SUPREV!E CUUR 7 UF OHIO MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANT VICTORIA HOBSON

Transcription

1 IN THE SUPREME COURT OF OHIO Victoria Hobson, V. Appellant, On Appeal from the Court of Appeals Ninth Appellate District Shawn Whitacre, et al.,, Appellees. Court of Appeals Case No.11CA0019-M MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANT VICTORIA HOBSON John F. Myers # West Market Street, Suite 102 Akron, Ohio (330) Attorney for Appellant Victoria Hobson Leon A. Weiss # Franklin C. Malemud # Reminger Co., LPA 1400 Midland Building 101 Prospect Avenue, West Cleveland, Ohio Attomeys for Appellees Nick Crowe, Angie Saffles And Shawn Whitacre ^T^ -I^ AUG 13 70)1 CLF,RK OF C URT SUPREV!E CUUR 7 UF OHIO

2 TABLE OF CONTENTS EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION Page 1 STATEMENT OF THE CASE AND FACTS 3 ARGUMENT IN SUPPORT OF PROPOSITION OF LAW 7 Proposition of Law No. I. The statutory formalities of R.C afford a testatrix the opportunity to sign a last will and testament and the witnesses to subscribe and attest the last will and testament in the conscious presence of the testatrix; the term "conscious presence" should be construed liberally to meet the desire or needs of the testatrix in order to accommodate facts and circumstances surrounding the execution process. CONCLUSION 13 PROOF OF SERVICE APPENDIX Decision and Journal Entry of the Ninth District Court of Appeals(July 29, 2012) Order granting Plaintifl's Motion for Summary Judgment in the Medina County Court of Common Pleas Probate Division 13

3 EXPLANATION OF WHY TIIIS CASE IS OF PUBLIC OR GREAT GENERAL INTEREST In September 2008, Ohio Revised Code (effective September 11, 2008) was amended to permit a will to be subscribed and attested by two competent witnesses in the conscious presence of the testator: Except oral wills, every will shall be in writing, but may be handwritten or typewritten. The will shall be signed at the end by the testator or by some other person in the testator's conscious presence and at the testator's express direction. The will shall be attested and subscribed in the conscious presence of the testator, by two or more competent witnesses, who saw the testator subscribe, or heard the testator acknowledge the testator's signature. For purposes of this section, "conscious presence" means within the range of any of the testator's senses, excluding the sense of sight or sound that is sensed by telephonic, electronic, or other distant communication. The prior version of O.R.C required that a will be signed in the presence of two witnesses. The term "conscious presence", while defined in O.R.C , is subject to broad interpretation of the nature and extent of the elements that comprise the "conscious presence". This case is a case of firstimpression in Ohio. The court of appeals held that the manner in which the testator signed her will and the witnesses attested and subscribed the will did not meet the conscious presence test adopted in O.R.C The decision of the court of appeals restricts the definition set forth in the statute by adopting "a `conscious presence' test in line with historical precedent which requires that the subscribing and attesting witnesses be in the testator's range of vision or that the iestator hear and understand that the witnesses are subscribing and attesting the will at the time they are doing so." See Appendix A, at page 8 (Court of Appeals decision and journal entry). The 2008 amendment of O.R.C adopted the Uniform Probate Code 2-502, conscious presence test which provides for a liberalization of the traditional presence or direct

4 line of sight requirement for the witnessing wills. See, Ohio State Bar Association Council of Delegates Fall 2007 Meeting, Report of the Estate Planning, Trust and Probate Law Section at page 31, lines ; So How Contagious is the Testator? Jeffrey L. Weiler 18 Prob. L.J. Ohio 115, (Nov./Dec ) As set forth herein, the conscious presence test is not a new concept, but has been addressed in the courts of other states for over one hundred years as a means to preserve and protect the testamentary intent and freedom of testators. This case is of great public and general interest in that adoption of the conscious presence test by the Ohio legislature was a move toward liberalization of the line of sight test in order to accommodate circumstances that may not permit, or where the testamentary intent and freedom of a testator may be thwarted by a restrictive construction of the conscious presence test. Prior to the enactment of the conscious presence rule in O.R.C , commentators addressing the proposed amendment related the need for a conscious presence rule in order to afford testators who may be suffering from a pandemic disease or other infirmity the ability to express their testamentary intent in a will. Id. In the instant matter, the testatrix, Kay Whitacre, was suffering from terminal cancer and expressed a desire to her attorney and family members that she not be seen by anyone except immediate family. Her will was executed under circumstances that afforded her the privacy she requested while meeting the letter and spirit of the conscious presence rule set forth in O.R.C This case puts at issue the need for a less static and restrictive approach to formalities attached to the will execution process as expressed by the conscious presence test of O.R.C in order to strike a balance between the need for safeguarding the will execution process from fraud and undue influence and testamentary intent and freedom. This Court should 2

