IN THE SUPREME COURT OF OHIO
Case No. 2007-08-00 5 v
IN RE: WILLIAM J. SCHEEFF, . On Appeal from thedeceased . Cuyahoga County
Court of Appeals,Eighth Appellate District
Court of Appeals CaseNo. 89846
MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANTI ROSE ALICE SCHEEFF
James G. Dickinson* (0010899)*Counsel ofRecord
Alexander E. Goetsch (0065026)Jessica L. Doinidis (0080893)CAVITCH, FAMILO, DURKIN & FRUTKIN CO., L.P.A.1717 East Ninth Street, 14th FloorCleveland, Ohio 44114Telephone: (216) 621-7860Fax: (216) 621-3415Email: [email protected]
[email protected]@cfdf.com
CounselforAppellantRoseAlice Scheeff
John C. OberholtzerAlicia M. HathcockOberholtzer, Filous & Lesiak39 Public Square, Suite 201P. O. Box 220Medina, Ohio 44256Telephone: (330) 725-4929Fax: (330) 723-4929Email: [email protected]
ahathcockQmedinalaw.comcIERK OF COURr
SUPREME COURT OF OHIO
Counsel forAppellee William J. Scheeff, Jr.
Lauren Feronti-Nash, pro se68 Monroe StreetBerea, Ohio 44017
Heather Scheeff, pro se20197 Lismore CourtStrongsville, Ohio 44149
Justin Scheeff, pro se20197 Lismore CourtStrongsville, Ohio 44149
TABLE OF CONTENTS
Page
TABLE OF CONTENTS .................................................................................................. i
INTRODUCTION ........................................................................................................... 1
STATEMENT OF THE CASE AND FACTS .............................................................. 3
A. Application of the previous law at the administrative and trial levels.... 3
B. Application of the previous law by the appellate court .............................. 4
C. Statement of the Facts . ....................................................................................... 5
THIS CASE IS OF PUBLIC AND GREAT GENERAL INTEREST ...................... 6
A. Review is needed because the decision below applies the incorrectstatute . ................................................................................................................... 7
B. Review is needed because the courts below wrongly held that Appellantfailed to establish the validity of the lost will submitted for probate..... 8
ARGUMENT .................................................................................................................... 9
Appellant, Rose Scheeff Proposition of Law 1 :......................................................... 9
TNhen determining whether to admit a lost will to probate, courts must apply thestatute in effect on the date of testator's death, not the statute in effect on the datetestator executed the will . ....................................................................................... 9
Appellant, Rose Scheeff Proposition of Law 2 :....................................................... 11
A copy of a lost will, executed with all formalities required under R.C. § 2107.03is sufficient to establish the validity of a lost will under R.C. § 2107.26 . ............ 11
CONCLUSION .............................................................................................................. 13
CERTIFICATE OF SERVICE ...................................................................................... 14
EXHIBITS
Judgment Entry of the Cuyahoga County Court of Appeals(November 26, 2007)
Opinion of the Cuyahoga County Court of Appeals (November 26, 2007)
i
INTRODUCTION
This case warrants review on two related issues, as the courts below
(1) incorrectly applied the previous version of R.C. § 2107.26, the Ohio statute
governing the admission of lost wills, rather than the current statute, and
(2) wrongly held that Appellant Rose Alice Scheeff failed to establish the validity
of the lost will submitted for probate. As explained below, these issues need
review because by applying the wrong statute when determining whether to
probate the lost will at issue in this case, the lower courts flouted the legislature's
intent. The courts' mistakes affects not only the balance of power in the state
legal system, but it also potentially affects all Ohioans who may seek relief under
Ohio's lost wills statute.
First, the lower courts failed to differentiate between the previous and
current lost wills statutes and the important changes to the law made by the
legislature. Specifically, these courts applied the law in effect on the date the
decedent executed his will. But a will is ambulatory and speaks from the time of
the testator's death. Thus, the court applied the wrong statute when determining
whether to admit the decedent's will to probate, and that misapplication
warrants review.
