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

“The index card cannot be rehabilitated by 2107. 24?”
Chief Justice O’Connor, to counsel for Terry Schaffer

“So, you are saying that the court, given the circumstances under which this notecard was executed, can under what you are calling the harmless error statute ignore the code section that says a witness can’t be a beneficiary?”

Chief Justice O’Connor, to Zachary Norman

On March 11, 2020, the Supreme Court of Ohio heard 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 document to be treated as a will 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 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. The magistrate 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 Zachary’s application to probate the 2006 document as if it were a will be denied. After an independent review, over Zachary’s objections, the probate judge adopted and approved the magistrate’s decision.

The Appeal

In a unanimous decision the Sixth District held that the purported 2006 will of Joseph I. Shaffer should have been admitted to probate, and 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.

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.

Read the oral argument preview of the case here.

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.

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)(Referred to by Mr. Norman as the “Harmless Error 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.)

*Hairelson v. Estate of Franks, 130 Ohio App.3d 671 (10th Dist. 1998) (holding that a will signed in Florida by two interested witnesses was valid—and the Voiding Statute inapplicable—because the will complied with Florida law at the time of the will’s execution.)

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.)

*Relied on by the parties during argument

At Oral Argument

Corey L. Tomlinson, Robison, Curphey & O’Connell, Toledo, for Appellant Terry Shaffer, Administrator of the Estate of Joseph I Shaffer

Zachary Norman, Toledo, pro se

Terry Shaffer’s Argument

Zachary Norman and his mother Juley Norman both testified that they were both present when Joseph Shaffer, the testator in this case, drafted what he professed was his will on a 3 by 5 notecard, which document granted one quarter of his estate to Juley Norman. No one else was present, witnessed, or heard Shaffer either execute or acknowledge his signature on that notecard. And although they were the only two witnesses in the room at the time, neither Zachary nor Juley Norman subscribed that card.

The issue before the court is whether Juley Norman, as an essential yet interested witness to the execution of that 2006 will, can take the one quarter bequest to her under that will. The answer should be no.

There are 3 interconnected statutes at issue in this case.  The first is R.C. 2107.03, Ohio’s formal will-making statute. This statute governs all written wills in Ohio and requires all wills to have three elements.  They must be in writing, signed at the end by the testator and attested and subscribed in the conscious presence of the testator by two or more competent witnesses who either saw  that testator subscribe or heard the testator acknowledge his signature on that document. 

The second statute is R.C. 2107.15, known as the Voiding Statute, last modified in 2011. It holds that if a devise or a bequest is made to a person who is one of only two witnesses to that will, the devise or the bequest is void, and that witness shall then be competent to testify to the execution of the will as if the bequest to that witness had not been made.

The third statute is R.C. 2107.24, the Remediation Statute, enacted in 2006. The Remediation Statute allows a written document that is not in strict compliance with R.C. 2107.03, to be admitted as a will if the proponent of that document can establish three elements by clear and convincing evidence: that the decedent prepared the document, or caused it to be prepared, that the decedent signed the document and intended it to constitute the decedent’s will, and that the decedent signed the document in the conscious presence of two or more witnesses.

There’s no doubt in this case that if Juley Norman had signed the 2006 notecard, as required by Ohio’s formal will-making statute, the Voiding Statute would apply to that bequest to her, and she would not be competent to testify to the validity of that 2006 will unless and until the bequest to her contained in that will was voided.

Under the plain language of the Voiding Statute, Juley Norman is not competent to testify to Joseph Shaffer’s execution of that document until the gift to her is voided.  That 2006 will cannot be rehabilitated by Juley Norman because she is an essential interested witness, and under the Voiding Statute she cannot testify to rehabilitate that document until the bequest to her in that document is voided. Juley Norman is not competent until that bequest to her is voided.  Once that’s voided, then she can come in and testify to the execution and the rest of the document can be admitted to probate in due course. In addition, the notecard will does not even completely dispose of Shaffer’s estate.  He had a very sophisticated estate plan. Since there was a prior will, this note card would at most be a codicil.

In this case, the probate court found two things. There wasn’t clear and convincing evidence that the testator intended this document to be his will, and even if he did, there weren’t enough disinterested witnesses to establish the validity of that will. So, the probate court properly denied admission of the 2006 document to probate.

The appeals court erroneously agreed with Zachary Norman that the omission of the word “competent” from the Remediation Statute means that Juley’s status as both an essential and interested witness no longer matters. That is not the law of Ohio. The purpose of the Remediation Statute is not to eliminate competence. It is to allow for errors in execution if they are otherwise harmless to be remediated and the document to be admitted to probate.

