In re Estate of Flowers

[Cite as In re Estate of Flowers, 2017-Ohio-1310.]

IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY

In re Estate of Virginia Flowers Court of Appeals No. L-16-1002

Dennis Dean Flowers, et al. Trial Court No. 2012 ADV 0912

Appellee

v.

Joseph E. Siefer, et al. DECISION AND JUDGMENT

Appellants Decided: April 7, 2017

*****

Kevin A. Heban, R. Kent Murphree and John P. Lewandowski,
for appellee.

John M. Carey and Jared J. Lefevre, for appellants.

*****

PIETRYKOWSKI, J.

{¶ 1} Appellants, Joseph E. Siefer, the brother of Virginia Flowers, deceased, and

Cheri Fosnaught Pittman, Jerrie Fosnaught, and Mari Fosnaught Dutko, the daughters of
Flowers, appeal from the October 29, 2015 judgment of the Lucas County Court of

Common Pleas, Probate Division, finding Flowers lacked testamentary capacity to

change her beneficiary designation on July 6, 2010,1 and that the change was due to

undue influence. The trial court also denied the counterclaims of appellants to remove

appellee, Dennis Dean Flowers, as executor of Flowers’ estate and impose sanctions. For

the reasons which follow, we affirm.

{¶ 2} On appeal, appellants assert the following assignments of error:

I. The trial court erred by admitting the opinions of non-testifying

treating physicians into evidence.

II. The trial court erred by admitting the unreliable expert testimony

of Thomas G. Sherman, M.D.

III. The trial court erred by admitting the testimony of Travis Rasor,

M.D. as expert opinion on capacity.

IV. The trial court erred by admitting the testimony of Daniel K.

Watkins as expert opinion on capacity.

V. The trial court’s judgment was not supported by sufficient

evidence at trial.

VI. The trial court’s judgment was against the manifest weight of

the evidence.

1
The trial court stated the date the beneficiary designation was executed was July 2,
2010, but it was actually signed July 6, 2010.

2.
 VII. The trial court erred by denying defendant’s motion for new

trial.

{¶ 3} Appellee brought suit as executor of the estate of Flowers against appellants

and Edward Jones. In its October 29, 2015 judgment entry, the trial court narrowed the

issues in the case to Flowers’ capacity as of July 6, 2010, the date she changed her

beneficiary designation for the funds held in an Edward Jones account from appellee to

her daughters. The court also considered whether Flowers was susceptible to undue

influence at that time.

{¶ 4} Following a trial to the bench, the probate court found that Flowers had

suffered from a loss of mental capacity for some time prior to her move to Ohio, which

was also most likely the cause of her loss of employment in 2007. The court found the

expert opinions of Dr. Rasor and Dr. Watkins to be extremely compelling because they

had actually examined Flowers near the time she executed the beneficiary designation.

Therefore, the court held Flowers lacked the testamentary capacity as of July 6, 2010, to

execute the change in beneficiary designation. The court further found Flowers’ sudden

change of beneficiary after coming to Ohio was inconsistent with her years of supporting

appellee in opposition to her family and her prior testamentary acts. Thus the court found

that her decision was due to undue influence. The court voided the change of beneficiary

designation.

3.
 Summary of Trial Testimony

{¶ 5} Flowers was trained as a nurse and married in Ohio before moving to South

Carolina in the mid-1980s where she eventually became a head surgery nurse. Her

daughters described their childhood and their relationship with their mother as typical.

After her husband was killed in a work accident in 1993, Flowers received a structured

settlement, which was placed in an Edward Jones account.

{¶ 6} In 1996, appellee met Flowers when he began working under her

supervision. Flowers’ children did not initially object to appellee, but they later

questioned whether appellee was interfering with the relationship with their mother and

was the cause of her irrational behavior. In March 1998, prior to Flowers’ marriage to

appellee on May 3, 1998, appellee sued two of the daughters, Mari Jo and Cheri, for

defamation and obtained a civil protection order. The suit was settled when the parties

apologized to each other in court. Afterward, however, the relationship between the

mother and her daughters deteriorated. Mari Jo moved in with Cheri and the daughters

stayed away from their mother and appellee.

{¶ 7} After appellee and Flowers were married, appellee quit his job and they

lived off Flowers’ income. After Flowers lost her job sometime between 2006 and 2008,2

they lived off monthly withdrawals from her Edward Jones account. Appellee testified

Flowers was close to his family and they spent time with them instead of her daughters.

2
We note the witnesses gave inconsistent dates for the year in which Flowers lost her
hospital position, but the trial court found the date to be 2007 and for purposes of this
decision, we use this date to reference the event.

4.
Flowers executed a will on December 4, 2007, naming appellee as the sole beneficiary

and his nieces as alternate beneficiaries.

{¶ 8} The extended family had always visited Flowers on a semi-annual or annual

basis and continued to do so after she married appellee. During those visits, the family

avoided talking about Flowers’ relationship with appellee, although they observed that

appellee was loud, demeaning, and abusive toward Flowers and she was afraid of him.

{¶ 9} From 1998 until 2010, the youngest daughter, Mari Jo, maintained some

contact with her mother. However, shortly after Flowers lost her job at the hospital, she

reconnected with her daughters and Flowers babysat for Cheri and corresponded with

Jerri and Mari Jo who lived out of town. Their relationships deteriorated again, however,

in 2007 during a family visit when Cheri discovered marijuana drying in a room over the

garage and confronted Flowers and appellee in front of the entire family. Flowers asked

Cheri to leave while appellee was standing over her. That was the last time the daughters

saw their mother before she returned to Ohio in April 2010.

{¶ 10} Appellee testified Flowers did not show any signs of dementia prior to

being “released” from her job for an unknown reason. She took a job at a nursing home

facility as a charge nurse for a time, but no evidence was presented as to when she quit

working altogether. Appellee testified that sometime in 2008, after Flowers’ brother died

in an automobile accident, Flowers no longer wanted to drive and he sold her car.

{¶ 11} In mid-2009, appellee noticed Flowers started to repeat herself and forget

things. She spoke about her deceased brothers as if they were still alive. She had told

5.
appellee she did not like doctors, so he never took her to a doctor to be evaluated. Joseph

Siefer testified that he saw Flowers for a week in 2009. At that time, she was exhibiting

some cognitive problems with her memory. He did not feel comfortable riding with her

driving a car. He recalled telling appellee it was time he worked and supported Flowers

and got her some medical assistance. Flowers told Siefer she woke up one morning in

2009 and could not see, speak, or move. She later recovered, but her left side was

affected.

{¶ 12} At the beginning of 2010, appellee testified he started to monitor Flowers’

diet and hygiene because she would forget to eat, bathe, or wear clean clothes. She could

no longer drive, cook, or clean. She spent the day playing with her dog, exercising, and

helping with yard work. He handled all the family finances. Because she would get

confused very easily and become disoriented, he applied to the Social Security

Administration for Flowers on April 4, 2010, but the psychological examination to

determine her competency was never completed.

{¶ 13} While appellee was on a camping trip to Florida from April 16 to 18, 2010,

his mother took Flowers to the hospital because she was found wandering in the yard.

Afterward, appellee’s mother called the Siefers to pick up Flowers because Flowers

wanted to go to Ohio. Appellee did not believe that Flowers had the mental capacity as

of April 27, 2010, to make the decision of where to live. Her brothers, however, thought

Flowers’ mental state was about the same as when they had seen her in 2009. Siefer

believed she improved after moving back to Ohio, until she began to decline from

6.
mid-2011 until her death in February 2012. They testified that her condition improved

when she became more assured she would not return to live with appellee. Each time

Flowers saw appellee, however, they observed she would become worse.

{¶ 14} In April 2010, appellee attempted to have the local police help him see

Flowers. After meeting with Siefer and Flowers, who indicated that she did not want to

see appellee, the police told appellee the family agreed to meet appellee with a lawyer

present. Appellee did not want to meet without his own lawyer, so he returned to South

Carolina and began legal proceedings there.

