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IN THE SUPREME COURT OF OHIO
' ^ x ^ ''^In the Matter of the Estate ^ ^ "^. <E. z. ^5,,,i
Of Esther Gordon: Carolyn ZaraAppellant, . On Appeal from the Richland
County Court of Appeals,Fifth Appellate District
Court of AppealsCase No. 13 CA 78
MEMORANI)UM IN SUPPORT OF JURISDICTION OF APPELLANTCAROLYN ZARA
Erica Ann Probst (0073486) (Counsel of Record)Kemp, Schaeffer & Rowe Co., LPA88 W. Mound StreetColumbus, Ohio 43215Telephone: (614) 2324-2678Facsimile: (614) 469-7170crica(&ksrlegal.com
Counsel for Appellant Carolyn Zara
Joseph L. JergerBayer, Jerger & Underwood362 Lexington AvenueMansfield, Ohio 44907
Administrator of the Estate of Esther Gordon
William Fithian111 N. Main StreetMansfield, Ohio 44902-7669
Counsel for Patricia Shaffer-Gordon
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TABLE OF CONTENTS
Page
Explanation of Why This Case is a Case of Public or GreatGeneral Interest ...................................................... 3
Statement of the Case and Facts . . . .. . . . . . . . . . . .. . . . . . . . . . . . .. . . ... 4
Argument in Support of Propositions of Law ................... 13
Proposition of Law 1:
A court's decision to rely completely on the testimony of an attorney,who met the deceased perhaps once or twice over the course of herlifetime, rather than a licensed medical doctor, who had beentreating the deceased for months and had records of her mental decline,regarding the deceased's mental capacity, if left unsanctioned bythe Supreme Court could lead to increased fleecing and abuse of the elderly.
Conclusion ........................................................... 15
Proof of Service . .. ... ... ............ ..... ....... ... .. . .............. 17
Appendix ............................................................ 18
Opinion of the Fifth District Court of Appeals(May 13, 2014) ..............................................
Judge Entry of the Fifth District Court of Appeals(May 13, 2014) ..............................................
{00057574-1} 2
STATEMENT OF WHY THIS CASE IS A CASE OF PUBLIC. OR GREAT GENERAL1NTEREST
Elder abuse is real. Financial abuse of the elderly, perpetrated too often by adult children,
is the most prevalent form of elder abuse. If the decision of the trial court in this case is allowed
to prevail, it will serve only to perpetuate the epidemic tragedy that is elder abuse. When the
historical medical data pre-dating the alleged fraud indicates a history of dementia and the
opinion of the victim's treating physician is that the victim was suffering from dementia "with
significant severe impairment" and was incompetent, the Court's decision to ignore and
misconstrue evidence and instead rely on the testimony of an attorney, who had only met the
victim once over the course of her lifetime', does nothing more thari perpetuate a tragedy. The
nature of this dispute is factually intense but it fits the pattern of an elder abuse case. A women
suffering from dementia who has been closed off from her caregiver by her estranged daughter
Patricia Shaffer is driven to scven banks over the course of two (2) days and taken to see a
lawyer whom she had met briefly two years prior, to execute a power of attorney, a document
never previously had by her, in favor of a twenty something grandson. The locations of the
banks visited by Esther were not her normal stomping ground as the perpetrators went out of
their way to ensure Esther was not protected. The sinister nature of these acts perpetrated by an
adult child is enough to shock the conscience. However, the court adopts toward the opinion of
the attorney who prepared the "power of attorney" to find Esther was competent although almost
4 years had passed since the "visit," and no record of the visit or notes were taken. The decision
of the Probate Court and the Fifth District Court of Appeals to ignore the obvious pattern of
' While the attorney at issue only met Esther one time, he has a long history of practice within the Richland ProbateCourt systeni. Further, just months after the execution of the power of attorney, this same attorney was appointed bythe Court as Guardian of the Estate of Esther (although Zara had filed the application herself). So although Estherwas incompetent and he was the Guardian, his power of attorney still survived. It seems that the perfunctory actionsand appointments of the probate Court related to this attorney may have clouded the decision in this case.Specifically, because the Court is familiar with the lawyer, they chose to give that familiarity credence rather than anuncontroverted stipulated medical opinion.
{00067574-1} 3
abuse in this case as well as substantiated uncontroverted medical evidence is not only
inexplicable; it does nothing more than provide those who want to commit financial elder abuse
a road map on how not to get caught. This case is of such importance to the public and of great
general interest because the elderly have become one of the largest targets for abuse and the
failure to review this case will only perpetuate that cycle. The Court system must provide
protection where none exists.
STATEMENT OF CASE AND FACTS
A. Ralph and Esther Gordon had a lasting union that resulted in substantial non-probate estate planning.
During the course of their lasting marriage, Esther and Ralph Gordon accumulated assets
in various forms including real estate, vehicles, cash, treasury bonds, certificates of deposit,
individual retirement accounts, savings accounts and checking accounts. The accumulation of
this wealth was a concerted effort to ensure that both would be well taken care of until their
death and to provide for certain specified members of their family. Further, as all witnesses
testified, Esther Gordon and Ralph Gordon did not care for attorneys.
Esther and Ralph Gordon established residency and planned to spend their retirement in
Lake Worth, Florida. They had spent forty years of winters in Florida and wanted to begin
enjoying its benefits year round. During that time, Esther and Ralph began investing in
certificates of deposit and savings accounts in various Florida banking institutions including
Flagler Bank, Bank United, Third Federal Bank, Commerce Bank, BB& T Bank, Sun Trust
Bank, Sterling Bank, and Wachovia Bank. There were a total of twenty-one accounts, all of
which held pay on death designations. Esther and Ralph Gordon did not establish a bank
account in Ohio or Florida without a pay on death designation. With every one of the twenty one
{00067574-1} 4
(21) Florida accounts, Esther and Ralph Gordon, years ago, intentionally designed inheritarice
provisions excluding Patricia Shaffer.
During the extended illness and eventual death of her beloved husband Ralph in 2006,
Esther began closing her Florida accounts because it became necessary to spend more time in
Ohio. Although Esther closed nearly all her accounts, she left two Wachovia accounts open. As
a result of the closure of her various Florida accounts, multiple certified checks were issued to
Esther Gordon by the individual banks. Esther received the checks but failed to cash them. It
was not until November 30, 2007 that Esther attempted to deposit the various certified checks at
Richland Bank. Esther initially deposited $609,718.50 into a Richland Bank account.
B. After the death of her husband Esther Gordon continued her non prohate estateplanning which specificatly excluded her daughter Patricia Shaffer Gordon.
In the summer of 2008, Esther had growing concerns there was a large sum of money all
in one savings account at Richland Bank (Account 1603126702) which amount exceeded FDIC
insurance limitation. Because she already had a savings and checking account at Richland along
with two retirement accounts, Esther wanted to limit the amount of money held at Richland Bank
so it would not surpass the $100,000.00 per bank Federal Deposit Insurance Company insurable
limitation. On July 18, 2008, as a result of her concerns, Esther reduced the money in the new
savings account to $58,527.35 and proceeded to make various transfers to other banks
throughout central Ohio as discussed in detail below. Specifically, Esther transferred
$554,901.61, with the assistance of bank employees, which was evenly divided into deposits of
$92,486.60 into six different banks in Mansfield, Ohio. At the time of the transfer, the Richland
Account (1603126702) maintained a pay on death designation of Carolyn Zara. Further, each of
the six new bank accounts opened by Esther Gordon provided a pay on death designation of
Carolyn Zara.
