designation in favor of Kim
       dated November 25, 2010, email communications among Hahn Loeser
       attorneys regarding Joyce’s estate planning work from 2010, an
       affidavit from attorney Leslie Vargo, Lori’s counsel, authenticating
       certain documents and an affidavit and expert report from attorney
       Michael Murman, addressing the conduct of Joyce’s attorneys, her
       attorneys’ alleged conflicts of interest and Joyce’s alleged susceptibility
       to undue influence by her attorneys.

Id. at ¶ 38, fn. 10.

               On June 24, 2016, the trial court granted appellees’ motion for partial

summary judgment on the will contest claim. The trial court concluded,

       appellants had failed to present any evidence establishing that Joyce
       was susceptible to undue influence at the time she executed the 2010
       estate plan, that there was no evidence of any connection between
       Kim’s actions and the 2010 estate plan and that the case law did not
       support a finding that Josh was in a confidential relationship with
       Joyce so as to give rise to a presumption of undue influence. The [trial]
       court further found that undisputed evidence established that Joyce’s
       2010 estate plan reflected her “consistent stated objectives over a
       period of time,” that there was no evidence that Josh or Kim exerted
       any influence over Joyce that made her exclude Jim and Lori from her
       estate plan and that there were no genuine issues of material fact as to
       Joyce’s testamentary capacity at the time she executed her 2010 estate
       plan.

Id. at ¶ 39. Appellants filed a motion for reconsideration that the trial court denied.

               Appellees filed a motion for summary judgment on the remaining

removal claim in July 2016. Therein, appellees argued that based on the trial court’s

judgment in favor of appellees on appellants’ will contest claim, appellants failed to
establish that they were beneficiaries of the 2010 estate plan, and as a result,

appellants lacked standing to pursue their removal claim. Appellees also asserted

that appellants failed to present any evidence of any self-dealing or that appellees

breached a fiduciary duty.

              Appellants filed a brief in opposition to appellees’ summary judgment

motion on the removal claim. Appellants argued an oral trust was created at the

July 2013 family meeting, during which Joyce purportedly advised the five children

that she wanted them to share her estate assets equally. Appellants maintained that

they did, in fact, have standing to pursue the removal claim based on the oral trust.

Appellants attached the following evidence to their brief in opposition: (1) an

affidavit from Jim, detailing the events leading up to the July 2013 family meeting

and the steps taken by Joyce in 2013 to revise her estate plan, and (2) several emails

relating to Joyce’s intent to revise her estate plan in 2013, allowing Jim and Lori to

share in her estate.

              On January 5, 2017, the trial court granted appellees’ motion for

summary judgment on the removal claim, rejecting appellants’ assertion that they

had standing to pursue their removal claim on the basis of their “newly created oral

trust theory[.]” Young v. Kaufman I, 2017-Ohio-9015, 101 N.E.3d 655, at ¶ 42. In

granting appellees’ motion, the trial court explained,

      (1) appellants had failed to plead the existence of an oral trust or that
      they were beneficiaries of Joyce’s estate by virtue of an oral trust in
      their complaint, (2) had made no argument, when opposing summary
      judgment on the [will] contest claim, that the 2010 estate plan was
      invalid due to the creation of a subsequent oral trust and the probate
      court had already determined, in granting appellees’ motion for
      summary judgment on the contest claim, that the 2010 will and trust
      were valid and (3) could not establish the existence of an oral trust
      based on the applicable law.

Id.

              Appellants filed appeals challenging the trial court’s summary

judgment rulings in favor of appellees, which this court consolidated for purposes of

disposition. On appeal, this court acknowledged that based on the evidence in the

record, there is no indication that Joyce had any diminished mental or physical

capacity, nor any significant health issues when she executed the 2010 estate plan

in December. This court explained, “[t]he evidence presented by both parties

showed that as of December 2010, Joyce was in good health, astute, intelligent,

independent and took care of her own needs. Although Joyce retained various

advisors to assist her with financial, legal and business matters, the record reflects

that she generally made her own decisions.” Id. at ¶ 54.

              On appeal, appellants argued that Josh and Kim had a confidential or

fiduciary relationship with Joyce that gave rise to a presumption of undue influence.

This court rejected appellants’ argument as it pertained to Kim. Id. at ¶ 61-62.

However, this court found merit to appellants’ argument as it pertained to Josh.

This court explained,

      [b]ased on Josh’s role as intermediary and spokesperson for his mother
      with respect to her 2010 estate plan, we believe reasonable minds could
      disagree as to whether Josh had a confidential relationship with Joyce
      that would entitle appellants to a presumption of undue influence by
      Josh. Although there is evidence in the record upon which this
      presumption could potentially be rebutted, we find that genuine issues
      of fact exist with respect to whether Josh’s relationship with Joyce was
      free of undue influence and whether Joyce acted voluntarily, with full
      knowledge and understanding of her actions and their consequences,
      in executing her 2010 estate plan. Accordingly, the probate court erred
      by not affording appellants the opportunity to litigate the presumption
      of undue influence in granting summary judgment on the contest
      claim.