{¶ 15} Over the next two months, Siefer sought medical treatment for Flowers

because of her memory issues. He did not believe a guardianship was necessary because

the only issue at that time was with her memory. Siefer took Flowers to the local Edward

Jones office to transfer her account to Ohio. She indicated to Siefer she wanted her

children to have her assets, not appellee. She repeated this statement to each of her

daughters who testified they did not raise the issue with her. The daughters also testified

that Flowers apologized about how she had treated her daughters and allowed their

relationship to fall apart and sought to reconcile with them.

{¶ 16} Flowers’ brothers took her to meet attorney John Gouttiere on April 27,

2010. Gouttiere testified Flowers told him she had a stroke, although she could not recall

the date, which had affected her right side, her speech, and her eyesight. Flowers could

not remember when and where she married appellee. She indicated that she did not have

a prior will. She knew she had accounts at Edward Jones, but could not recall if she had

7.
named appellee as beneficiary. As Flowers became comfortable, she told Gouttiere more

about her history. Gouttiere spoke with Flowers privately to ensure that she wanted

Siefer to be her attorney-in-fact, and she was unequivocal. A power of attorney was

executed on April 29, 2010.

{¶ 17} Gouttiere recalled Siefer stating that Flowers had trouble dressing and

could not be trusted to protect herself from hot water, to eat or stop eating, or to go to

bed. Gouttiere noted that Flowers did not seem to be particularly oriented as to time and

she could not tell the date, the year, or the President. On June 4, 2010, Siefer’s wife

spoke with Gouttiere and informed him that Flowers was making progress but could not

live on her own because she could not be trusted to turn off water or put on clean clothes

and she was always asking for help or direction.

{¶ 18} However, based on familiarity with the legal standard for contractual or

testamentary capacity, Gouttiere opined Flowers knew her family members, the general

extent of her assets, and that she wanted her daughters to inherit the assets, not appellee.

Gouttiere had no doubt in his mind that she knew what she was doing and it was her

choice. He had no doubt that she was capable of executing a will as she discussed her

children, appellee and her accounts. He believed she had great insight into herself and

her condition and was aware of her limitations. He did not believe anyone was trying to

deceive him.

{¶ 19} Bob Ruckman, a financial advisor for Edward Jones, testified that he

recalled first meeting Flowers in the spring or summer of 2010. He learned that she had

8.
relocated to Ohio and she indicated she wanted to change her beneficiary designation so

that her three daughters would inherit the funds in her Edward Jones account. He did not

ask her if she was married or if she had a prior beneficiary designation. He recalled

recognizing she had some mental impairment because she was slow to answer and

measured in her responses. However, he had no question that she knew what she was

doing that day and he reviewed the form with her. He did not recall her brother speaking

to her or doing anything that appeared dishonest or inappropriate. Ruckman typically

spoke to the client privately, but he could not recall if that was done in this case. If

Ruckman had observed Flowers exhibit some sort of distress or incapacity, he would not

have accepted her instructions and would have asked someone to verify the information

or assist her. He did not recall whether they discussed the details of the funds held at

Edward Jones, but Ruckman would not have been able to access her account at that time.

Seifer testified they met 5-6 times and reviewed her accounts every time.

{¶ 20} William Higley, an attorney specializing in Social Security Disability law

for 40 years, with a bachelor’s degree in psychology, testified he worked with Flowers in

May 2010 to file a Social Security disability claim. He noted immediately she was

mentally impaired because she had trouble answering questions. He deliberately spoke

only to her and questioned her to assess her mental impairment and make sure she was

competent to sign his fee agreement. Higley recalled having her read the fee agreement

to him. Afterward, he read it to her, explaining it and she was able to explain the terms to

him. He had no doubt that Flowers was competent to sign the fee contract. Higley

9.
recalled Flowers knew her brother and they appeared to have a good relationship. Higley

did not observe Siefer exercise any control over Flowers.

{¶ 21} Higley testified Dr. Watkins’ July 15, 2010, assessment of a GAF of 30

(global assessment of functioning scale) did not reflect the capacity of the woman he had

met two months prior unless she had declined badly or was having a bad day.

Nonetheless, Higley testified the GAF score has since been rejected as too subjective and

Dr. Watkins’ reports did not explain how he had derived the score and he did not include

the raw scores. Higley noted similarities between his and Dr. Watkins’ observations as

well as significant differences. Flowers knew her location with Higley but not with Dr.

Watkins. Higley also noted Dr. Watkins asked different questions than Higley. Dr.

Watkins reported Flowers’ full scale IQ was in the 50s, which would result in automatic

approval by Social Security. Higley believed in this case the IQ of 51 reflected either

that something was seriously wrong or there was an error in testing.

{¶ 22} Attorney Patricia Hayden Kurt testified she was retained to assist Flowers

with filing a divorce action and to obtain a civil protection order. Their first meeting

lasted about 30-40 minutes and a second two-hour meeting was held on May 21, 2010.

Kurt could not recall the meeting entirely, but she took notes. She did recall, however,

interacting with Flowers directly and immediately realized that something was wrong

with Flowers. Kurt considered whether this was a case of PTSD from long-term

domestic abuse based on her 33 years of dealing with people and the fact that Flowers

was very afraid of appellee. Kurt questioned Flowers to test her mental capacity.

10.
Flowers knew who was President. Kurt believed Flowers knew where she was at that

time and what she was asking Kurt to do. Kurt had made a notation “2002/todays date

unknown,” but she was not sure what that meant. Kurt also recalled they discussed the

ongoing physical, emotional, and mental abuse Flowers’ husband inflicted. Flowers

spoke of wanting to keep him away so a civil protection order was sought. Kurt recalled

telling Gouttiere this was the worst case of domestic violence she had ever seen.

{¶ 23} Kurt recalled that both Flowers and her brothers talked during the meeting

but Kurt could not remember who supplied what information, except that Flowers herself

told Kurt about Flowers’ schooling and the annuity. Kurt believed the personal

experiences came from Flowers as well. Flowers told Kurt there was an annuity from her

first husband and appellee would force her to sign checks. Flowers was not sure what he

was doing with the money. Kurt wrote notes about Flowers’ education, work history,

Flowers’ children and their work. Flowers was able to talk about herself and her husband

and identify her daughters. Flowers went into detail about appellee growing marijuana in

the house; how her dogs were her only friends; that she woke up one day and could not

talk; how she felt confined to the house; and how appellee would hit her with his hat.

{¶ 24} Both Cheri and Jerri saw their mother intermittently in the summer of 2010

and thought she had changed from 2007. They observed Flowers had become very shy,

quiet, meek, reserved, and nervous, and had a slight difficulty with speech and spoke

deliberately. But, both sisters believed their mother could fully communicate with them,

continued to recognize family members, and recalled her first husband and appellee.

11.
Even in November 2011, Jerri recalled seeing her mother at a court proceeding in South

Carolina and that her mother recognized Jerri and asked if she was ill because she was

having trouble with allergies. Jerri was sure her mother was aware at that time what was

going on around her.

{¶ 25} In May 2010, Flowers was taken back to her house in South Carolina to

obtain some possessions. Appellee slipped her a note which he believed she could read,

although he also testified she was nonresponsive and did not pet her dog whom she loved

more than anyone. He had written in the note that if the dogs were left, he would put

them down, but testified at trial he meant if the humane society did not take the dogs, he

would have to put them down.

{¶ 26} Appellee filed an action for separate maintenance and support in May

2010. He also filed an action for a guardianship for Flowers and later instituted her estate

administration in South Carolina.

{¶ 27} A civil protection order hearing was held in Ohio on July 23, 2010, and a

recording of the hearing was played for the court. At the hearing, Flowers testified she

was married to appellee. She did not know the date or her birthday, and stated she was

56, then 58. She did not remember the President’s name, but recognized it when told.

She testified all her money was gone. Flowers testified at the hearing she was afraid of

appellee and that he had threatened her and hit her with his hat if she did not give him

money. Gouttiere testified Flowers became much more intense when she saw appellee

present. A civil protection order was issued

12.
 {¶ 28} Eventually Flowers moved to live with her father on the family farm.

Terry Siefer testified he saw Flowers weekly. Terry knew Flowers had trouble dressing

because her arm did not function properly. He believed she was clear about what she did

or did not like. She spent her time driving her golf cart around the farm and helping their

father with the daily chores. Flowers continued to recognize everyone at family

functions. She never expressed a desire to return to appellee. Terry was not aware of the

change in the beneficiary designations, but he had heard Flowers state she did not want

appellee to have any more of her money.