{00067574-1} 5
On July 7 , 2006, just one day before her beloved spouse died, Esther opened a Chase
Banlc checking account (0720634377) to establish her own account and have money available
after his death. Esther opened the checking account with $50,000.00 which she had transferred
from her previous joint account with Ralph Gordon. At the time this account was opened it
contained a pay on death designation of Carolyn Zara and Lisa Lookabaugh.
C. Esther Gordon was incompetent in October 2008 according to the report of Dr.C'owden, her family physician.
Many medical records were introduced into evidence all leading to the inevitable
conclusion that Esther Gordon was clearly exhibiting signs of dementia by October, 2008. Dr.
Cowden, in her own words, makes note of Esther's dementia. Cowden's Statement of Expert
Evaluation demonstrates Cowden's opinion was based upoii evaluation dates of March 17, 2008,
April 7, 2008, and October 21, 2008. In her October 21, 2008 report Cowden concludes that
Esther Gordon had minimal insight. Her judgment was impaired. Her short-term memory was
impaired. She noted that Esther was often unsure of the day or date of the week. As it relates to
Esther's motor behavior, Dr. Cowden makes note that Esther could not draw a clock-face or
straight lines well. Esther had no abstract thinking ability. And interestingly, although her affect
was bright and cheerfttl she concluded that Esther would laugh and be pleasant to try to distract a
questioner from discovering that Esther did not know the answer to a particular question.
The detail in which Dr. Cowden described Esther's deteriorating condition indicated that
Esther's condition "has progressed to a significant severe impairment." Dr. Cowden notes that
Esther would be easy for a stranger, acquaintance or family member to take advantage of due to
her lack of insight. In her letter of March 15, 2009, Dr. Cowden describes the course of dementia
as progressive. She indicates that although medications can slow the progress of the disease, such
medications even if regularly taken (which was a challenge for Esther) do not cure the dementia
{00067574-1} 6
or prevent progression of the disease process. Esther had some deficits. Esther was not able to
take in new information easily. Dr. Cowden's office notes indicate that as of April 7, 2008 Esther
had sorne dementia issues. Dr. Cowden notes that Esther did not have judgment and did not
understand what the golden rule was. Dr. Cowden also noted that when Esther was not sure
while taking "A Short Test of Mental Status", Esther would ask the examiner to let her know
which answer was right, "Monday or Tuesday" "October 20 or 21 ". Her digit span was only five
not seven and Esther's immediate recall was zero. The expert evaluation form specifically asks if
an individual is capable of managing finances and property. Dr. Cowden writes "No. Cannot do
math in head *** Complex activities like paying bills or balancing a checkbook would be
impossible." Cowden continued that she did not have abstract thinking skills and was
susceptible to influence. Dr. Cowden continued to conduct mental capacity evaluations,
documenting Esther's mental decline over the next year. By late 2008, Esther was requiring
caregivers around the clock. In June 2009, a Guardian was appointed by the Richland County
Probate Court. The conditions leading to her legal incompetence did not occur overnight. They
were the process of the Alzheimer's dementia confirmed by Dr. Chawla where he writes in his
assessment that Esther Gordon was suffering from Alzheimer's disease.
Esther's deterioration can also be seen in a series of checks written between October of
2007 and May of 2008 to various payees proving that Esther continued to be in control and
competent to handle the writing of certain checks, the noting of various comments regarding
dates and related details associated with those transactions. However, by September 29, 2008,
Esther wrote check numbered 411 to the Lexington Senior Citizen Center. She wrote all over the
check. Esther was apparently unable to use the copier as she wrote copy on the face of the check.
{00067574-1} 7
Esther wrote three separate dates on the check in September of 2008. This check alone is
demonstrative evidence of her deteriorating condition.
Despite this evidence, the trial court discounted the opinion of Dr. Cowden. In fact, it
seemed to discount nearly every fact set forth in the various evaluations, reports and letters of Dr.
Cowden despite there being zero evidence offered to the contrary. In fact, the Court indicates
that
Either Dr. Cowden had not previously performed a Mini Mental Status Exam on apatient or if she had, she did not know how to score the results until sometime aftershe administered the first Mini Mental Status Exam to Esther on October 21, 2008.
The court incorrectly names the Exam performed on Esther despite its appearance in the record
as an exhibit. Next, there is no testimony by any witness or any documentary evidence or really
any argument in the transcript that Dr. Cowden had not performed a. Mini Mental Status Exam.
It seems as if the supposition was created by the Court to support its conclusion discounting the
result (a score of 14 out of 38 October 21, 2008), that Esther Gordon was incompetent. In fact,
the decision and entry contains multiple errors relating to Dr. Cowden including:
• "Dr. Deborah Cowden's office notes from April 2007" (The notes were fromApril of 2008)
• An indication that Dr. Cowden "revised" the October 21, 2008 test score. (Thereis no testimony in the record or in Dr. Cowden's notes that the test score was everrevised to indicate that she was competent)
• Claim that Dr. Cowden was used to herald the efforts of Carolyn Zara to discreditShaffer Gordon. (Dr. Cowden's own notes indicate the contrary. Dr. Cowdenspecifically memorializes Esther's anger at Carolyn. "Esther has beenaggressively critical of Carolyn in my office, and usually it is when Carolyn isattempting to get her to see that something Esther is doing is unsafe or notrational.")
At the same time the Court attempts to discredit Cowden, it acknowledges that in "late spring of
2008. Carolyn and Esther decided to travel to Florida. **** Dr. Cowden cautioned Carolyn that
such a trip may cause Esther to decompensate due to an unfamiliar environment." The Court
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was aware of Cowden's expertise. There was no medical evidence submitted by any party to
contradict it. In fact, there was no medical evidence submitted that suggested in any way that
Esther Gordon was competent in October 2008.
What's more, even Joseph Jerger, the attorney who prepared a power of attorney for
Esther Gordon in October 2008, at the time when a. medical professional has determined she was
incompetent, admitted that Gordon, a sufferer of Alzheimer's, like his mother, could be normal
one day or for a period of time and still be incompetent the next day or hour,
D. Patricia Slzaffer Gordon and Joshua S/iaffer, the decedent's daughter andgrandson, took advantage of Esther Gordon in the most insidious rnanner, takingEsther Gordon to Joseph Jerger's office twice then driving her from bank to bankto change pay on death designations and then skipping town for months.
Esther Gordon, in her eighties with early onset of Alzheimer's dementia that had
increased to significant severe impairment, somehow managed after being locked in her home
without access to her daughter Carolyn Zara (her caregiver), to be transported by Patricia Gordon
and her Joshua Shaffer to Joseph Jerger"soffice to create a power of attorney and then travel to
nearly 8 banks over two days (although her doctor indicated she would have no ability to
remember more than four items in a list much less account locations, pay on death designations
and account numbers) to change pay on death designations to include Patricia Shaffer Gordon.
To be specific, in early October, Patricia comes to town. Josh has a baby. Esther, who had been
diagnosed with Alzheimer's dementia that had increased to a significant severe impairment, was
bombarded by people in her home. She is taken by Josh and Patricia to see Mr. Jerger on two
occasions. She is taken by Josh and Patricia to eight (8) different banks over a two-day period.
There are multiple individuals coming in and out of Esther's home. Carolyn who provided the
stability and foundation for her typical day-to-day existence was asked to "give Patricia her time"
and leave her alone in the home with Esther.
{00067574-1} 9
Patricia, being in Esther's home, had access to the financial infoi-mation allowing her to
know what bank accounts her mother had at the time that she was staying with her in 2008.