Id. at ¶ 64, citing Sigler v. Burk, 3d Dist. Crawford No. 3-16-19, 2017-Ohio-5486,

¶ 86-90.

              This court concluded that the trial court erred in granting summary

judgment in favor of appellees on appellants’ will contest claim because a genuine

issue of material fact existed as to the validity of Joyce’s 2010 estate plan. Young v.

Kaufman I, 2017-Ohio-9015, 101 N.E.3d 655, at ¶ 65. Because summary judgment

was improper on the will contest claim, this court also held that the trial court erred

in granting appellees’ motion for summary judgment on the removal claim because

a genuine issue of material fact existed as to whether appellants have standing. Id.

This court reversed the trial court’s judgment granting summary judgment in favor

of appellees and remanded the matter to the trial court “for further proceedings

consistent with this opinion.” Id. at ¶ 66.

              Appellees filed an appeal to the Ohio Supreme Court challenging this

court’s judgment. Young v. Kaufman, 152 Ohio St.3d 1465, 2018-Ohio-1795, 97

N.E.3d 501. In May 2018, the Ohio Supreme Court declined to accept the matter for

review.

              The matter was returned to the trial court’s docket on May 30, 2018,

and pretrial proceedings resumed. Appellants filed a “submission concerning legal
and factual issues to be addressed at will contest trial” on September 25, 2018.

Therein, appellants asserted that this court’s opinion in Young v. Kaufman I

provided “a roadmap of the legal and factual issues to be addressed at trial.”

Appellants specifically referenced evidence pertaining to 2013 after Joyce was

diagnosed with cancer, including (1) the July 2013 family meeting during which

Joyce met with all five children and (2) Jim’s testimony that Joyce indicated she

wanted her estate to be divided equally among all five children. Appellants indicated

that they “are prepared to stipulate to all of the facts” set forth in this court’s opinion.

                 Appellees did not enter a pretrial stipulation to the evidence, including

the evidence pertaining to Joyce’s statements in 2013, that appellants sought to

introduce at trial. Rather, in response to appellants’ September 25, 2018 brief, the

parties filed motions in limine regarding evidence in anticipation of trial and Joyce’s

purported statements in 2013.

                 Appellants filed motions in limine to (1) “admit testimony as to the

intent of [Joyce] regarding her estate plan”; (2) “preclude authentication of

documents obtained by defendant’s attorney from Kim Kaufman’s house”; (3) “to

preclude testimony regarding [Joyce’s] intent and knowledge from attorney Stephen

H[.] Gariepy”; and (4) “admit admissions against interest against [Josh].”

Regarding Josh’s purported admissions, appellants alleged that Josh admitted to

attorneys Gariepy and Gary Zwick,2 in 2013 and 2014, that Joyce wanted all five




       2   Zwick represented co-executors Josh, Kim, and Doug.
children to inherit equally. See appellants’ brief in opposition to appellees’ motion

for summary judgment on the removal claim, filed September 2, 2016.

               Appellees filed motions in limine to (1) exclude the expert report and

testimony of appellants’ expert witness in the field of legal ethics;3 (2) “exclude

evidence after February 1, 2011”; and (3) “exclude evidence of an alleged oral trust.”

In opposing appellees’ motion in limine to exclude evidence after February 1, 2011,

appellants argued that the trial court would be disregarding this court’s judgment in

Young v. Kaufman I by excluding the evidence.

               The trial court granted appellees’ motion to exclude evidence after

February 1, 2011, in part. The trial court precluded appellants from presenting

arguments or evidence at trial regarding statements and activities in 2013 related to

Joyce’s 2010 estate plan. The trial court determined that appellants would be

precluded from presenting arguments or evidence occurring after December 10,

2010, unless the evidence is directly related to (1) whether Josh was in a confidential

or fiduciary relationship with Joyce, and (2) whether Joyce’s 2010 estate plan was

the product of undue influence. The trial court determined that “although evidence

of activity in 2013 is not relevant and not admissible at trial,” February 1, 2011, was

an arbitrary cutoff date. The court concluded that it would not use a specific cutoff

date; rather, it would limit admissibility of evidence pertaining to events that

occurred after December 10, 2010, when Joyce executed the 2010 estate plan, to



       3 In addition to the will contest action, appellants filed a legal malpractice action
against the attorneys that handled Joyce’s estate planning.
evidence that was directly relevant to (1) whether Josh was in fiduciary relationship

with Joyce and (2) whether Joyce’s 2010 estate plan was the product of undue

influence.

