Ohio Supreme Court: Interest Under Will Eliminated If Beneficiary Witness Is Necessary To Establish Validity Of Will

In the December 16, 2020 opinion of In re Estate of Shaffer, the Ohio Supreme Court held that Ohio’s voiding statute (eliminating bequests to a witness that is a beneficiary under the will) applies to both wills executed in compliance with formal requirements and those that fail to adhere to them.

The Facts Of In re Estate of Shaffer

On August 11, 1967, Joseph Shaffer executed a formal will instructing that if his wife predeceased him, his estate would pass through trust to his two sons, Mark and Terry.  Joseph’s wife predeceased him.  After Joseph’s death in 2015, the probate court admitted Joseph’s 1967 will to probate.

The Notecard Will

Juley Norman filed a creditor claim against the estate for care and services she had provided to Joseph.

Juley attached a handwritten copy of a note written on a notecard and signed by Joseph that read:

Dec 22, 2006

My estate is not

completely settled

all of my sleep network

stock is to go to

Terry Shaffer

Juley Norman for

her care of me is to

receive ¼ of my estate

Terry is to be the executor.

This is my will.

There were no signatures other than Joseph’s on the notecard.

Terry (Joseph’s son and administrator of his estate) rejected Juley’s creditor claim.  Zachary Norman, Juley’s son, filed an application in the Ohio probate court to treat the notecard as a will subject to probate, and included Juley as a devisee of the estate.

The Ohio Probate Court Decision – Notecard Will Not Valid Will

A magistrate held the hearing required by Ohio R.C. 2107.24 to consider whether the handwritten notecard, that did not conform to the requirements of a formal will, should be admitted to probate. Juley, who served as a witness (although she did not sign as one) to the notecard will, testified about the circumstances of Joseph writing the document.

The probate court magistrate held that Zachary did not establish by clear and convincing evidence that the document was intended to be Joseph’s will. The magistrate also held that Ohio R.C. 2107.24 , which allows non-conforming documents to be treated as wills in certain circumstances, does not eliminate the competent witness attestation requirement of R.C. 2107.03. The probate court adopted the magistrate’s decision in full, and denied Zachary’s application to probate the 2006 notecard document and struck the proposed amended list of Joseph’s devisees.

The Ohio Appellate Decision – Admit the Notecard Will and Honor Juley’s Bequest

Zachary argued on appeal that Ohio R.C. 2107.24 does not require the witnesses to a non-compliant will to be competent. He argued that the word competent was deliberately omitted from Ohio R.C. 2107.24 in order to elevate a testator’s intent over statutory formalities.

The 6th District Court of appeals agreed and concluded that the Ohio probate court erred by concluding that the 2006 notecard document did not meet the requirements for admission to probate under Ohio law and by concluding that the bequest to Juley must be voided. The appellate court held that the “the purpose of the purging statute, R.C. 2107.15, has been eliminated by the grant of authority to the probate court to evaluate the credibility of the interested witness and weigh the evidence”… pursuant to R.C. 2107.24…“if the probate court finds the testator truly intended to make a will, despite the failure to comply with the requirements of R.C. 2107.03 or the fact that a witness was also named as a beneficiary under the will, the court must admit the document to probate as a will.”

General Requirements For an Admissible Will Under Ohio Law

The general requirements for a valid written will under Ohio law are set forth in R.C. 2107.03, which states:

Except oral wills, every will shall be in writing, but may be handwritten or typewritten. The will shall be signed at the end by the testator or by some other person in the testator’s conscious presence and at the testator’s express direction. The will shall be attested and subscribed in the conscious presence of the testator, by two or more competent witnesses, who saw the testator subscribe, or heard the testator acknowledge the testator’s signature.

A Validly Executed and Attested Ohio Will Must Be Admitted To Probate

If a will has all of the required signatures indicating it was duly executed and attested, the court must admit the will to probate, irrespective of if the will’s validity can be challenged on other grounds.

An Ohio Will That Does Not Comply With Statutory Formalities Can Be Admitted To Probate – Ohio Revised Code 2107.24

If the fact of the will does not exhibit compliance with R.C. 2107.03, the court may still admit the document to probate but only if the proponent of the will satisfies the requirements of R.C. 2107.24, which requires that the court hold a hearing and that the proponent shows that:

  1. The decedent prepared the document or caused the document to be prepared.
  2. The decedent signed the document and intended the document to constitute the decedent’s will.
  3. The decedent signed the document under division (A)(2) of this section in the conscious presence of two or more witnesses.