From these materials, she became familiar with the Florida banks, bank accounts, and related
financial and personal business information of her mother. Patricia and Josh, in their exhausting
manner, came into town and took charge. Banks, lawyers, visits, a power of attorney for an 86-
year-old woman who had never had a financial power of attorney let alone placing a 24 year-old
with no financial experience of any significant import in a position to manage and handle well
over $1 million. This twenty four (24) year old grandson who was given power of attorney was
later found to have concealed / stolen $80,000 from Esther in July 2006 before the power was
even executed.
And once all the designations had been changed, Patricia, Josh, his children, and his
girlfriend, leave immediately for Mississippi. No doctors' visits had been made. No calls to
doctors' offices had been made. No calls to Carolyn to coordinate meals or other assistance
Esther might need: Josh and Patricia just left her alone in her home. Esther COULD NOT
DRIVE. Esther COULD NOT COOK. The Shaffer clan disappears to Mississippi. Esther
Gordon was without food and medicine. The pay on death designations had been changed and
the money and bonds in the safe had disappeared. Although not on appeal here, there was a
companion concealment case which alleged that Patricia Shaffer and Josh Shaffer liad stolen the
money and bonds in October 2008. The probate court did not make a finding of concealment
with regard to Patricia Shaffer (although as mentioned above, a judgment was entered against
Josh Shaffer for money stolen in July 2006 which occurred before the execution of the Power of
Attorney in his favor).
{00067574-1} 10
The Chase checking account was manipulated and converted on October 10, 2008. Fifty
Thousand Dollars ($50,000.00) was withdrawn by Shaffer Gordon and Joshua Shaffer from the
account and was transferred into a savings account (2907295089) with a new pay on death
designation in favor of Patricia Shaffer Gordon. While the checking account previously listed
Zara and Lookabaugh, the new savings account listed Zara and Shaffer Gordon, but excluded
Lookabaugh (a granddaughter) as beneficiary.
On October 10, 2008, Shaffer Gordon and Joshua Shaffer went to Mechanic's Bank to
add Shaffer Gordon's name to the pay on death designation listed for Mechanic's Savings
Account (04-60055176). Shaffer Gordon and Joshua Shaffer also went to Richland Bank on
October 10, 2008. The pay on death designations on accounts 1603126702 and 1603126788
were changed from Zara to Zara and Shaffer Gordon.
As the pressure continued, Defendants then transported Esther Gordon to an attorney's
office to obtain a Power of Attorney. A power of attorney was executed in favor of Josh Shaffer
because Defendant Shaffer Gordon was not a resident of the State of Ohio. Joseph Jerger was
not Esther Gordon's attorney. Esther Gordon, who has controlled her financial matters for her
entire life without the intervention of lawyers, had only met the attorney on one previous
occasion. Why on earth would she visit this attorney2 fqr any reason?
Following the execution of the Power of Attorney in favor of Joshua Shaffer on October
14, 2008, Defendants proceeded to visit four more banks in the Mansfield area and changed the
distribution upon the death of Esther Gordon of accounts from. Carolyn Zara as beneficiary upon
death to Carolyn Zara and Patricia Shaffer Gordon.
2 The attorney who prepared the power of attorney was later appointed by the Probate Court as the Guardian forEsther Gordon although no prior relationship, except the execution of this POA, had existed. Following her death,he was appointed as the administrator with will annexed.
{00067574-1} 11
On October 14, 2008, Shaffer Gordon and Joshua Shaffer went to First Federal Bank and
added Shaffer Gordon's name to the Pay on Death Designation. Next the same two individuals
visited First Merit Bank, Key Bank and Sutton Bank. Each time, Shaffer Gordon's name was
added to the pay on death designation that was originally just Zara. With KeyBank, Shaffer
removed Zara completely leaving only Shaffer-Gordon as beneficiary.
In total, Shaffer Gordon and Joshua Shaffer cllanged the pay on death designations at
seven different banks. The bank locations to which Esther was driven on these two dates were
even more curious as she was using branches which she had never visited and where should
would have known no one.
Patricia Shaffer and Joshua Shaffer do not deny that they took Esther to several banks to
change these designations. Nor do they deny that they obtained a Power of Attorney. Further,
the opinion of Doctor Deborah Cowden details the disorientation and incompetence of Esther
which was present at the time that Defendants Joshua Shaffer and Patricia Shaffer set their plan
into action. The fear felt by Esther cannot be properly captured by this document now that
Esther has died. However, the opinion of Dr. Cowden speaks volurnes and concludes without
dispute that Esther Gordon was incompetent at the time the Power of Attorney was executed and
the changes to the beneficiary designations were accomplished.
To be sure, the evidence of Esther's incompetence as well as the undue influence of
Patricia Gordon and Josh Shaffer was not contradicted by any third party.
This matter came before the Richland County probate court on July 26, 2012 as a result
of Objections to Inventory and a Petition for Declaratory Judgment filed by Carolyn Zara,
beiieficiary of the decedent Esther Gordon and Objections to Inventory filed by Patricia Shaffer
Gordon, beneficiary of the decedent Esther Gordon. After trial of this matter, the probate Court
{00067574-1} 12
on August 1, 2013 issued a Judgment Entry containing Findings of Fact and Conclusion of Law.
In its Entry it deterniined:
The Court determines that Esther Gordon possesses sufficient mental capacity inmid-October 2008, to designate payable on death survivorship, or any otherdesignation on her bank accounts.
Esther Gordon was not unduly influenced nor had fraud perpetrated upon herwhen she was designated payable on death co-beneficiary designations in mid-October of 2008.
Zara appealed the judgment of the trial court to the Fifth District Court of Appeals. On May 13,
2014, the Court of Appeals determined that the probate Court made no error and sustained the
Court's ruling. It is from this May 13, 2014 Entry that Zara now appeals to the Ohio Supreme
Court.
PROPOSITION OF LAW ONE
A court's decision to rely completely on the testimony of an attorney,who met the deceased per•haps once or twice over the course of herlifetime, rather than a licensed medical doctor, who had been treating the deceasedfor months and had records of her mental decline,regarding the deceased's mental capacity, if left unsanctioned bythe Supreme Court could lead to increased fleecing and abuse of the elderly.
There was no basis for the Court to ignore the only medical evidence provided. There
was no basis for the Court to rely on the testimony of an attorney who Esther had met only one
time. Esther was mentally debilitated at the time she changed her pay on death designations and
executed a power of attorney in favor of Joshua Shaffer in the fall of 2008. Notwithstanding the
duress and undue influence exerted upon Esther, a fragile elderly woman, by her own daughter
and grandson, Esther was incompetent. In the fall of 2008, Dr. Cowden determined that Esther
was incompetent and could not care for herself. In addition, to this mental incapacity, she was
{00067574-1} 13
subject, at the hands of her daughter and grandson to a whirlwind of change and mental abuse
over the course of several days. All of this culminated in the execution of a power of attorney as
well as the change of several pay on death designations.
It is generally well accepted that an individual shall be of sound mind and meinory at the
time of execution of a will or trust or other testamentary instrument (including a beneficiary
designation) if he has sufficient memory and mental capacity to fully understand what he is
doing. Fulkerson v. Fulkerson (1932), 1932 Ohio App. LEXIS 499. The Supreme Court of Ohio
has determined that an individual has testamentary capacity under the following circumstances,
T'estamentary capacity exists when the testator has sufficient mind and memory:First, to understand the nature of the business in which he is engaged; Second, tocomprehend generally the nature and extent of his property; third to hold in hismind the names and identity of those who have natural claims upon his bounty;fourth, to be able to appreciate his relation to the members of his family.
Niemes v. Niemes (1917), 97 Ohio St. 145, syllabus.