The Court also should review whether the Appellant satisfied the
requirements of the current statute regarding the admission of lost wills to
probate. As stated above, the lower courts applied the wrong statute in their
1
analysis of this issue. Specifically, the appellate court held that when a person
has made and executed a will, and upon his or her death the original will cannot
be found, there is a presumption that the decedent revoked it. The court also
held that this presumption applies even if an applicant provides the probate
court with an exact copy of the original will. Finally, the court held that an
applicant can only overcome this presumption by clear and convincing evidence
that the testator did not revoke the will.
But the current version of the lost wills statute disposes with the
requirement that the applicant overcome the presumption of revocation. This
new statute, passed by the Ohio General Assembly in 1999 and effective
October 29, 1999, requires that when an original will is lost, probate courts shall
admit the will to probate if the will's proponent establishes its contents and
execution, with all legal formalities, by clear and convincing evidence. The new
statute does not include a provision requiring the proponent to show that the
will was not revoked. In fact, the new statute transfers the burden to the
opponent of the will's admission to establish by a preponderance of the evidence
that the decedent revoked the will.
In addition to applying the wrong statute, the lower courts analyzed the
facts of this case using only case law applying the pre-1999 statute. Given the
removal of the presumption of revocation from the statutory scheme, these cases
no longer accurately analyze the law. Thus, the appellate court applied incorrect
case law in its analysis of whether the applicant met the statutory requirements
2
to probate the decedent's lost will. Consequently, the Court should review this
case to clarify how the new lost wills statute should be interpreted and applied.
For these and other reasons below, the Court should review this case, it
should remind lower courts that wills are ambulatory and that the law in effect
at the time of decedent's death should apply when determining whether to admit
a lost will to probate, and it should provide guidance to probate courts on the
application of the current lost wills statute.
STATEMENT OF THE CASE AND FACTS
A. Application of the previous law at the administrative and trial
levels.
On January 2, 2007, Rose Alice Scheeff, the widow of the decedent (the
"Appellant"), applied to offer for probate a photocopy of the last will and
testament of William J. Scheeff (the "Decedent"), dated October 17,1978.
Magistrate Perdexter Williams heard the matter on February 1, 2007. During the
hearing, the Appellant submitted a photocopy of the last will and testament of
the Decedent (the "Will"). The Appellant also submitted the death certificates of
two of the witnesses to the Will and discussed the failed search for the third
witness? The Appellant stated that, to her knowledge, the Will was the last will
and testament of the Decedent.2 Moreover, Appellant and her counsel stated
that no other attorney who had been contacted by the Decedent in the ten years
' Report of Magistrate, page 2.
2 Report of Magistrate, page 2.
3
before the Decedent's death had any record of a will executed by the Decedent.3
Soon thereafter, Magistrate Williams issued a Report of Magistrate finding that
Appellant failed to provide the Court with clear and convincing evidence to
prove that the lost will was executed according to the law in force in Ohio in
1978.4
Appellant timely filed an Objection to Report of Magistrate, outlining the
relevant law and correctly applying the law to the facts of this case.5 Judge
Corrigan held a hearing to hear the arguments of the Appellant. On Apri19,
2007, Judge Corrigan overruled the objections of the Appellant and adopted the
Report of Magistrate as the findings and conclusions of the Probate Court.6
Thus, the Application to Probate Lost Will was denied.
B. Application of the previous law by the appellate court.
Upon the trial court's denial of Appellant's application, she timely
appealed to the Eighth District Court of Appeals. In a decision journalized on
November 26, 2007, the Eighth District affirmed the trial court's decision to deny
probate of the lost will,
3 Report of Magistrate, page 2.
4 Report of Magistrate, page 2.
5 Objection to Report of Magistrate, pages 1-4.
6 Judgment Entry.
4
Although the appellate court did not discuss or analyze its application of
the statute in effect on the date the decedent executed the lost will, the appellate
court cited seven cases, none of which applied the post-1999 lost wills statute. In
addition, the appellate court cited the previous version of R.C. § 2107.26.
Ultimately, the court held that the probate court did not abuse its discretion in
determining that Appellant failed to overcome the presumption of revocation.
Appellant now urges this Court to review that decision.