{¶ 29} Flowers’ father testified Flowers lived with him from June 2010 until

shortly before she died. He testified he had to give her 24/7 care as he had done for her

mother. His other children testified that the elder Flowers may have confused Flowers

for her mother or simply treated her the same. In June 2010, Flowers’ father observed

she could not dress or groom herself. He did not trust her to use the stove or to be left

alone, but she could follow directions. He recalled that she had trouble in 2009 and

needed medical care. She had not changed much when he saw her in 2010. He did not

see her make any improvement in 2010 and near the end of her life she suddenly became

much worse. However, he also testified that she always knew her location and

recognized him and her family. She enjoyed visiting with her brother and loved her

daughters.

13.
 Medical Opinions Regarding Flowers’ Competency

{¶ 30} The certified copies of medical records from Flowers’ admission on

April 18, 2010, to a hospital in South Carolina were admitted into evidence. The chief

complaint was Flowers’ “altered mental state.” The doctor’s clinical impression was that

Flowers perhaps had Alzheimer’s dementia.

{¶ 31} Certified copies of the medical records of Flowers’ family physician, Dr.

Rasor, were admitted into evidence. The records indicated that Dr. Rasor first examined

Flowers on May 3, 2010, and had conducted a hair analysis on May 28, 2010, and found

no evidence of illicit drug use. He noted that Flowers had to stop and think about

commands before performing them and searched for words during speaking. He

recommended that she see a neurologist. Included within Dr. Rasor’s records was a letter

to Dr. Rasor from Dr. Saraiya, the neurologist who examined Flowers on June 4, 2010.

{¶ 32} Dr. Rasor testified that in his ordinary family practice he has assessed a

patient’s mental status and has had experience with patients who had dementia.

However, he had no training or expertise in neurology, psychiatry, psychology, organic

brain disorders, or legal standards for contractual or testamentary capacity in Ohio.

Nonetheless, he believed he was qualified as a family physician to render an opinion as to

Flowers’ mental state because of his general medical training and experience.

{¶ 33} Dr. Rasor first met Flowers May 3, 2010. Physically, she was in good

health. Dr. Rasor recalled Flowers was accompanied by her family who provided some

of her history and how her memory issues had begun three years earlier. While his

14.
records reflected that he found Flowers was “oriented within normal limits” that day, he

testified she was disoriented as to the date and year. He could not recall asking her about

her location. Flowers responded to Dr. Rasor’s questions in very short, sometimes

labored answers. She seemed to struggle with finding words and forming answers. He

did not specifically test her memory. Because she was only 58 years old and had

significantly declined over a short period of time, he made a diagnoses of “memory

impairment” and referred her to a neurologist. Several visits later, after receiving Dr.

Saraiya’s report, Dr. Rasor prescribed a drug to help with dementia. Dr. Rasor further

testified he never observed Flowers’ memory issues improve over the summer of 2010.

{¶ 34} Dr. Rasor opined that in July 2010, Flowers did not have the ability to

balance a checkbook, purchase a car, understand the nature and extent of her assets, or

the mental capacity to execute beneficiary designations. However, he admitted he never

observed her do any of these functions nor did he conduct any tests. He also never asked

her about her assets and never conducted any memory loss tests. He based his opinion on

his own observations as a physician and the “consultation” notes and objective testing of

Dr. Saraiya and Dr. Watkins, who did testify at trial. Dr. Rasor believed that physicians

who actually examined Flowers were in the best position to assess her mental capacity.

{¶ 35} Dr. Saraiya’s letter to Dr. Rasor was admitted into evidence as part of Dr.

Rasor’s medical file and she did not testify. Dr. Saraiya stated in her letter that she

considered information supplied by Siefer regarding Flowers’ history, the medical

records from the South Carolina hospital and diagnostic testing results recorded in the

15.
record, and her own observations made during her examination of Flowers. Dr. Saraiya

noted Flowers was alert, she did not know the year or month, she could repeat, she had

expressive aphasia but sometimes could speak a fluent sentence relevant to the content,

she could tell some remote history, she could recall some anatomical knowledge from her

nurse training, but there were some paraphasic errors; her memory recall was zero; her

comprehension was fairly intact; and she had significant apraxia. Dr. Saraiya opined that

Flowers definitely had brain damage from a stroke or vascular dementia, despite the

absence of significant stroke risk factors. Dr. Saraiya opined that early dementia was a

likely possibility. She also suggested that psychiatric conditions, depression, and

conversion would possibly have caused the damage because Flowers had experienced

significant emotional disturbances over many years.

{¶ 36} On July 15, 2010, shortly after the beneficiary designation was executed,

Daniel Watkins, Ph.D., a psychologist, evaluated Flowers at the request of the State of

Ohio, Division of Disability Determination, to determine if she had cognitive and

emotional deficits that would qualify her for Social Security disability. Dr. Watkins

testified he had no independent recollection of Flowers but testified about the results of

his examination summarized in his report admitted into evidence. His examination was

for purposes of measuring Flowers’ four abilities related to her ability to work: the

ability to understand, remember, and follow instructions (she was extremely impaired);

the ability to maintain attention, concentration, persistence, and pace to perform simple,

repetitive tasks and multi-step tasks (she was markedly impaired); the ability to relate to

16.
others (she was markedly impaired); and the ability to withstand the stress and pressure

associated with day-to-day work activity (she was extremely impaired).

{¶ 37} Dr. Watkins noted in his report Flowers was slow, her eye contact was fair,

and she was a poor historian because of her memory gaps. He was able to understand

her, but she spoke hesitantly, stuttered, and had trouble finding words and with

pronunciations. Some of her statements were irrelevant to the topic or question at hand.

She did not appear to be anxious. When questioned to assess her memory recall, she

could answer some questions, but not all. He found her mental arithmetic skills were

significantly impaired. She could recall four digits forward, but not backwards. She

could define words. She could not comprehend instructions to complete the Wechsler

Adult Intelligence Scale (“WAIS”) tasks. He concluded that her judgment skills did not

appear to be adequate for the purposes of simple work-related decision-making. Her IQ

score was 51, which he opined was consistent with someone who had dementia because

she had declined to this level. He gave her a GAF score (an estimate of her general

functioning) of no greater than 30 because of her “significantly impaired” memory and

loss of executive function. Neither score was what he would have expected with her

education and employment history. While the GAF is no longer used because of its

subjectivity, he would have expected a score of 70-80.

{¶ 38} Dr. Watkins believed she had dementia with memory and concentration

problems and difficulties with executive function. She did not have the ability to make

ordinary work-related decisions of what to do first. While Dr. Watkins opined that

17.
Flowers could not have looked at stock reports and made investment decisions, she might

have been able to determine to whom she wanted to give her money. He found her

insight was intact, which meant she could know and understand she was having cognitive

problems.

{¶ 39} Austin John McSweeny, III, a psychologist/professor with a clinical

practice in neuropsychology where he regularly evaluates patients, and an attorney,

evaluated the record in this case and testified regarding his opinion of Flowers’

testamentary capacity. McSweeny believed the coroner’s diagnosis was based on the

statement of others since no autopsy was performed and Flowers never had a thorough

dementia evaluation. He also testified the etiology of her dementia was not clear; but the

crucial aspect was the effect of the dementia on testamentary capacity, not the degree of

the dementia. He applied the methodology used for determining whether Flowers had the

tools to enable her to have testamentary capacity written about in the ABA, APA manual,

and other publications.

