in the supreme court of ohio in the supreme court of ohio case no. 2007- ... email:...

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,



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.



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.






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]

[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.


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


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

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