5 grant jurisdiction to hear this case and review the narrow application of the conscious presence test in order to assure that the conscious presence test is not in practice and application a hollow test, but that it is applied in a broad and liberal means to address the needs of those seeking to memorialize their testamentary intent. STATEMENT OF THE CASE AND FACTS Kay Whitacre executed her last will and testament on May 14, 2011 ("Will"), some twelve days before she died of complications associated with pancreatic cancer on May The Will was admitted to Medina County Court of Common Pleas Probate Court Division on June 3, Ms. Whitacre had five adult children at the time she executed the Will. In her Will, Ms. Whitacre left her entire estate to her daughter Victoria Hobson. Her son, Michael Crowe did not receive any bequests in the Will, and was not mentioned in the Will. On July 8, 2010, Ms. Whitacre's children, Shawn Whitacre, Angie Saffels and Nick Crowe ("Appellees"), who received no bequests and were not mentioned in the Will filed a complaint to set aside the Will in the Medina County Court of Common Pleas, Probate Division. Record ("R") at 1. They alleged that the Will was not properly executed in accordance with O.R.C Appellees filed a motion for summary judgment and Victoria Hobson and Michael Crowe filed an opposition to the motion. R. at 25 and 26. On January the Probate Court entered and order granting Appellees' motion for summary judgment and held the witnesses, who subscribed and attested the Will were not in the conscious presence of Mrs. Whitacre when she made her mark on the Will and thereby did not meet the formalities required under O.R. C R. at 30. On February 20, 2011, Victoria Hobson ("Appellant") filed a timely notice of appeal to the Ninth District Court of Appeals. R. at 32. Michael Crowe did not appeal the probate court order. Appellant and Appellees fully briefed the issues raised on appeal. On July 29, 2012 the Ninth 3

6 District Court of Appeals entered a decision and journal entry overruling Appellant's assignment of error and affirming the order of the probate court. (The Ninth District decision and journal entry was a 2-1 decision with a separate dissent.) It is from the decision of the Ninth District Court of Appeals that Appellant Victoria Hobson files a separate notice of appeal and request that this Court accept jurisdiction for review on the merits. On April 22, 201 Mrs. Whitacre was diagnosed with pancreatic cancer and was informed she had three to six months to live. On April she went to live with Ms. Hobson. Ms. Hobson and Michael Crowe did not want to ask her whether she had a will, so Ms. Hobson's husband asked Mrs. Whitacre who stated she did not, but did want to see have a will prepared. On May 13, 2010, an attorney, Richard Dickey, at the behest of Mrs. Whitacre, visited Mrs. Whitacre at the home of Ms. Hobson. Mr. Dickey gathered information regarding the manner in which she wanted her estate to pass upon her death. According io Mr. Dickey, Mrs. Whitacre intended that her entire estate pass to Ms. Hobson and not any of her other four children. The will and power of attorney were drafted at the direction of Mr. Dickey. The will, consisted of one page, included the following clause directly below the signature line for Mrs. Whitacre: The foregoing instrument was signed in our presence by the said Kay L. Whitacre, and by her published and declared to be her Last Will and Testament, and at her request and in her presence and in the presence of each other, we hereunto subscribe our names as attesting witnesses at Kenmore, Ohio and the date and year above written. On May 14, 2012, Sara White, a secretary/paralegal for Mr. Dickey, took the will and power of attorney to Ms. Hobson's residence to have the will and power of attorney executed by Mrs. Whitacre. Ms. White and a Joseph Reich served as witnesses. Each witness knew Mrs. Whitacre was present in an upstairs bedroom. Due to her medical condition, Mrs. Whitacre did not want anyone other than family members to see her. Ms. White was made aware of this by Mr. Dickey Ms. Hobson and Michael Crowe and respected the wishes of Mrs. Whitacre. 4

7 The execution of the will was arranged so that the witnesses were on the first floor of the house and Mrs. Whitacre remained on the second floor. The dimensions of the house were small, some twenty two by twenty four feet. The second floor consists of three bedrooms that open on a small hallway. Although Mrs. Whitacre remained on the second floor, she was approximately twelve to fifteen feet from the witnesses. The witnesses remained in the living room during the entire event. Ms. White was able to hear people moving on the second floor. The doors to the bedrooms on the second floor were open. While Ms. Hobson was on the second floor with her mother for a portion of the time the will and power of attorney were being executed, she turned down a fan so she and her mother could hear the sounds of the witnesses on the floor below. Mrs. Whitacre and the witnesses were in the conscious presence of each other, as they could through the sense of hearing sense each other's presence in the home. There happened to be a "baby monitor" that had a video and audio feed from the second floor to a first floor monitor. The audio and video portion of the monitor, which contained a speaker and screen, was in the living room where the witnesses were located and the audio and video receiver portion of the monitor, which contained a camera and a speaker, was located in the bedroom where Mrs. Whitacre was located. Ms. White and Mr. Reich were able to see and hear through the video monitor. Ms. White could also separately and directly, without the assistance of the baby monitor, hear the movements of Mrs. Whitacre from the second floor. Ms. White instructed Ms. Hobson and Michael Crowe to speak loudly, to ask certain preliminary questions and not assist Mrs. Whitacre in signing the will. Ms. White gave the will and a clipboard to W. Crowe and he took the will up the stairs to his mother. Ms. White and Mr. Reich heard the conversation between Mr. Crowe and Mrs. Whitacre. Mr. Crowe presented the 5

