[Cite as Fether v. Conkey,
2013-Ohio-3196.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
DEFIANCE COUNTY
RUTH FETHER, ET AL.,
PLAINTIFFS-APPELLANTS, CASE NO. 4-13-01
v.
RAYMOND D. CONKEY, JR., ET AL., OPINION
DEFENDANTS-APPELLEES.
Appeal from Defiance County Common Pleas Court
Probate Division
Trial Court No. 16680A
Judgment Affirmed
Date of Decision: July 22, 2013
APPEARANCES:
Richard Kolb and Daniel McQuade for Appellants
Stephen K. Snavely for Appellee Conkeys
Marc F. Warncke for Appellee Sinn
Case No. 4-13-01
SHAW, J.
{¶1} Plaintiffs-appellants Ruth Fether, Sherrie Barnes, and Teresa Dew
(collectively, “appellants”) appeal the December 14, 2012, judgment of the
Defiance County Common Pleas Court, Probate Division, granting summary
judgment to defendants-appellees Raymond D. Conkey, Jr., Linda K. Conkey, and
Barbara Sinn, individually and as Executor of the Estate of Kermit Ridenour, in a
will contest case.
{¶2} This case involves the last will and testament of Kermit L. Ridenour
(“Ridenour”), two codicils amending that will, and Ridenour’s beneficiary
designations on selected annuities. Ridenour was diagnosed with cancer in April
of 2008. After receiving his diagnosis, Ridenour began working with attorney
James Weaner to get his estate plan in order.
{¶3} On April 10, 2008, Ridenour executed a General Power of Attorney
designating his friend and neighbor Barbara Sinn (“Sinn”) as his attorney-in-fact,
giving Sinn authority to handle Ridenour’s business affairs in the event that
Ridenour became disabled.1
{¶4} On May 6, 2008, Ridenour executed his Last Will and Testament at
attorney James Weaner’s office. The will made a specific bequest of Ridenour’s
1
On that same date, Ridenour also executed a Durable Power of Attorney for Health Care, designating Sinn
as his health care agent, with Ray named as the alternate. At that same time, Ridenour also executed a
Living Will Declaration which designated Sinn and Ray as the persons to be notified if his physicians
intended to discontinue life sustaining treatment.
-2-
Case No. 4-13-01
two 80-acre farms to Ray Conkey, Jr. (“Ray”) and his wife Linda Conkey
(“Linda”), or their survivor. Ray had been Ridenour’s tenant-farmer since
Ridenour retired from farming, and Ridenour considered Ray to be like a son to
him. (Sinn Depo. at 48). Ray had known Ridenour all his life, they attended
church together and were “very close friends.” (Ray Depo. at 23). In addition,
Ridenour and Ray Conkey, Sr. had been lifelong friends since childhood.
Ridenour had no children, was never married, and his closest living relatives were
his sister, Ruth Fether, and her children, Teresa Dew and Sherrie Barnes. Aside
from the farms, the remainder of Ridenour’s estate in his will was left to his sister,
Ruth Fether.
{¶5} Over the course of the next two years, Ridenour received treatment for
his cancer while he lived independently on one of his farms. On or about April 6,
2010, Ridenour received news that there was nothing else that could be done for
his cancer, so he voluntarily entered a hospice facility in Defiance, Ohio. Shortly
after entering into the hospice facility, Ridenour executed two codicils, the first
dated April 7, 2010, and the second dated April 12, 2010. The codicils distributed
certain items of personal property and made monetary bequests to Ridenour’s
church and to a cemetery.
{¶6} Appellants in this case claim that prior to the execution of the second
codicil, a discussion was had at the hospice facility between Ridenour and
-3-
Case No. 4-13-01
appellants wherein Ridenour decided that he would alter his will to leave the farms
to appellants. Neither codicil changed the will with regard to the two 80 acre
farms or addressed the farms in any manner.
{¶7} On June 9, 2010, and June 25, 2010, Ridenour changed the
beneficiaries of two annuities to his estate.