The evidence clearly establishes that Esther did not maintain testamentary capacity as it has been
defined. What's more Esther did not have capacity to contract either. Dr. Cowden's records
establish the same. Further, only testimony which could be interpreted as supportive of
"competence" came from an attorney who has no record of his meeting with Gordon and, in fact,
when the attorney was questioned about his meeting with Gordon on the stand he admitted that
when asked about her assets she did not inform him of the extent of her bank accounts, the
balances held therein of more than the half million dollars in cash and bonds hidden behind a
false wall in her basement. Finally, although the probate Court liked to refer to the attorney as
the "family attorney", there was no evidence upon which to base this conclusion. In fact, the
uncontroverted evidence indicated that she had only met the attorney one time.
{00067574-1} 14
It is well settled that the proper test for capacity to contract is whether the person claimed
to be incompetent understood the nature of the transaction and the effects of his actions.
Metropolitan Life Ins. Co.v. David Yeary et al 1998 U.S. Dist. Lexis 22835 (N.D. Ohio 1998)
citing Giurbino v. Giurbino (1993), 89 Ohio App.3d 646, 626 N.E.2d 1017, 1026. This inquiry
focuses "only upon the state of mind of the person claimed to be incompetent." Id. (emphasis
added) Once incompetence is established, the contract purportedly executed by the individual
found to be incompetent is rendered void. Willis v. Baker (1906), 75 Ohio St. 291, 79 N.E. 466;
Yommer v. Combs (1998), Monroe County App. 773, unreported. The opinion of Doctor
Cowden provided just days after the incidents perpetrated by Defendants Shaffer (faxes, to
Jerger's office from the Shaffers containing bank information, the multiple visits to Jerger's
office, the multiple visits to seven banking institutions) indicates that Esther was indeed
incompetent and that advantage was being taken of her. The decision of the Probate court is
wrong. The decision of the Court of Appeals is wrong.
CONCLUSION
In life things don't always work out as planned. In life, the unexpected and tragic can
strike. For the tragic and unexpected, the state of Ohio has provided a mechanism by which an
individual can seek redress - the courts. Here, Esther's tragedy was that a lifetime of care
planning, sacrifice, devotion and gratitude had been undone. Esther had fallen into dementia with
severe impairment and died before she could redress the wrongs done to her. During the
administration of her Estate, Esther remained unprotected. The planning she had done for
delivery and gift to her family had been corrupted by her estranged daughter. The simple fact is
Esther was poweriessto defend herself in life as well as death. This is not just the case for
Esther, this is the case for many elderly people who find themselves victims of financial abuse
{00067574-1 } 15
by their adult children. Esther, and the elderly populous she represents, looked to the Courts to
protect her. Her strife has fallen on deaf ears. To allow a decision regarding mental capacity of
an elderly person which relied solely upon the testimony of an attorney who had no knowledge
of Esther, when the evidence of the treating medical professionals, caregivers and family
contradicts that evidence is to remove the protection the Probate court was instituted to provide.
Further, it allows a Probate court system hvhose actions are often repetitive and perfunctory to
continue without check. It is to perpetuate a cycle of abuse. It is to turn away from what is right
in the face of what is wrong. The public has great interest in correcting the cycle of abuse. This
Court can provide that mechanism. It can give that hope.
Respectfully submitted,
KEMP, SCHAEFFER & ROWECO., LPA
BY:Steven D. Rowe (0020475)Erica Ann Probst (0073486)88 West Mound StreetColumbus, Ohio 43215Telephone: (614) 224-2678Facsimile: (614) 469-7170Stevengksrl egal. comErica a,ksrle al.com
{00067574-1} 16
CERTIFICATE OF SERVICE
Undersigned counsel hereby certifies that a true and accurate copy of the foregoing was
served upon the following this 27ih day of June 2014 via regular U.S. Mail:
Joseph L. Jerger
Bayer, Jerger & tlnde.rwood362 Lexington AvenueMansfield, Ohio 44907
William Fithian11 N. Main StreetMansfield, Ohio 44902-7669
Dale M. Musilli105 Sturges AvenueMansfield, Ohio 44903
KEMP, SCHAEFFER & ROWE CO., LPA
BY:Steven D. Rowe (0020475)Erica Ann Probst (0073486)
{00067574-1} 17
APPENDIX
Opinion of the Fifth District Court of Appeals(May 13, 2014). . . . . . . . . . . . . .. . . . . . . . . . . . . . . .. . . .. . .. . . . . . . ..
2. Judgment Entry of the Fifth District Court of Appeals(May 13, 2014) ..............................................
{00067574-1} 18
COURT OF APPEALS
FIFTH APPE LATET DISTRICT
c1
JUDGES:TIN THE MATTER OF THE ESTATE : Hon. W. Scott Gwin, P.J.
OF ESTHER GORDON: CAROLYN : Hon. Sheila G. Farmer, J.ZARA : Hon. Craig R. Baldwin, J.
Plaintiff-Appellant
-vs-
PATRICIA SHAFFER GORDON, ETAL
Defendants-Appellees
CHARACTER OF PROCEEDING
JUDGMENT:
DATE OF JUDGMENT ENTRY:
APPEARANCES:
For Plaintiff-Appellant
ERICA PROBSTSTEVEN ROWE88 West Mound StreetColumbus, OH 43215
Administrator/ExecutorJOSEPH L. JERGERBayer, Jerger & Underwood362 Lexington AvenueMansfield, OH 44907
Case No. 13-CA-78
OPINION
Civil appeal from the Richland County Courtof Common Pleas, Probate Division, CaseNos. 20111111, 20111111A, and20111111B
Affirmed
For Defendant-Appellee Patricia Shaffer
WILLIAM FITHIAN lll111 N. Main StreetMansfield, OH 44902-7669
For Defendant-Appellee Joshua ShafferDALE M. MUSILtI105 Sturges AvenueMansfield, OH 44903
jotihralirec4 011 i}^e ctiai+'t'qdocket
-_
DevU'tybC1'k ., :..
Richland County, Case No. 13-CA-78
Gwin, P.J.
2
{^1} Appellant appeals the August 1, 2013 judgment entry of the Richland
County Common Pleas Court, Probate Division, finding decedent possessed sufficient
mental capacity in mid-October of 2008 to designate payable on death, survivorship, or
any other designation on her bank accounts and finding decedent was not unduly
influenced when she designated the payable on death co-beneficiary designations in
mid-October of 2008.
Facts & Procedural History
{¶2} Esther Gordon, decedent, ("Esther") and Ralph Gordon ("Ralph") were
married and have two daughters, appellant Carolyn Zara ("Carolyn") and appellee
Patricia Shaffer Gordon ("Patricia"). Ralph died in July of 2006. Ralph had a hidden
room built beneath the stairwell in the basement of the home he shared with Esther
located at 235 West Cook Road in Mansfield, Ohio. The room contained several safes
in which Ralph placed money, documents, and government bonds. Ralph told Carolyn
and Esther about the safes, but not Patricia. Prior to Ralph's death, Ralph and Esther
had multiple certificates of deposit located in Florida and named Carolyn, her husband
James ("Jim"); and her children Anthony and Lisa as the payable on death beneficiaries.
Very few of the certificates of deposit designated Patricia or her children appellee
Joshua Shaffer ("Joshua") and daughter Sarah as beneficiaries.
