An appeals court sent a case contesting a 2008 will back to a trial court to determine if a ward under a guardian’s legal care understood what he was doing when he changed his will to add beneficiaries. The appeals court also found that not enough evidence existed to prove others exerted influence to have the will altered.

Michael Hutchison died in 2012. He executed wills in 2006 and 2007 and revised his 2008 will slightly. Hutchison’s mother, Mary Hutchison Barnes – who was not named in any of the wills – and two of Hutchison’s brothers – who were named in the wills – contested the most recent will in Summit County Probate Court. In their challenge, they asserted that the will was invalid because Hutchison lacked “testamentary capacity” and had been “unduly influenced.”

The probate court granted summary judgment against Barnes and her sons. The court found that there was no “genuine issue of material fact” that Hutchison lacked capacity or was influenced. Barnes appealed the trial court’s judgment to the Ninth District Court of Appeals.

The Ninth District agreed with Barnes that the trial court erred in concluding that there was no disagreement over Hutchison’s legal and mental ability to alter his will. On the other hand, the Ninth District disagreed with Barnes on the undue influence claim.

The appeals court found compelling testimony by Barnes and one of the brothers that Hutchison’s attorney and guardian, Ellen Kaforey, told them Hutchison was incompetent.

“A trial court is not permitted to weigh credibility when considering evidentiary material presented in favor of, or in opposition to, summary judgment,” Ninth District Judge Beth Whitmore wrote in the court’s unanimous opinion. “Here, if Kaforey did tell Barnes and Mark that she believed that Michael lacked testamentary capacity, her statement was an admission that would support Barnes’ claim that Michael was not competent to make the 2008 will. Thus, it would constitute evidence that Michael lacked testamentary capacity. The trial court is not entitled to ignore such evidence, even if the court felt that it was contrived or that Kaforey’s testimony was more credible.”

As to Barnes’ second assignment of error, Judge Whitmore noted that a will admitted to probate is presumed to be executed free from restraint and that contestants have the burden to prove undue influence. She concluded that Barnes did not provide any facts or point to any evidence that one of Hutchison’s brothers or Kaforey exerted or attempted to improperly influence Hutchison.

Judges Donna J. Carr and Julie A. Schafer joined Judge Whitmore’s opinion.

Hutchison v. Kaforey, 2016-Ohio-3541
Civil Appeal From: Summit County Probate Court
Judgment Appealed From Is: Reversed in part, affirmed in part
Date of Judgment Entry on Appeal: June 22, 2016

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