8 Will to Mrs. Whitacre and informed her it was her Will. Mrs. Whitacre spent time with the will in front of her prior to executing the will. In order to make Ms. Whitacre more comfortable, Mrs. Whitacre sat up, used Ms. Hobson and Mrs. Crowe for support and walked to the other bedroom which had a hospital bed. The "baby monitor was moved and set up again and the witnesses were able to view and hear Mrs. Whitacre sign the will. Mr. Crowe brought the will downstairs to the witnesses immediately signed the will. ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW Proposition of Law No. I The statutory formalities of R.C afford a testatrix the opportunity to sign a last will and testament and the witnesses to subscribe and attest the last will and testament in the conscious presence of the testatrix; the term "conscious presence" should be construed liberally to meet the desire or needs of the testatrix in order to accommodate facts and circumstances surrounding the execution process. R.C adopts the conscious presence test which will facilitate the signing of will when a testatrix is contagious or infirm. See Ohio State Bar Association Council of Delegates Fall 2007 Meeting, Report of the Estate Planning, Trust and Probate Law Section at page 31, lines The conscious presence test, set forth in the Uniform Probate Code Section 2-502, is a liberalization of requirements for the witnessing of wills. Id., at lines The conscious presence rule provides greater flexibility and focuses on the proximity of testatrix to the witnesses and the range of her senses such that the testatrix is aware of what is taking place through one or more of her senses. Id., at lines , ' The Ohio State Bar Association Council of Delegates Fall 2007 Meeting, Report of the Estate Planning, Trust and Probate Law Section at page provides a succinct summary of the public policy considerations pertinent to the adoption of conscious presence test and provides a supplemental memorandum that discusses the conscious presence rule. 6

9 Conscious presence is defined in R.C and "means within the range of any of the testator's senses, excluding the sense of sight or sound that is sensed by telephonic, electronic, or other distant communication." The very words of the statute do not require the testatrix sign within the line of sight of the witnesses and do not require the witnesses to subscribe and attest the will in the line of sight of the testatrix. Conscious presence is the standard. Provided the testatrix knows, through one of her senses that the witnesses are present to witness the execution of the will, the conscious presence standard is met. The conscious presence standard relates to the range of senses of the testatrix; the testatrix may not have her range of senses augmented by "telephonic, electronic, or other distant communication." Mrs. Whitacre's range of senses was not augmented by any means, other than a fan in her midst being turned off so that she could hear the sounds of the witnesses emanating from the first floor. Conscious presence within the context of determining whether a will has been subscribed and attested in the presence of a testatrix is not new concept. For over a century, courts have grappled with the defmition of what presence means in this context and have utilized a "conscious" presence approach in order to balance the facts and circumstances presented in the process of executing a will in order to assure the testamentary intent of the testatrix in honored, while balancing the circumstances against the infusion of fraud or undue influence. In Cunningham v. Cunningham, 80 Minn. 180, 183, 83 N.W. 58, 59 (Minn. 1900), the testator duly signed an instrument intended to be his last will and testament, two physicians being present at his request to attest as witnesses. The testator was sitting on the side of his bed, the will lying on a book in front of him, the book being upon a chair. One of the physicians took the signed will, and both stepped through a doorway into an adjoining room, and affixed their signatures at a table which stood 10 feet from the testator. He could have seen the table by stepping forward 7

10 two or three feet, but did not do so. The statute required that the will be attested and subscribed in the presence of the testator. Id. The court held that the will was valid. The court looked the fact that "the signing was within the sound of the testator's voice, he knew what was being done." Id., 89 Minn. at 187, 83 N.W. at 60. The court also noted that the "the whole affair... was a single and entire transaction; and no narrow construction of this statue... should be allowed to stand in the way of right and justice, or be permitted to defeat a testator's disposition of his own property (citations omitted)." Id. The court opined that if "they sign within his hearing, knowledge, and understanding, and so near as not to be substantially away from him, they are said to be in his presence." Id. In In re Demaris, 166 Or. 36, (Oregon 1941) after the testator signed the will, while in a severe state of medical distress in his doctor's office, the doctor took the will from him to another room approximately 20 feet away. The doctor and the doctor's wife, who had been in the room when the testator signed the will signed as witnesses. The doctor had prepared the will while treating the testator, at the request of the testator, due to the grave nature of his medical condition. The court sought to determine whether the witnesses' execution of the will happened in the conscious presence of the testator. In addressing the issue, the court noted: But we do not believe that sight is the only test of presence. We are convinced that any of the senses that a testator possesses, which enable him to know whether another is near at hand and what he is doing, may be employed by him in determining whether the attesters are in his presence as they sign his will. Id. at 71. The court farther opined that Consciousness of the fact that the attesting signatures are being written is an indispensable element of the conscious presence rule. In determining whether George was aware of the fact that the signatures were being written, we may properly take into consideration, we believe, the fact that he had asked that the will be prepared, and that both of the Gillises were present when he signed. Undoubtedly, the request for the preparation of a will, under the circumstances disclosed by the record, carried with it an implied request for an attestation. 8