{¶3} In August of 2006 after Ralph's death, Esther went to Richland Bank,
established an account, and designated both Carolyn and Patricia as payable on death
co-beneficiaries. On November 30, 2007, Carolyn accompanied Esther to Richland
Bank where Esther deposited re-issued checks from stale bank checks in the amount of
Richland County, Case No. 13-CA-78 3
$609,718.50 into the account with both Carolyn and Patricia designated as co-
beneficiaries upon Esther's death. Four days later on December 4, 2007, Carolyn and
Esther returned to Richland Bank and deposited $2,500 into the account established
four days earlier. That same day, a new account was established that was funded by a
transfer of $611,500 in funds from the account established on November 30, 2007. The
new account designated only Carolyn as the payable on death beneficiary. In July of
2008, due to concerns about FDIC insurance limits, Carolyn accompanied Esther to set
up accounts at different banks with $554,901.61 withdrawn from the Richland Bank
account. Carolyn was again listed as the sole payable on death beneficiary on the new
accounts established in July of 2008.
{j(4} In March of 2008, Carolyn arranged to take Esther to a new doctor, Dr.
Cowden, because Esther's previous physician, Dr. Beard, moved out of town. At
Esther's insistence, Carolyn took her back to Dr. Beard (who moved to an office
approximately twenty-five miles away) on April 23, 2008, where she continued her care
until October 21, 2008, when Carolyn took Esther back to Dr. Cowden to request an
expert evaluation that Esther was incompetent.
{¶5} In October of 2008, Patricia came to town for the birth of her grandchild
and stayed at Esther's home. At this time, Patricia became aware that Carolyn was the
sole payable on death beneficiary on the bank accounts. On October 10, 2008, Patricia
and Joshua drove Esther to an appointment with Attorney Joseph L. Jerger ("Jerger"),
the son of the attorney who prepared Esther and Ralph's wills in 1970, to discuss the
establishment of a power of attorney. Jerger had previously met with Esther after
Ralph's death in 2006. On October 14, 2008, Esther returned with Patricia and Joshua
Richland County, Case No. 13-CA-78 4
to Jerger's office where Esther executed a power of attorney designating Joshua as her
attorney-in-fact. Also sometime between October 10th and October 14th of 2008, while
Patricia was staying with Esther, Patricia and Joshua took Esther to various banks in
order to change the payable on death beneficiary designations to Carolyn and Patricia
as payable on death co-beneficiaries.
{¶6} After Patricia returned home to Mississippi, Carolyn prepared a revocation
of power of attorney, a power of attorney designating Carolyn as attorney-in-fact and
durable power of healthcare, and a living will for Esther. Carolyn took Esther to
Mechanics Bank on November 1, 2008 to sign the documents in front of a notary.
Carolyn filed an application for guardianship of Esther on April 23, 2009. Esther was
interviewed by a court investigator in May of 2009 and indicated she did not want a
guardian. Esther hired Jerger to represent her in the guardianship proceeding. At a
June 29, 2009 hearing, Esther consented to the guardianship as long as Jerger would
be appointed the guardian of her estate and Carolyn was appointed as the guardian of
her person. At a February 3, 2011 hearing, Carolyn told the trial court Esther knowingly
and voluntarily executed the durable power of healthcare attorney on November 1, 2008
and thus Carolyn was able to make treatment decisions for Esther. The frial court
allowed Carolyn unrestricted authority to determine Esther's healthcare decisions.
Esther died on February 11, 2011.
{¶7} After Esther's death, Jerger filed an application to probate will and motion
to be appointed administrator, with will annexed ("WWA") on March 16, 2011, because
both Carolyn and Patricia, the sole beneficiaries of Esther's estate, were named parties
in a concealment action filed by Jerger in his capacity as Esther's guardian of the
Richland County, Case No. 13-CA-78 5
estate. The trial court granted Jerger's motion on April 20, 2011 and appointed Jerger
administrator, WV1/A, of Esther's estate. The will attached to the application to probate
was prepared in 1970 by Esther where she named Ralph as the primary reciprocal
beneficiary and named Carolyn, - Patricia, and her son Richard Gordon, as equal
beneficiaries. Richard Gordon died in 1971 without issue. The will was prepared by
Joseph Jerger, Sr.
{¶8} On January 6, 2012, Patricia filed objections to inventory. Carolyn filed
her objections to inventory and petition for declaratory judgment on January 11, 2012.
The trial court set the objections and petition for hearing on July 26, 2012. The parties
then jointly stipulated the hearing would also include any other issues of ownership
regarding inventoried or non-inventoried assets of Esther. The probate court held a
joint hearing on the objections to inventory and the separate concealment actions filed
by the parties.
{¶9} At the hearing, Carolyn testified she spoke to Esther about establishing a
power of attorney in July of 2008, but Esther did not want one. Carolyn stated she
became concerned about Esther's mental state in September of 2008 because Esther
was becoming confused about things and having difficulty writing checks. James Zara,
Carolyn's husband, also testified Esther's mental capacities changed in the summer of
2008. However, Carolyn testified that, in October of 2008, Esther could live alone,
stayed by herself at night, had no caregivers, and completed daily tasks by herself.
With regards to Esther's doctors, Carolyn stated she took Esther to Dr. Cowden,- a new
physician, in March and April of 2008 after Dr. Beard, Esther's original physician, moved
away. At Esther's insistence, Carolyn took her back to Dr. Beard in the summer of
Richland County, Case No. 13-CA-78 6
2008, but then took her back to Dr. Cowden in October of 2008 after Patricia returned to
Mississippi. Carolyn testified Esther never specifically told her Carolyn was the sole
payable on death beneficiary on the bank accounts but always told her she and her
family would be taken care of. Carolyn testified she found out Esther changed the
payable on death designations in mid-October of 2008 when Esther told Carolyn she
was not allowed in the house anymore and Joshua was going to take care of
everything. Carolyn said Estlier told her she did not understand what was going on and
that Patricia and Joshua tricked her into changing the payable on death designations on
the bank accounts and into establishing the power of attorney.
{¶10} After Patricia returned to Mississppi, Carolyn prepared a revocation of
power of attorney, a power of attorney designating Carolyn as attorney-in-fact and
durable power of healthcare, and a living will for Esther. Carolyn took Esther to
Mechanics Bank on November 1, 2008 to sign the documents in front of a notary.
When questioned on cross-examination, Carolyn stated she thought Esther was aware
of the documents she signed but probably was not competent to execute these
documents. Carolyn testified as follows: "this had nothing to do with competence. This
had everything to do with my mother trying to remove the power of attorney." Carolyn
also stated that, "all I know is that my mother did not want the power of attorney with
Josh. She said she never wanted it. She didn't understand what was going on, and
she wanted it revoked." Carolyn testified she let Esther sign these documents knowing
she was probably not competent to execute them and gave these documents to the
probate court at a February 2011 Do Not Resuscitate / Comfort Care hearing. Carolyn
believed Esther was susceptible to influence in October of 2008 because Esther was
Richland County, Case No. 13-CA-78 7
trying to maintain her independence but was getting confused very easily and was
extremely vulnerable. Carolyn believed Patricia took advantage of Esther's vulnerability
by convincing Esther that Carolyn was not going to assist her anymore on October 10,
2008. On cross-examination, Carolyn stated she and Esther visited several of the
banks where the changed beneficiary designation accounts were located after October
14, 2008, but Esther never requested any aspects or the beneficiaries on any of the
accounts be changed.
{¶11} Patricia testified that in October of 2008 when she came home to visit her
new grandchild, Esther asked her to take her to Jerger's office. When Jerger spoke to
Patricia and Esther together, Esther had concerns about staying out of a nursing home
and also was concerned Carolyn was manipulating her bank accounts. Patricia stated
that when she and Esther went to leave Jerger's office, he recommended checking
Esther's bank accounts and he specifically mentioned checking a(l payable on death
accounts to make sure the beneficiary information conformed to Esther's wishes. After
Esther made a list of the banks, Patricia went with her to the banks and Esther changed
the beneficiary designations on the accounts. Patricia testified she did not instruct
Esther to do anything at the banks and it was Esther who told the bank employees she
wanted Carolyn and Patricia both to be equal payable on death beneficiaries on the
accounts, just like Esther stated in her will. Patricia stated when Esther changed the
beneficiary designations, Esther was not exhausted, confused, frightened, or shaken.