C. Statement of the Facts.
The Decedent died on August 15, 2006, survived by his spouse, the
Appellant, two children, William J. Scheeff and Lauren Ann Feronti-Nash, and
two grandchildren, Justin Scheeff and Heather Scheeff.7
The Appellant found a copy of the Decedent's will in the Decedent's files
after his death.8 To the best of Appellant's knowledge, this copy is the original
will of the Decedent.9 Although the Decedent met with Attorney James
Dickinson to discuss his estate plan approximately ten years before his death, the
Decedent never executed the documents prepared by Attorney Dickinson.10 In
addition, the Decedent met with another attorney at Smith & Smith in Avon
' Report of Magistrate, page 1.
8 Report of Magistrate, page 2.
9 Report of Magistrate, page 2.
lo Report of Magistrate, page 2.
5
Lake, Ohio several years before his death regarding his estate plan but that firm
has no record of the Decedent executing a new will.ll
The Will is signed and dated by the Decedent and witnessed by three
persons who were present at the time of the execution of the Decedent's will,
these being Karen Cottrell, Mark Ondak and Joseph Kreinberg.12 Mr. Kreinberg
is the attorney that drafted the Decedent's will and attested to the signing of the
will by the Decedent.13 Ms. Cottrell and Mr. Ondak also signed as witnesses to
the Decedent's execution of the will14 Mr. Kreinberg died on January 11, 2004
and Mr. Ondak died on November 18,1997.15 The Appellant made a diligent
effort to locate Ms. Cottrell but Ms. Cottrell no longer resides at her former
address and the Appellant was not successful in locating her current status or
address.16
THIS CASE IS OF PUBLIC AND GREAT GENERAL INTEREST
The Court should review this case not only because the decision below
was wrong, but also because the decision implicates the balance of power
" Report of Magistrate, page 2.
12 Report of Magistrate, page 2.
13 Report of Magistrate, page 2.
14 Report of Magistrate, page 2.
15 Report of Magistrate, page 2.
16 Report of Magistrate, page 2.
6
between the branches of state government. The appellate court's opinion
disregards the rule that wills are ambulatory in nature and the law in effect at the
time of the testator's death applies to issues regarding the operation of a will. In
doing so, the court applied the incorrect law and thus opened the door for other
courts to continue to apply an outdated statute that no longer is a viable rule of
law. Further, the Court should review the issue of how to interpret the new lost
wills statute, as the appellate court's opinion thwarts the legislature's intent to
shift the burden from the proponent of a lost will to overcome the presumption
that the will was revoked to the opponent to overcome the presumption that the
will is valid.
A. Review is needed because the decision below applies theincorrect statute.
In its opinion, the appellate court cited only cases dating from before 1999,
the year the new lost wills statute became effective. There are only a few post-
1999 cases analyzing R.C. § 2107.26. One of these cases correctly held that the
pre-19991ost wills statute applied since the decedent's death occurred before the
post-1999 statute's effective date.17 But, the other two cases incorrectly cited the
previous version of the statute. The court in In re Estate of Okos cited the
permissive "may" instead of the mandatory "shall" regarding the court's
obligation to admit a lost will upon the will's proponent meeting his or her
17 In re Estate of Brown, Second Dist. No. § 18611, 2001 WL 395346.
7
burden.18 The court in In re Estate of Grennan cited the language from In re
Estate of Haynes regarding the old presumption, even though the legislature
specifically stated in its records that the presumption discussed in Haynes
appeared to be overruled.19
The lower courts' decisions set a dangerous precedent. If these courts can
ignore the legislature's mandates and apply whichever law in whatever manner
they choose, then they are in essence creating no precedent at all for Ohio's
citizens to look to as a rule of law. Citizens should be able to rely on their
legislature to represent them and create laws for their benefit, and for the
judiciary to interpret those laws. If the lower courts' decisions interpreting R.C. §
2107.26 starid, then this reliance on the balance of power will be endangered.
B. Review is needed because the courts below wrongly held that
Appellant failed to establish the validity of the lost will
submitted for probate.
As stated above, it is dangerous for the lower courts to continue to apply
an outdated statute when the legislature passed an amended version with
significant changes nearly eight years ago. It is even more dangerous when the
differences between the two versions of the statute are extreme.
