IN THE SUPREME COURT OF OHIO

Victoria Hobson,

Appellant,

V.

Shawn Whitacre, et al.,,

Appellees.

On Appeal from theCourt of AppealsNinth Appellate District

Court of AppealsCase No.11CA0019-M

MEMORANDUM IN SUPPORT OF JURISDICTIONOF APPELLANT VICTORIA HOBSON

John F. Myers #0032779697 West Market Street, Suite 102Akron, Ohio 44303(330) 535-1202hllndmyers@neo.rr.comAttorney for Appellant Victoria Hobson

Leon A. Weiss #0010698Franklin C. Malemud #0068356Reminger Co., LPA1400 Midland Building101 Prospect Avenue, WestCleveland, Ohio 44115-1093Attomeys for AppelleesNick Crowe, Angie SafflesAnd Shawn Whitacre

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AUG 13 70)1

CLF,RK OF C®URT

SUPREV!E CUUR____ 7 UF OHIO

TABLE OF CONTENTS

EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC ORGREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIALCONSTITUTIONAL 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.2107.03 afford a testatrix the opportunity to sign a last will andtestament and the witnesses to subscribe and attest the last willand testament in the conscious presence of the testatrix; theterm "conscious presence" should be construed liberally tomeet the desire or needs of the testatrix in order toaccommodate facts and circumstances surrounding the

execution process.

CONCLUSION

PROOF OF SERVICE

APPENDIX

Decision and Journal Entry of the Ninth District Court

of Appeals(July 29, 2012)

13

Order granting Plaintifl's Motion for Summary Judgment inthe Medina County Court of Common Pleas Probate Division 13

EXPLANATION OF WHY TIIIS CASE IS OF PUBLIC OR GREAT GENERALINTEREST

In September 2008, Ohio Revised Code §2107.03 (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'sconscious presence and at the testator's express direction. The will shall be attested andsubscribed 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 thetestator'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. §2107.03 required that a will be signed in the presence of two

witnesses. The term "conscious presence", while defined in O.R.C. §2017.03, 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. §2107.03. 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. §2107.03 adopted the Uniform Probate Code §2-502,

conscious presence test which provides for a liberalization of the traditional presence or direct

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 383-390; So How Contagious is the Testator? Jeffrey L. Weiler 18 Prob. L.J. Ohio

115, (Nov./Dec. 2007.) 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. §2107.03, 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.

§2107.03.

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.§2107.03 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

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 26 2010.

The Will was admitted to Medina County Court of Common Pleas Probate Court Division on

June 3, 2010. 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. §2107.03. 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 24 2011 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. §2107.03. 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

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 23 2010 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 byher published and declared to be her Last Will and Testament, and at her request and inher presence and in the presence of each other, we hereunto subscribe our names asattesting 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

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

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. 2107.03 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. §2107.03 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 370-371. 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 383-390.1 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 562-564, 575-583.

' The Ohio State Bar Association Council of Delegates Fall 2007 Meeting, Report of the Estate Planning, Trust andProbate Law Section at page 30-36 provides a succinct summary of the public policy considerations pertinent to theadoption of conscious presence test and provides a supplemental memorandum that discusses the consciouspresence rule.

6

Conscious presence is defined in R.C. §2107.03 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

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 ofthe senses that a testator possesses, which enable him to know whether another is near athand and what he is doing, may be employed by him in determining whether the attestersare 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 anindispensable element of the conscious presence rule. In determining whether Georgewas aware of the fact that the signatures were being written, we may properly take intoconsideration, we believe, the fact that he had asked that the will be prepared, and thatboth of the Gillises were present when he signed. Undoubtedly, the request for thepreparation of a will, under the circumstances disclosed by the record, carried with it animplied request for an attestation.

8

Id. at 73-74.