11 Id. at In In Re Estate of Heck, 340 Wis.2d 498 (Wis. App. 2012), a beneficiary under a will challenged the order of the probate court denying admission of his father's will to probate because it was not executed in accordance with the execution of wills statute. Wisconsin adopted the conscious presence test. The beneficiary argued that as long as the testator is aware that a person is planning to sign as a witness and the testator could have readily arranged to sign or acknowledge his signature or the will in the presence of that person, the conscious presence test is met. The beneficiary witnessed the testator sign the will. He then took the will to his home and had his wife sign as a second witness. The testator and the beneficiary's wife never spoke about the will. The Wisconsin statute requires the testator to sign in the conscious presence of the witnesses. The court held the testator did not sign in the conscious presence of the beneficiary's wife. Here the court was unwilling to extend the conscious presence test beyond the physical proximity where the will was signed. Physical proximity and the ability, whether or not exercised, of the testatrix to be use or be able to use one of her senses to know that her will is being signed by witnesses is critical to the analysis of conscious presence. In In re Fischer, 152 N.H. 669 (N.H. 2005) the testatrix was dying of cancer and was bedridden at the time she executed her will. On the day the will was executed the testatrix's attorney came to her home to oversee the signing of the will. The attornney asked her if she wanted the will to be executed that day and if she wanted the witnesses to act as witnesses. The witnesses did not sign the will in the room in which the testatrix lay in bed; rather, they retreated to a porch to sign the will. The court held that when a testator does not have all of her faculties solely because of physical infirmities, the test to determine whether her will is attested to "in testator's presence" is 9

12 to inquire whether she was conscious of the presence of the witnesses and understood what they were doing when they wrote their names, and could also, if it had not been for her physical infirmities, readily have seen and heard what they were doing, if she had been so disposed. Id., at 671. Since the will was signed by witnesses on porch of home where the testatrix lay in bed inside home, the court found the will was not signed "in testatrix's presence," and thus, was invalid, where there was no evidence that, but for testatrix's physical infirmities, she could have readily seen and heard what witnesses had been doing, or that witnesses were so near to testatrix that testatrix was conscious of where witnesses were and what they were doing when they signed will. Id. The wishes and physical limitations of a testatrix need to be considered. The conscious presence test affords the infirm testator the opportunity to avail herself of a liberalized method of making a will without having to rely on presence defined as direct line of sight. See; In re Hoffman's Estate 137 Cal. App. 2d 555, 560 (Cal. 1956)(Where signing of document by testator and indication of desire and intention to have witnesses attest it as a will, shortly followed by actual signing by two witnesses, constituted but a single transaction, and, at most, witnesses and testator were separated by only a few feet and perhaps by a partly closed door, it was within `consious presence' of testator within meaning of provision of Probate Code requiring will to be executed by testator in `presence' of two attesting witnesses who shall sign will in `presence' of testator.); In re Larson's Estate, 141 Minn. 373 (Minn. 1919)(There is evidence that, immediately after the testatrix signed the will, the witnesses subscribed their names in a room adjoining the one in which the testatrix lay in bed and but a few feet from her; that the view was unobstructed and the act of signing could be plainly seen by testatrix if she looked provides sufficient proof that the witnesses subscribed in the presence of the testatrix, whether she 10

13 actually saw them sign or not); Dubach v. Jolly, (Ill. 1917)( Evidence that will was signed by witnesses within a few feet of testator's bed, with no obstructions to view between them and testator is sufficient to sustain a finding that will was witnessed in testator's presence, although he was then engaged in writing a letter, and may not actually have seen witnesses sign). In the instant matter, the court of appeals held that although there was evidence presented that Mrs. Whitacre could hear conversations and movements in the downstairs living room, there was no evidence of the substance of those conversations or that she was aware the witnesses were subscribing and attesting her will at the time they did so. There was evidence that Mrs. Whitacre was told the witnesses were present, downstairs, to witness the signing of her will. The will was brought to her; she was afforded and took time to view the will; the Will contained a provision that provided Mrs. Whitacre requested that the will be witnessed; she signed it; and it was immediately taken downstairs to the witnesses who promptly signed the Will. Neither the case law, nor the statute requires a testatrix to see or hear the actual act of the witnesses signing the will, but the will must be signed in the conscious presence of the testatrix. Mrs. Whitacre and the witnesses were never more than twelve to fifteen feet apart, and noises traveled up and down the adjacent staircase and through the floor. At all times they were in the conscious presence of each other. Further, sufficient evidence was presented to demonstrate that the witnesses were aware that Mrs. Whitacre was on the second floor. The will was taken to Ms. Whitacre and was promptly brought down the stairs for them to witness. Apart from the baby monitor, Ms. White could hear Mrs. Whitacre on the second floor. There is sufficient evidence from which a trier of fact would reasonably determine that the conscious presence test was met under these 11

14 circumstances. The baby monitor provides an extrinsic means to verify that which the witnesses sensed separate and apart from the audio and video feed from the baby monitor. The distance between the testatrix and the witnesses is an essential part of the conscious presence test. The court of appeals did not address the distance between Mrs. Whitacre and the witnesses. They were all in the same small enclosed space and sound readily travelled between the space where Mrs. Whitacre lay and where the witnesses sat. The court did not consider that the execution of the will and the subscription and attestation of the witnesses was single and entire transaction; there were no intervening events that interrupted or delayed the flow from Mrs. Whitacre making her mark and the witnesses signing the will; conscious presence was established and maintained throughout the will execution process. Mrs. Whitacre could move about, albeit with assistance, and could have come traveled the twelve to fifteen feet downstairs to see the witnesses. At any point she could have spoken, or arranged to speak to the witnesses. These are critical factors to be considered by a court reviewing a contested execution of a will, particularly when the testatrix is infirm. This is an important public policy consideration behind the adoption of the conscious presence test. The court of appeals limited and restricted the full force and effect of the conscious presence test enunciated in R.C This case presents an opportunity for this Court to address the nature and extent of the conscious presence test and to strike a balance between the formalities set forth in the statute and the liberalized application the revisions to R.C were meant to accomplish. This is a matter of public and great general interest in that the testamentary process must protect a testatrix from the potential fraud and undue influence that may be present in the will execution process while at the same time affording flexibility in order to meet and fulfill the testamentary intent of a testatrix. 12

