Ayer v. Morenz-Harbinger, APPEAL NO. C-190687

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtWINKLER, Judge.
Citation2020 Ohio 6861
Decision Date23 December 2020
Docket NumberAPPEAL NO. C-190687,APPEAL NO. C-190716
PartiesLAWRENCE SCOTT AYER, and MARK D. AYER, Plaintiffs-Appellants, v. DEBORAH LYNN AYER MORENZ-HARBINGER, Defendant-Appellee, and ST. DOMINIC CATHOLIC CHURCH, et al., Defendants.

2020 Ohio 6861

LAWRENCE SCOTT AYER,
and MARK D. AYER, Plaintiffs-Appellants,
v.
DEBORAH LYNN AYER MORENZ-HARBINGER, Defendant-Appellee,
and ST. DOMINIC CATHOLIC CHURCH, et al., Defendants.

APPEAL NO. C-190687
APPEAL NO. C-190716

COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

December 23, 2020


TRIAL NO. 2018001714

OPINION.

Appeals From: Hamilton County Court of Common Pleas, Probate Division

Judgment Appealed From Is: Affirmed as Modified

Stagnaro, Saba & Patterson Co., L.P.A., Paul T. Saba, Jeffrey M. Nye and Christopher R. Jones, for Plaintiff-Appellant Lawrence Scott Ayer,

Lindhorst & Dreidame Co., L.P.A., and Bradley M. McPeek, for Plaintiff-Appellant Mark D. Ayer,

Dinsmore & Shohl LLP, Brian S. Sullivan and Sarah B. Cameron, for Defendant-Appellee Deborah Lynn Ayer Morenz-Harbinger.

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WINKLER, Judge.

{¶1} Plaintiffs-appellants Lawrence Scott Ayer ("Larry") and Mark D. Ayer ("Mark") filed a complaint contesting the will of Ruth Rattermann ("Ruth"). The Hamilton County Court of Common Pleas, Probate Division, granted judgment in favor of defendant-appellee Deborah Lynn Ayer Morenz-Harbinger ("Debbie") and the other beneficiaries of the will, and dismissed Larry and Mark's claims. We find no merit in Larry and Mark's sole assignment of error, and we affirm the trial court's judgment.

Facts and Procedure

{¶2} Ruth was, by all accounts, strong-willed, independent, and intelligent. She was married to her husband Jack for over 54 years before he died in 2006. She lived in a condominium that she and her husband had purchased. Ruth and Jack did not have any children. Larry, Mark, and Debbie were the children of her sister, Grace, and Ruth was their aunt.

{¶3} Until her retirement, Ruth had a career as an executive secretary at a bank. Although Ruth and Jack had accumulated substantial wealth, they lived frugally and were not ostentatious. After her husband died, Ruth lived on her own. For the 12 years prior to her death, she drove a car, managed her own shopping, wrote checks to pay her bills, worked with an accountant to pay taxes, and otherwise took care of herself. She enjoyed going to church and to the local YMCA to work out and socialize. She stayed in touch with her sister-in-law and good friend, Evelyn Rattermann ("Evelyn").

{¶4} In 2014, Ruth became concerned about her sister Grace's strange behavior, particularly concerning was that Grace was named as Ruth's power of attorney. After discussing the matter with Evelyn, Ruth decided that she needed to

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have a new power of attorney prepared. Evelyn suggested a local attorney, Lew Seiler, because she had previously used his services and he made house calls. Ruth contacted Seiler and set up an appointment to arrange for the preparation of a new power of attorney and a will.

{¶5} Seiler has been an attorney since 1979. He specializes in estate planning for senior citizens. He often received referrals from Hamilton County Adult Protective Services and Pro Seniors. Over the course of his career, Seiler has prepared hundreds of wills and powers of attorney. Seiler typically followed the same procedure when meeting a client for the first time. He tried to get to know the client, to determine whether the client was capable of making a will, and to find out how the client wanted to pass on his or her estate. He asked a series of questions to determine whether the client knew their family and relatives and the extent of their assets in general. He also made sure that the client was not being unduly influenced by meeting with the client alone, outside the presence of family or friends.

{¶6} Seiler met with Ruth on April 8, 2014, and took notes of his interview with her. She identified several relatives and friends that she wanted to bequeath to when she died and the specific item or dollar amount she wished to leave them. She further stated that she wanted to leave the rest of her assets to her niece Debbie, because Debbie had taken care of her. Seiler prepared and printed the will while he was at Ruth's condominium. He reviewed it with her line by line.

{¶7} Ruth then called her neighbor, Doris Barrett, to witness the will. Ruth signed it, witnessed by Barrett and Seiler. Seiler also prepared a power of attorney and a health-care power of attorney for Ruth, naming Debbie as her agent. After Seiler left, Ruth called Barrett to thank her for witnessing her will. She then noted in her journal that she had signed her will that day.

