Knowlton v. Schultz

• Decision Date: 21 November 2008
• Docket Number: No. C-080016.,C-080016.
• Citation: 902 N.E.2d 548,2008 Ohio 5984,179 Ohio App.3d 497
• Parties: KNOWLTON et al., Appellants, v. SCHULTZ et al.; Lindberg et al., Appellees.
• Court: Ohio Court of Appeals

902 N.E.2d 548

179 Ohio App.3d 497

2008-Ohio-5984

KNOWLTON et al., Appellants, v. SCHULTZ et al.; Lindberg et al., Appellees.

No. C-080016.

Court of Appeals of Ohio, First District, Hamilton County.

Decided November 21, 2008.

Waite, Schneider, Bayless & Chesley, Stanley M. Chesley, Fay E. Stilz, and Paul M. DeMarco; and McIntosh & McIntosh

and Bruce B. McIntosh, Cincinnati, for appellants.

Katz, Teller, Brant & Hild, Robert A. Pitcairn, and Cynthia L. Gibson; and Vorys, Sater, Seymour & Pease and Daniel J. Buckley, Cincinnati, for appellees.

DINKELACKER, Judge.

{¶ 1} Plaintiffs-appellants, P. Valerie Knowlton and Norma Knowlton, executor of the estate of Peter M. Knowlton (collectively, "the children"), appeal a judgment of the Hamilton County Probate Court in favor of defendants-appellees Charles Lindberg and Fifth Third Bank, the executors of the estate of Austin E. Knowlton and the trustees of the Austin E. Knowlton Trust (collectively, "the estate"). We find no merit in the children's 12 assignments of error, and we affirm the trial court's judgment.

{¶ 2} Austin E. "Dutch" Knowlton was a successful businessman, and his estate was worth millions of dollars. His large fortune allowed him to own numerous shares of stock in the Cincinnati Bengals, which was his estate's primary asset. Valerie and Peter were two of his three children. Peter died while the suit was pending, and his estate became a party.

{¶ 3} Knowlton died on June 25, 2003, at the age of 93. A will dated February 7, 1996, was subsequently admitted to probate. That will contained no provision for Knowlton's children or grandchildren. It provided that most of his assets were to pass to the Austin E. Knowlton Foundation either directly or through the Second Restatement of the Agreement of Trust of Austin E. Knowlton. The second restatement named as trustees Lindberg and Robert Fite. Upon Fite's death, Fifth Third became the successor trustee. Lindberg subsequently named his two sons, John and Eric, as his successor trustees.

{¶ 4} The will also named Lindberg and Fite as co-executors and Fifth Third as a successor should either co-executor die. Because Fite was deceased at the time of Knowlton's death, Fifth Third became co-executor.

{¶ 5} The children filed suit, alleging that Lindberg, Knowlton's longtime attorney and friend, had exercised undue influence on him to execute a will beneficial to himself and his law firm, Taft, Stettinius & Hollister. They also alleged that Knowlton's signature on the will was fraudulent.

{¶ 6} Following a lengthy trial, a jury returned a verdict in favor of the estate, upholding the validity of the will. The probate court entered a judgment stating that "the purported Last Will and Testament of Austin E. Knowlton dated February 7, 1996, and admitted to probate by this court on June 30, 2003 IS the last Will and Testament of Austin E. Knowlton, deceased." This appeal followed.

I. Evidence of Undue Influence

{¶ 7} In their first assignment of error, the children contend that the trial court erred in not allowing them to present evidence of undue influence exerted to prevent changes to or revocation of the disputed will, which, according to the law, may continue after the execution of a will. Therefore, the court should have allowed evidence and should not have rejected their proposed jury instruction on that issue. They also argue that evidence of an attorney's failure to inquire about or act upon his client's change in testamentary intent is relevant to the jury's determination of whether undue influence occurred. This assignment of error is not well taken.