15 CONCLUSION For the reasons discussed above, this case involves matters of public and great general interest. The appellant requests that this Court accept jurisdiction in this case so that the important issues presented will be reviewed on the merits. espectful su itted, Jo Myers # st Mar t treet, Suite 102 AkroWOhio 3 (330) hllndmyers@neo.rr.com Attorney for Appellant Victoria Hobson 13

16 CERTIFICATE OF SERVICE I hereby certify that a true copy of Memorandum in Support of Jurisdiction was sent by regular US Mail this 13th day of August 2012 to: Leon A. Weiss, Esq. Franklin C. Malemud, Esq. Reminger Co., LPA 1400 Midland Building 101 Prospect Avenue, West Cleveland, Ohio Attorneys for Appellees Nick Crowe, Angie Saffles And Shawn Whitacre Myers, y for Appell 14

17 APPENDIX

18 COPT STATE OF OHIO Cri''cjT ^^ ApQEALS COUNTY OF MEDINA 12,^{.f 9AM 9' 51 F:! E_D SHAWN WHITACRE, etg^1;vsd 0. FvAO?1"IORTH HEG!N^'^ COLNTY ^F COURTS Appellees GE_i:Gt` V. MICHAEL A. CROWE, et al. Appellants IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT C.A. No. 11CA0019-M APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF MEDINA, OHIO CASE No CA DECISION AND JOURNAL ENTRY Dated: June 29, 2012 CARR, Judge. { 1} Appellant, Victoria Hobson, appeals the judgment of the Medina County Court of Common Pleas, Probate Division. This Court affirms. I. {12} Kay Whitacre had five adult children at the time of her death. Her will was admitted to probate. Her daughter Victoria was named as the sole beneficiary, while her son Michael was named as executor. Kay's three remaining children, Shawn, Angie, and Nick, were not mentioned in the will. Subsequently, Shawn, Angie, and Nick filed a complaint to contest the will. They later moved for summary judgment. Victoria and Michael responded in opposition. The trial court granted the plaintiffs' motion for summary judgment, concluded that Kay's will was not executed pursuant to the forrttalities required in R.C , and revoked an earlier order admitting the will to probate. Victoria appealed, raising three interrelated assignments of error for review. APPENDIX PAGE NO. 1.

19 mrv 2 II. ASSIGNMENT OF ERROR I THE TRIAL COURT ERRED IN FINDING THAT THE EXECUTION OF THE WILL DID NOT MEET THE FORMALITIES REQUIRED UNDER []R.C ASSIGNMENT OF ERROR II THE TRIAL COURT ERRED IN GRANTING PLAINTIFF/APPELLEE'S MOTION FOR SUMMARY JUDGMENT FINDING THAT THE WITNESSES WERE NOT IN THE CONSCIOUS PRESENCE OF KAY WHITACRE, THE TESTATOR. ASSIGNMENT OF ERROR III THE TRIAL COURT ERRED IN REVOKING ITS PRIOR ORDER ADMITTING THE PROPERLY EXECUTED WILL TO PROBATE. {1[3} Victoria challenges the trial court's granting of summaryjudgment in favor of the plaintiffs which resulted in the court's revocation of its prior order admitting Kay's will to probate. Her arguments are not persuasive. {114} This Court reviews an award of summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). This Court applies the same standard as the trial court, viewing the facts in the case in the light most favorable to the non-moving party and resolving any doubt in favor of the non-moving party. Viock v. Stowe- Woodward Co., 13 Ohio App.3d 7,12 (6th Dist.1983). {1[5} Pursuant to Civ.R. 56(C), summmary judgment is proper if: No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for stunmary judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977). APPENDIX PAGE NO. 2.

20 CUPY 3 {16} To prevail on a motion for summary judgment, the party moving for summary judgment must be able to point to evidentiary materials that show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). Once a moving party satisfies its burden of supporting its motion for summary judgment with sufficient and acceptable evidence pursuant to Civ.R. 56(C), Civ.R. 56(E) provides that the non-moving party may not rest upon the mere allegations or denials of the moving party's pleadings. Rather, the non-moving party has a reciprocal burden of responding by setting forth specific facts, demonstrating that a "genuine triable issue' exists to be litigated for trial. State ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d 447, 449 (1996). {1[7} The non-moving party's reciprocal burden does not arise until after the moving party has met its initial evidentiary burden. To do so, the moving party must set forth evidence of the limited types enumerated in Civ.R. 56(C), specifically, "the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact[.]" Civ.R. 56(C) further provides that "[n]o evidence or stipulation may be considered except as stated in this rule." {18} R.C provides that "[t]he probate court shall admit a will to probate if ** * the execution of the will complies with the law in force at the time of the execution of the will in the jurisdiction in which it was executed, with the law in force in this state at the time of the death of the testator, or with the law in force in the jurisdiction in which the testator was domiciled at the time of the testator's death." APPENDIX PAGE NO. 3.,