Patricia disputed Carolyn's opinion that Esther was decreasing in memory in October of
2008.
Richland County, Case No. 13-CA-78 8
{¶12} Joshua testified he drove Esther and Patricia to the various banks in
October 2008, but stayed in the car while Esther and Patricia went into the banks.
Joshua stated Esther requested he and Patricia assist her in changing the bank account
designations and Esther changed the beneficiary designations of her own free will.
According to Joshua, Esther expressed concern about Carolyn manipulating Esther's
money. Joshua testified when he took Esther to Jerger's office, Esther was not upset or
confused and was just her normal self. Esther told him on October 10, 2008 that there
were lots of accounts just in Carolyn's name as the beneficiary and she added Patricia
to them. Joshua stated he only utilized the power of attorney once to cash a check on
October 14th or 15th of 2008.
{1[13} Jerger, an attorney for twenty-one years and a guardian for approximately
fifty-four individuals, stated he had no concerns about Esther's competence in October
of 2008 and observed nothing to indicate Esther was forced or coerced to do something
she did not want to do. Jerger had met with Esther in 2006 after Ralph's death. Jerger
testified that, at the October 2008 appointment, he spoke with Esther and Patricia and
then spoke with Esther separately for approximately thirty to forty minutes. Esther told
Jerger she was afraid Carolyn was taking over too much and not informing Esther about
financial information. Further, that Esther wanted to write her own checks and pay her
own bills, but Carolyn was stepping on her toes. Jerger suggested Esther set up a
power of attorney other than Carolyn and further suggested Esther go to the banks
where she had accounts and check to see if the accounts and their payable on death
beneficiary designations were set up the way Esther wanted them set up. Jerger stated
he spent time making sure Esther had the ability to grant a power of attorney because
Richland County, Case No. 13-CA-78 9
Carolyn had told him a few months prior that Esther's mind was slipping. Jerger
testified he felt confident Esther knew who her family was, who she wanted to benefit,
what assets she had, what day of the week it was, the year, who the president was, and
that Esther was not frightened, confused, or tired. Though Esther did not tell Jerger
about the cash and bonds in the basement safes, she told him about her real estate in
Mansfield and Florida and disclosed general information about her bank accounts.
Esther wrote the check out to Jerger herself without assistance. Jerger stated Esther
wanted the power of attorney and Jerger felt she had the ability to understand what a
power of attorney was. Jerger testified that, in October of 2008, he had no problem
thinking Esther was competent to make the power of attorney. Jerger stated when
Carolyn contacted him to revoke the power of attorney, Jerger told her Esther would
have to come into the office to complete this because he had concerns about revoking
something Esther had been so adamant about several days prior to Carolyn's call.
Esther never came to his office to revoke the power of attorney. In 2009, Esther
contacted Jerger to represent her in the guardianship hearing
{¶14} Amy Stentz ("Stentz"), Jerger's legal assistant, notarized the power of
attorney Esther granted to Joshua in October of 2008. Stentz testified she asked Esther
if she had any questions about the document and Esther did not. Further, Esther said
she understood the document and, after Stentz placed her under oath, affirmed she
wanted to execute the power of attorney and signed the document of her own free will.
{¶15} Mary Williams ("Williams") was the notary at Mechanics Bank who
notarized the documents prepared by Carolyn and signed by Esther on November 1,
2008. Williams testified someone came in with Esther on November 1, 2008, but she
Richland County, Case No. 13-CA-78 10
did not remember who it was. Wiltiams stated she notarized the documents after
placing Esther under oath. Williams felt Esther was signing the documents of her own
free will and that Esther appeared to be of sound mind and seemed normal to her.
{¶16} Condrea Corley ("Corley"), a probate court investigator, met with Esther in
May of 2009 after Carolyn filed an application for guardianship. Corley testified Esther
felt she did not need a guardian and felt Carolyn thought she knew everything and just
wanted to control her money. Corley saw several signs around the house such as "do
not open the door" and "do not let Josh in." Corley thought Esther's mind was
reasonably sharp and Esther was pretty mentally sharp when she interviewed her.
{¶17} The trial court admitfed portions of the office records of Dr. Julie Beard,
Dr. Deborah Cowden, Dr. Raymond Baddour, and Dr. A.J. Chawla. However, none of
the doctors testified at the evidentiary hearing or were deposed by any of the parties
involved in this proceeding. Dr. Baddour commenced treatment of Esther on March 27,
2009 as a result of a referral from Esther's heart doctor. Baddour performed a mini-
mental status exam and scored Esther a 25 out of 30, just above the baseline from
mental impairment, and opined moderate dementia. The notes indicate Carolyn
reported cognitive decline of Esther for six (6) years. Dr. Beard, Esther's family
physician for many years, first mentions confusion in her office notes in April of 2008.
Despite several requests from Carolyn, including an October 29, 2008 request from
Carolyn for a letter that Esther was confused, Dr. Beard told Carolyn that Esther needed
to be evaluated by a psychiatrist or neurologist because Dr. Beard was not an expert in
competency evaluation.
Richland County, Case No. 13-CA-78 11
{^18} Carolyn took Esther to Dr. Cowden in March of 2008. The notes indicate
Esther's judgment was not intact, she had some deficits, and that Esther was arguing
with Carolyn. At Esther's insistence, Carolyn took Esther back to Dr. Beard from April
2008 to October 21, 2008 when Carolyn took Esther back to Dr. Cowden. On October
21 2008, Dr. Cowden conducted a short exam of mental status. On this same date, Dr.
Cowden filled out a statement of expert evaluation indicating Esther needed a guardian
because of dementia and impaired judgment. Carolyn did not file an application for
guardianship in October of 2008. On October 28, 2008, Carolyn contacted Dr.
Cowden's office to report a large amount of cash and bonds missing from Esther's safe
also informed Dr. Cowden's office about the change in the payable on death
designations on Esther's bank accounts. Carolyn told the doctor's office the doctor's
previous notes made it look very bad for Carolyn with her mom due to Esther's desire to
return to see Dr. Beard. On October 28, 2008, Dr. Cowden conducted a mini-mental
status exam on Esther and scored Esther at fourteen (14). Dr. Cowden corrected the
score approximately five months later and rescored Esther at an eighteen (18) and
noted this increase occurred after Dr. Cowden reviewed how to score the test.
{^19} On January 13, 2009, Dr. Cowden noted at an office visit that Esther's
"judgment was noted to appear intact." Dr. Cowden administered a mini-mental status
exam, but the final score was left blank. One test stated a score of eighteen (18), but
the individual answers added to twenty-one (21). The other test appears to add to
eighteen (18) and there is no explanation in the variance of the numbers.
{¶20} After the hearing, the trial court issued a judgment entry on August 1,
2013. The trial court overruled the objections to inventory, found Carolyn failed to meet
Richland County, Case No. 13-CA-78 12
her burden in proving that Esther did not possess the mental capacity to re-designate
the payable on death beneficiaries on her various bank accounts in October of 2008,
and found no persuasive evidence of undue influence. The trial court thus determined
that the designations on Esther's bank accounts, IRA's, and other accounts should be
as of the last date Esther designated the payable on death beneficiaries.