The legislative history of R.C. § 2107.26 specifically states that the law
requires probate courts to admit lost wills if certain criteria are met, instead of
18 Sixth Dist. No. L-03-1343, 2004 WL 1232041.
19 Eleventh Dist. No. 2000-A-0023, 2001 WL 369998.
8
allowing them to admit lost wills at their discretion in accordance with the
previous law. In addition, the new statute switches the presumption regarding
lost wills. Instead of requiring the will's proponent to establish by clear and
convincing evidence that the will was not revoked, the presumption now is on
the will's opponent to prove by a preponderance of the evidence that the will is
not valid. These are drastic changes, and the judiciary cannot ignore them by
relying on the old statute and defying the will of the legislature.
Appellant satisfied the new statute's requirements when she sought the
admission of decedent's lost will. Yet the probate court and the appellate court
analyzed Appellant's case using the old statute. This misapplication of law
affects all citizens because they should be able to rely on the judiciary to apply
current law in a fair and impartial manner. They should not worry that the
courts may apply outdated statutes and cases because the judges do not agree
with the reasoning of the legislature. To maintain the healthy balance of power
of this state's government, review is needed on the interpretation of the post-1999
version of R.C. 2107.26.
ARGUMENT
Appellant, Rose Scheeff Proposition of Law 1:
When determining whether to admit a lost will to probate, courts must apply thestatute in effect on the date of testator's death, not the statute in effect on the datetestator executed the will.
The appellate court erred by applying the pre-19991ost wills statute in this
case. A court must apply the statute in effect at the time of the testator's death.
9
As previously stated, the decedent, William J. Scheeff, died in 2006. Given that a
new version of Ohio's lost wills statute became effective in 1999, the appellate
court applied the wrong statute in its analysis of whether to admit a copy of the
decedent's lost will to probate. Thus, this misapplication of the law warrants
review.
Ohio case law confirms that a will ordinarily is ambulatory and speaks
only as of the date of death of the testator. For example, in Duffy v. Heffernan,
the court effectively held that the statute in effect on the date of a testator's death
should be applied to causes of action arising from the operation of a will. 20 In
Duffy, the decedent left real property to her children in her will, and the children
sought to sell the property.Z' The court held that the statute in effect at the time
of decedent's death was the proper statute to apply when determining the
percentage of persons holding an interest in the property necessary to approve
the sale of the property.2Z
In an analogous decision, the court in Colella v. Coutu addressed the
effect of statutory change on existing wills.23 In Colella, siblings appealed from
the probate court's ruling that their father's will was not revoked by operation of
20 (Franklin, 1983), 9 Ohio App.3d 273, 459 N.E.2d 898.
21 Id. at 273.
22 Id. at 274-75; see also Bank One Trust Co. N.A. v. Reynolds, (Montgomery,2007),173 Ohio App.3d 1, ¶26, 2007-Ohio-4197.
23 (Ga. 2004), 278 Ga. 440, 603 S.E.2d 296.
10
law after his divorce. The Supreme Court of Georgia held that wills are to be
taken as speaking from the time of the death of the testator. The court also held
that wills may be affected by a change of statute occurring between the date of a
wi11's execution and the date of the death of the testator. Finally, the court held
that "... a will has no operative effect until the testator's death, and there is thus
nothing upon which the statutory rules of revocation may operate."
Thus, the Court must apply the law in effect on the date of decedent's
death: the post-1999 R.C. § 2107.26.
Appellant, Rose Scheeff Proposition of Law 2:
A copy of a lost will, executed with all formalifies required under R.C. § 2107.03is sufficient to establish the validity of a lost will under R.C. § 2107.26.
The appellate court erred by holding that Appellant was unable to satisfy
the requirements of R.C. § 2107.26. When this statute was amended in 1999, the
Ohio legislature made some drastic changes. First, the amended statute changed
the presumption. Previously, the presumption was that if a will was lost, it was
presumed destroyed by the testator with the intent to revoke it.24 Now, the
presumption is that a will is presumed to be valid unless a person opposing the
admission of the will to probate establishes by a preponderance of the evidence
that the testator revoked the will.25 In addition, the statute states that a probate
24 Simmons, David, Recent Legislation Makes It Easier to Admit Lost, Spoliatedor Destroyed Wills, Probate Law Journal of Ohio, September/October 1999, at 3.