              The trial court granted appellees’ motion to “exclude evidence of an

alleged oral trust” in which appellees sought to preclude appellants from arguing or

eliciting testimony that Joyce created an oral trust in 2013. The trial court denied

appellants’ motion to preclude testimony from attorney Stephen Gariepy regarding

Joyce’s intent and knowledge.

              Appellants filed a motion for reconsideration on the trial court’s

rulings on the motions in limine. The trial court heard oral arguments from the

parties on appellants’ motion for reconsideration on January 28, 2019.

              Regarding appellees’ motion in limine to exclude evidence after

February 1, 2011, the trial court opined that the evidence appellants sought to

introduce merely suggested that Joyce had a different state of mind in 2013 than she

did when she executed her 2010 estate plan. The trial court determined that it was

not going to open the door and permit appellants to introduce evidence from 2013

without limit. The trial court explained that the relevant time period was 2010, and

Joyce’s intent when she executed the 2010 estate plan on December 10, 2010, and

that references to 2013 could confuse the jury.

              The trial court denied appellants’ motion for reconsideration as it

pertained to all of the evidentiary rulings, with the exception of the testimony of

appellants’ expert witness. The trial court determined that if appellants could
demonstrate that the witness was an expert in the area of probate practice, the

expert would be permitted to testify regarding whether a breach of duty occurred

and whether the breach resulted in the exercise of undue influence on Joyce.

              On January 28, 2019, trial commenced on the will contest claim. At

the beginning of trial, the trial court indicated that it was willing to reconsider the

rulings on the motions in limine. (Tr. 20.) Appellants called nine witnesses at trial,

including Jim, Doug, and Josh.

              Jim testified at trial that Josh “was a challenge our whole lives.” He

explained that Josh got kicked out of one or two schools and got in trouble with the

police. Jim asserted that Joyce never discussed her estate planning with him. Jim

had one conversation with his parents about estate planning that he initiated, to get

guidance when his three children were born.

              Doug testified at trial about Joyce’s relationship with Josh:

      [I]t was always a very troubling relationship.

      With Josh it was — Josh was always doing something wrong. I don’t
      have a relationship with Josh, and I haven’t had a relationship with
      Josh in a very long time.

      My mom — Josh was my mom’s errand boy for a very long time. Josh
      did a lot of things that were very dishonest in the business, in his
      personal life, and it was obviously very troubling to my mom, as it
      would be in any family, as it would be to me or anybody else who is a
      parent.

(Tr. 325.)

              Joyce voiced these concerns about Josh to Doug on a regular basis.

Doug explained, “my mom knew that [Josh] couldn’t solve things.” (Tr. 325.) Doug
testified that Joyce never relied on Josh for important tasks, such as estate planning.

Doug asserted that he did not discuss Joyce’s estate planning with her in 2009.

              The testimony of appellants’ witnesses demonstrated that (1) Joyce

did not have trust or confidence in Josh, and she would not have relied on Josh to

handle important matters. The evidence demonstrated that Joyce only trusted Josh

to handle routine tasks such as running errands. Appellants’ evidence established

that Joyce was not susceptible to undue influence and Josh did not exercise undue

influence over Joyce. Finally, the evidence showed that Joyce communicated with

business advisors, accountants, and attorneys throughout the estate planning

process, and Joyce’s communications about her intent to these third party advisors

were consistent with the 2010 estate plan.

              At the end of appellants’ case-in-chief, appellants’ trial counsel

attempted to proffer evidence regarding facts and circumstances after February 1,

2011, that had previously been excluded by the trial court. Appellants’ counsel

sought to proffer the following evidence: (1) David Stith’s opinion testimony about

whether Joyce would have signed the 2010 estate plan;4 (2) Kim’s testimony

regarding Joyce’s statements about wanting to find Lori a house in Florida and how

the house would be funded; (3) Doug’s testimony about Joyce’s statements during

the family meeting in July 2013; (4) Lori’s testimony regarding Joyce’s statements

in May or June 2013 about the vacation home in Florida and Joyce’s statements



      4 Stith, Joyce’s business advisor, met with Joyce in January 2009 to discuss Joyce’s

objectives for her new estate plan. See Young v. Kaufman I at ¶ 10.
during the family meeting in July 2013; (5) Jim’s testimony about Joyce’s

statements during the family meeting; (6) Larry Oscar’s testimony about a 2013

email in which Josh purportedly admitted that all five of Joyce’s children were

supposed to inherit equally;5 and (7) Gariepy’s testimony about Josh’s purported

admission that all five children were supposed to inherit equally. Appellants’ trial

counsel asserted that Doug, Lori, and Jim would have testified to facts and

circumstances after February 1, 2011, pertaining to the July 2013 family meeting

where Joyce purportedly said she wanted her children to share everything equally.

              Appellees’ counsel objected to the evidence that appellants’ counsel

sought to present. The trial court excluded the evidence pertaining to Joyce’s 2013

statements. Thereafter, appellees moved for a directed verdict on the will contest

claim.

