[Cite as Whitacre v. Crowe, 2012-Ohio-2981.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
SHAWN WHITACRE, et al. C.A. No. 11CA0019-M
Appellees
v. APPEAL FROM JUDGMENT
ENTERED IN THE
MICHAEL A. CROWE, et al. COURT OF COMMON PLEAS
COUNTY OF MEDINA, OHIO
Appellants CASE 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.
{¶2} 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 formalities 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.
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II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED IN FINDING THAT THE EXECUTION OF THE
WILL DID NOT MEET THE FORMALITIES REQUIRED UNDER []R.C.
2107.03.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED IN GRANTING PLAINTIFF/APPELLEE’S
MOTION FOR SUMMARY JUDGMENT FINDING THAT THE WITNESSES
WERE NOT IN THE CONSCIOUS PRESENCE OF KAY WHITACRE, THE
TESTATOR.
ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED IN REVOKING ITS PRIOR ORDER
ADMITTING THE PROPERLY EXECUTED WILL TO PROBATE.
{¶3} Victoria challenges the trial court’s granting of summary judgment 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.
{¶4} 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).
{¶5} Pursuant to Civ.R. 56(C), summary judgment is proper if:
No genuine issue as to any material fact remains to be litigated; (2) the moving
party is entitled to judgment as a matter of law; and (3) it appears from the
evidence that reasonable minds can come to but one conclusion, and viewing such
evidence most strongly in favor of the party against whom the motion for
summary judgment is made, that conclusion is adverse to that party.
Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977).
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{¶6} 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).
{¶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.”
{¶8} 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.”
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{¶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 be
handwritten or typewritten. The will shall be signed at the end by the testator
making it or by some other person in the testator’s conscious presence and at the
testator’s express direction, and be attested and subscribed in the conscious
presence of the testator, by two or more competent witnesses, who saw the
testator subscribe, or heard the testator acknowledge the testator’s signature.
For purposes of this section, “conscious presence” means within the range of any
of the testator’s senses, excluding the sense of sight or sound that is sensed by
telephonic, electronic, or other distant communication.
{¶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.
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{¶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.
{¶13} 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.
{¶14} 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.
{¶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 (Ill.1905); Watson v.
Pipes, 32 Miss. 451 (1856); Nock v. Nock’s Exrs., 51 Va. 106 (1853); Nichols v. Rowan, 422
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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 infirmities from seeing and hearing
what goes on around him, it is the general, if not universal, rule that his will is
attested in his presence if he understands and is conscious of what the witnesses
are doing when they write their names, and can, if he is so disposed, readily
change his position so that he can see and hear what they do and say. * * * In
other words, if he has knowledge of their presence, and can, if he is so disposed,
readily see them write their names, the will is attested in his presence, even if he
does not see them do it, and could not without some slight physical exertion. It is
not necessary that he should actually see the witnesses, for them to be in his
presence. They are in his presence whenever they are so near him that he is
conscious of where they are and of what they are doing, through any of his senses,
and are where he can readily see them if he is so disposed. The test, therefore, to
determine whether the will of a person who has the use of all his faculties is
attested in his presence, is to inquire whether he understood what the witnesses
were doing when they affixed their names to his will, and could, if he had been so
disposed, readily have seen them do it.”
Demaris at 582, quoting Healey v. Bartlett, 59 A. 617, 618 (N.H.1904).
{¶16} 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} California 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
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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.
{¶18} 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.
{¶19} 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
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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.
{¶20} 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.
{¶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.
{¶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
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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.
{¶23} 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 upstairs 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[.]”
{¶24} 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.
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III.
{¶25} Victoria’s assignments of error are overruled. 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 journal 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. CARR
FOR THE COURT
DICKINSON, J.
CONCURS.
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BELFANCE, P. J.
DISSENTING.
{¶26} I respectfully dissent from the judgment of the majority, as I would conclude there
is a genuine dispute of material fact precluding summary judgment.
{¶27} 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.
{¶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. While
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 turned 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
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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, Attorney at Law, for Appellants.
CLIFFORD C. MASCH, LEON A. WEISS, and FRANKLIN C. MALEMUD, Attorneys at Law,
for Appellees.