{1f21} Appellant appeals the August 1, 2013 judgment entry of the Richland
County Court of Common Pleas, Probate Division, and assigns the following as error:
{¶22} "`I. THE JUDGMENT ENTERED BY THE TRIAL COURT WAS NOT
SUPPORTED BY THE SUFFICIENCY OF THE EVIDENCE AND SHOULD BE
REVERSED.
{^23} "II. THE JUDGMENT ENTERED BY THE TRIAL COURT [WAS] AGAINST
THE MANIFEST WEIGHT OF THE EVIDENCE AND SHOULD BE REVERSED."
1. & II.
Manifest Weight & Sufficiency of the Evidence
{¶24} Appellant argues the trial court's judgment was against the manifest
weight and sufficiency of the evidence. Specifically, appellant contends that at the time
Esther executed the power of attorney and changed the payable on death designations
of several bank accounts, she was incompetent and subject to the undue influence of
Patricia and Joshua.
{¶25} In Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d
517, the Ohio Supreme Court clarified the standard of review appellate courts should
apply when assessing the manifest weight of the evidence in a civil case. The Ohio
Supreme Court held the standard of review for manifest weight of the evidence for
Richland County, Case No. 13-CA-78 13
criminal cases stated in State v. Thompkins, 78 Ohio St.3d 380, 678 N.E. 2d 541 (1997)
is also applicable in civil cases. Eastley, 132 Ohio St.3d. A reviewing court is to
examine the entire record, weigh the evidence and all reasonable inferences, consider
the credibility of the witnesses and determine "whether in resolving conflicts in the
evidence, the finder of fact clearly lost its way and created such a manifest miscarriage
of justice that the judgment must be reversed and a new trial ordered." fd; see also
Sheet Metal Workers Local Union No. 33 v. Sutton, 5th Dist. Stark No. 2011 CA 00262,
2012-Ohio-3549. "In a civil case, in which the burden of persuasion is only by a
preponderance of the evidence, rather than beyond a reasonable doubt, evidence must
still exist on each element (sufficiency) and the evidence on each element must satisfy
the burden of persuasion (weight)." Eastley, supra, 2012-Ohio-2179.
{¶26} As an appellate court, we are not fact finders; we neither weigh the
evidence nor judge the credibility of witnesses. Markel v. Wright, 5th Dist. Coshocton
No. 2013CA0004, 2013-Ohio-5274. Further, "an appellate court should not substitute
its judgment for that of the trial court when there exists *°" * competent and credible
evidence supporting the findings of fact and conclusion of law." Seasons Coal Co. v.
Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). The underlying rationale for
giving deference to the findings of the trial court rests with the knowledge that the trial
judge is best able to view the witnesses and observe their demeanor, gestures, and
voice inflections, and use these observations in weighing the credibility of the proffered
testimony. Id. Accordingly, a trial court may believe all, part, or none of the testimony
of any witness who appears before it. Rogers v. Hill, 124 Ohio App.3d 468, 706 N.E.2d
438 (4th Dist. 1998).
Richland County, Case No. 13-CA-78 14
Mental Capacity
{^127} Appellant argues the trial court's determination that Esther possessed
sufficient mental capacity in mid-October of 2008 to designate payable on death
designations on her bank accounts was not supported by the sufficiency of the evidence
and was against the manifest weight of the evidence. Appellant specifically argues the
statements of Dr. Cowden and other physicians were not contradicted and that the trial
court improperly weighed the testimony of Jerger as compared with the medical
professionals. We disagree.
{¶28} The burden of proof in determining mental or testamentary capacity is on
the party contesting a will or other testamentary instrument such as a beneficiary
designation. Kennedy v. Walcutt, 118 Ohio St. 442, 161 N.E. 336 (1928).
Testamentary or mental capacity exists when a person has sufficient mind and memory:
first, to understand the nature of the business in which she is engaged; second, to
comprehend generally the nature and extent of her property; third, to hold in her mind
the names and identity of those who have natural claims upon his bounty; and fourth, to
be able to appreciate her relation to the members of her family. - Birman v. Sproat, 47
Ohio App.3d 65, 67-68, 546 N.E.2d 1354 (2nd Dist. 1988). It is not enough to show the
individual had deteriorating health, even if the individual suffered from poor medical
health at the time the documents were executed. Martin v. Drew, 10th Dist. No. 03AP-
734, 2004-Ohio-2520. Appellant must also show that the health decline actually
affected the testator's capacity to execute the beneficiary designation. Id ("[E]vidence
that [the] decedent suffered from dementia or Alzheimer's disease on [the] day she
executed [her] will, standing alone, is insufficient to raise a fact issue as to a lack of
Richland County, Case No. 13-CA-78 15
testamentary capacity without some evidence that the disease rendered her incapable
of knowing her family or her estate or understanding the effect of her actions,"); see also
Neumeyer v. Estate of Penick, 5th Dist. Licking No. 07-CA-146, 2009-Ohio-321.
{¶29} We find competent and credible evidence exists to support the trial court's
determination that Carolyn failed to meet her burden of proof that Esther did not
possess the mental capacity to re-designate the payable on death beneficiaries on her
banks accounts in mid-October of 2008. While the medical records show a slow
deterioration of Esther's mental ability, the records are not complete and are
contradictory. Only the records from 2010 of Chawla's were introduced. Further,
though Beard noted mental confusion of Esther in April of 2008, she repeatedly
informed Carolyn that Esther should be evaluated by a psychiatrist or neurologist
because Beard was not an expert in mental competency. On October 28, 2008,
Cowden conducted a mini-mental status exam and scored Esther at fourteen ( 14) and
indicated Esther's judgment appeared not to be intact. Approximately five months later,
Cowden revised and rescored the October 2008 mini-mental status exam to an
eighteen ( 18) and indicated this increase was due to her review of how to property
score the test. At a January 13, 2009 office visit, Dr. Cowden stated that Esther's
"judgment was noted to appear intact" and conducted a mini-mental status exam.
However, the final score of the test was left blank. One test stated a score of eighteen
(18), but the answers added up to twenty-one (21), while a second test added up to
eighteen ( 18) and there is no explanation of this variance in the numbers. Dr. Baddour
performed a mini-mental status exam on Esther in March of 2009 and scored her 25 out
Richland County, Case No. 13-CA-78 16
of 30, just above the baseline from mental impairrnent. Dr. Baddour indicated in his
notes the information about Esther's cognitive decline for six years came from Carolyn.
{¶30} None of the doctors were deposed or testified at the evidentiary hearing
and thus were unable to explain the inconsistencies in the varying scores on the mini-
mental status exams, the inconsistencies in their opinions about Esther's judgment, or
indicate their opinion of Esther's mental competency on October 10th through October
14th of 2008. Further, the various notes by the medical professionals are devoid of any
indication that Esther's health decline actually affected her capacity to execute the
beneficiary designations on the dates in question. As noted above, it is not enough to
show Esther suffered from dementia on the dates in question, but there must be some
evidence the disease rendered her incapable of knowing her family or her estate or
understanding the effect of her actions. Appellant has not demonstrated Esther's
deteriorating health actually affected her capacity to change the beneficiary
designations.
{¶31} We further disagree with appellant's contention that Dr. Cowden's opinion
was not rebutted by other evidence. Jerger had extensive experience with wards and
guardians and further was aware of the Ohio Rules of Professional Conduct for
attorneys, including Rule 1.14, "Client with Diminished Capacity." Jerger met with
Esther alone on October 10, 2008 and testified Esther possessed the mental faculties
necessary to make decisions regarding the execution of a power of attorney and that
Esther was not confused, fearful, or threatened. Jerger stated that, based on his history
with Esther and his experience of being a guardian in numerous cases, Esther had the
ability to know what she wanted to do, why she wanted to do it, and was competent.