{¶8} On August 26, 2010, Ridenour died at the hospice facility. On August
31, 2010, his last will and testament, as modified by the two codicils, was admitted
to probate and Sinn was appointed as the estate executor.
{¶9} On December 16, 2010, appellants filed a complaint against Sinn, and
the Conkeys, asserting that the will and codicils were procured as a result of undue
influence. (Doc. 1).
{¶10} On January 10, 2011, the Conkeys filed an answer. (Doc. 19). On
February 15, 2011, Sinn filed an answer. (Doc. 32).
{¶11} Subsequently, discovery was conducted. During the course of
discovery, depositions were taken of attorney James Weaner, Ruth Fether, Teresa
Dew, Sherrie Barnes, Ray, Linda, Sinn, and Donald Suffel.
{¶12} On January 31, 2012, the Conkeys filed a motion for summary
judgment asserting that absolutely no evidence was in the record that would
establish “undue influence.” (Doc. 63). On that same date, Sinn filed a motion for
summary judgment making similar arguments, adding that the record contained
-4-
Case No. 4-13-01
evidence that Sinn had actually advised Ridenour against leaving the farms to the
Conkeys, and that there was no evidence that Sinn had influenced Ridenour or had
any motivation or desire to influence Ridenour to leave his farms to the Conkeys.
(Doc. 65).
{¶13} On February 27, 2012, appellants filed a response to the summary
judgment motions. (Doc. 68). On March 8, 2012, Sinn filed a reply to appellants’
response. (Doc. 69).
{¶14} On December 14, 2012, the trial court filed its judgment entry on the
matter, granting defendants’ motions for summary judgment. The court found that
“[s]ince no evidence exists of the exertion or attempt to exert undue influence
upon the Decedent as it relates to the execution of any of the … documents, this
being an essential element of either definition of undue influence, the court finds
that there is no genuine issue as to any material fact and that the moving parties *
… are entitled to judgment as a matter of law.” (Doc. 73).
{¶15} It is from this judgment that the appellants appeal, asserting the
following assignments of error for our review.
ASSIGNMENT OF ERROR 1
THE TRIAL COURT ERRED IN FINDING NO EVIDENCE
WAS PRESENTED TO DEMONSTRATE UNDUE
INFLUENCE WAS EXERTED OR ATTEMPTED.
ASSIGNMENT OF ERROR 2
THE TRIAL COURT ERRED IN CITING NO EVIDENCE
THAT DEFENDANTS SATISFIED THEIR BURDEN OF
-5-
Case No. 4-13-01
GOING FORWARD DUE TO THEIR CONFIDENTIAL AND
FIDUCIARY RELATIONSHIP WITH THE DECEDENT.
ASSIGNMENT OF ERROR 3
THE TRIAL COURT ERRED IN CONCLUDING THAT NO
GENUINE ISSUES OF MATERIAL FACT ARE IN DISPUTE.
Summary Judgment Standard
{¶16} Initially, we note that an appellate court reviews a grant of summary
judgment de novo, without any deference to the trial court. Conley–Slowinski v.
Superior Spinning & Stamping Co., 128 Ohio App.3d 360, 363 (6th Dist.1998). A
grant of summary judgment will be affirmed only when the requirements of Civ.R.
56(C) are met. This requires the moving party to establish: (1) that there are no
genuine issues of material fact, (2) that the moving party is entitled to judgment as
a matter of law, and (3) that reasonable minds can come to but one conclusion and
that conclusion is adverse to the non-moving party, said party being entitled to
have the evidence construed most strongly in his favor. Civ.R. 56(C); see Horton
v. Harwick Chem. Corp.,
73 Ohio St.3d 679,
1995-Ohio-286, paragraph three of
the syllabus.
{¶17} The party moving for summary judgment bears the initial burden of
identifying the basis for its motion in order to allow the opposing party a
“meaningful opportunity to respond.” Mitseff v. Wheeler, 38 Ohio St.3d 112,
syllabus (1988). The moving party also bears the burden of demonstrating the
absence of a genuine issue of material fact as to an essential element of the case.