 

R.C. 2107.24 provides a narrow exception to the formalities required in R.C. 2107.03, primarily by excusing a the failure of a witness to sign the will as required by Ohio law.

What Is The Role Of a Witness In Ohio Will Execution?

An Ohio will shall be “attested and subscribed” in the conscious presence of the testator, by two or more “competent” witnesses.

Competent Witnesses

The term “competent witness” is not expressly defined in R.C. Chapter 2107, but the general definition of “competency” is found in R.C. 2317.01, which has been applied to the witnesses to an Ohio will and states:

All persons are competent witnesses except those of unsound mind and children under ten years of age who appear incapable of receiving just impressions of the facts and transactions respecting which they are examined, or of relating them truly.

Attested and Subscribed By

Attestation and subscription connote two acts: (1) an “act of the senses” by personally observing the signing or acknowledgement of signature by the testator and (2) a physical act of signing the document, under the observation of the testator, to prove that the attestation occurred.

When a facially noncompliant will is being considered for probate in Ohio, the competency of the witnesses and attestation may be scrutinized at a hearing pursuant to R.C. 2107. The Ohio Supreme Court stated:

No matter the process, the consideration of an application to admit a will to probate remains focused on whether the submitted document is a will; it is not a proceeding that allows parties to address or contest the contents of the will. See Hathaway’s Will, 4 Ohio St. at 385. Accordingly, a will’s contents, including devises or bequests to any particular person, are outside the scope of a hearing conducted pursuant to R.C. 2107.24 and are not relevant to the process of admitting a will to probate.

Ohio’s Voiding Statute – Bequest to Witness to Ohio Will Void

Ohio also has a “voiding statute,” R.C. 2107.15, that voids a bequest to a beneficiary witness to an Ohio will and provides:

If a devise or bequest is made to a person who is one of only two witnesses to a will, the devise or bequest is void. The witness shall then be competent to testify to the execution of the will, as if the devise or bequest had not been made.

Said another way, “if a person stands to gain an interest from a will and if the validity of the will hinges on that person’s acting as one of two essential witnesses to the execution of the will, that person’s interest under the will is eliminated as a matter of law.”

Ohio R.C. 2107.15 does not control whether a witness is competent to establish that a document is a will that should be admitted to probate; it controls whether a disposition contained in an already admitted will must be annulled.

Ohio’s Voiding Statute Applies To Compliant and Noncompliant Wills

The Ohio Supreme Court determined that Ohio’s voiding statute applies to both wills executed in compliance with formal requirements and those that fail to adhere to them.

Ohio RC 2107.24 governs the formalities required for a document to constitute a will.  It does not govern competency.  At a hearing pursuant to RC 2107.24, the court is limited to determining whether the decedent (1) prepared the document, (2) signed the document and intended it to be his will, and (3) signed the document in the conscious presence of two or more witnesses.

The Ohio Supreme Court stated:

Nothing in R.C. 2107.24(A) authorizes the court at a hearing to determine that an interested witness poses no risk of perjury or malfeasance and that R.C. 2107.15 should therefore not apply to any devises or bequests to the witness once the document is admitted to probate as a will. An application to admit a will to probate is not a process in which parties can address or contest the contents of a will, Hathaway’s Will, 4 Ohio St. at 385, and it is inappropriate for the probate court to rule on the contents of a purported will before determining that the document is a will.

The probate court’s only inquiry regarding a testator’s intent when executing a purported, formally noncompliant will is whether the decedent “intended the document to constitute the decedent’s will.” R.C. 2107.24(A)(2)

The Ohio Supreme Court concluded that Ohio’s voiding statute (R.C. 2107.15) applies both to wills executed in compliance with the formal will requirements (R.C. 2107.03) and noncompliant wills (R.C. 2107.24).

Therefore, the Ohio probate court correctly applied R.C. 2107.15 and determined that Juley Norman, as a beneficiary witness who was necessary to establish the validity of the will under Ohio law, could not be included in the list of beneficiaries of Joseph Shaffer’s estate.

The moral of this story is that the easiest way to effectuate testamentary intent is to make sure that you execute your will in compliance with the requirements to make a valid will under Ohio law.  Choose witnesses that are competent to testify as to the validity of the will under Ohio law – ones that are not interested as beneficiaries under the will.

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