Richland County, Case No. 13-CA-78 17
Jerger testified he felt confident Esther knew who was her family, who she wanted to
benefit, what assets she had, what day of the week it was, the year, and who the
president was. Jerger testified he suggested to Esther that she check the payable on
death beneficiaries on her bank accounts to make sure they were set up in accordance
with her wishes. Stentz testified that on October 14, 2008, Esther understood the power
of attorney to Joshua and signed the document of her own free will. Corley, the probate
court investigator, found Esther to be reasonably mentally sharp when she interviewed
her in May of 2009 and felt Esther needed someone to assist her with finances, but not
a guardian of her person.
{¶32} In addition, after the October 10 - October 14, 2008 dates in question,
Carolyn herself created a revocation of power of attorney, a power of attorney
designating Carolyn as attorney-in-fact and durable power of healthcare, and a living
will for Esther. Carolyn took Esther to Mechanics Bank on November 1, 2008 to sign
the documents in front of a notary. These documents were given to the trial court by
Carolyn at a February 2011 Do Not Resuscitate / Comfort Care hearing. Williams, the
notary at the bank who notarized the documents on November 1, 2008, testified Esther
appeared to be of sound mind and seemed normal to her.
{¶33} Further, though Esther had the opportunity to return to the banks in
question and change the payable on death beneficiary information until a guardianship
was establish in June of 2009, she declined to do so. Esther even failed to change the
beneficiary information on the account she had with Mechanics Bank when she went
there with Carolyn on November 1, 2008. The payable on death split of the bank
accounts between Carolyn and Patricia was in accord with Esther's general estate plan
Richland County, Case No. 13-CA-78 18
as evidenced by the equal split between Carolyn and Patricia in Esther's will and in her
IRA distributions.
{¶34} Given the inconsistent and incomplete medical records with the lack of
te:stimony from any medical professional about Esther's mental capacity on the dates in
question, the testimony of Jerger, Stentz, and Williams, the fact that the payable on
death designations coincide with Esther's will and IRA division, and the fact that Esther
never returned to the banks to change the designations, we find the trial court's
determination that Carolyn failed to meet her burden that Esther lacked the mental
capacity to change the payable on death beneficiaries on her bank accounts in mid-
October of 2008 was not against the manifest weight or sufficiency of the evidence. As
noted, above, we are not fact finders; we neither weigh the evidence nor judge the
credibility of witnesses. Markel v. Wright, 5th Dist. Coshocton No. 2013CA0004, 2013-
Ohio-5274.
Undue Influence
{¶35} Appellant also argues the trial court's conclusion that Patricia and Joshua
did not exercise undue influence on Esther during the first two weeks of October of
2008 was not supported by the sufficiency of the evidence and was against the manifest
weight of the evidence. We disagree.
{¶36} The Ohio Supreme Court has stated that, "[g]eneral influence, however
strong or controlling, is not undue influence unless brought to bear directly upon the act
of making the will. If the will or codicil, as finally executed, expresses the will, wishes
and desires of the testator, the will is not void because of undue influence." West v.
1-lenry, 173 Ohio St. 498, 501, 184 N.E.2d 200 (1962). A finding of undue influence
Richland County, Case No. 13-CA-78 19
requires the following: (1) the influenced individual is/was susceptible, (2) another's
opportunity to exert undue influence, (3) the fact of improper influence exerted or
attempted, and (4) a result showing the effect of such influence. Redman v. Watch
Tower Bible & Tract Soc. of Pennsylvania, 69 Ohio St.3d 98, 630 N.E.2d 676 (1994).
Further, "the mere existence of undue influence, or an opportunity to exercise it,
although coupled with an interest or motive to do so, is not sufficient, but such influence
must actually be exerted on the mind of the testator * * *[i]t must be shown that such
influence, whether exerted at the time of the making of the will or prior thereto, was
operative at the time of its execution or was directly connected therewith." West v.
Henry, 173 Ohio St. 498, 501, 184 N.E. 2d 200 (1962).
{¶37} In reviewing the record, we find there is competent and credible evidence
to support the trial court's decision that Patricia and Joshua did not unduly influence
Esther in October of 2008 to change the bank account beneficiary designations or
execute the power of attorney. Jerger observed nothing to indicate Esther was being
forced, pressured, coerced, or compelled to do something she did not want to do and
testified that Esther was concerned about Carolyn manipulating her finances. Jerger
spoke with Esther by herself, without Patricia or Joshua present in the room. Stentz
testified when Esther returned to execute the power of attorney, Esther swore she was
signing the document of her own free will. Most notably, Esther never returned to the
banks to change the payable on death designations, even though Carolyn testified that
she took Esther to at least some of these banks after October of 2008, including
Mechanics Bank on November 1, 2008, when Carolyn took Esther there to execute the
documents Carolyn prepared. While Carolyn testified Esther was very upset about the
Richland County, Case No. 13-CA-78 20
power of atkorney and felt Patricia and Joshua tricked her into changing the beneficiary
designations, Esther had approximately six months between the October 2008
designations and June of 2009 when Carolyn and Jerger became her guardians to
change the beneficiary designations on the bank accounts. However, Esther did not do
so. According to the testimony of Corley, in May of 2009, Esther was still concerned
about Carolyn having control over her finances. Esther's will, established in 1970, listed
both Carolyn and Patricia as beneficiaries and Esther never revoked this will. The
placement of both Carolyn and Patricia as payable on death beneficiaries on the bank
accounts coincides with her general estate plan. Any concern by Patricia was solely
that Carolyn was going to control Esther's money which was upsetting to Patricia
because the two sisters were constantly at odds with each other. However, there is no
evidence this general influence or concern was improper, was exerted on Esther, or
resulted in the changing of the bank account designations.
{^38} Accordingly, we find the evidence does not demonstrate that Patricia or
Joshua submitted their will for that of Esther. Based on the above, we find the trial
court's determination that no actual improper or undue influence was exerted upon
Esther relative to the changing of the payable on death beneficiaries on the bank
accounts was not against the manifest weight or sufficiency of the evidence.
Richfand County, Case No. 13-CA-78 21
{¶39} Based on the foregoing, we find the trial court did not err in its judgment
entry on August 1, 2013 in finding Esther possessed sufficient mental capacity in mid-
October 2008 to designate payable on death, survivorship, or any other designation on
her bank accounts and in finding Esther was not unduly influenced when she
designated the payable on death designations in mid-October 2008. Appellant's first
and second assignments of error are overruled and the August 1, 2013 judgment entry
of the Richland County Court of Common Pleas, Probate Division, is affirmed.
By Gwin, P.J.,
Farmer, J., and
Baldwin, J., concur
, ,..,. CHON. W. SCOTT GWIN
IqON. SHEILA U. ARME.B ___---.
WSG:cIw 0505 HgNCRAIG
"Y'^I+p^Vt fJ^^ ^,f' ( S V
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHI;^
2914 M,^ Y 13 pkFIFTH APPELLATE DISTRICT
IN THE MATTER OF THE ESTATEOF ESTHER GORDON: CAROLYNZARA
^^ ^•^^ =" ,a,,, e'^ 4
Plaintiff-Appellant
-vs- JUDGMENT ENTRY
PATRICIA SHAFFER GORDON, ET AL
Defendants-Appellees CASE NO. 13-CA-78
For the reasons stated in our accompanying Memorandum-Opinion, the August 1,
2013 judgment entry of the Richland County Court of Common Pleas, Probate Division,
is affirmed. Costs to appellant.
HON. W. SCOTT GWIN