-6-
Case No. 4-13-01
Dresher v. Burt, 75 Ohio St.3d 280, 292,
1996-Ohio-107. Once the moving party
demonstrates that he is entitled to summary judgment, the burden shifts to the non-
moving party to produce evidence on any issue which that party bears the burden
of production at trial. See Civ.R. 56(E).
First Assignment of Error
{¶18} In their first assignment of error, appellants contend that the trial
court erred in finding that no evidence was presented that undue influence was
exerted in this case. Specifically, appellants contend, inter alia, that Sinn’s “total
involvement” in Ridenour’s affairs was evidence of undue influence.
{¶19} R.C. 2107.74 provides in part, “On the trial of any will contest under
section 2107.71 of the Revised Code, the order of probate is prima-facie evidence
of the attestation, execution, and validity of the will or codicil.” As part of this
presumption of validity, “[a] presumption arises from the order of admission of the
will to probate that the testator was free from restraint. The burden of proving
undue influence is upon the contestants ….” Krishbaum v. Dillon, 58 Ohio
St.3d 58, 64 (1991), quoting West v. Henry,
173 Ohio St. 498, 502 (1962)
(construing former R.C. 2741.45, which contains substantively similar language to
that currently set forth in R.C. 2107.74).
{¶20} The Ohio Supreme Court has stated that “undue influence to avoid a
will must so overpower and subjugate the mind of the testator as to destroy his
-7-
Case No. 4-13-01
free agency and make him express the will of another rather than his own, and the
mere presence of influence is not sufficient. Undue 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.” West at 501. The essential elements of
undue influence are: (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. West at 510–511.
{¶21} The trial court found, in analyzing the elements of “undue influence”
pursuant to West, that there was no evidence of improper influence exerted or
attempted in this case. (Doc. 73). The trial court thus found that the third element
of “undue influence” under West was lacking and that summary judgment was
appropriate to award to appellees. The trial court did not explicitly make findings
with regard to the remaining elements of West, choosing to rest on the fact that
appellants failed to meet their burden and produce evidence of undue influence
with regard to one of the material elements.
{¶22} Appellants argue before this Court that Sinn was heavily involved in
the management of Ridenour’s affairs and thus could have influenced Ridenour’s
decision to leave his farms to the Conkeys. According to the appellants, Sinn was
completely involved in all aspects of the execution of Ridenour’s will and the
codicils. Sinn set up the meetings with the attorney and was present for them,
-8-
Case No. 4-13-01
with the exception of the meeting with the attorney before the execution of the
second codicil.
{¶23} Evidence in the record established that Sinn was Ridenour’s friend
and neighbor, and that Sinn had known Ridenour all her life. (Sinn Depo. at 12).
It is undisputed that Sinn was given Power of Attorney and named executor under
Ridenour’s will. Furthermore, it is undisputed that Sinn did not profit under
Ridenour’s will.2
{¶24} Ridenour executed his will in May of 2008, over two years prior to
his death. In his will, Ridenour expressed his wish that his farms go to the
Conkeys. Sinn testified in her deposition that she was surprised when Ridenour
originally told her that he had planned on giving his farms to the Conkeys. (Sinn
Depo. at 46-48). According to Sinn, she had assumed Ridenour would leave the
farms to his sister, Ruth Fether. (Id.) Ridenour, however, told Sinn that Ray was
like a son to him. (Id. at 48). Sinn testified in her deposition that Ridenour had
considered deeding the farms to the Conkeys while Ridenour was alive, but
ultimately Ridenour decided against it, based on Sinn’s counsel, and left the farms
to the Conkeys in his will. (Id. at 46).
{¶25} After Ridenour moved into the hospice facility, nearly two years
after the execution of his will, Ridenour executed his first codicil, which dealt with
2
While one of the codicils bequeathed Ridenour’s car to Sinn, it was a conditional bequest in the event that
Ridenour did not give Sinn the car during his life. Ridenour did actually transfer the car to Sinn while he
was alive. Thus Sinn did not take anything under Ridenour’s will or the codicils.
