[Cite as Allerton v. Burns, 2021-Ohio-500.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JULIA ALLERTON, ET AL., JUDGES:
Hon. W. Scott Gwin, P.J.
Plaintiffs-Appellants Hon. William B. Hoffman, J.
Hon. John W. Wise, J.
-vs-
Case No. 2020 CA 00042
DEBORAH L. BURNS
Defendant-Appellee O P I N IO N
CHARACTER OF PROCEEDINGS: Appeal from the Licking County Court of
Common Pleas, Probate Division, Case
No. 20190543A
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: February 23, 2021
APPEARANCES:
For Plaintiffs-Appellants For Defendant-Appellee
WILLIAM T. BONHAM PATRICK S. CARPENTER
Mularski, Bonham, Dittmer, Phillips & Schaller, Campbell & Untied
Steele, LLC 32 North Park Place
107 W. Johnstown Road P.O. Box 309
Gahanna, Ohio 43230 Newark, Ohio 43058
Licking County, Case No. 2020 CA 00042 2
Hoffman, J.
{¶1} Plaintiffs-appellants Julia Allerton, et al. appeal the June 2, 2020 Entry
Granting Summary Judgment issued by the Licking County Court of Common Pleas,
Probate Division, which granted summary judgment in favor of defendant-appellee
Deborah L. Burns.
STATEMENT OF THE FACTS AND CASE
{¶2} Ona Orr (“Decedent”) was the mother of Appellant Julia Allerton and
Appellee. Decedent also had three sons, Michael J. Orr, Gregory J. Orr, and David H.
Orr, who predeceased Decedent.
{¶3} Decedent executed a Last Will and Testament on December 18, 2014 (“the
2014 Will”). Years later, following a diagnosis of cancer, Decedent asked Appellee to
schedule an appointment for her with Attorney Bill Hayes to update the 2014 Will.
Attorney Hayes, who had prepared the 2014 Will, was no longer in private practice as he
had been elected Licking County Prosecutor; therefore, an appointment was scheduled
with Attorney Hayes’ son, W. Scott Hayes. Attorney W. Scott Hayes prepared the
updated Last Will and Testament, which Decedent executed on February 26, 2019 (“the
2019 Will”). Decedent passed away on June 23, 2019. The 2019 Will was admitted to
probate on or about July 23, 2019. Pursuant to the terms of the Will, the trial court
appointed Appellee as the Executor of Decedent's Estate.
{¶4} On September 4, 2019, Appellants Julia Allerton and Clint Allerton, her
husband, filed a complaint to contest the 2019 Will, alleging Appellee and Jeffrey Burns,
her husband, exerted undue influence over Decedent and Decedent lacked testamentary
capacity to execute the 2019 Will. Appellants named Appellee, individually and as
Executor of the Estate of Decedent; Jeffrey Burns; Gregory J. Orr; Laurie Orr; Michael J.
Licking County, Case No. 2020 CA 00042 3
Orr; Taylor Orr; Trina Orr; and Todd Orr as defendants.1 Appellee filed an answer on
behalf of herself, individually, and on behalf of all beneficiaries under the 2019 Will in her
capacity as Executor.
{¶5} On January 22, 2020, Appellee filed a motion for summary judgment,
arguing she was entitled to judgment as a matter of law because (1) there was no
evidence Appellee exerted undue influence over Decedent, and (2) Decedent did not lack
testamentary capacity at the time she executed the 2019 Will. Appellee attached her own
affidavit and the affidavit of Attorney W. Scott Hayes in support of her motion. Appellants
filed a memorandum contra Appellee’s motion for summary judgment on February 4,
2020. Appellants attached the affidavits of Appellant Julia Allerton and Michael Orr to
establish Appellee influenced Decedent by threatening and intimidating her, and
Decedent did not have testamentary capacity due to a series of strokes. On February 12,
2020, Appellee filed a reply to Appellants’ memorandum contra. The trial court conducted
a hearing on June 2, 2020.
{¶6} Via Entry filed June 2, 2020, the trial court granted summary judgment in
favor of Appellee. The trial court found Appellants “failed to produce sufficient evidence
to create a genuine issue of material fact, therefore, [Appellee] is entitled to judgment as
a matter of law.” June 2, 2020 Entry Granting Summary Judgment.
{¶7} It is from this entry Appellants appeal, raising as their sole assignment of
error:
1 Defendants Gregory J. Orr, Laurie Orr, Michael J. Orr, Taylor Orr, Trina Orr, and Todd Orr are heirs under
the 2019 Will.