21 COF'/ 4 { 9} Kay purported to execute her will in Ohio on May 14, The applicable version of R.C , in effect at both the time of the execution of the will and at the time of Kay's death, states: Except oral wills, every last will and testament shall be in writing, but may be handwritten or typewritten. The will shall be signed at the end by the testator making it or by some other person in the testator's conscious presence and at the testator's express direction, and be attested and subscribed in the conscious presence of the testator, by two or more competent witnesses, who saw the testator subscribe, or heard the testator acknowledge the testator's signature. For purposes of this section, "conscious presence" means within the range of any of the testator's senses, excluding the sense of sight or sound that is sensed by telephonic, electronic, or other distant communication. {1[10} In their motion for summary judgment, the plaintiffs challenged the valid execution of Kay's will on two grounds, specifically, (1) that Kay did not sign her will in the conscious presence of the witnesses because the witnesses viewed the signing from another room by way of a video monitor, and (2) that the witnesses did not attest and subscribe the will in the conscious presence of the testator. In its order granting summary judgment to the plaintiffs, the trial court found that the witnesses "technically" never saw Kay sign her will because they viewed the event on a monitor, and that the witnesses were not in the conscious presence of Kay when she signed her will. The trial court concluded that the execution of the will did not meet the formal requirements of R.C and it, therefore, revoked its prior order admitting the will to probate. Although the trial court's findings are inartfully crafted, this Court concludes that the trial court properly granted summary judgment in favor of Shawn, Angie, and Nick, and therefore properly revoked its prior order admitting Kay's will to probate. { 11} No party argues that the indecipherable scribble on the will does not constitute Kay's signature, and we do not address that matter further. APPENDIX PAGE NO. 4.

22 5 { 12} Victoria argues that the trial court erred because genuine issues of material fact existed regarding whether the two witnesses attested and subscribed the will in the conscious presence of the testator. Because that issue is dispositive of the appeal, we confine our analysis to that issue. {1113} Subscription is "the physical act of affixing a signature for purposes of identification." Jackson v. Estate of Henderson, 8th Dist. No , 2010-Ohio-3084, 18. Attestation, a separate and distinct act from subscription, "is the act by which the subscribing witnesses hear the testator acknowledge his signature or see him sign the document in their presence." Id; see also Timberlake v. Sayre, 4th Dist. No. 09CA3269, 2009-Ohio-6005, 26. {114} By the plain language of R.C , the witnesses attesting and subscribing the will must do so "within the range of any of the testator's senses," which expressly excludes sights and sounds relayed through electronic means. The evidence appended to both the motion for summary judgment and response in opposition clearly establishes that the monitor involved in this situation worked one way in that it only allowed the witnesses to see and hear Kay, while Kay could not see and hear the witnesses via any electronic means. To the extent, then, that any party has argued that the use of the audio/video monitor precluded the witnesses from being in Kay's "conscious presence," such an argument is a red herring. {1[15} The issue of what satisfies the requirement of "conscious presence" is one of first impression in Ohio. Historically, however, other jurisdictions which required witnesses to attest and subscribe the will in the presence of the testator interpreted "presence" to mean "conscious presence." See, e.g., In re Estate of Holden, 113 N.W.2d 87 (Minn.1962); In re Demaris'Estate, 110 P.2d 571, 581 (Or.1941); Calkins v. Calkins, 75 N.E. 182, ( ); Watson v. Pipes, 32 Miss. 451 (1856); Nock v. Nock's Exrs., 51 Va. 106 (1853); Nichols v. Rowan, 422 APPENDIX PAGE NO. S.

23 6 S.W.2d 21, 24 (Tex.Civ.App.1967). The test has been referred to as a "mental apprehension test" and is stated as follows: "When a testator is not prevented by physical infimuties from seeing and hearing what goes on around him, it is the general, if not universal, rule that his will is attested in his presence if he understands and is conscious of what the witnesses are doing when they write their names, and can, if he is so disposed, readily change his position so that he can see and hear what they do and say. * * * In other words, if he has knowledge of their presence, and can, if he is so disposed, readily see them write their names, the will is attested in his presence, even if he does not see them do it, and could not without some slight physical exertion. It is not necessary that he should actually see the witnesses, for them to be in his presence. They are in his presence whenever they are so near him that he is conscious of where they are and of what they are doing, through any of his senses, and are where he can readily see them if he is so disposed. The test, therefore, to determine whether the will of a person who has the use of all his faculties is attested in his presence, is to inquire whether he understood what the witnesses were doing when they affixed their names to his will, and could, if he had been so disposed, readily have seen them do it." Demaris at 582, quoting Healey v. Bartlett, 59 A. 617,618 (N.H.1904). {116} In In re Estate of Holden, 113 N.W.2d at 92-93, the Supreme Court of Minnesota concluded that witnesses signing the will while standing eight feet away in the doorway to the testator's room were in the testator's "range of vision" and, therefore, within his conscious presence. In Nock, 51 Va. at 126, the Supreme Court of Appeals of Virginia concluded that the witnesses who attested the will did so in the conscious presence of the testator even though they were in another room, feet away, and the testator could not from his position see the witnesses' forearms, writing hands, or the will itself without changing position. The court concluded that the conscious presence test was met, however, because the testator could have seen the witnesses attesting the will merely by changing his position. Id. { 17} Califomia has also construed the presence requirement by applying the "conscious presence" test. In re Tracy's Estate, 182 P.2d 336, 337 (Cal.App.1947). The Tracy court, citing a long history of cases from various states, set out the following elements to APPENDIX PAGE NO. 6.