{¶ 40} He believed it was clear Flowers was suffering from a progressive,

dementing illness that existed over a matter of years, not months, and started between

2006 and 2008. Because of her dementia, Flowers would have been susceptible to the

influence of others, but he found no evidence of undue influence. He opined that Flowers

exhibited impairment as to both short and long term memory, but she had testamentary

capacity in the summer of 2010 to a reasonable degree of medical certainty. He testified

that Flowers’ need for 24/7 care was not determinative of her testamentary capacity,

18.
which depended upon her behavior during the actual act of making the change in her

beneficiary. He did give credit to the testimony and observations made by lay people

even if they were not psychiatrists and did not understand the significance of their

observations. He gave great weight to the financial advisor’s four basic questions of

Flowers, which she answered appropriately: She understood basically the money

involved, she understood who would get the money, she understood her relationship to

these people (although they did not discuss appellee), and she understood the

consequence of what she was doing. If the financial planner had not asked her any

questions about the money involved, Dr. McSweeny would have found the financial

planner’s assessment incomplete. Dr. McSweeny also gave some weight to Higley’s

opinion that Flowers had legal capacity based on her engagement and discussion of his

fee contract. Dr. McSweeny gave less weight to the observations of Flowers’ family

physician, Dr. Rasor, because he did not ask questions to determine Flowers’

testamentary capacity. Dr. McSweeny also put great emphasis on Flowers’ answers in

the civil protection order hearing because she knew her relationship to different people in

her family and their names; she acknowledged that she was married to appellee; she knew

she lived with her brother; and she was able to recall her first husband and knew he was

the father of their three daughters. McSweeny did not give as much weight to Dr.

Watkins’ report because it was completed for the purposes of obtaining disability

benefits, not for determining her testamentary capacity, and the GAF is subjective and

unreliable. Dr. McSweeny noted that while Flowers may have lacked general financial

19.
capacity, she had testamentary capacity. She would not have been able to purchase a

house or a car and understand all the implications related to it. But, she could still have

the specific financial capacity or contractual capacity to make a change in her IRA

because that is a different type of contract than buying a house or car.

{¶ 41} Dr. Sherman, a psychiatrist, also reviewed the record in this case. His first

report was prepared January 29, 2013. In that report, he considered the following

findings of the other medical professionals and concluded that there was an agreement

she had progressive dementia: Dr. Jayanti on 2/7/12 “altered mental status”; St. Ann’s

Hospital care progress notes “progressive emotion and cognitive decline”; St. Ann’s

Hospital psychiatric evaluation 2/9/12 “dementia”; St. Ann’s Hospital physician progress

notes of 2/9/12 “non-verbal dementia”; the palliative care consultation of 2/9/12

“probable frontal temporal lobe dementia onset approximately 2006 -- ‘non-functional

status’”; South Carolina hospital notation on 4/18/10 that “patient is a poor historian,

dementia”; and the hearing where Flowers was unable to accurately state the time, date,

place, or President. He also noted that later medical records indicated that her dementia

was a particularly progressive type, a “Prion disease.” He opined that the early onset in

her case made this diagnosis more likely than Alzheimer’s disease. While he saw a few

descriptions of partial lucidity, he did not believe that a progressive dementia of this type

could have cleared enough for her to make any competent decision in July 2010 and she

would have been likely susceptible to the influence of others.

20.
 {¶ 42} At trial, Dr. Sherman testified that his postmortem competency evaluation

was unusual in that he also had the transcript of the civil protection order hearing

to review, in addition to medical records, the coroner’s report, and the depositional

testimony of others about Flowers’ mental status. Dr. Sherman, who was familiar

with the legal standard for competency, opinioned to a reasonable degree of

medical certainty, that when Flowers changed the beneficiary designation, she was

suffering from a significant neurological disorder and was incompetent. He

believed Flowers would not have had the mental capacity to understand that she

was changing disposition of her assets, would not have been competent to do even

simple business decisions, would not have understood the nature and extent of her

assets and would have been susceptible to the influence of others without the

mental capacity to resist influence. He did not believe Flowers would have been

capable of having lucid moments.

{¶ 43} Dr. Sherman testified as follows. The autopsy revealed the number one

cause of death was “frontotemporal dementia, clinical,” a rapidly progressive dementia.

“Clinical” meant the disease was diagnosed from symptoms rather than microscopic

evaluation of her brain samples. No matter what type of dementia she had, it progressed

rapidly and left her basically incapable of any kind of sound decisions. Unlike other

kinds of dementia, nothing could have been done to slow down the progression of the

disease and she would not have shown improvement. Normally, this type of dementia

would have begun with errors in judgment and decorum, a lack of propriety, and a

21.
change in dietary habits, such as overeating; but not necessarily any significant loss of

memory. By the time memory problems would have been seen, the dementia would have

been fairly advanced. This type of dementia can continue for years, but not decades.

{¶ 44} Dr. Sherman observed from the records that Flowers lost her R.N. position

and never obtained another job, indicating to him that her dementia may have begun in

2006. He saw deterioration beginning as early as 2007 and 2008 through her impaired

judgment and the observations that she could not be trusted around the stove, did not

know when to turn the water off, and did not know when to stop eating. Appellee had

testified Flowers repeatedly sprayed weed killer on same spot, which indicated to Dr.

Sherman she could not comprehend something else was required.

{¶ 45} Dr. Sherman also considered her IQ score of 51 as significant and agreed

with Dr. Watkins’ assessments. Dr. Sherman believed that if Flowers was unable to

duplicate a block pattern, there was no way she had testamentary capacity. Dr. Sherman

testified memory recall is part of the competency assessment because one must be able to

recall memories to make judgment determinations. The memory recall score of zero

determined by Dr. Saraiya indicated that Flowers was at the bottom of the continuum.

Dr. Sherman gave no weight to the opinions of the lawyers or financial advisor in this

case because he believed only medical professionals are capable of making a sound

judgment regarding mental status.

{¶ 46} Dr. Sherman also testified that some demented individuals become

paranoid, but the only evidence of overt paranoia in Flowers’ case was the civil

22.
protection order. However, considering the cognitive defects she had, Dr. Sherman could

not believe she could have instituted the action on her own.

Admissibility of Dr. Saraiya’s Medical Diagnosis

{¶ 47} First Assignment of Error. Appellants argue the trial court erred by

admitting into evidence, over objection, the full medical report of Dr. Rasor as a certified

business record pursuant to Evid.R. 803(6) and 901(B)(10). Appellants argue that within

that report is the letter from Dr. Saraiya, with her medical opinion, which they argue is

inadmissible hearsay because she did not testify at trial and was not subject to cross-

examination, her report was not authenticated, there was no foundation laid for her

opinion, and her letter does not fall within the exception of Evid.R. 803(6). The probate

court allowed the letter to be admitted to the extent that other doctors relied upon it in

reaching their opinions.

{¶ 48} Clearly, the diagnosis and opinion of Dr. Saraiya was hearsay because she

did not testify at trial. Evid.R. 801(C). The issue in this case is whether her medical

diagnosis and opinion was admissible under an exception to the hearsay rule, the business

records exception of Evid.R. 803(6). Because Evid.R. 803(6) sets forth a basis for

admission of hearsay, we do not review the trial court’s decision under the typical abuse

of discretion standard applied to evidentiary decisions. We must consider whether the

court erred as a matter of law. Even if hearsay evidence was erroneously admitted based

on Evid.R. 803(6), an appellate court will not reverse the trial court’s judgment unless the

23.
error prejudicially affected a substantial right. Evid.R. 103(A); Meyers v. Hot Bagels

Factory, 131 Ohio App.3d 82, 100-101, 721 N.E.2d 1068 (1st Dist.1999).

{¶ 49} Prior to adoption of Evid.R. 803(6) in 1980, the General Assembly adopted

the Uniform Business Records as Evidence Act in 1939 as Gen.Code, § 12102-22 et seq.,

currently found at R.C. 2317.40, in order to make the evidentiary rules of Ohio uniform

to those of other states regarding the admissibility of business records. Evid.R. 803(6);

Smith v. Dillard’s Dept. Stores, 8th Dist. Cuyahoga No. 75787, 2000 Ohio App. LEXIS

5820, *11. In Weis v. Weis, 147 Ohio St. 416, 425, 72 N.E.2d 245 (1947), the Ohio

Supreme Court held that the purpose of the statute was “to liberalize and broaden the

shop-book rule, recognized at common law as an exception to the general rule excluding

hearsay evidence, and to permit the admissions of records regularly kept in the course of

business and incident thereto* * *.” Id. The court further found that hospital records are

admissible under the statute as business records if the conditions of the statute at met. Id.

at paragraph three of the syllabus. While the court defined “hospital records” as

including a doctor’s diagnoses, id. at 425, the Weis case did not actually involve the

admission of a doctor’s diagnosis.