              The trial court granted appellees’ motion for a directed verdict on the

will contest claim. The trial court explained that the fact that Joyce may have had a

change of heart, or the fact that Josh may have admitted, after Joyce became sick in

2013, that she actually wanted the five children to share everything equally, “has

absolutely nothing to do with what went on in 2009 and 2010.” (Tr. 16, directed

verdict hearing.)

              The trial court’s February 1, 2019 judgment entry granting appellees’

motion for a directed verdict on the will contest claim provides, in relevant part,



         5
        Oscar is an attorney that attended the January 2009 meeting where Joyce
discussed her objectives for hew new estate plan. See Young v. Kaufman I at ¶ 10.
      The Court finds that even if reasonable minds could differ as to whether
      [appellants’ evidence was] sufficient to establish a “confidential
      relationship” and even if this Court assumes that the relationship is
      established thereby raising a presumption of undue influence, the
      Plaintiffs set forth no evidence by which the jury could find that undue
      influence actually occurred. * * *

      The Court finds that Plaintiffs offered no evidence indicating that Joyce
      Kaufman was susceptible to undue influence and finds that the
      evidence presented by Plaintiffs showed that in fact she was not
      susceptible.

      The Court further finds that Plaintiffs offered no evidence that
      improper influence was exerted or attempted. The testimony and
      exhibits presented by the Plaintiffs made clear that Joyce was meeting
      with, and communicating with, her business advisor, her accountant
      and her attorneys throughout her estate planning process. None of
      these people testified that Josh was in any way influencing Joyce in her
      estate planning.

      Finally, Plaintiffs offered no evidence that there was a result showing
      the effect of undue influence. The evidence presented by Plaintiffs
      shows that in 2009, with no involvement by Josh, Joyce instructed her
      estate planning attorney to draft a plan that excluded Plaintiffs from
      her Will and Trust. The evidence showed that Joyce’s plan was
      consistent with her prior estate planning done in 2000 with regard to
      the exclusion of Plaintiff Jim Kaufman as beneficiary. The evidence
      showed that the 2010 estate plan was consistent with her stated
      intentions in 2009.

      Even assuming that there was a presumption of undue influence for
      Defendants to rebut, there was no evidence of undue influence for
      Defendants to rebut. Plaintiffs’ own case made clear that Joyce was
      capable of making her intentions known, that she did so consistently
      and with the guidance and advice of her long trusted business advisor,
      her accountant, and her attorneys.

      The Court finds that after construing the evidence most strongly in
      favor of Plaintiffs there is no evidence upon which reasonable minds
      could find that the essential elements of undue influence were met.

              On February 4, 2019, appellants filed a motion in this court to show

cause as to why the trial judge should not be held in contempt for failing to comply
with this court’s judgment in Young v. Kaufman I. This court denied appellants’

motion to show cause on February 6, 2019, for lack of jurisdiction.

              Appellants filed a motion for a new trial on February 26, 2019.

Therein, appellants argued that by precluding appellants from presenting evidence

of Joyce’s statements in 2013, the trial court “prohibited [appellants] from offering

evidence that was considered by [this court in Young v. Kaufman I].” Furthermore,

appellants argued that the trial court’s evidentiary rulings were “hardly consistent

with [Young v. Kaufman I’s] mandate.” Appellants did not argue that the trial court

erred in limiting or excluding Doug’s testimony in their new trial motion. The trial

court denied appellants’ motion for a new trial.

              On June 20, 2019, the trial court entered judgment in favor of

appellees on appellants’ removal claim. The trial court’s June 20, 2019 judgment

entry provides, in relevant part, “the Court again finds that Plaintiffs lack standing

to pursue the removal claims because they failed to prove their claims that the 2010

estate plan was invalid. Defendants are entitled to judgment on the removal claims.”

              Appellants filed the instant appeal on June 25, 2019, challenging the

trial court’s June 20, 2019 judgment. Appellants assign one error for review:

      I. Whether the trial court erred on remand by excluding evidence that
      this Court of Appeals previously held created a genuine issue of
      material fact as to whether the decedent’s estate plan was the result of
      undue influence, and then entering a directed verdict based on the
      absence of that evidence.
                                II. Law and Analysis

                                 A. Scope of Appeal

              In their sole assignment of error, appellants argue that the trial court

erred by “excluding evidence that [this court] previously held created a genuine issue

of material fact as to whether [Joyce’s] estate plan was the result of undue influence,

and then entering a directed verdict based on the absence of that evidence.”

Appellants’ brief at 1. Although appellants reference the trial court’s judgment

granting a directed verdict in favor of appellees, it is evident that appellants are

primarily challenging the trial court’s evidentiary rulings — particularly the trial

court’s decision to exclude the statements Joyce purportedly made in 2013.

              Accordingly, the scope of this appeal will focus on the trial court’s

evidentiary rulings, rather than the trial court’s judgment granting a directed verdict

in favor of appellees on the will contest claim and subsequent dismissal of the

removal claim for lack of standing.

