On December 16, 2020, the Supreme Court of Ohio handed down a merit decision in this case. Read the analysis here.

Read an analysis of the argument here.

On March 11, 2020, the Supreme Court of Ohio will hear oral argument in In re: Estate of Joseph I. Shaffer, 2019-0364. At issue in this case is whether a person who serves as a witness to a will admitted pursuant to R.C. 2107.24 may receive a bequest contained in the will.

Case Background

In 1967, Joseph I. Shaffer executed a will that set up a trust for his two sons, Mark and Terry. Each son was to receive half of Shaffer’s entire estate.

In 1999, Juley Norman (“Juley”) and her son, Zachary Norman, began to develop a close relationship with Shaffer. As time went on, Shaffer referred to Juley as “his meaningful other.” Shaffer and Juley lived in separate houses, but they telephoned each other throughout the day, spent evenings and holidays together, traveled together, and generally looked after each other.

On December 22, 2006, Shaffer decided to go to the hospital because he was not feeling well. Before leaving for the hospital, in the presence of Juley and Zachary Norman, Shaffer wrote the following on a notecard:

“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./

/s/ Joseph I Shaffer.”

No one besides Shaffer signed the document. After Shaffer was released from the hospital, Shaffer referred to the document as his “will” in subsequent discussions. At one point, Juley asked Shaffer whether a notary was needed to validate the will. Shaffer replied that a notary was not necessary based on his belief that those in his home state of Pennsylvania did not use notaries when writing their wills. 

On July 20, 2015, Shaffer died. Zachary Norman filed an application to probate the 2006 document as if it were a will. Magistrate Paul Jamantas found that the 2006 document had not been properly executed under R.C. 2107.03, that clear and convincing evidence had not been presented to prove the requirements of R.C. 2107.24, and that even if admitted, any bequest to Juley Norman would be void. The magistrate recommended that the 2006 Application to Probate a Document That is Treated as a Will be denied. After an independent review, over Zachary’s objections, Lucas County Probate Court Judge Jack R. Puffenberger adopted and approved the magistrate’s decision.

The Appeal

In a unanimous decision written by Judge Arlene Singer and joined by Judges James D. Jensen and Christine E. Mayle, the Sixth District held that the purported 2006 will of Joseph I. Shaffer must be admitted to probate. In so holding, the court of appeals found that R.C. 2107.24 does not require witnesses to be competent or disinterested before they may testify to a will that does not comply with R.C. 2107.03. Therefore, R.C. 2107.15—Ohio’s voiding statute—does not apply to a noncomplying will under R.C. 2107.24. In order to promote Shaffer’s intent over statutory formalities, the appellate court determined that the bequest to Juley Norman should not be voided in order for her to testify as a witness to the execution of the 2006 document.

Votes to Accept the Case

Yes: Chief Justice O’Connor and Justices Fischer,* French, Stewart, and DeWine

*Justice Fischer would also accept the appeal on proposition of law No. II.

No: Justices Kennedy and Donnelly

Terry Shaffer’s First Proposition of Law Accepted for Review

Ohio’s Voiding Statute applies equally to wills executed in compliance with R.C. 2107.03 and wills submitted pursuant to R.C. 2107.24. If the will is witnessed by a devisee, either by the devisee’s signature or the devisee’s testimony, the bequest to the interested witness is void.

Terry Shaffer’s Second Proposition of Law Not Accepted for Review

An appellate court, reviewing a factual determination under a highly deferential standard, cannot compel a fact-finder to accept as clear and convincing evidence the testimony of an interested witness at an R.C. 2107.24 hearing.

Key Statutes and Precedent

R.C. 2107.03 (“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.”)

R.C. 2107.15 (Ohio’s Voiding Statute) (“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.”)

R.C. 2107.24(A) (“Remediation Statute) (A purported will that does not comply with R.C. 2107.03 may be treated as if it complied with R.C. 2107.03 if certain requirements are met. Specifically, the proponent of the document must show, by clear and convincing evidence, that: (1) the decedent prepared the document or caused the document to be prepared; (2) the decedent signed the document, intending it to constitute the decedent’s will; and (3) the decedent signed the will in the conscious presence of two or more witnesses.)