24 COPY 7 establish conscious presence, where the testator cannot actually view the witnesses' signing: "(1) the witnesses must sign within the testator's hearing, (2) the testator must know what is being done, and (3) the signing by the witnesses and the testator must constitute one continuous transaction." Id. In Tracy, the witnesses signed the will in another room 25 feet away and, although the testator could not see them, she could hear the witnesses' conversation evidencing their contemporaneous signing. Given the timing of the witnesses' signatures immediately after the testator's and the testator's ability to hear the witnesses and understand by their conversation that they were attesting her will, the court concluded that the will was properly executed. Id. {118} The Supreme Court of Mississippi explained the rationale behind the conscious presence test. In re Estate of Jefferson, 349 So.2d 1032 (Miss.1977). The Jefferson court wrote that "the purpose of signing by the attesting witnesses in the presence of the testator is that the testator will know that the witnesses are attesting the testator's will and not another document; that the witnesses will know the same; these reasons being to avoid imposition or fraud on either the testator or the witnesses by substitution of another will in place of that signed by the testator; and that the witnesses will be reasonably satisfied that the testator is of sound and disposing mind and capable of making a will." Id at In that case, the high court concluded that a witness who telephoned the testator and informed him that he was then signing and attesting the testator's will was not in the conscious presence of the testator. {1f19} More recently, the Supreme Court of New Hampshire relied on the conscious presence test as enunciated in Healey, supra, and concluded that the witnesses had not attested the will in the testator's presence. In re Estate of Fischer, 886 A.2d 996 (N.H. 2005). In Fischer, the testatrix was bedridden with cancer. After signing her will in her bed in front of the witnesses, the witnesses signed the will on the porch. The court concluded that there was no APPENDlX PAGE NO. 7

25 8 evidence in the record that the testatrix could have readily seen or heard what the witnesses were doing but for her infirmities or that they were so near the testatrix that she was conscious of their actions when they signed the will. Id at 999. Moreover, the high court concluded that the witnesses' signing in the presence of the testatrix' attorney was not adequate to meet the statutory requirement. Id at {120} Based on our review of the considerations long recognized throughout the country, we adopt a"conscious presence" test in line with historical precedent which requires that the subscribing and attesting witnesses be in the testator's range of vision or that the testator hear and understand that the witnesses are subscribing and attesting the will at the time they are doing so. {1[21} Sara White and Joseph Reich were asked to witness the execution of Kay's will. In this case, both Ms. White and Mr. Reich testified during their depositions that Kay, who was on another floor of the home when she signed her will, could not see them from either bedroom. In fact, Ms. White understood that Kay did not want the witnesses in the same room with her because she did not want any strangers to see her in her state of illness. Ms. White testified that she had no knowledge about whether Kay could hear the witnesses on the floor below her. Both witnesses testified that they signed the will within mere feet of one another but that Kay did not see the witnesses sign from upstairs. Mr. Reich further testified that no one asked him to communicate in any way with Kay that day regarding her understanding of the will. {1[22} Based on our review of the evidence submitted by Shawn, Angie, and Nick in support of their motion for summary judgment, this Court concludes that they met their initial burden of presenting evidence to demonstrate that there was no genuine issue of material fact and that they were entitled to judgment as a matter of law. The plaintiffs presented evidence that APPENDIX PAGE NO. 8.

26 9 the witnesses were not in Kay's range of vision when they subscribed and attested the will and further that she could not hear what they were doing and, therefore, had no understanding that the witnesses were signing the will. {123} In support of her reciprocal burden, Victoria appended her affidavit in which she averred that "the voices of the witnesses and sounds they were making moving around in the living room were clearly audible and within the sound of my mother's ears, being only several yards away and directly below her in the living room[.]" She further averred that Michael took the will from Kay downstairs to the witnesses and that "they had a discussion that could be heard in my mother's upstaus bedroom while they were signing as witnesses[.]" Victoria also appended the affidavit of Ms. White who averred that "[d]ue to our close proximity, Kay Whitacre could hear me talking with her son and daughter, as well as the other witness, Joseph Reich, and I believe she could hear our movements about the living room, so she was fully aware of our presence[.]" {124} Based on our review of the evidence, we conclude that Victoria did not meet her reciprocal burden of responding by setting forth specific facts, demonstrating that a"genuine triable issue" exists to be litigated for trial. Tompkins, 75 Ohio St.3d 447 at 449. Although she presented evidence that Kay could hear conversations and movements in the downstairs living room, she presented no evidence regarding the substance of any of those conversations or that Kay was aware that the witnesses were subscribing and attesting her will at the time they were doing so. Accordingly, the trial court did not err when it found that the will was not executed in compliance with the requirements of R.C , and when it therefore revoked its prior order admitting the will to probate. Victoria's assignments of error are overruled. APPENU(X PAGE NO. 9.