                               B. Evidentiary Rulings

                                 1. Evidence at Issue

              In this appeal, appellants argue that the trial court erred by

prohibiting Jim’s testimony about the following statements that Joyce purportedly

made to him in May 2013: (1) that the 2010 estate plan was a “sin,” (2) that

“everything was supposed to be equal,” and (3) that Joyce had been under “intense”

pressure from Josh when she executed the 2010 estate plan.
              Appellants further argue that the trial court erred by limiting Doug’s

testimony. Specifically, appellants contend that the trial court erred by prohibiting

Doug from testifying about (1) events that occurred after December 2010,

(2) statements Joyce made to him about her 2010 estate plan, (3) whether Joyce’s

2010 estate plan was consistent with what Joyce told Doug about her intentions, and

(4) whether Doug believed Josh had unduly influenced Joyce with respect to the

2010 estate plan. In their reply brief, appellants acknowledged that Doug testified

for the first time at trial. Appellants did not present Doug’s testimony at the

summary judgment stage of the proceedings.

              Finally, the trial court prohibited appellants from introducing Joyce’s

alleged statements, made during the July 2013 family meeting, that she wanted

them to get along, she wanted her estate to be divided equally among the five

children, and she wanted the proceeds of her life insurance policy to pay estate taxes.

                               2. Standard of Review

              “Whether specific evidence will be admitted is a matter left to the

considerable, but not unlimited, discretion of the trial court.” State v. Morris, 132

Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 19. This court will not reverse

a trial court’s decision to admit or exclude evidence absent an abuse of that

discretion.

              A trial court’s determination regarding the relevance of any evidence

is also reviewed for an abuse of discretion. State v. Allen, 73 Ohio St.3d 626, 633,

653 N.E.2d 675 (1995). Absent an abuse of discretion that affects the substantial
rights of the adverse party or is inconsistent with substantial justice, this court will

uphold a trial court’s evidentiary decision. Beard v. Meridia Huron Hosp., 106 Ohio

St.3d 237, 2005-Ohio-4787, 834 N.E.2d 323, ¶ 20.

                                3. Young v. Kaufman

              As an initial matter, we address appellants’ argument that the trial

court was required to admit the 2013 evidence based on this court’s holding in

Young v. Kaufman I, 2017-Ohio-9015, 101 N.E.3d 655. As noted above, this court

held that genuine issues of material fact existed regarding (1) whether Josh had a

confidential relationship with Joyce that would give rise to a presumption of undue

influence by Josh, and (2) whether Josh’s relationship with Joyce was free of undue

influence. Id. at ¶ 64.

               In this appeal, appellants appear to argue that because this court

concluded that genuine issues of material fact existed on the issue of undue

influence that precluded the grant of summary judgment, the trial court was

required to admit all of the evidence on remand in adjudicating the will contest and

removal claims. Appellants’ argument is misplaced.

              Regarding the “full evidentiary record” upon which appellants relied

in opposing appellees’ motion for summary judgment on the will contest claim, and

the record that was before this court in Young v. Kaufman I, appellees did not

challenge the admissibility of any of the evidence appellants submitted in opposing

appellees’ summary judgment motion. As a result, the trial court did not consider

the admissibility of this evidence in ruling on the summary judgment motions.
Because the issue was not raised below or on appeal from the trial court’s summary

judgment rulings, this court also did not consider the admissibility of any evidence

in reversing the trial court’s summary judgment rulings — much less order the trial

court on remand to admit “the full evidentiary record” into evidence at trial.

              Contrary to appellants’ assertions, this court made no determination

regarding the admissibility of any evidence, nor did this court order the trial court

to admit any evidence on remand. This court’s decision was issued in a summary

judgment context under Civ.R. 56, and applying a de novo standard of review. In

the 2017 appeal, the sole issue before this court was whether appellants had

presented enough evidence at that time to raise a genuine issue of material fact on

the will contest or removal claims. This court held that based on the evidence that

had been presented at the summary judgment stage, the matter should be remanded

to litigate the undue influence issue as it pertained to appellants’ will contest claim.

              The rules governing the admissibility of evidence are entirely different

from the summary judgment standard under Civ.R. 56. Unlike summary judgment

rulings that we review de novo, this court reviews evidentiary rulings for an abuse of

discretion.

              For all of these reasons, we overrule appellants’ assignment of error to

the extent that appellants contend that the trial court was required to admit all of

the evidence that had been submitted by the parties with respect to the summary

judgment motions based on this court’s holding in Young v. Kaufman I.
                                      4. Hearsay

              Appellants argue that the aforementioned evidence — Jim’s testimony

about Joyce’s statements in 2013 and Doug’s testimony — is admissible under the

hearsay exception set forth in Evid.R. 803(3) for “[t]hen existing, mental, emotional,

or physical condition.”