Irwin v. Jacques, 71 Ohio St. 395 (1905) (If a person wishes to dispose of his or her property in a manner contrary to the statutes of descent and distribution, the person must do so in a will that fulfills the requirements of R.C. 2107.03.)

Kluever v. Cleveland Trust Co., 173 Ohio St. 177 (1962) (The right to dispose of one’s property at death is a limited statutory right controlled solely by the General Assembly.)

Rogers v. Helmes, 69 Ohio St.2d 323 (1982) (Ohio law allows an heir to be a “competent witness” to the execution of a will. The Voiding Statute requires that a bequest to a witness be voided in order for the witness to be a “competent witness” to testify about the execution of the will at the time of probate.)

In re Estate of Pittston, 2009-Ohio-1862 (5th Dist.) (The Remediation Statute requires the probate court to weigh the evidence and determine the credibility of the witnesses to determine whether the proponent has established clear and convincing evidence showing that the requirements of the statute have been met. Once the requirements have been met, the document must be admitted to probate.)

Mastro v. Glavan, 2011-Ohio-3628 (11th Dist.) (Admission of a will to probate is prima facie evidence that the will is valid and establishes a rebuttable presumption of the validity of the will and its execution.)

Terry Shaffer’s Argument

Juley Norman may not receive the bequest to her contained in the 2006 will because she served as an essential witness to that will.

Under R.C. 2107.03, a document must meet certain requirements before it may be admitted as a will without a hearing. However, a document that does not meet the requirements contained in R.C. 2107.03 may still be admitted as a will under R.C. 2107.24 (“Remediation Statute”). The Remediation Statute permits a document to be admitted as a will if its proponent can prove that: (1) the decedent was responsible for the preparation of the document; (2) the decedent signed the document and intended the document to constitute the decedent’s will; and (3) the decedent signed the document in the conscious presence of two or more witnesses. But the limited purpose of the Remediation Statute is only to correct errors in the will’s execution.

R.C. 2107.15 (“Voiding Statute”) provides that a bequest or devise is void if the bequest or devise is made to a person who is one of only two witnesses to a will. In such a case, the witness is competent to testify to the execution of the will as if the bequest had never been made. The legislative intent in enacting this statute was to preserve the integrity of the will-execution process and to establish the presumption of a lack of credibility in any witness who has an interest in a bequest under the will.

The Voiding Statute is clear and unequivocal. A bequest made to an “essential witness” (meaning one of only two witnesses) is void. The justification for the Voiding Statute is that an uninterested party is generally more credible than a witness who stands to gain from his or her testimony.

The court of appeals found that Juley and Zachary Norman were competent witnesses and the 2006 Will should therefore be admitted to probate under R.C. 2107.24. That is not at issue in this appeal.  Here, Juley and Zachary Norman were “essential witnesses” to the 2006 Will because they were the only two witnesses to it. But because Juley Norman was an essential witness to the 2006 Will, she is categorically precluded from receiving the bequest granted to her in the will.  The appeals court erred in finding otherwise.

The Voiding Statute should apply equally to wills admitted pursuant to R.C. 2107.03 and to wills submitted under the Remediation Statute. A contrary finding results in an irreconcilable conflict between the Remediation Statute and the Voiding Statute. For example, a bequest to a witness who signs a will would be voided while a bequest to a witness who refuses to sign a will would be granted. This would result in an unintended loophole that allows an essential witness to take a bequest granted by the will by simply refusing to sign the will at the time of the will’s execution. Courts are required to construe statutes relating to the same subject matter as consistent rather than inconsistent. To avoid inconsistent results, the Voiding Statute must void any bequest to an interested witness.

Additionally, courts are required to interpret statutes to achieve the legislature’s intent. Here, the purpose of the Voiding Statute was to prevent the invalidation of an entire will when a witness’ bias prevents the witness from credibly testifying about the will’s execution. The legislature’s solution to this bias was to void the bequest to the essential witness. The Remediation Statute was not designed to provide a work-around or to excuse ignorance of the law. To achieve the legislature’s intent of eliminating a witness’ bias, this Court should void the bequest made to Juley Norman.