-9-
Case No. 4-13-01
the distribution of some of Ridenour’s personal property but did not alter the
disposition of the farms, and did not mention the farms at all. Following the
execution of his first codicil, Ridenour was visited in hospice by his sister Ruth,
and her daughters Sherrie and Teresa. During that visit, Sinn had a private
conversation with Ruth, Sherrie and Teresa. As part of that conversation, Sinn
revealed that she was being overwhelmed by people requesting various pieces of
personal property of Ridenour’s. (Sinn Depo. at 70-71). Sinn then asked if Ruth
wanted to be Ridenour’s executor, to which Ruth replied that she did not. (Sinn
Depo. at 71).
{¶26} Also in that conversation, Sinn informed Ruth, Sherrie, and Teresa
that the Conkeys were to receive Ridenour’s farms by will. Appellants were
surprised by this information, as they had thought that Ridenour had already given
the property to the Conkeys and that it was a “done deal.” (Barnes Depo. at 27).
Ruth testified in her deposition that Ridenour had talked to her about transferring
the farms to the Conkeys in 2008, that she did not tell Ridenour he should not
transfer the farms to the Conkeys then, and that she thought Ridenour had actually
gone through with the transfer.3 (Ruth Depo. at 20). Despite thinking that the
farms had already been given to the Conkeys previously, appellants had not, up to
that point, questioned Ridenour about it.
3
Ruth also revealed in her deposition that when she and Ridenour’s parents died, Ruth and Ridenour were
each left a ½ interest in the farms. (Ruth Depo. at 13). Ruth testified that Ridenour bought out Ruth’s
interest in those farms. (Id.)
-10-
Case No. 4-13-01
{¶27} After conversing with Sinn at the hospice facility, appellants spoke
privately with Ridenour in an attempt to persuade Ridenour to leave the farms to
Ruth’s daughters, with Ray still having the right to lease the land for farming. (Id.
at 29). The conversation lasted about ten minutes, and according to the appellants,
Ridenour agreed to change his will. (Id.)
{¶28} It is disputed whether Ridenour actually orally agreed that he would
alter his will regarding the farms during that conversation or merely agreed to
think about it. (Sinn Depo. at 69). But it is clear in the record that following the
conversation between appellants and Ridenour a meeting was set with Ridenour’s
attorney James Weaner so that a second codicil could be prepared.
{¶29} Sinn made the appointment with Weaner to draft a second codicil for
the following Tuesday, and appellants were supposed to attend; however,
Ridenour met with Weaner on the preceding Monday, without Sinn and without
appellants present. Weaner testified in his deposition that Ridenour did not
mention making any changes regarding the disposition of the farms, and that if
Ridenour would have mentioned it, Weaner would have made the changes in the
second codicil. (Weaner Depo. at 59-60). Following the meeting between
Ridenour and Weaner, a second codicil was prepared and executed. The second
codicil did not mention the farms.
-11-
Case No. 4-13-01
{¶30} Sinn testified in her deposition that she did not ask Ridenour what he
finally decided to do with his farms and she did not want to know because she did
not want to be further involved. (Sinn Depo. at 75). Appellants testified in their
depositions that they similarly did not ask Ridenour if he made the changes
regarding who would receive the farms. (Barnes Depo. at 37). Max Tappan,
Ridenour’s cousin, submitted an affidavit that stated Ridenour told Tappan that
Ridenour had decided not to change his will despite the conversation with the
appellants. (Tappan Aff.).
{¶31} Thus ultimately the evidence established that Ridenour originally
desired to give his farms to the Conkeys and put that desire in his will, where it
remained despite Ridenour’s execution of two codicils. Appellants were aware of
Ridenour’s desire to leave the farms to the Conkeys as they had actually thought
that it was already a “done deal.” After learning that the farms were to pass via
Ridenour’s will, only one conversation occurred that suggested Ridenour
considered altering his will, and that conversation occurred over a ten minute
period. Appellants now argue on appeal that somehow the absence of a change in
Ridenour’s will is evidence of undue influence by the appellees.