27 t0 III. (1[25} Victoria's assignments of error are ovenuled. The judgment of the Medina County Court of Common Pleas, Probate Division, is affirmed. Judgment affirmed. There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of this joumal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellants. DONNA J. CA FOR THE COURT DICKINSON, J. CONCURS. '1PPEND]XpACEN0. 10.

28 CUW II BELFANCE, P. J. DISSENTING. {126} I respectfully dissent from the judgment of the majority, as I would conclude there is a genuine dispute of material fact precluding summary judgment. {127} R.C states in part that the will shall "be attested and subscribed in the conscious presence of the testator, by two or more competent witnesses, who saw the testator subscribe, or heard the testator acknowledge the testator's signature." The statute goes on to define the phrase conscious presence as "within the range of any of the testator's senses, excluding the sense of sight or sound that is sensed by telephonic, electronic, or other distant communication." R.C Because that phrase has been defined by the legislature, I would rely first and primarily on that definition in determining whether there was a genuine dispute of material fact with respect to whether the will was attested and subscribed in Kay's conscious presence. {1[28} Viewing the evidence in a light most favorable to Victoria, I would conclude that she met her reciprocal burden and demonstrated that a genuine dispute of material fact exists with respect to whether the will was attested and subscribed in Kay's conscious presence. Wlule I do not dispute that Victoria's affidavit is somewhat ambiguous, this Court is required to resolve that ambiguity in favor of Victoria. See Garner v. Robart, 9th Dist. No , Ohio- 1519, 8. Victoria's affidavit states, inter alia, that "the voices of the witnesses and sounds they were making moving around in the living room were clearly audible and within the sound of [her] mother's ears ***[,]" that the fan was tumed off "so the sounds of the witnesses on the first floor were clearly heard by her," and, that, at the time the witnesses were going to sign the will the discussion the witnesses were having "could be heard in [Kay's] bedroom while [the witnesses] were signing ***." In addition, Victoria's affidavit indicates that the doors to the APPENDD: PAGE NO. 11.

29 COPY 12 upstairs rooms where Kay was at were kept open and that Kay was "not more than feet[]" from where the witnesses were located. Viewing this evidence in a light most favorable to Victoria, it could be said that the witnesses attested and subscribed to the will in the conscious presence of Kay, as the witnesses were within range of her hearing. See R.C Accordingly, I would conclude that the movant was not entitled to summary judgment. APPEARANCES: LAURA M. FAUST and RONALD B. LEE, Attorneys at Law, for Appellants. HAL BOWERS, Attomey at Law, for Appellants. CLIFFORD C. MASCH, LEON A. WEISS, and FRANKLIN C. MALEMUD, Attorneys at Law, for Appellees. APPENDIX PAGE NO. 12.

30 ,11EUINA :OUN I Y. O010 PROBA'tE COURT FiLED JUDGE JOHN J. LOHH 2g1I JAw 24 PM 2^ 29 IN THE COURT COMMON PLEAS MEDINA COUNTY, OHIO PROBATE DIVISION Shawn Whitacre, et ai. CASE NO CA ooorg FIain.tiffs, vs. JUDGE JOHN J. LOHN iffiehtaef A. Crowe, et ai. Defendants O RDEI G NG i PI- 'S MOTION FOR SU Y,IUI3GI IENT This matter came before the Court for non-oral hearing on January 14, 2010 upon the Plaintiffs motion for summary judgment filed pursuant to Rule 56 of the Ohio Rules of Civil Procedure. Kay L. Whitacre was a resident of Wadsworth. She was diagnosed with pancreatic cancer in April After her diagnosis she began living with her daughter Victoria Hobson in Summit County. Mrs. VJlv.tacre died on May 26, She was survived by five adult cb ldren: Victoria Hobson, Michael Crowe, Shawn Whitacre, Nick Crowe and Angie Saffies. The will admitted to probate was signed on May 14, 2010-just twelve days before Mrs. Whitacre died. 'I'he will named Michael Crowe as the executor of her estate and Victoria Hobson as the successor executrix. Victoria Hobson is the only beneficiary under the will..on the day she signed her wiil Mrs. Whitacre executed a power of attorney naming her son Michael Crowe as her attorney-in-fact.' This is a will contest action brought against Michael Cro we and Victoria Hobson by Laeir si.bungs. ShaF-n Whitacre, Nick Cro,,^j e and Angie Saflles. Tl ^e will was admitted to probate on June 3, 2o1o; The complaint to set aside the «%iil was filed on July 8, zoio. PlaiLTbiLq' motion iir s4immary jl::g'meni7"'a-q aled I)eceELiber 20, 'ihe Pl m bffs ar^7ae the wfp is invalid because it was not properly executed. Ohio Civ. R. 56(G) states in part: Summary judgment shall be rendered forth; i^'^ BT e pleadings, deposi*.ions, answers to interrogaiories, w-ri Ḻ-Len The power of attorney was exec ted and vr.tyessed in the same way as the will Y7ie Probate Court of Medina County, Ohio A PPENDIX PAGE NO. 13. Page i of 5