Licking County, Case No. 2020 CA 00042 4
THE PROBATE COURT ERRED BY GRANTING THE
DEFENDANT’S [SIC] MOTION FOR SUMMARY JUDGMENT BECAUSE
THERE ARE A [SIC] GENUINE ISSUES OF MATERIAL FACT TO BE
DECIDED.
STANDARD OF REVIEW
{¶8} Summary judgment proceedings present the appellate court with the unique
opportunity of reviewing the evidence in the same manner as the trial court. Smiddy v.
The Wedding Party, Inc., 30 Ohio St.3d 35, 36, 506 N.E.2d 212 (1987). As such, this
Court reviews an award of summary judgment de novo. Grafton v. Ohio Edison Co., 77
Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).
{¶9} Civ.R. 56 provides summary judgment may be granted only after the trial
court determines: 1) no genuine issues as to any material fact remain 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, 364 N.E.2d 267 (1977).
{¶10} It is well established the party seeking summary judgment bears the burden
of demonstrating that no issues of material fact exist for trial. Celotex Corp. v. Catrett, 477
U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1987). The standard for granting
summary judgment is delineated in Dresher v. Burt, 75 Ohio St.3d 280 at 293, 662 N.E.2d
264 (1996): “* * * a party seeking summary judgment, on the ground that the nonmoving
Licking County, Case No. 2020 CA 00042 5
party cannot prove its case, bears the initial burden of informing the trial court of the basis
for the motion, and identifying those portions of the record that demonstrate the absence
of a genuine issue of material fact on the essential element(s) of the nonmoving party’s
claims. The moving party cannot discharge its initial burden under Civ.R. 56 simply by
making a conclusory assertion the nonmoving party has no evidence to prove its case.
Rather, the moving party must be able to specifically point to some evidence of the type
listed in Civ.R. 56 which affirmatively demonstrates the nonmoving party has no evidence
to support the nonmoving party’s claims. If the moving party fails to satisfy its initial
burden, the motion for summary judgment must be denied. However, if the moving party
has satisfied its initial burden, the nonmoving party then has a reciprocal burden outlined
in Civ.R. 56 to set forth specific facts showing there is a genuine issue for trial and, if the
nonmovant does not so respond, summary judgment, if appropriate, shall be entered
against the nonmoving party.” The record on summary judgment must be viewed in the
light most favorable to the opposing party. Williams v. First United Church of Christ, 37
Ohio St.2d 150, 309 N.E.2d 924 (1974).
I
{¶11} Appellants contend the trial court erred in granting summary judgment to
Appellee as a genuine issue of material fact exists as to whether Appellee unduly
influenced Decedent.
{¶12} A will which has been admitted to probate is presumed to have been made
free from restraint. Krischbaum v. Dillon (1991), 58 Ohio St.3d 58, 64, 567 N.E.2d 1291.
The contestants have the burden to prove undue influence. Id. A claim of undue influence
Licking County, Case No. 2020 CA 00042 6
must be proven by clear and convincing evidence. Ament v. Reassure Am. Life Ins. Co.,
180 Ohio App.3d 440, 2009-Ohio-36, 905 N.E.2d 1246, ¶ 38.
{¶13} To invalidate a will, undue influence “must so overpower and subjugate the
mind of the testator as to destroy his free agency and make him express the will of another
rather than his own, and the mere presence of influence is not sufficient.” West v. Henry,
173 Ohio St. 498, 501, 184 N.E.2d 200 (1962). In addition, the “[u]ndue influence must
be present or operative at the time of the execution of the will resulting in dispositions
which the testator would not otherwise have made.” Id. Proof of undue influence requires:
(1) a susceptible testator; (2) another's opportunity to exert influence on the testator; (3)
the fact of improper influence exerted or attempted; and (4) a result showing the effect of
such influence. Id. at 510–511.
{¶14} “General influence, however strong or controlling, is not undue influence
unless brought to bear directly upon the act of making the will.” Id. Simply because the
testator “disposes of his property in an unnatural manner, unjustly or unequally and * * *
at variance with expressions by the testator concerning relatives or the natural objects of
his bounty, does not invalidate the will, unless undue influence was actually exercised on
the testator.” Id.
{¶15} Appellants assert the affidavits filed in support of their memorandum contra
provided circumstantial evidence from which an inference could be drawn Appellee
exerted undue influence over Decedent. Appellants note, “issues related to undue
influence are generally determined upon circumstantial evidence and inferences drawn
from a full presentation of facts which may be inconclusive when viewed separately * * *.”
Simon v. Aulino, 4th Dist. Adams No. 18CA1076, 2020-Ohio-6962, ¶41 (Citation omitted).