25 Id.; Am. Sub. H.B. 59 Act Summary, H. 123-59, Comment 8.
11
court "shall," not "may," admit a lost will to probate if the statutory requirements
are met Z6
In this case, Appellant was able to satisfy both statutory requirements.
Regarding the contents of the will, Appellant presented a photocopy of the lost
wiIl to the lower courts. Ohio courts have held that it is proper to introduce a
draft of a will, a copy of a will, or a proof of its contents by parol evidence in
establishing a lost wi1127 Appellant also proved that the lost will was executed
with all required formalities by submitting the photocopy. The photocopy
contains the signatures of the testator, and three disinterested, competent parties,
one of whom was the attorney who prepared the will. The fact that the will was
prepared by and executed in the presence of the testator's attorney also creates a
presumption that all of the formalities in the proper execution of the will were
followed 28 Thus, Appellant established the statutory requirements for the
admission of a lost will to probate by clear and convincing evidence.
In addition, the burden was on Appellee to overcome the presumption by
a preponderance of the evidence that the copy of decedent's lost will was valid.
Appellee set forth no evidence in this regard, let alone enough to meet his
evidentiary burden. Given that the statute requires a court to admit a lost will if
26 Am. Sub. H.B. 59 Act Summary, H. 123-59, pp. 7-8.
27 In re LaSance (Ohio Prob., 1897),7 Ohio Dec. 246,5 Ohio N.P.20.
Z$ Matter ofAndrews (N.Y.Sur., 1949),195 Misc. 421, 88 N.Y.S.2d 32; see also, In reMiller's Will (Kansas, 1928),125 Kan. 636.
12
the proponent establishes the contents and proper execution of the will by clear
and convincing evidence, and if the will's opponents fail to meet the burden
described above, the court erred when it did not admit the decedent's will to
probate.
CONCLUSION
For the above reasons, this Court should accept jurisdiction, review this
case, and reverse the decision below.
Respectfully submitted,
CAVITCH, FAMILO, DURKIN &YRUTKIN
By:es G. Dickiion* (0010899)
* Counsel of Recordlexander E. Goetsch (0065026)
Jessica L. Doinidis (0080893)1717 East Ninth Street, 14th FloorCleveland, Ohio 44114Telephone: (216) 621-7860Facsimile: (216) 621-3415Email: [email protected]
Counsel for Appellant Rose Alice Scheeff
13
CERTIFICATE OF SERVICE
I certify that a copy of this Memorandum in Support of Jurisdiction was
sent by ordinary U.S. mail this ^? day of January, 2008, upon the following:
John C. OberholtzerAlicia M. HathcockOberholtzer, Filous & Lesiak39 Public Square, Suite 201P. O. Box 220Medina, Ohio 44256
CounselforAppellee William J. Scheeff, Jr.
Lauren Feronti-Nash, pro se68 Monroe StreetBerea, Ohio 44017
Heather Scheeff, pro se20197 Lismore CourtStrongsville, Ohio 44149
Justin Scheeff, pro se20197 Lismore CourtStrongsville, Ohio 44149
unsel forAppellantRose Alice Scheeff
14
NOV 2 6 2007
Tnur °t uf Appeals uf 04inEIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINIONNo. 89846
IN RE: WILLIAM J. SCHEEFF, DECEASED
[APPEAL BY: ROSE ALICE SCHEEFF]
JUDGMENT:AFFIRMED
Civil Appeal from theCuyahoga County Probate Court
Case No. 2007 EST 121359
BEFORE: Rocco, J., Celebrezze, Jr., A.J., and Kilbane, J.