              Hearsay is defined as “a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in evidence to prove the

truth of the matter asserted.” Evid.R. 801(C). “Pursuant to Evid.R. 802, hearsay is

inadmissible unless it falls within an exception provided by the rules of evidence.”

State v. Wright, 8th Dist. Cuyahoga No. 100803, 2014-Ohio-5424, ¶ 32.

              Evid.R. 803(3) provides an exception to the hearsay rule for “[a]

statement of the declarant’s then existing state of mind, emotion, sensation, or

physical condition.” Evid.R. 803(3) provides that the following is not excluded by

the rule against hearsay, regardless of whether the declarant is available as a

witness:

      A statement of the declarant’s then existing state of mind, emotion,
      sensation, or physical condition (such as intent, plan, motive, design,
      mental feeling, pain, and bodily health), but not including a statement
      of memory or belief to prove the fact remembered or believed unless it
      relates to the execution, revocation, identification, or terms of
      declarant’s will.

              “The state of mind exception under Evid.R. 803(3) ‘does not include

statements of belief of past events by declarant. To include statements of belief

about a past event would negate the entire proscription against hearsay evidence.’”
State v. Thomas, 8th Dist. Cuyahoga No. 106194, 2018-Ohio-2841, ¶ 30, quoting

1980 Staff Notes, Evid.R. 803(3).

             The testimony sought to be introduced under Evid.R. 803(3) “must

point towards the future rather than the past. When the state of mind is relevant it

may be proved by contemporaneous declarations of feeling or intent.” State v.

Apanovitch, 33 Ohio St.3d 19, 21-22, 514 N.E.2d 394 (1987), citing Shepard v.

United States, 290 U.S. 96, 54 S.Ct. 22, 78 L.Ed. 196 (1933).

      These precepts of caution are a guide to judgment here. There are times
      when a state of mind, if relevant, may be proved by contemporaneous
      declarations of feeling or intent. Mutual Life Ins. Co. v. Hillmon, 145
      U.S. 285, 295[, 12 S.Ct. 909, 36 L.Ed. 706 (1892)]; Shailer v. Bumstead,
      99 Mass. 112 [(1868)]; Wigmore, §§ 1725, 1726, 1730. Thus, in
      proceedings for the probate of a will, where the issue is undue
      influence, the declarations of a testator are competent to prove his
      feelings for his relatives, but are incompetent as evidence of his conduct
      or of theirs. Throckmorton v. Holt, 180 U.S. 552, 571[-573, 21 S.Ct. 474,
      45 L.Ed. 663 (1901)]; Waterman v. Whitney, 11 N.Y. 157 [(1854)];
      Matter of Kennedy, 167 N.Y. 163, 172[,] 60 N.E. 442 [(1901)].

Shepard at 104-105.

              In support of their argument that the trial court erred by excluding the

aforementioned evidence, appellants direct this court to the 2006 Staff Notes to

Evid.R. 803(3), which provide, in relevant part,

      the [then existing mental, emotional, or physical condition] exception
      does not include statements of belief of past events by declarant. To
      include statements of belief about a past event would negate the entire
      proscription against hearsay evidence.

      In one instance, statements of belief by declarant are rendered
      admissible under this exception. Where the statement is by a testator
      concerning the execution, revocation, identification or terms of a will,
      such statement though constituting a belief about a past event is
      admissible. The declaration in this specific instance is highly
      trustworthy since it relates so closely to the testator-declarant’s affairs,
      and the general prohibition against statements of belief about past
      events is unnecessary.

              Appellants further direct this court to Ament v. Reassure Am. Life Ins.

Co., 180 Ohio App.3d 440, 2009-Ohio-36, 905 N.E.2d 1246 (8th Dist.), for the

proposition that Joyce’s statements are admissible to determine whether the 2010

estate plan reflects Joyce’s wishes or was the result of undue influence.

               In Ament, the plaintiff-appellant, as trustee of a trust agreement

between him and his deceased wife, sued his wife’s younger sister, Young Hee Shin

Kim (“Young Hee”). Id. at ¶ 1. Appellant alleged that Young Hee and his cousin had

caused the decedent, through undue influence, fraudulent concealment, and

fraudulent inducement, to change the beneficiary designation on a $500,000 life

insurance policy from appellant, as trustee, to Young Hee.

              Appellant filed a pretrial motion in limine to exclude hearsay

statements decedent made to any witnesses who would testify at trial. The trial court

denied the motion.