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{¶8} Several months later, Debbie's husband, who was an attorney, called Seiler about the power of attorney. He told Seiler that "there was a change in the statute" and asked if Seiler would change the format. Additionally, Debbie's name had been misspelled, and she thought it should be corrected. Seiler verified with Ruth that "it was okay to redraft it and that she still wanted Debbie to be her power of attorney," and he then made the changes. Seiler did not notarize the redrafted document or see Ruth execute it. He indicated that the first power of attorney and the second "pretty much cover[ed] the same thing." The only real difference was that the revised power of attorney had a section for the agent to sign stating that the agent understood and accepted the duties and responsibilities of a power of attorney. Debbie and a notary were present when Ruth signed the revised power of attorney.

{¶9} After signing the documents, Ruth put them in a drawer, where they remained until the last week of her life. She continued living an active life. She attended a wedding a month after signing her will. She visited her family and friends, and she went to church, the YMCA, and various sporting events. She managed her own finances and worked with an accountant to prepare her taxes. Her accountant indicated that she answered numerous detailed questions about her assets and her tax situation, and that she understood her finances. He stated, "Never once did I think she did not understand."

{¶10} Larry and Mark saw Ruth at family gatherings. They did not visit or call to see how she was doing. When they did see Ruth, they observed that she was "pretty sharp." They acknowledged having little knowledge of the circumstances surrounding the execution of Ruth's will or of her intentions or capacity at that time.

{¶11} Ruth had a stroke in June 2017, and, though her health started to deteriorate, she remained sharp and strong-willed. Debbie had taken care of her in

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the past, but by that time, Debbie had moved to the state of Washington. Thereafter, Debbie employed a service called Right at Home to provide daily home care to Ruth. According to Right at Home caregivers, Debbie would call often to check on Ruth.

{¶12} In December 2017, Debbie called Larry and told him that Ruth was in bad shape. She asked that he and Mark find some time to visit Ruth. On December 19, Mark and Larry finally visited her, which was Larry's only visit, and he left town after his visit. Mark returned on December 21. At that time, he had the opportunity to read Ruth's will and power of attorney, after which he became infuriated.

{¶13} Lisa Luehrmann was Ruth's niece by marriage and a beneficiary under the terms of the will. She was a nurse who had also been helping care for Ruth. Luehrmann said that Ruth often spoke fondly of Debbie, but rarely mentioned Larry or Mark. After their visit, Larry and Mark both called Luehrmann and asked her to be the executor of Ruth's estate. Luehrmann felt uncomfortable with that request, as she had just met Larry and Mark and she was not a "blood relative." She indicated that Ruth was "was a little annoyed or troubled" by Mark and Larry's visit.

{¶14} One of Ruth's caregivers wrote in a contemporaneous note that Mark and Larry made Ruth "upset" and "extremely confused." When they left, her anxiety "became so bad" and there was "lots of crying and also thinking she was going to die sooner." The caregiver had to sit in Ruth's room for an hour after they left "so she could calm down."

{¶15} Mark also called Seiler, after seeing his name on the will. He accused Seiler of being in cahoots with Debbie's husband, whom Seiler had never met. Mark made several hostile comments and hung up the phone on Seiler.

{¶16} Subsequently, Mark called Hamilton County Adult Protective Services ("APS"). In that call, he described his aunt as "of sound mind and very sharp." He

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stated that Debbie was not caring for Ruth and that she was just waiting for her to die since she would inherit the bulk of Ruth's estate. According to Mark, Debbie only wanted the services of hospice, not health care providers.

{¶17} That same day, APS went to visit Ruth. Debbie, who had taken an overnight flight, was annoyed that Mark had called APS, but she gave the APS caseworker unfettered access to Ruth. Debbie told the caseworker that she had been caring for Ruth and that there had been a feud between her and her brothers since their mother's death. She said that she had tried numerous times to get Ruth to "go to hospice," but Ruth had refused.

{¶18} The notes from APS showed that the caseworker had no concerns about Ruth's care. Ruth was confused about her power of attorney, the contents of her will, and what would happen after her death. But the notes also showed that Ruth said that "Mark and Larry have done nothing for her, and that Debbie has done a significant amount for her." She also stated that "Debbie is a good person to care for her and that she is more familiar with medication/health problems." The notes also showed that Ruth did not want services from hospice, and she did not want to cause any more family conflicts.

{¶19} The following day, APS spoke with personnel from Right at Home. They reported that Ruth's health was declining, that no one had met Mark or Larry, that Lisa and Debbie were the only people who had been at Ruth's home, and that there had "never been any shady dealing." They also reported that Ruth had eventually agreed...

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