RELEASED: November 15, 2007
JOURNALIZED:NOV 2 6 2007
CA07089846 48812341
^ ^^^^^^ 1111111111111111111111 ^^^^^ lull 111U ^^^^ 11111
1&3647 P,G0356
-1-
ATTORNEYS FOR APPELLANT
Rose Alice Scheeff:James G. DickinsonAlexander E. GoetschRebecca S. HegyesCavitch, Familo, Durkin & Frutkin Co., L.P.A.1717 East Ninth Street, 14th FloorCleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
William J. Scheeff, Jr.:John C. OberholtzerAlicia M. HathcockOberholtzer, Filous & Lesiak39 Public Square, Suite 201P.O. Box 220Medina, Ohio 44256
Lauren Feronti-Nash, pro se68 Monroe StreetBerea, Ohio 44017
Heather Scheeff, pro seJustin Scheeff, pro se20197 Lismore CourtStrongsville, Ohio 44149
FILED AND JOURNALIZEDPER APP. R. 22(E)
NOV 2 6 2007
GERALD E. FiIERSTCI.ERK (}R'QHE(l̂, /u/^̂f i' OF APPCP LSSV ^.(/ ^ f JliP.
ANIIOGI^CZNiEtdT oF DLClSSI0N^ERAPP.^REC^IVED 261A1
N0V 1' 2007(3E61ALD C. FuEWST
GLER6( C061'ff OF APPfE®5P.
6v'
CA07089846 48587300
11111111111111111111111111111111111111111111111111111111
Y0647 190357
-2-
KENNETH A. ROCCO, J.:
In this appeal brought on the accelerated calendar pursuant to App.R.11.1
and Loc.App.R. 11.1, plaintiff-appellant Rose Alice Scheeff challenges the
decision of the Cuyahoga County Court of Common Pleas, Probate Division, to
deny her application to probate a copy of a will.
The purpose of an accelerated appeal is to allow this court to render a brief
and conclusory opinion. Crawford v. Eastland Shopping Mall Assn. (1983), 11
Ohio App.3d 158.
Appellant presents one assignment of error in which she argues that the
probate court abused its discretion. She bases her argument on her submission
of an exact photocopy of the will her late husband, who died in 2006, executed
in 1978. This court finds her argument unpersuasive.
According to the App.R. 9(A) record, the magistrate determined after a
hearing that the photocopy was inadequate to comply with the requirements of
R.C. 2107.26. Appellant filed objections to the magistrate's report. The trial
court conducted its own hearing, and ultimately decided to adopt the
magistrate's findings and conclusion.
Although appellant argues that, in itself, an exact photocopy of a will
constitutes evidence which is sufficient to comply with R.C. 2107.26, this court
disagrees. Pursuant to R.C. 2107.03, a will in Ohio must be "in
BLO6 4 I s0358
writing,***signed at the end by the party making it***, and be attested***by two
or more competent witnesses***."
It has long been held that "there can be but one original, effective, and
dispositive instrument to be considered a last will and testament, and however
so many copies of that original will, exact in every detail***there are, these
copies remain just that: copies-copies useful to show what had existed in the
case of a lost, spoliated or destroyed will, but utterly ineffectual to be used as a
substitute for the original will." In re Steel (1966), 8 Ohio Misc. 133, 136.
Thus, when a person has made and executed a will, and upon his death the
original cannot be found, there is a presumption that the decedent has revoked
it. Behrens v. Behrens (1890), 47 Ohio St. 323, cited with approval, In re Estate
of Haynes (1986), 25 Ohio St.3d 101. This presumption applies, even if the
person presents the probate court with an exact copy of the original. In re Estate
of Skinner (Dec. 9, 1985), Butler App. No. CA85-01-001. The presumption can
be overcome only by clear and convincing evidence that the testator did not
revoke it. R.C. 2107.26(B); In re Estate of Haynes, supra.
The record in this case does not contain any transcript of the hearing
conducted by the probate court. In the absence of an adequate record, and since
the probate court obviously applied the correct legal analysis, this court cannot
find the probate court abused its discretion in determining that appellant failed
647 PB03S9
-4-
to sustain the burden of proof necessary to overcome the presumption. See, e.g.,
Tyrell v. Investment Assoc., Inc. (1984), 16 Ohio App.3d 47; cf., Carr v. Howard
(1969), 17 Ohio App.2d 233.
Accordingly, appellant's assignment of error is overruled.
The probate court's decision is affirmed.
It is ordered that appellee recover from appellant 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., A.J., andMARY EILEEN KILBANE, J., CONCUR
VILS647 P00360