              On appeal, appellant argued that the trial court erred in denying his

motion in limine and permitting decedent’s insurance agent and appellant’s cousin

to testify regarding what decedent told them. First, appellant objected to appellant’s

cousin’s testimony that decedent told her in or around August 2004, following a

meeting with an estate attorney, during which the structure of decedent’s estate plan

was discussed, that decedent intended to grant the proceeds of one insurance policy

to her sister, and the other policies, plus the balance of her estate, to her appellant-
husband. This court found that the cousin’s testimony was admissible under

Evid.R. 803(3) as a statement of decedent’s intent in granting the proceeds of one

insurance policy to her sister. Ament, 180 Ohio App.3d 440, 2009-Ohio-36, 905

N.E.2d 1246, at ¶ 27.

              Second, appellant objected to the admission of decedent’s statement

in or around July 2005 to her insurance agent explaining why she designated Young

Hee, and not her other sister, as beneficiary of one of the insurance policies. The

insurance agent testified that in June 2005, decedent called her and told her that

she wanted to change the beneficiary on her life insurance policy. The agency sent

the form to decedent on July 1, 2005; decedent completed and returned the form on

July 4, 2005. Shortly after decedent completed and returned the form, decedent

told the agent that the new beneficiary on the policy was her sister, Young Hee.

Decedent told her that Young Hee did not have a husband, house, or money like the

other sister. In September 2005, decedent gave Young Hee an envelope that

contained the change of beneficiary form. On appeal, this court held that the trial

court did not err in admitting this statement because it was admissible under

Evid.R. 803(3) to explain decedent’s motive in designating Young Hee, and not her

other sister, as beneficiary, as it constitutes an exception under Evid.R. 803 to the

hearsay rule. Id. at ¶ 29. Decedent’s statement was made shortly after decedent

completed the change of beneficiary form.

              After reviewing the record, we find this case to be distinguishable from

Ament. In Ament, the decedent’s statements that appellant challenged on appeal
constituted decedent’s then existing state of mind: her intent in granting the

proceeds of a life insurance policy to her sister, and her motive in designating her

younger sister as beneficiary. These statements were made at the time decedent

granted the life insurance proceeds to her sister in August 2004, and at the time

decedent changed the beneficiary of her life insurance policy in July 2005.

                 In this case, Joyce’s statements in 2013 were not made at or around

the time Joyce executed her estate plan in December 2010. Nor did appellants

attempt to introduce Joyce’s 2013 statements to demonstrate Joyce’s then existing

(i.e., at the time she executed the 2010 estate plan) state of mind — her intent or

motive — in excluding appellants as beneficiaries.

          In order to use Evid.R. 803(3) to admit hearsay testimony, the
          statement must refer to a present condition, not a past condition, i.e.
          “I am afraid of X.” McGrew v. Popham, 5th Dist. [Licking] No. 05 CA
          129, 2007-Ohio-428, ¶ 28, citing Apanovitch, 33 Ohio St.3d 19, 514
          N.E.2d 394. Additionally, Evid.R. 803(3) does not permit testimony
          regarding the declarant’s statements as to why he or she held a
          particular state of mind. State v. Stewart, 75 Ohio App.3d 141, 152, 598
          N.E.2d 1275 (11th Dist.1991), citing Apanovitch[at 21].

(Emphasis added.) Brown v. Ralston, 2016-Ohio-4916, 67 N.E.3d 15, ¶ 42 (7th

Dist.).

                 Here, to the extent that appellants sought to present Joyce’s 2013

statement as evidence that the 2010 estate plan was the result of undue influence,

the 2013 statement is not “I am under intense pressure from Josh.” Rather, the 2013

statement is Joyce was under intense pressure from Josh when she executed her
estate plan in 2010. Therefore, the hearsay testimony refers to a past condition, not

a present condition.

               Furthermore, Jim’s testimony about his May 2013 conversation with

Joyce and Joyce’s statement that she needed to meet with Steve Gariepy,6 and

Joyce’s statement to Gariepy in April 2013 that she wanted to revise her estate plan

so that all five children would share equally in her estate is inadmissible because it

constitutes a statement as to why Joyce held a particular state of mind (purportedly

wanting to revise her estate plan).

      Several courts have found a decedent’s statements regarding a party’s
      future inheritance to be admissible under Evid.R. 803(3) as reflecting
      the decedent’s then-existing state of mind and intent for the future.
      See, e.g., [Knowlton v. Schultz, 179 Ohio App.3d 497, 2008-Ohio-5984,
      902 N.E.2d 548, ¶ 39 (1st Dist.)] (involving a decedent’s statement to
      his daughter that she would receive income from a trust after his
      death); McGrew [at] ¶ 30 (involving a decedent’s statement regarding
      her intent that property be transferred to certain individuals upon her
      death); Brown [at ¶ 48] (involving a decedent’s statements regarding
      his intent to transfer property to his granddaughter upon his death);
      Ament[, 180 Ohio App.3d 440, 2009-Ohio-36, 905 N.E.2d 1246,] at
      ¶ 29 (involving a decedent’s statements of intent to grant proceeds of
      insurance policies to certain family members).