{¶32} There is nothing in the record to suggest that Sinn either influenced
or attempted to influence Ridenour toward giving his two farms to the Conkeys.
To the contrary, the only evidence in the record is that Sinn initially advised
-12-
Case No. 4-13-01
against Ridenour leaving his farms to the Conkeys, instead advising that he give
them to his sister Ruth. When Sinn made this statement to Ridenour, Ridenour
told Sinn that Ray was like a son to Ridenour. (Sinn Depo. at 48). Ridenour
continued by saying “isn’t it mine, can’t I do with it what I want?” (Id. at 49).
{¶33} Similarly, the record merely established Sinn’s presence at the
meetings with Ridenour’s attorney. While Sinn took notes that were occasionally
used, there was no indication that she ever influenced Ridenour or attempted to do
anything that would go against his wishes. In fact, attorney Weaner testified that
he never doubted Ridenour’s capacity, that in his opinion there was no undue
influence, and that it was not uncommon for someone to bring in a confidant when
discussing a will. (Weaner Depo. at 44-45, 63, 78). Weaner’s legal assistant
Susan Leibold submitted an affidavit stating that Sinn only acted in a supportive
role and that she did not attempt to influence Ridenour in any manner. (Leibold
Aff.). Leibold also averred that Ridenour appeared to understand the will he was
signing and that Ridenour stated he was satisfied with what the will said when it
was executed. (Id.)
{¶34} With regard to the Conkeys, there is similarly no evidence that they
exerted any actual undue influence upon Ridenour. The Conkeys testified that
they were shocked and grateful when Ridenour originally told them he was going
to give them his farms. (Ray Depo. at 58). The Conkeys testified that following
-13-
Case No. 4-13-01
appellants’ visit to hospice, Ridenour did inform the Conkeys that appellants
wanted Ridenour to leave his farms to appellants. (Id. at 44). The Conkeys both
testified that they told Ridenour the farms were his and that he could do what he
wanted with them. (Id.); (Linda Depo. at 29). There is no evidence that the
Conkeys tried to talk Ridenour out of leaving the farms to appellants, or that they
had ever attempted to influence Ridenour to leave them the farms when his will
was originally executed.
{¶35} Notably, when Ruth Fether was asked who exerted undue influence
in this case, she responded, “I don’t know.” (Ruth Depo. at 51). When Teresa
Dew was asked the same question, she said that she did not know who had
influenced Ridenour, she just had a suspicion that it had occurred. (Teresa Depo.
at 37). When Sherrie Barnes was asked the same question, she said she suspected
Sinn and the Conkeys of influencing Ridenour, but did not know how. (Sherrie
Depo. at 38). Therefore, the only evidence of undue influence in the record is the
bald speculation of the appellants.
{¶36} Appellants attempt to support their bald assertion by showing how
closely involved Sinn was in Ridenour’s estate planning process. However, the
evidence shows that Sinn assisted Ridenour in setting up meetings so that
Ridenour could execute his estate plan, that Sinn was present for those meetings,
and occasionally took notes. There is simply nothing in the record to establish that
-14-
Case No. 4-13-01
Sinn influenced Ridenour’s desires in any manner, or that Sinn had any motive to
work in conjunction with the Conkeys to influence Ridenour. There is also no
evidence that in any of the notes Sinn took that she ever wrote anything contrary
to the explicitly expressed wishes of Ridenour. Under these circumstances, we
cannot find that there is any evidence in the record to suggest that undue influence
was exerted regarding the will or the codicils by Sinn or the Conkeys.