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

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

actually saw them sign or not); Dubach v. Jolly, 279 111. 530 (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

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. §2107.03. 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. §2107.03

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

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 # 32779697 st Mar t treet, Suite 102AkroWOhio 3(330) 535-1202hllndmyers@neo.rr.comAttorney for Appellant Victoria Hobson

13

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., LPA1400 Midland Building101 Prospect Avenue, WestCleveland, Ohio 44115-1093

Attorneys for AppelleesNick Crowe, Angie SafflesAnd Shawn Whitacre

Myers,y for Appell

14

APPENDIX

COPT

STATE OF OHIO Cri''cjT ^^ ApQEALS

COUNTY OF MEDINA 12 ,^{ .f 9AM 9' 51F:! E_D

SHAWN WHITACRE, etg^1;VSD 0. FvAO?1"IORTHHEG!N^'^ COLNTY

Appellees GE_i:Gt`^F COURTS

V.

MICHAEL A. CROWE, et al.

Appellants

IN THE COURT OF APPEALSNINTH JUDICIAL DISTRICT

C.A. No. 11CA0019-M

APPEAL FROM JUDGMENTENTERED IN THECOURT OF COMMON PLEASCOUNTY OF MEDINA, OHIOCASE No. 2010 07 CA 00019

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. 2107.03, and revoked an

earlier order admitting the will to probate. Victoria appealed, raising three interrelated

assignments of error for review.

APPENDIX PAGE NO. 1.

mrv

2

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED IN FINDING THAT THE EXECUTION OF THEWILL DID NOT MEET THE FORMALITIES REQUIRED UNDER []R.C.2107.03.

ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED IN GRANTING PLAINTIFF/APPELLEE'SMOTION FOR SUMMARY JUDGMENT FINDING THAT THE WITNESSESWERE NOT IN THE CONSCIOUS PRESENCE OF KAY WHITACRE, THETESTATOR.

ASSIGNMENT OF ERROR III

THE TRIAL COURT ERRED IN REVOKING ITS PRIOR ORDERADMITTING 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 movingparty is entitled to judgment as a matter of law; and (3) it appears from theevidence that reasonable minds can come to but one conclusion, and viewing suchevidence most strongly in favor of the party against whom the motion forstunmary 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.

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. 2107.18 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. ,

COF'/

4

{¶9} Kay purported to execute her will in Ohio on May 14, 2010. The applicable

version of R.C. 2107.03, 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 behandwritten or typewritten. The will shall be signed at the end by the testatormaking it or by some other person in the testator's conscious presence and at thetestator's express direction, and be attested and subscribed in the consciouspresence of the testator, by two or more competent witnesses, who saw thetestator subscribe, or heard the testator acknowledge the testator's signature.

For purposes of this section, "conscious presence" means within the range of anyof the testator's senses, excluding the sense of sight or sound that is sensed bytelephonic, 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. 2107.03 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.

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. 93231, 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. 2107.03, 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, 183-184 (111.1905); Watson v.

Pipes, 32 Miss. 451 (1856); Nock v. Nock's Exrs., 51 Va. 106 (1853); Nichols v. Rowan, 422

APPENDIX PAGE NO. S.

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 hearingwhat goes on around him, it is the general, if not universal, rule that his will isattested in his presence if he understands and is conscious of what the witnessesare doing when they write their names, and can, if he is so disposed, readilychange his position so that he can see and hear what they do and say. * * * Inother 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 hedoes not see them do it, and could not without some slight physical exertion. It isnot necessary that he should actually see the witnesses, for them to be in hispresence. They are in his presence whenever they are so near him that he isconscious 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, todetermine whether the will of a person who has the use of all his faculties isattested in his presence, is to inquire whether he understood what the witnesseswere 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, 16-17 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.

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 1036. 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

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 1000.

{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.

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. 2107.03, 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.

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. CAFOR THE COURT

DICKINSON, J.CONCURS.

'1PPEND]XpACEN0. 10.

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. 2107.03 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. 2107.03. 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. 25427, 2011 -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.

COPY

12

upstairs rooms where Kay was at were kept open and that Kay was "not more than 12-15 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. 2107.03.

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.