The Voiding Statute does not distinguish between wills admitted under R.C. 2107.03 or under the Remediation Statute. The appellate court’s holding allows testators and interested witnesses to circumvent statutory requirements when executing a will, potentially leaving R.C. 2107.03 meaningless.

Statutory formalities surrounding the execution of a will protect the societal expectation of inheritance and allocates family resources to where they are intended. The Voiding Statute preserves the integrity of the will-execution process by establishing a presumptive lack of witnesses’ credibility when they have an interest in a will. Additionally, the Voiding Statute protects a testator’s intent by mandating disinterested witnesses. Here, the handwritten notecard would benefit the Normans at the expense of Shaffer’s sons, who are both heirs at law and heirs under the formal will. 

This Court must adopt a more consistent and logical interpretation of R.C. 2107.15 and the Remediation Statute. If an individual is one of only two witnesses to the execution of a will, any bequest to that witness contained in the will is voided, regardless of whether that witnesses subscribes to the will when it is executed, or later testifies to the execution of the will in a Remediation Statute hearing. For these reasons, this Court must hold that the Voiding Statute applies equally to wills executed in compliance with R.C. 2107.03 and wills submitted under the Remediation Statute.

Zachary and Juley Norman’s Argument

Ohio’s Remediation Statute—R.C. 2107.24–is a modified version of the Uniform Probate Code’s harmless error statute. Such statutes are part of a national trend to excuse noncompliance with the strict formalities of a will, including purging in those states that purge interested witnesses, in order to better follow the wishes of the testator.

By its plain language, the Voiding Statute does not apply to wills admitted under the Remediation Statute because the Remediation Statute does not require that witnesses be “competent.”

The Voiding Statute states, “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.” Because a witness under R.C. 2107.24 does not need to be competent, then the purpose of the voiding provision is moot and does not apply.

Under common law, an interested witness was considered incompetent due to his or her interest. Consequently, wills witnessed by interested witnesses were voided in their entirety because of a lack of competent witnesses. The Voiding Statute was created to save at least part of a will that would not have been admitted otherwise. In other words, R.C. 2107.03 and the Voiding Statute operate together.

However, the Remediation Statute has no requirement governing a witness’ competency. A witness who is not competent is acceptable as a witness for a document that is treated as a will under R.C. 2107.24.  Because the Remediation Statute specifically eliminates any requirement for a competent witness, the purpose of the voiding provision is moot and does not apply. 

By omitting the requirement for competent witnesses, the Remediation Statute prioritizes a testator’s intent over statutory formalities. Mistakes in a will’s execution or expression should not overcome the testator’s intention or result in unjust enrichment. The validity of wills admitted under the Remediation Statute is safeguarded by the “clear and convincing evidence” standard. Additionally, by requiring the testator to be in control of the will’s preparation, the Remediation Statute ensures that the creation of a will is not unduly influenced by interested parties.

The Voiding Statute is not employed when a will cannot be saved or does not need to be saved. If a statute employs other standards of admittance, the Voiding Statute is not applicable. This occurs in instances where the requirements of the Remediation Statute could never be met or where the requirements could not be shown by clear and convincing evidence.  Because documents that are treated as a will under the Remediation Statute do not need saving, the Voiding Statute does not apply to such documents.

R.C. 1.11 states that remedial laws should be “liberally construed” to accomplish their purpose and achieve justice for the parties. The Remediation Statute is a remedial, curative statute that should be liberally construed to promote its purpose of allowing for a decedent’s intent to rule over strict statutory formalities. Therefore, the Remediation Statute should permit Juley Norman to receive the bequest contained in the 2006 will.

The Normans’ Proposed Counter Proposition of Law

R.C. 2107.15 does not apply to a document that is treated as a will under R.C. 2107.24.

Student Contributor: Maria Ruwe