{¶ 50} The Tenth Appellate District considered whether a specialist physician’s

diagnosis or opinion could be admitted as part of the medical record of a treating

physician’s records under the statutory business record exception in Hytha v.

Schwendeman, 40 Ohio App.2d 478, 482-483, 320 N.E.2d 312 (10th Dist.1974). The

court of appeals held the specialist’s diagnosis could be admitted following a prior case,

24.
Dillow v. Young, 3 Ohio App.2d 110, 209 N.E.2d 623 (10th Dist.1965), rev’d on other

grounds in 6 Ohio St.2d 221, 217 N.E.2d 868 (1966). However, the court of appeals

excluded the record in that case because the report was not created in the regular course

of business of the treating physician, contained objective and subjective opinions of the

patient’s condition, had not been properly authenticated, it did not include any foundation

regarding the qualifications of the specialist to make the opinions stated, and the letter

contained irrelevant evidence. Id. at 486. The court set forth in its syllabus the following

seven criteria for evaluating whether a medical diagnosis contained in a medical record is

admissible, which have been recited by subsequent courts despite the fact that the law

stated in an appellate opinion is found in the text of the opinion and not the syllabus:

(1) The record must have been a systematic entry kept in the records

of the hospital or physician and made in the regular course of business;

(2) The diagnosis must have been the result of well-known and

accepted objective testing and examining practices and procedures which

are not of such a technical nature as to require cross-examination;

(3) The diagnosis must not have rested soley [sic] upon the

subjective complaints of the patient;

(4) The diagnosis must have been made by a qualified person;

(5) The evidence sought to be introduced must be competent and

relevant;

25.
 (6) If the use of the record is for the purpose of proving the truth of

matter asserted at trial, it must be the product of the party seeking its

admission;

(7) It must be properly authenticated. Id. at the syllabus.

{¶ 51} Evid.R. 803(6), promulgated by the Ohio Supreme Court, is nearly

identical to R.C. 2317.40. Fed.Evid.R. 803(6), however, specifically indicated that

“opinions or diagnoses” can be admissible as a business record. Nonetheless, the Ohio

Supreme Court has held that the rule “shall be construed as stating the common law of

Ohio unless the rules clearly indicate that a change is intended.” Mastran v. Urichich, 37

Ohio St.3d 44, 49, 523 N.E.2d 509 (1988).

{¶ 52} Therefore, the Tenth Appellate District continues to apply the Hytha test

for admission of a medical opinion or diagnosis under Evid.R. 803(6). Jefferson v.

Careworks of Ohio, Ltd., 193 Ohio App.3d 615, 2011-Ohio-1940, 953 N.E.2d 353, ¶ 10

(10th Dist.). We have adopted this analysis as well. Gallagher v. Firelands Regional

Med. Ctr., 6th Dist. Erie No. E-15-055, 2017-Ohio-483, ¶ 23-30. Compare Guarino-

Wong v. Hosler, 1st Dist. Hamilton No. C-120453, 2013-Ohio-1625, ¶ 15; Bush v.

Burchett, 4th Dist. Scioto No. 94CA2237, 1995 Ohio App. LEXIS 2488, *8-9 (June 13,

1995) (medical opinions and diagnoses are “per se” inadmissible under Evid.R. 803(6).)

{¶ 53} We agree Dr. Saraiya’s letter to Dr. Rasor was not admissible hearsay

under Evid.R. 803(6). As in the Hytha case and DeVries v. Paseff, 6th Dist. Wood No.

WD-01-014, 2002-Ohio-602, *22-23, we find the specialist’s report included more than

26.
observable facts, it was not authenticated, there was no foundation laid for her expert

opinion, and it was not a record kept in the regular course of Dr. Rasor’s medical

practice. Such records constitute double hearsay. Golden v. George Gradel Co., 6th

Dist. Lucas No. L-88-091, 1989 Ohio App. LEXIS 492, *9 (Feb. 17, 1989).

{¶ 54} We next consider whether appellants were prejudiced by the admission of

Dr. Saraiya’s report because Dr. Sherman and Dr. Rasor relied upon it in forming

opinions of Flowers’ testamentary capacity as of July 2010.

{¶ 55} Dr. Saraiya’s “diagnosis” was not definitive in this case. She suggested

early dementia was a likely possibility as well as a stroke, psychiatric conditions,

depression, and conversion. She also set forth observable facts and test results.

{¶ 56} Dr. Sherman identified at his deposition the factual observations and testing

results of Dr. Saraiya’s report that he considered important. He also noted that Dr.

Saraiya suggested early dementia was a likely possibility. At trial, Dr. Sherman testified

that he relied upon the medical records, which included Dr. Saraiya’s neurological

assessment. Dr. Rasor testified he based his opinion in part on the “consultation” notes

and objective testing of Dr. Saraiya. Both doctors agreed with Dr. Saraiya’s suggested

diagnosis.

{¶ 57} While Dr. Sherman and Dr. Rasor agreed with Dr. Saraiya’s opinion, there

was no indication they based their opinions simply upon the diagnosis of Dr. Saraiya. Dr.

McSweeny also considered the entire record, including Dr. Saraiya’s letter, and agreed

there was no doubt Flowers had dementia. Dr. Watkins, who made his own independent

27.
diagnosis, also determined that Flowers had dementia. The central issue, however, was

not whether Flowers had dementia, but whether the dementia had impacted her

testamentary capacity. Therefore, upon a review of the entire record, we do not find that

appellants were prejudiced by the admission of Dr. Saraiya’s report into evidence.

Appellants’ first assignment of error is found not well-taken.

Admissibility of Expert Testimony

Assignments of Errors Nos. 2, 3, and 4

{¶ 58} Appellate Standard of Review. Evid.R. 702 provides that a witness may

testify as an expert if his testimony “relates to matters beyond the knowledge or

experience” of the average juror, the expert has “specialized knowledge, skill,

experience, training, or education” about the matter, or the testimony is based on

“reliable, scientific, technical, or other specialized information.” The expert’s opinion

can be based on facts admitted into evidence or facts the expert perceived. Evid.R. 703.

Knowing the foundation of the expert’s opinion ensures the factfinder “can determine the

validity of the expert’s opinion.” Lucitte v. Lucitte (In re Estate of Lucitte), 6th Dist.

Lucas No. L-10-1136, 2012-Ohio-390, ¶ 53. The opposing party bears the burden of

proving the expert’s opinions are unsupported by the facts. Holman v. Shiloh Grove L.P.,

10th Dist. Franklin Nos. 15AP-228, 15AP-797, 2016-Ohio-2809, ¶ 20.

{¶ 59} The expert must also render an opinion to a reasonable degree of scientific

certainty and cannot render a subjective opinion. State v. Jackson, 92 Ohio St.3d 436,

448, 751 N.E.2d 946 (2001). The expert’s opinion must be reliable; it must be based on

28.
scientifically-valid principles. Miller v. Bike Athletic Co., 80 Ohio St.3d 607, 687 N.E.2d

735 (1998), paragraph one of the syllabus. The trial court acts as a gatekeeper and must

determine “both the reliability of an expert’s methodology and the relevance of any

testimony offered before permitting the expert to testify.” Terry v. Caputo, 115 Ohio

St.3d 351, 2007-Ohio-5023, 875 N.E.2d 72, ¶ 24. Qualification of an expert is a matter

within the sound discretion of the trial court. Evid.R. 104(A); Celmer v. Rodgers, 114

Ohio St.3d 221, 2007-Ohio-3697, 871 N.E.2d 557, ¶ 19. On appeal, the trial court’s

ruling will not be reversed absent a showing of an abuse of discretion. Id. We will not

find an abuse of discretion unless the record shows the court’s evidentiary ruling was

“unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217,

219, 450 N.Ed.2d 1140 (1983).

{¶ 60} Second Assignment of Error. Appellants argue appellee’s sole expert,

Dr. Sherman, initially opined that Flowers lacked capacity to execute the beneficiary

designation change in favor of her daughters because she likely suffered from a “so-

called ‘Prion disease,’” an extremely rare disorder known as Creutzfeldt-Jakob Disease.