,11EUINA €:OUN I Y. O010PROBA'tE COURT

FiLEDJUDGE JOHN J . LOHH

2g1I JAw 24 PM 2^ 29

IN THE COURT COMMON PLEASMEDINA COUNTY, OHIO

PROBATE DIVISION

Shawn Whitacre, et ai. CASE NO. 2010 07 CA ooorg

FIain.tiffs ,

vs. JUDGE JOHN J. LOHN

iffiehtaeF A. Crowe, et aI. O RDEI€ G NG

Defendantsi 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 2010. After her diagnosis she began living with her daughter

Victoria Hobson in Summit County. Mrs. VJlv.tacre died on May 26, 2010. 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, 2010. '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-L-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 APPENDIX PAGE NO. 13.Page i of 5

admissions, affidavits, transcripts of evidence, and writtenstipulations of fact, if any, timely filed in the action, show thatthere is no genuine issue as to any material fact and that themoving party is entitled to judgment as a matter of law. Noevidence or stipulation may be considered except as stated in thisrule. A suntmaryjudgment shalZ not be rendered unless it appearsfrom the evidence or stipulation, and only from the evidence orstipulation, that reasonable minds can come to but one conclusionand that conclusion is adverse to the party against whom themotion for summary judgment is made, that party being entitledto have the evidence or stipulation construed most strongly in theparty's favor.

Mrs. VJhitacre instructed the Defendants to contact her attorney, Richard

Dickey, to discuss preparation of a will. On May 13, 2010, the decedent began hospice

care and on the same day Attorney Dickey visited with her in private to discuss the

terms of the will. According to V'ictoria Hobson, 2vars. Whitacre was a strong woman;

she had no problems with her hearing and did not wear any type of hearing aid. When

she went on hospice care she made a conscious decision to forbear the use of

medications.

Attorney Dickey said he would prepare the will according to Mrs. Whitacre's

wishes and have his paralegal bring it to the house for it to be executed on May 14,

2o1o. The Defendants were to arrange for the presence of a second witness.

An audio/video baby monitor had been.. set up on the second floor of Mrs.

Hobson's home in the bedroom occupied by Mrs. Whitacre. The camera and

microphone transmitted what was going on in the bedroom to a television monitor and

a speaker downstairs in the living ioom. This was a one-way arrangement-the feed

was sent from the bedroom to the living room. There was no camera or microphone .

sending a feed trom ``he'•4in.ng room to the bedroom.

On May =4, 20'-o °'-"e'!^`m"dow' a-rid zater,or uoors of Defendant Hobson's home

were open, including the door to ttae bedroom ssed try ivirs. W7xii.aere. Attorney Dickey

sent his paralegaE Sara J'.hite to t he Hobson home viti1 tme vrad an°i the poiver of

attorn=-;r, Def=n^iarrt Pfirhae1 Crowe a.,2auged for his neighbor Joseph Reich to be the

serond witness. ldrs. Ivhur.acre did not want = ny stsange_s to see her in her condition,

so cara White P.md Joseph Re.'ch Evere in the living room observing the television

The Probate Court of Medina County, Ohio f1 PPENnIX rqGE NO. 14.

Page2of$

monitor while Mrs. Whitacre was in the bedroom above them on the second floor.

According to V'ictoria. Hobson her mother could hear the voices of the witnesses

downstairs. The witnesses could hear the decedent moving about on the floor above as

well as observe her movements and hear her voice simultaneouslyon the baby monitor.

13u,.ing the course of the execution of the will, Mrs. Whitacre moved from one bed in

one bedroom across the hall to a hospital bed in another bedroom. The monitoring

device was moved to the second bedroom so the witnesses could continue observing

Mrs. Whitacre.

There was no interaction of any kind between the testator and the witnesses.

The testatorhever spoke to either of the witnesses or even acknowledged she knew the

witnesses were in the house. There was no monitor or speaker provided for Mrs.

Whitacre to watch the witnesses. The monitor and the speaker were the exclusive

means by which Ms. White and Mr. Reich heard the decedent's voice, saw her read the

will and observed her make her mark at the end of the will. Neither of the witnesses

called out to Mrs. Whitacre to tell her they had attested her signature and were

subscribing their names to the will.