Licking County, Case No. 2020 CA 00042 7
However, we find the affidavits Appellants filed in support of the memorandum contra
were insufficient to create a genuine issue of material fact as to whether Decedent was
subject to undue influence by Appellee. Appellants have not pointed to any evidence
which would raise a question whether Appellee “so overpower[ed] and subjugate[d] the
mind of the testator as to destroy [Decedent's] free agency and make [her] express the
will of another rather than [her] own.” See, West, supra at 501.
{¶16} The only evidence Decedent was susceptible to undue influence or lacked
testamentary capacity2 is a conclusory statement in Appellant Julia Allerton’s affidavit, in
which she states, after Decedent suffered a stroke in 2013, a doctor at the rehabilitation
center informed Appellant Julia Allerton the stroke affected the part of Decedent’s brain
responsible for decision making “about finances.” Affidavit of Julia Allerton at para. 2-3.
Appellants did not provide any specifics establishing Decedent’s susceptibility due to the
effect the 2013 stroke had on Decedent’s decision-making ability.
{¶17} The second element is another’s opportunity to exert influence on the
testator. In her affidavit, Appellant Julia Allerton indicated Decedent lived with Appellee
and Jeffrey Burns in Decedent’s home prior to her stroke in 2013, until her death in June,
2019. Allerton Affidavit at para. 4-5. Appellant Julia Allerton also averred Appellee
restricted visits of other family members with Decedent. Id. at para. 17. In addition,
Appellee would not allow Decedent to talk on the phone unless she or Jeffrey Burns was
2 Although in their Summary Judgment Statement Appellants submit, “[q]uestions remain about the
testamentary capacity of the Decedent at the time the will was completed and in preceding wills,” they do
not develop this issue in the Argument and Law section of their Brief. Appellants’ Brief at 2.
Licking County, Case No. 2020 CA 00042 8
present. Id. at para 21. We find this evidence is sufficient to establish Appellee had the
opportunity to exert influence over Decedent.
{¶18} The third element is the fact of improper influence having actually been
exerted or attempted. Appellant Julia Allerton submits Appellee “influenced [Decedent] by
threatening to no longer take care of her and making her feel guilty for looking at selling
the farm to pay for assisted living.” Id. at 24. We find this statement alone does not create
a genuine issue of material fact as to whether Appellee exerted undue influence over
Decedent at the time she executed the 2019 Will. In fact, Appellee’s affidavit suggests
the opposite. Therein, Appellee noted Decedent “was a very strong-willed person who
was not easily swayed.” Affidavit Regarding Ona M. Orr by Deborah Burns at para. 5.
Appellee explained, after Decedent was diagnosed with cancer, Decedent asked her to
arrange for a meeting with Attorney Bill Hayes to update the 2014 Will. Id. at para. 6. A
meeting was ultimately scheduled with Attorney W. Scott Hayes. Id. at para. 7. Appellee
indicated neither she nor her husband transported Decedent to Attorney Hayes’ office;
requested Decedent update the 2014 Will; requested Attorney Hayes change the 2014
Will; or was present when Decedent executed the 2019 Will. Id. at para. 8-10, 12. In his
affidavit filed in support of Appellee’s motion for summary judgment, Attorney W. Scott
Hayes averred he prepared the 2019 Will and Decedent executed the 2019 Will in his
presence. Affidavit Regarding Last Will & Testaments of Ona M. Orr by W. Scott Hayes
at para. 2.
{¶19} Finally, assuming, arguendo, a genuine issue of material fact exists as to
whether Appellee exerted improper influence over Decedent, we find Appellants cannot
establish “a result showing the effect of such influence.” Comparing the 2014 Will and
Licking County, Case No. 2020 CA 00042 9
the 2019 Will, we find the 2019 Will contains identical bequests to the same family
members as the 2014 Will, with one exception. The 2019 Will includes monetary
bequests, totaling $22,000.00, to Michael Orr, Taylor Orr, Trina Orr, and Todd Orr.
Because Appellee received an outright gift of the residue of the Estate under both the
2014 Will and the 2019 Will, any reduction in the residue of the Estate would negatively
impact Appellee’s inheritance. Accordingly, we find no result showing the effect of
improper influence upon Decedent by Appellee.
{¶20} Based upon the foregoing, we find the trial court properly granted summary
judgment in favor Appellee.
{¶21} Appellants’ sole assignment of error is overruled.
{¶22} The judgment of the Licking County Court of Common Pleas, Probate
Division, is affirmed.
By: Hoffman, J.
Gwin, P.J. and
Wise, John, J. concur