{¶37} Appellants also argue the trial court erred in finding that there was no
undue influence exerted by appellees with regard to beneficiary designations of
certain annuities. The evidence in the record established that Ridenour was the
owner of several annuities, two of which he changed the beneficiary of from
appellants to his estate in June of 2010. The remaining annuities were still to go to
appellants, and any leftover funds in the estate would still have gone to Ruth as the
residuary beneficiary.4
{¶38} Evidence established that Ridenour changed the beneficiary on the
two selected annuities so that the estate would have enough funds to pay
Ridenour’s estate expenses and to fund the new monetary bequests added by the
two codicils to Ridenour’s church and to a cemetery. Donald Suffel, who was
Ridenour’s insurance agent through which Ridenour originally purchased the
annuities several years earlier, testified in his deposition that Ridenour changed the
4
In fact, appellants did receive the annuities that Ridenour did not change the beneficiaries on. (Ruth
Depo. at 51). According to Ruth’s deposition, each appellant received a little over $100,000 from those
annuities. (Id.)
-15-
Case No. 4-13-01
beneficiary designations because he wanted some money to leave to the church
and the cemetery in his estate. (Suffel Depo. at 29). Suffel also testified that he
did not feel Ridenour was pressured in any way to change those designations. (Id.
at 30). There is simply no evidence in the record that either Sinn or the Conkeys
exerted any influence upon Ridenour regarding the annuities or that they
attempted to exert any influence upon him. All of the evidence in the record
indicates that Ridenour’s actions were voluntary.
{¶39} Finally, we would note that there is also no evidence in the record
that Ridenour was a “susceptible testator.” Appellants attempt to establish that
Ridenour was susceptible through Barnes’ affidavit wherein she averred that
Ridenour was a “follower, not a leader” based on the fact that whenever Ridenour
went somewhere with his father in the past, Ridenour’s father drove. (Barnes
Aff.). Despite this characterization of Ridenour, there is nothing in the record to
suggest that being a “follower,” Ridenour was actually susceptible to influence.
To the contrary, Ruth testified in her deposition that she knew of no instances
where Ridenour was convinced to do something that he did not want to do against
his will. (Ruth Depo. at 29). Moreover, Ruth testified that when Ridenour was
diagnosed with cancer, his mental capacity was good, he was still handling his
own affairs and managing his own bills, which he continued to do in the months
-16-
Case No. 4-13-01
following his diagnosis. (Id.) This falls within the timeframe that Ridenour
originally executed his will.
{¶40} Accordingly, for all of these reasons we cannot find that summary
judgment was improperly awarded to appellees. For all of these reasons,
appellants’ first assignment of error is overruled.
Second Assignment of Error
{¶41} In their second assignment of error, appellants contend that the trial
court erroneously failed to charge appellees with the initial burden of coming
forward with evidence showing that the critical documents were not procured by
undue influence. Specifically, appellants argue that a fiduciary and confidential
relationship existed between Sinn and Ridenour and between the Conkeys and
Ridenour, and that because of these relationships, appellees had the burden of
presenting evidence that the transactions were free of undue influence, that
Ridenour acted voluntarily, and that Ridenour had a full understanding of his acts
and the consequences. Further, appellants contend that the trial court completely
failed to address this issue, and that the judgment should therefore be reversed.
{¶42} In making this argument, appellants cite this Court to several cases
dealing with situations where there was a confidential and/or a fiduciary
relationship between a donor and a donee. See Fox v. Stockmaster, 3d Dist. Nos.
13-1-34, 35, 2002-Ohio-2824, Diamond v. Creager, 2nd Dist. No. 18819, 2002-
-17-
Case No. 4-13-01
Ohio-916, In Re Guardianship of Simmons, 6th Dist. No. Wd-02-39, 2003-Ohio-
5416, Krischbaum v. Dillon, 58 Ohio St.3d 58 (1991). Appellants contend that
these cases stand for the proposition that when there is a confidential and fiduciary
relationship between a donor and a donee, the transfer to the donee is viewed with
suspicion and the burden shifts to the donee to show that undue influence was not
exerted.
{¶43} Even assuming that the burden had shifted in this case, the evidence
presented was sufficient to satisfy any burden placed upon the appellees. The
record affirmatively established Ridenour’s desire for his farms to go to the
Conkeys through his will itself and through conversations Ridenour had with Sinn,
Weaner, the Conkeys, and Max Tappan. Only during one ten minute conversation
did that desire apparently ever waver and that desire was never reduced to writing.
All of the evidence presented indicates that Ridenour’s actions were voluntary.