Appellants moved in limine to exclude his opinion because the trial court found, in a

July 17, 2015 judgment that such a diagnosis was improbable based on judicially-noticed

facts. The trial court denied appellants’ motion in limine.

{¶ 61} Before the trial began, appellants presented arguments in support of their

second motion in limine. They argued that Dr. Sherman’s opinion that Flowers suffered

from a prion disease, most likely Creutzfeldt-Jakob Disease, is methodologically

29.
unreliable because the CDC diagnostic criteria requires brain tissue to be examined

before making this particular diagnosis, which was not done in this case.

{¶ 62} The trial court denied the motion in limine holding that the issues could be

thoroughly covered through the cross-examination of the witnesses and the court’s

reconsideration of this issue during deliberation because the case was being tried to the

bench. At trial, Dr. Sherman refused to offer an opinion as to the cause of Flowers’

dementia which caused her alleged incapacity.

{¶ 63} On appeal, appellants first argue Dr. Sherman changed his opinion at trial

from the opinion he initially disclosed in his report and deposition testimony. They argue

this action constituted unfair surprise and his opinion should have been excluded from

evidence.

{¶ 64} Civ.R. 26(E)(1) requires that a party supplement discovery requests

regarding the subject matter on which an expert is expected to testify so that a party may

prepare for effective cross-examination of the expert. Werden v. Children’s Hosp. Med.

Ctr., 1st Dist. Hamilton No. C-040889, 2006-Ohio-4600, ¶ 67, fn. 41, citing Shumaker v.

Oliver B. Cannon & Sons, Inc., 28 Ohio St.3d 367, 370, 504 N.E.2d 44 (1986). The

admissibility of “surprise” testimony is a matter left to the discretion of the trial court.

Williams v. Reynolds Rd. Surgical Ctr., 6th Dist. Lucas No. L-02-1144, 2004-Ohio-1645,

*8.

{¶ 65} In the case before us, we do not find that the substance of Dr. Sherman’s

opinion significantly changed. In his written report of January 29, 2013, he stated that all

30.
of the medical records were in agreement that Flowers “had a progressive dementia * * *

with a few descriptions of even partial lucidity. It is unlikely that a progressive dementia

of the type suffered by [Flowers] could have ‘cleared’ enough for her to make any

competent decision in July 2010. Progressive dementias of this type typically produce

the bewilderment that she demonstrated in her deposition [CPO hearing transcript]

making it likely that she be susceptible to the under [sic] influence of others.”

{¶ 66} However, at his deposition, Dr. Sherman opined that Flowers suffered from

a prion disease. He noted that a diagnosis of a prion disease had not been made because

it can only be done by autopsy. He opined in Flowers’ case, the symptoms “behaved that

way. It was a progressive, rapidly progressive, dementia, unlike Alzheimer’s disease.”

He also opined that her dementia may have been caused by Creutzfeldt-Jakob disease,

one type of Spongiform Encephalopathy, a cause suggested by one of the physicians in

the record. When questioned about the coroner’s finding that Flowers had died from

complications of frontal temporal dementia (which Dr. Sherman had not seen earlier), Dr.

Sherman emphasized that the focus of his opinion was that Flowers had a “generally

rapidly progressing dementia” and “was not very functional for years.” He testified his

opinion was not “necessarily that she had Creutzfeldt-Jakob Disease.” Furthermore, he

opined the dementia would make her vulnerable to the influence of others.

{¶ 67} At trial, Dr. Sherman emphasized that he had not made a specific diagnosis

in this case that Flowers suffered from a prion disease. He agreed the suggestions of

other physicians and the coroner were all possibilities. However, he believed a diagnosis

31.
of the cause of the dementia was irrelevant. He believed the important factor was that

this was a particularly rapid, progressive dementia, which began perhaps as early as 2006

or 2007 when she lost her job.

{¶ 68} Upon a review of all of the evidence, we find that Dr. Sherman consistently

opined that Flowers suffered from a rapidly-progressing dementia which prevented her

from having the testamentary capacity to change her beneficiary designation on July 6,

2010. While his supposition about the cause of her dementia waivered, Dr. Sherman

acknowledged from the beginning that the cause of the dementia could not be definitively

determined without an examination of brain tissue during an autopsy. However, based on

clinical observations, he believed the underlying disease could have been a prion disease

or the coroner’s opinion of frontotemporal dementia.

{¶ 69} Secondly, appellants argue that Dr. Sherman’s failure to opine a cause for

Flowers’ dementia eliminates a foundation for his opinion regarding the effect the disease

would have had on her testamentary capacity.

{¶ 70} Dr. McSweeny, like Dr. Sherman, testified that because Flowers did not

have her brain tissue analyzed during an autopsy, the etiology of her dementia was not

certain. Dr. McSweeny testified the coroner’s diagnosis appears to have been a statement

of what others had said. Dr. Sherman testified he could not disagree with the coroner’s

conclusion. While the cause of her dementia was relevant because it could shed light on

the expected progression of her dementia, knowing the cause did not prove the ultimate

issue of whether Flowers possessed testamentary capacity on July 6, 2010. Both of these

32.
witnesses based their opinion of Flowers’ competency upon her behavior and test results,

which they utilized to determine her cognitive ability. Therefore, we find that Dr.

Sherman’s testimony was reliable.

{¶ 71} Thirdly, appellants argue that proof of dementia alone is insufficient to

establish a lack of testamentary capacity. We agree. Stewart v. Boland (In re Estate of

Probst), 2015-Ohio-1712, 33 N.E.3d 551, ¶ 15 (1st Dist.); In re Estate of Marsh, 2d Dist.

Greene No. 2010 CA 78, 2011-Ohio-5554, ¶ 34. In this case, Dr. Rasor and Dr. Sherman

testified that Flowers’ dementia did negatively impact her testamentary capacity.

{¶ 72} Appellants further argue that Dr. Sherman’s opinion should have been

excluded because it was merely supposition based on the dementia-like systems

described by physicians who were not assessing her testamentary capacity. We find this

argument lacks merit.

{¶ 73} Testamentary capacity can be proven by evidence of a person’s mental and

physical condition a reasonable time before and at the time of the testamentary act.

Marsh at ¶ 18, quoting Bustinduy v. Bustinduy, 2d Dist. Champaign No. 98-CA-21, 1998

Ohio App. LEXIS 6047 (Dec. 18, 1998), *8-9, quoting 33 Ohio Jurisprudence 3d,

Decedent’s Estates, Section 1153 (1997). The benefit of an expert’s testimony in such

cases is to identify what behaviors are associated with dementia and the loss of cognitive

function.

{¶ 74} Dr. Sherman was qualified as an expert in the field of psychiatry and was

competent to testify in this case. Both he and Dr. McSweeny testified that postmortem

33.
competency evaluations are generally accepted in the field of psychology and psychiatry.

Dr. Sherman testified that while he did not accept the opinions of lay person as to

competency, he did accept their observations of Flowers’ cognitive abilities, which he

was able to relate to her mental capacity because of his expertise. The foundation for his

opinion that Flowers lacked testamentary capacity was that if she was unable to make

judgments of a certain level in certain matters, it was reasonably certain she also would

have lacked the capability to make judgments related to testamentary capacity.

Therefore, we find Dr. Sherman’s opinion was relevant to the issue of Flowers’

testamentary capacity. Appellants’ second assignment of error is found not well-taken.

{¶ 75} Third Assignment of Error. Appellants argue that Dr. Rasor’s opinion as

to Flowers’ testamentary capacity should have been excluded from evidence because he

was not qualified to give it and his opinion lacked a proper foundation. They argue Dr.

Rasor had no expertise in the issue of contractual or legal capacity, neurology, psychiatry,

psychology, organic brain disorders, never assessed Flowers for the cause of her memory

loss, never diagnosed her with dementia, and had referred Flowers to a neurologist

because of his lack of expertise. They further argue that Dr. Rasor’s opinion was based

solely on the opinion of Dr. Saraiya, and therefore, was hearsay.