Nothing passed between them: no words, no'gestures, not even a squeeze of the

hand- to show Mrs. Whitacre knew of the presence of witnesses to her last important

earthly act.

R.C. 2ao7.o3 sets out the formal requirements for the execution of a valid will in

Ohio:

Except oral w ^^'-, every last wi-1 and testament shali be invariteng, but may be handwritten or typewritten. The wilt shall besigned at the end by the tessator maldng it or bg some otherperson in !ue testator's conscious presence and at `1ysP testator's

0-yiY`ESS AP, Oa..y and ::? 2.ttesTed andE' hs-_'._T'IFdin '=-^f'- F',C1Fitr7iPuF

preSel:ce L}ttjletesta`.sr, e^'iytv`Jo or more E'ti^mpetent wltnesses. S^.T^nO

saw- tne _estator suoscr,.oe, orheard the ieste.tor aeknoERA..:ige `ue°`vwisr'^ S:C.......e..,. . . . .wi

For p'u'..̂ pEPses of this sectaon, ^Conscionc presence" man.^s

7ri'.uin `^ hS range of '..^.f t:'e}^,S} to'-°'s se»^"-es, exes'.1.̂,:h,'g the sense

of sipht or sound that is sensed by telephonic, electronic, or otheraistant communicati on.

APPENDIY PAGE NO. 15.

Page 3 of 5The Probate Court ofMedina County, Ohio

Technically, the witnesses never saw the decedent sign the will. They saw a

television monitor. On the monitor they saw the decedent make a mark on a paper.

Then a paper was brought to them. They assumed it was the same paper Nlrse SAUtacre

was holding when they saw her on*.he television. They assumed the mark atthe end of

tlie will was the mark they saw NIrs. V4h3tacre make on the paper when she was seen on

the television.

The requirement that there be two wifnesses to a will is meant to prevent fraud

and to assure authenticity. The witness requirement assures the court there were two

disinterested persons who assessed the demeanor and mental capacity of the testator at

the time the will was executed. The witness requirement prevents the fraudulent

substitution of documents, too. The witnesses must identify the document the testator

signed as the same document they signed.

The conscious presence clause of R.C. 2107.03 validates wiIls which would

othenvise be invalid because of the physical disabilities of the testator. The will can be

valid if there is awareness by the testator that there are witnesses around her and they

are there to watch her sign her will. If there is knowledge to this effect received by way

of any of the testator's senses (sight, sound, touch or gestures), the will is properly

executed. The conscious presence clause broadens the manner by which testators can

be aware of the presence of the witnesses, it does not eliminate the witness requirement

altogether. The testator must know-directly through the testator's own senses-that

persons are nearby observing the process.

Reasonable minds can come to but one conclusion. The witnesses were not in,

the conscious presence of 14frs. -Whitaker when she made her m.arK on the document.

The execution of the will did not meet the formalities required under R.C. 21o7. n3.

IT ; E'^^^^^^R A^ DROREEIi *?^atr.he Court's ore^'ioF^..'ga ^^ ,.I^^^, ADJUDGED^.,..,^

i)rder saied .lnne, 2i. "k admdi^Sz ve:.f'iu°'ported W^L Gf deiss. }fVr`aitai.re is ae-voketdii's

=he reasQn Zt was not execstevi Ln aCC.Crda;;.ace eY%u.̀1 <.v. .ciJJ.0,.'T̂.

TheProbateGourtofMedina County, OhioAPPENDIX PAGENo. 16.

Page4ofg

Costs of the action are assessed against defendants Michael Crowe and Victoria

Hobson.

SO ORDERED.

MM JQHNtT. LOM

This Judgment Entry is a Final Order. As provided in Rule 4 of the Rules ofAppellate Procedure, parties have a right to appeal within thirty (30) days of the date

of this Judgment Entry.

The Probate Court ofMedina County, OhioPage 5 of 5

APPENDLy PAGE NO. 17.