Furthermore, the record establishes that Ridenour was aware of the consequences
of his actions as Weaner, his assistant Susan Leibold, and Donald Suffel, all stated
that Ridenour fully understood and was satisfied with the documents that he
executed. There is no testimony contradicting these statements. Therefore, even
assuming the relationships in this case might have caused the burden to shift, the
appellees satisfied their burden.
{¶44} Accordingly, appellants’ second assignment of error is overruled.
-18-
Case No. 4-13-01
Third Assignment of Error
{¶45} In appellants’ third assignment of error, appellants contend that the
trial court erred in awarding summary judgment to the appellees as there were
material facts still in dispute. Specifically, appellants argue that the following
enumerated facts are still in dispute:
1. Why did [Ridenour] agree to give the farm to [appellants]
and then reverse his position after talking with Conkey and
Sinn;
2. Why would [Ridenour] give his farm to his tenant farmer
when they only had a business relationship over a short period
of time;
3. Why would [Ridenour] give his centennial farm to a nonrelative and thereby lose its centennial status.
4. [Appellees] cast the relationship between [Ridenour], Ruth
and her daughters in a less positive light than [appellants].
[Appellees] claim that there was little face to face contact with
Ruth while [Appellants] claim the opposite.
5. Sinn’s involvement in the estate plan. Sinn downplays her
role in the estate plan when it is clear by Attorney Weaner’s
testimony that Sinn dominated the plan;
6. Sinn claims that she did not know who got the farm after
[Ridenour] signed the second codicil. How could she possibly be
so uninformed when she had been so totally involved before;
7. Conkey claims that he did not press [Ridenour] to give him
the farms worth almost $700,000, and that he was not
disappointed in losing the farms;
8. Sinn says the rush for personal property was precipitated
by [Ridenour’s] offer to give it away but this is contradicted by
complaints of pressure and her willingness to have Ruth serve as
executor; and
9. Conkey was after [Ridenour’s] tools, truck and tractor
according to Barnes; a claim Conkey denies even discussing with
[Ridenour] until after the second codicil was signed.
(Appt. Br. 24-25).
-19-
Case No. 4-13-01
{¶46} With regard to the first cited “fact in dispute,” Ridenour originally
executed his will with the Conkeys as beneficiaries of his farms. Evidence
revealed, including through the testimony of the appellants, that Ridenour even
considered giving his farms to the Conkeys while he was still alive, but ultimately
decided to leave the farms to the Conkeys in his will. The evidence never
established that Ridenour affirmatively “reversed his position” as his will left the
farms to the Conkeys and there was no evidence of undue influence as we found in
the first assignment of error.
{¶47} The second, third, fourth, sixth, and eighth facts claimed to be in
dispute are not material to the ultimate disposition of the case and would not
preclude summary judgment.
{¶48} With regard to the fifth “fact in dispute,” as discussed in the first
assignment of error, Sinn’s mere presence at meetings and her involvement in
setting up those meetings does not show that she “dominated” the estate plan.
Characterizing Sinn’s presence as “dominating” is not supported in the record.
{¶49} With regard to the seventh “fact in dispute,” there is no evidence that
Ray pressured Ridenour for the farms.
{¶50} With regard to the ninth “fact in dispute,” even assuming Ray was
“after [Ridenour’s] tools, truck and tractor,” which is disputed by the testimony of
Sinn and the Conkeys, it has no bearing on Ridenour’s decision to leave his farms
-20-
Case No. 4-13-01
to the Conkeys over two years prior in his will, and thus would not preclude
summary judgment on that issue.
{¶51} In sum, we cannot find that under these circumstances, any of the
facts claimed to be in dispute would preclude summary judgment. Accordingly,
appellants’ third assignment of error is overruled.
{¶52} For the foregoing reasons, appellants’ assignments of error are
overruled and the judgment of the Defiance County Common Pleas Court, Probate
Division, is affirmed.
Judgment Affirmed
WILLAMOWSKI and ROGERS, J.J., concur.
/jlr
-21-