A. West v. Henry—The Law of Undue Influence

{¶ 8} In West v. Henry,¹ the Ohio Supreme Court set forth the elements of undue influence: (1) a susceptible testator; (2) another's opportunity to exert undue influence; (3) improper influence exerted or attempted; and (4) a result showing the effect of that influence.² The admission of a will to probate is prima facie evidence of its validity. The parties contesting the will bear the burden of proving the elements of undue influence.³

{¶ 9} In applying these elements, West stated, "The mere existence of undue influence or an opportunity to exercise it, although coupled with an interest or motive to do so, is not sufficient to invalidate a will, but such influence must be actually exerted on the mind of the testator with respect to the execution of the will in question; and, in order to invalidate the will, it must be shown that the undue influence resulted in the making of testamentary dispositions which the testator would not otherwise have made."⁴

{¶ 10} "General influence, however strong or controlling, is not undue influence unless brought to bear directly upon the act of making the will."⁵ Simply because the testator's will disposes of his property "in an unnatural manner, unjustly or unequally and * * * at variance" with the testator's expressions about relatives or the natural objects of his bounty, does not invalidate the will unless undue influence was actually exercised on the testator.⁶ The testator's declarations not made contemporaneously with or near to the will's execution are not admissible as proof of undue influence.⁷

B. Krischbaum v. Dillon—Attorney as Beneficiary

{¶ 11} West remains the law of Ohio on the issue of undue influence.⁸ In this case, the children rely heavily on the Supreme Court's later pronouncement in Krischbaum v. Dillon.⁹ In that case, the court held that the presumption of validity that attaches when a will is admitted to probate is rebuttable, not absolute.¹⁰ It further held that a rebuttable presumption of undue influence arises when (1) the relationship of attorney and client exists between a testator and an attorney, (2) the attorney is named as a beneficiary in the will, (3) the attorney/beneficiary is not related by blood or marriage to the testator, and (4) the attorney/beneficiary actively participates in the preparation of the will.¹¹

{¶ 12} In so holding, the court stated, "Norms of behavior prescribed in the Code of Professional Responsibility are relevant to the issue of whether an attorney has brought undue influence to bear upon a testator."¹² It then discussed at length the nature of the attorney-client relationship and the duties the attorney owes the client. It described how a testator is particularly vulnerable to an attorney's influence.¹³

{¶ 13} Finally, it stated, "[A] disinterested attorney could be expected to pick up cues, even fairly subtle cues, that his client's testamentary intentions may have changed since the will was executed. The disinterested attorney could then be expected to suggest that his client consider whether to amend the testamentary disposition by executing a codicil or a new will. On the other hand, an attorney who is named as a beneficiary in the will * * * will have an obvious and powerful disincentive to suggest to his client that it may be an appropriate time to consider revising the will. When the testator's attorney is a beneficiary of the will, * * * there is even the possibility that the attorney might use his position as the testator's confidential advisor to frustrate a clearly expressed intention to alter the existing testamentary disposition. This would be a form of undue influence that could be exerted years after the execution of the will naming the attorney as a beneficiary."¹⁴

C. Krischbaum Does Not Mandate a Different Result

{¶ 14} The children cite the language about the attorney-client relationship in arguing that the trial court should have allowed them to present evidence concerning events that had occurred long after the signing of the will. This argument ignores several things.

{¶ 15} First, the holding in Krischbaum is actually "specific and limited."¹⁵ The presumption of undue influence did not arise in this case because Lindberg was not a beneficiary of the will. Relying on cases from other states, the children contend that Lindberg was a beneficiary because he received a benefit from being a trustee of the trust and the executor of the estate. The Ohio Revised Code provides that the term beneficiary "includes, in the case of a decedent's estate, an heir, legatee and devisee and, in the case of a trust, an income beneficiary and a remainder beneficiary."¹⁶ Lindberg was none of these. Under Ohio law, he was a fiduciary, not a beneficiary.¹⁷

{¶ 16} Second, even Krischbaum states that while a "wide range of inquiry" is necessary because undue influence is usually proved by circumstantial evidence, the evidence is still "subject to the general restrictions concerning relevance."¹⁸ The party contesting the will must show undue influence at the time the will was executed.¹⁹ In our view, events that occurred long after the signing of the will have diminished relevance, if any at all.²⁰ The decision whether evidence is relevant lies within the trial court's discretion.²¹

{¶ 17} Finally, the children's argument ignores the fact that the trial court allowed them to present a significant amount of evidence on events that had occurred after the will's signing. Our review of the record shows that they presented most of the evidence that they wanted. The evidence that the court excluded was of only minimal relevance or was cumulative.

{¶ 18} The only excluded testimony that the children specifically refer to under this assignment of error is that of Sandra Mikos. She would have testified that in 1998 or 1999, Knowlton had told her that he was not happy with Lindberg's representation and that Knowlton had called Lindberg a "crook" and a "thief." She also testified that she did not discuss his will with him in any detail.

{¶ 19} The trial court excluded the testimony under Evid.R. 403, holding that the danger of unfair prejudice outweighed its probative value. In our view, Mikos's testimony was unrelated to the will and was only marginally relevant at best. The trial court's conclusion that the...