{¶ 76} The trial court may, at its discretion, allow a lay person to testify regarding

a person’s mental state. Rucker v. State, 119 Ohio St. 189, 199, 162 N.E. 802 (1928);

Hunt v. Crossroads Psychiatric & Psychological Ctr., 8th Dist. Cuyahoga No. 79120,

2001 Ohio App. LEXIS 5388, *10 (Dec. 6, 2001). A physician expert opinion can be

34.
“based on the actual knowledge which the physician has gained by personal contact with,

and study of, such person as a patient.” Bahl v. Byal, 90 Ohio St. 129, 138, 106 N.E. 766

(1914). See Vetter v. Hampton, 54 Ohio St.2d 227, 230, 375 N.E.2d 804 (1978); Weis,

147 Ohio St. at 422, 72 N.E.2d 245. The physician expert may also rely upon data in

medical records, but not another physician’s opinion reported in the medical records.

Evid.R. 703; Wells v. Miami Valley Hosp., 90 Ohio App.3d 840, 858, 631 N.E.2d 642

(2d Dist.1993). The testifying expert must state the underlying facts and data that were

the foundation of his opinion and may not simply refer generally to the record which

contains the underlying facts he considered. Evid.R. 705; Stephenson v. Guda, 4th Dist.

Pike No. 532, 1995 Ohio App. LEXIS 1032, *13 (Mar. 15, 1995). Even if a physician

testifies as an expert, his expert opinion “as to mental competency is not necessarily

conclusive on that question ‘as a matter of law.’” Vetter.

{¶ 77} We find the trial court did not abuse its discretion in allowing the expert

opinion testimony of Dr. Rasor to be admitted in this case. We agree with appellants that

the mere fact that a witness is a doctor does not necessarily mean they are an expert in all

medical fields. Therefore, the expert must set forth their qualifications of expertise as to

the determination of mental capacity. In this case, Dr. Rasor testified he examined

Flowers in May 2010, prior to when she executed the beneficiary designation. While not

a specialist in the field of neurology, etc., he had sufficient medical training to make

observations about her general mental functioning in comparison with his observation of

patients in his 15-year practice and his familiarity with dementia patients. He also had

35.
the medical expertise to understand the significance of the factual observations of Dr.

Saraiya and Dr. Watkins to make an assessment of Flowers’ mental capacity. Dr. Rasor

testified that he based his opinion on his own examination of Flowers, as well as the

observations and notes of Dr. Saraiya and Dr. Watkins. While he did not delineate the

underlying facts to a great extent, it is clear that he based his opinion on his finding that

Flowers exhibited memory impairment during his examination and also during her

examination by Dr. Saraiya and Dr. Watkins. Therefore, we find there was a foundation

for Dr. Rasor’s opinion. The issues raised by appellants are issues relating to the weight

to be given Dr. Rasor’s testimony rather than its admissibility. Appellants’ third

assignment of error is found not well-taken.

{¶ 78} Fourth Assignment of Error. Appellants argue the trial court erred in

admitting into evidence the opinion of Dr. Watkins pursuant to Evid.R. 702(C). They

argue Dr. Watkins conceded that his report on Flowers was methodologically unreliable

because the GAF test has since been rejected as too subjective; a low IQ score does not

necessarily reflect the lack of testamentary capacity; and Dr. Watkins declined to give an

opinion on Flowers’ testamentary capacity and actually testified she might have been able

to determine to whom to give her money.

{¶ 79} We agree in part. First, Dr. Watkins testified that he could not make an

assessment of Flowers’ testamentary capacity based upon his report. Although, he did

state that while she could not understand a stock portfolio, that incapacity did not

necessarily indicate that she could not make a testamentary gift.

36.
 {¶ 80} His assessment focused on her level of cognitive function as it related to

the four abilities needed to work. While Dr. Watkins testified the GAF is no longer used

in social security disability assessments because of its subjectivity, it was an acceptable

testing mechanism at the time it was administered and since Dr. Watkins administered the

test, he had the ability to recognize the basis for his subjective conclusions. Dr. Watkins,

Dr. McSweeny, and Higley indicated on the record that the GAF was unreliable because

it is a subjective test. Dr. Sherman testified he primarily considered the IQ score because

he was not familiar with Dr. Watkins’ tests. We do not find that anyone was misled by

the GAF score.

{¶ 81} We also agree that a low IQ score alone does not definitively indicate a

lack of testamentary capacity. However, the IQ score is a relevant fact that can be

considered in the determination of testamentary capacity. Dr. Watkins’ report does

provide observable facts upon which Dr. Sherman and Dr. McSweeny could base their

opinions. Therefore, we find the trial court did not err in admitting the testimony of Dr.

Watkins. The issues asserted by appellants with respect to Dr. Watkins’ testimony raise

questions of weight rather than admissibility.

{¶ 82} Therefore, we find appellants’ fourth assignment of error not well-taken.

Sufficiency of the Evidence

{¶ 83} Appellate Standard of Review. The term “sufficiency is a term of art

meaning that legal standard which is applied to determine whether the case may go to the

jury or whether the evidence is legally sufficient to support the jury verdict as a matter of

37.
law.” State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). This standard

is very narrow and tests only whether there was evidence presented which supports each

element of the prima facie case. Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-

2179, 972 N.E.2d 517, ¶ 11.

{¶ 84} Burden of Proof of Incapacity. Changing a beneficiary designation for an

annuity is a contractual act. Schiavoni v. Roy, 9th Dist. Medina No. 11CA0108-M, 2012-

Ohio-4435, ¶ 17; Davis v. Marshall, 10th Dist. Franklin No. 94APE02-158, 1994 Ohio

App. LEXIS 3538, *6-7 (Aug. 9, 1994) (P.O.D account). A person must be of sound

mind to enter into a contract. Kostelnik v. Helper, 96 Ohio St.3d 1, 2002-Ohio-2985,

¶ 16. To prove a contract is voidable on the ground that a party lacked the mental

capacity to enter into it, the complaining party must establish the lack of mental capacity

by clear and convincing evidence. Cameron v. State Teachers Retirement Bd., 10th Dist.

Franklin No. 00AP-425, 2000 Ohio App. LEXIS 5539, *11 (Nov. 30, 2000). Because

changing a beneficiary designation under an annuity is similar to naming the heir in a

will, the test of testamentary capacity can also be used as a standard for mental capacity

to execute a beneficiary designation. Schiavoni; Rogers v. Frayer, 11th Dist. Geauga No.

94-G-1854, 1995 Ohio App. LEXIS 2677, *10 (June 16, 1995). The test of testamentary

capacity is whether the person “has sufficient mind and memory: First, to understand the

nature of the business in which he is engaged; Second, to comprehend generally the

nature and extent of his property; Third, to hold in his mind the names and identity of

those who have natural claims upon his bounty; [and] Fourth, to be able to appreciate his

38.
relation to the members of his family.” Niemes v. Niemes, 97 Ohio St. 145, 119 N.E. 503

(1917), paragraph four of the syllabus.

{¶ 85} There is also a rebuttable presumption that a person is competent unless

they have been legally declared mentally incompetent. Cameron at *11; Buzzard v.

Public Employees Retirement Sys. of Ohio, 139 Ohio App.3d 632, 637, 745 N.E.2d 442,

2000 Ohio App. LEXIS 1950 (10th Dist.2000); Dover v. Durkoske, 11th Dist. Lake No.

92-L-067, 1993 Ohio App. LEXIS 3338, *7 (June 30, 1993). Therefore, appellee had the

burden to overcome the presumption with clear and convincing evidence.

{¶ 86} Evidence of a lack of testamentary capacity must be relevant to

competency on or near the day the testamentary act was made. In re Estate of Marsh, 2d

Dist. Greene No. 2010 CA 78, 2011-Ohio-5554, ¶ 18, quoting Bustinduy, 2d Dist.

Champaign No. 98-CA-21, 1998 Ohio App. LEXIS 6047, at *8-9. Evidence of dementia

alone is insufficient to establish a lack of testamentary capacity; there must be evidence

of how the dementia impacted the person’s testamentary capacity. Boland, 2015-Ohio-

1712, 33 N.E.3d 551 at ¶ 15. Incompetency can be established by an expert witness and

also by a law witnesses who observed the mental state of the person and could assess

whether, in his opinion, the person was of sound mind to make a testamentary

disposition. Weis, 147 Ohio St. at paragraph two of the syllabus, 72 N.E.2d 245.