(Emphasis added.) Pirock v. Cain, 11th Dist. Trumbull No. 2019-T-0027, 2020-

Ohio-869, ¶ 86. Here, Joyce’s 2013 statements are not relevant to the validity of the

2010 estate plan, nor do Joyce’s 2013 statements pertain to her then-existing state

of mind and intent for future inheritance. Joyce’s 2013 statements do not relate to

the future, they relate to the past.



      6 Gariepy is the attorney Joyce began working with in the summer of 2010 on her
new estate plan. See Young v. Kaufman I at ¶ 13.
              For all of these reasons, Joyce’s 2013 statements do not fall within the

exception to the hearsay rule under Evid.R. 803(3). In challenging Joyce’s 2010

estate plan, appellants attempted to present Joyce’s 2013 statements regarding her

intent to divide her assets equally among the five children and Joyce’s feeling that

she was under intense pressure from Josh. Appellants sought to introduce these

statements as evidence of Joyce’s intent, motive, or feeling in the past, at the time

she executed the 2010 estate plan. The 2013 statements refer to a past condition,

state of mind, or mental feeling and do not reflect Joyce’s then existing state of mind

in 2010. See McGrew, 5th Dist. Licking No. 05 CA 129, 2007-Ohio-428, at ¶ 30.

Accordingly, Joyce’s 2013 statements were not admissible under Evid.R. 803(3).

              Finally, regarding appellants’ argument that the trial court erred in

limiting Doug’s testimony at trial, Doug testified that he and Joyce talked “all the

time” about Joyce’s stock in the family business. However, Doug testified that he

did not discuss Joyce’s estate planning with her prior to her execution of the 2010

estate plan. As noted above, Doug asserted that Josh was Joyce’s errand boy, he was

dishonest personally and professionally, and Josh’s dishonesty was very troubling

to Joyce. Doug explained that Joyce “knew that [Josh] couldn’t solve things,” and

Doug unequivocally testified that Joyce did not rely on Josh for important tasks like

estate planning.

              The trial court permitted Doug to testify about Joyce’s intentions

regarding her stock in the family company. Doug was confident that he and Joyce
would get to a point where he was controlling the business, and he testified that it

was not Joyce’s intention for her stock in the business to get tied up in her estate.

              When appellants’ counsel attempted to elicit testimony from Doug

regarding what Joyce told him about her estate plan, defense counsel objected on

the basis that the testimony was inadmissible hearsay. The trial court called the

parties to sidebar. Appellants’ counsel argued that Joyce’s statements to Doug about

her estate plan were relevant and admissible under the “present intent” exception to

the hearsay rule. The trial court prohibited Doug from testifying about what Joyce

told him about her estate plan, concluding that Doug testified that Joyce did not

discuss her estate with him, the present intent hearsay exception was inapplicable,

and appellants’ counsel could not elicit testimony speculating about Joyce’s intent

regarding the 2010 estate plan.

              The trial court did not permit Doug to testify about (1) what Joyce told

him regarding her intentions with respect to the 2010 estate plan, (2) whether he

believed the 2010 estate plan expressed Joyce’s intentions, (3) whether he was

convinced that Josh exercised undue influence against Joyce, or (4) whether Josh

or Kim threatened him not to testify against them at trial.

              After review, we find that the trial court did not err or abuse its

discretion in limiting the scope of Doug’s testimony. Just as Jim’s testimony about

Joyce’s statements in 2013 was not admissible under Evid.R. 803(3), Doug’s

testimony about the same — events that occurred after Joyce executed the 2010

estate plan, and the statements Joyce purportedly made to Doug about her 2010
estate plan (i.e., whether Joyce’s 2010 estate plan was consistent with what Joyce

told Doug about her intentions) — was not admissible under the Evid.R. 803(3)

exception to the hearsay rule. The testimony that appellants’ counsel attempted to

elicit from Doug was overly speculative in regard to the timeframe that Joyce

purportedly made the statements, and the context in which the statements were

purportedly made (i.e., in the context of her stock in the family company, her 2010

estate plan, or both).

              Based on the record before this court, we are unable to conclude that

the trial court’s decision to exclude Joyce’s 2013 statements — which appellants

attempted to introduce at trial through the testimony of Jim and Doug — was

unreasonable, arbitrary, or unconscionable. Therefore, appellant’s sole assignment

of error is overruled.

                                    III. Conclusion

              After thoroughly reviewing the record, we affirm the trial court’s

judgment. We find no basis upon which to conclude that the trial court’s decision

to exclude the statements purportedly made by Joyce in 2013 was unreasonable,

arbitrary, or unconscionable, and we cannot find that the trial court’s evidentiary

ruling affected appellants’ substantial rights.

              Judgment affirmed.

      It is ordered that appellees recover from appellants 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.



FRANK D. CELEBREZZE, JR., PRESIDING JUDGE

KATHLEEN ANN KEOUGH, J., and
EILEEN A. GALLAGHER, J., CONCUR