{¶ 87} Burden of Proof of Undue Influence. The party claiming undue

influence must prove the prima facie elements of the claim: “(1) a susceptible party;

(2) another’s opportunity to exert [influence]; (3) the fact of improper influence exerted

39.
or attempted; and (4) the result showing the effect of such influence.” West v. Henry, 173

Ohio St. 498, 510-511, 184 N.E.2d 200 (1962). No presumption of undue influence is

present in this case because Seifer was not named as a beneficiary of the annuity and did

not execute the beneficiary designation as Flowers’ attorney-in-fact. Compare

Krischbaum v. Dillon, 58 Ohio St. 3d 58, 63, 567 N.E.2d 1291 (1991); Schiavoni v. Roy,

9th Dist. Medina No. 11CA0108-M, 2012-Ohio-4435, at ¶ 22.

{¶ 88} Fifth Assignment of Error: First, appellants argue, with respect to the

issue of Flowers’ mental competency, that appellee failed to meet his burden of proof

because he presented only the expert opinions of Dr. Rasor, Dr. Watkins, and Dr.

Sherman, which related solely to the first element of the Niemes test and Dr. Rasor and

Dr. Watkins both testified that they did not assess Virginia’s testamentary capacity.

Appellee did not present any evidence as to the remaining factors to overcome the

presumption of competency or to counter the lay opinion evidence of Ruckman or

Flowers’ own testimony at the CPO hearing.

{¶ 89} We find this argument lacks merit. We agree that Dr. Watkins did

specifically testify that Flowers might have been able to determine to whom she wished

to give her money even though she could not manage her finances. Dr. Rasor and Dr.

Sherman, however, both testified that Flowers did not have the mental capacity to

execute the beneficiary designation. Dr. Sherman testified more specifically that she

would not have had the mental capacity to understand that she was changing disposition

of her assets nor the nature and extent of her assets. Dr. Sherman further opined that

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Flowers would not have been capable of having lucid moments. Therefore, we find there

was sufficient evidence to submit this case to the trier of fact.

{¶ 90} Second, with respect to the claim of undue influence, appellants argue that

appellee did not meet his burden of proof because there was no evidence that the

beneficiary designation change was Siefer’s idea.

{¶ 91} The trial court concluded that there was clear and convincing evidence that

Siefer exercised undue influence over Flowers because her sudden change in attitude by

changing the beneficiary of her account was totally inconsistent with her prior actions.

The court found Flowers never wavered in the past from supporting appellee in

opposition to her daughters and extended family.

{¶ 92} Upon a review of all of the evidence, we find there was evidence that

Flowers was susceptible to influence because of her dementia and that Siefer would have

had the opportunity to exert influence over Flowers. While there was no direct evidence

that Siefer actually exerted improper influence over Flowers, there was circumstantial

evidence from which an inference could be drawn that Siefer did exert undue influence

over Flowers. There was evidence Flowers was mentally incompetent, she changed her

beneficiary designation after she returned to Ohio, and the change was inconsistent with

all of her prior decisions. While there was evidence from Flowers’ own testimony that

she disliked and was afraid of appellee and that she reported to Dr. Watkins that she had a

good relationship with her daughters, appellants’ arguments related to the weight of the

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evidence, not the sufficiency of the evidence. Therefore, we find there was some

evidence admitted which supported every element of appellee’s prima facie case.

{¶ 93} Appellants’ fifth assignment of error is not well-taken.

Manifest Weight of the Evidence

{¶ 94} Appellate Standard of Review. A challenge to the weight of the evidence

questions whether the greater amount of credible evidence was admitted to support the

judgment than not. Eastley, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, at

¶ 17-19; Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541. When weighing the

evidence, the court of appeals must consider whether the evidence in a case is conflicting

or where reasonable minds might differ as to the inferences to be drawn from it, consider

the weight of the evidence, and consider the credibility of the witnesses to determine if

“the jury clearly lost its way and created such a manifest miscarriage of justice that the

[judgment] must be reversed and a new trial ordered.” Id., quoting State v. Martin, 20

Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). “[I]n determining whether the

judgment below is manifestly against the weight of the evidence, every reasonable

intendment and every reasonable presumption must be made in favor of the judgment and

the finding of facts.” Eastley at ¶ 21, quoting Seasons Coal Co., Inc. v. Cleveland, 10

Ohio St.3d 77, 80, fn. 3, 461 N.E.2d 1273 (1984) (citation omitted).

{¶ 95} Sixth Assignment of Error: Appellants argue that the probate court lost

its way in evaluating the evidence of Flowers’ competency because the court did not give

any weight to the evidence that the police did not force Flowers to return to appellee, the

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magistrate at the civil protection hearing granted her request for a civil protection order,

and several lawyers, the account representative, and a psychiatrist (McSweeny) testified

Flowers was mentally competent in July 2010. Furthermore, they argue the probate court

overlooked Flowers’ own sworn testimony that she was afraid of appellee and believed

he was taking all her money. As to the issue of undue influence, appellants argue that the

trial court erred in failing to consider that Flowers desired to leave appellee in April 2010,

and that it was the unraveling of their relationship that led to her decision to change her

beneficiary designation rather than undue influence.

{¶ 96} In this case, conflicting evidence was presented as to Flowers’ testamentary

capacity and there was a difference of opinion as to the weight to be given lay and expert

witness evidence. The probate court, as the trier of fact, resolved these conflicts. We

cannot say that the court lost its way in resolving these conflicts and created such a

manifest miscarriage of justice that its judgment should be reversed. Appellants’ sixth

assignment of error is found not well-taken.

Motion for New Trial

{¶ 97} Appellate Standard of Review. Where the ruling on a motion for a new

trial is based on ground which involves the exercise of the trial court’s discretion, the

appellate court applies an abuse of discretion standard of review; however, where the

ground for granting a new trial involves a question of law, the ruling is reviewed de novo.

Rohde v. Farmer, 23 Ohio St.2d 82, 262 N.E.2d 685 (1970), paragraph one of the

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syllabus; O’Day v. Webb, 29 Ohio St.2d 215, 216, 280 N.E.2d 896 (1972), paragraph one

of the syllabus.

{¶ 98} Seventh Assignment of Error. In appellants’ motion for new trial, they

did not specifically indicate the Civ.R. 59(A) grounds for their motion. However, we

have classified their arguments as follows. Appellants argue the trial court admitted the

testimonial evidence of experts (Drs. Rasor and Watkins) that was beyond their expertise

and irrelevant to the issue of testamentary capacity, Civ.R. 59(A)(1); the trial court

ignored the testimony of lay witnesses and considered the unreliable testimony of Dr.

Sherman during its deliberations and rendered a judgment which was contrary to the

manifest weight of the evidence, Civ.R. 59(A)(6); and the trial court erred as a matter of

law in considering the case when insufficient evidence was presented to support the

prima facie elements of appellee’s claim, Civ.R. 59(A)(9). The first two grounds involve

the exercise of the probate court’s discretion to determine if a new trial is warranted.

Wolf v. Interstate Wrecker Serv., 8th Dist. Cuyahoga No. 97144, 2012-Ohio-1744, ¶ 17;

Mannion v. Sandel, 91 Ohio St.3d 318, 322, 744 N.E.2d 759 (2001). The last ground is a

question of law. Pangle v. Joyce, 76 Ohio St.3d 389, 395, 667 N.E.2d 1202 (1996);

Sanders v. Mt. Sinai Hosp., 21 Ohio App.3d 249, 252, 487 N.E.2d 588 (8th Dist.1985).

{¶ 99} We have already discussed the merits of these grounds in consideration of

the prior assignments of error. Therefore, we find that the trial court did not abuse its

discretion or err as a matter of law in denying appellants’ motion for a new trial.

Appellants’ seventh assignment of error is not well-taken.

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 {¶ 100} Having found the trial court did not commit error prejudicial to appellants

and that substantial justice has been done, the judgment of the Lucas County Court of

Common Pleas, Probate Division, is affirmed. Appellants are ordered to pay the costs of

this appeal pursuant to App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
James D. Jensen, P.J. JUDGE
CONCUR.
_______________________________
JUDGE

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