Ohio’s Voiding Statute applies equally to wills whether they are executed in compliance with R.C. 2107.03 or whether they are submitted pursuant to R.C. 2107.24. If a devisee in a will is an essential witness to that will, either by his or her signature at the time of execution or by his or her testimony in a later hearing, the Voiding Statute needs to apply equally. If that will cannot be admitted without that person’s testimony, then that person cannot take under that will. This is a consistent result achieved throughout Ohio’s probate code. 

The Voiding and Remediation statutes are supplements to R.C.2107.23, not replacements for it. The omission of the word “competent” from the Remediation Statute does not eliminate the requirement that all witnesses testifying in any court must be competent to testify.  Elimination of the word “competent” from one code section does not eliminate the bedrock necessity of competence in any testamentary proceeding. The legislature’s general definition of competence applies in a remediation hearing.

The entire probate code is geared toward determining a testator’s intent, but the legislature put in this safeguard—a testator’s intent cannot be credibly determined unless either there are more than two witnesses or the two witnesses in the room are disinterested.

To argue that the clear and convincing standard is some kind of supplemental safeguard and therefore the Voiding Statute doesn’t need to apply here ignores the probate court’s finding in this case  that “clear and convincing evidence is not presented that the decedent intended the document to be his will.”

Zachary Norman’s Argument

Joe (Shaffer) handwrote his five-sentence will on a notecard on December 22, 2006. R.C. 2107.24, the Remediation Statute, also known as the harmless error statute, addresses whether a document that does not comply with the statutory formalities of creating a will may nonetheless be admitted as a will. Essentially, the Remediation Statute permits this Court to carry out Joe’s intent without the constraint of strict statutory formalities.

The purpose of the Remediation Statute is to promote intent. Indeed, it is an intent-based—not a substantial compliance—statute. Driven by intent, the statute excuses all the statutory formalities in exchange for requiring certain elements to be proven by the high evidentiary standard of clear and convincing evidence. As Representative William Seitz said, “The clear and convincing evidence standard provides substantial safeguards before any court would be hoodwinked into adopting a will that was fraudulent.”

R.C. 2107.03, which lays out the traditional method for creating wills, requires two or more competent witnesses to be present when a will is created. However, the Remediation Statute omitted the word “competent.” This is noteworthy because the word “competent” is a signal word that has been used for centuries to ascertain interest. The word “competent” is historically synonymous with the word “interested.”

The Voiding Statute provides that, if a bequest is made to a person who is one of only two witnesses to a will, then the bequest is void. The second sentence in the statute is crucial in understanding the legislature’s intent. That sentence says that a witness shall then be “competent” to testify to the execution of the will, as if the bequest had never been made. The inclusion of the word “competent” in that second sentence is a signal word. Because R.C. 2107.03 requires “competent” witnesses, the Voiding Statute’s own use of the word “competent” signals that R.C. 2107.03 and the Voiding Statute were intended to operate together.  

However, the Remediation Statute does not use the word “competent.” If the legislature had used the word “competent,” then the statute would be interpreted entirely differently. Because the Voiding Statute requires “competent” witnesses, but the Remediation Statute does not require “competent” witnesses, the Voiding Statute and the Remediation Statute were never intended to operate together. The purpose of the Remediation Statute is to serve the testator’s intent and to prevent wills from being rejected for failure to comply with formalities. Because Joe’s intent is clear from the notecard and was rejected as a will solely because it failed to comply with statutory formalities, the Remediation Statute applies here, but the Voiding Statute does not.

The probate court found, by clear and convincing evidence, that the document was prepared by Joe, that Joe signed the document, and that two people witnessed him sign the document. The purpose of the harmless error statute, as intended by the General Assembly, is to look at what the testator intended to do.  The court of appeals found, by clear and convincing evidence, that this testator intended the notecard to be his will.

Applying the Remediation Statute to a noncomplying document requires the high evidentiary standard of clear and convincing evidence. It requires a hearing where proponents and opponents can present evidence. It’s a very rigorous process, but one which excuses the statutory formalities. Formalities were intended to facilitate intent, but they were not meant to replace the testator’s intent. The high burden of proof of clear and convincing evidence is the safeguard to the Remediation Statute.

When Joe wrote his will in 2006 before going to the hospital, he did so because he was not satisfied with his 1967 will prepared 39 years earlier. That’s why he used his testamentary freedom to decide what he wanted. He gave all his stock to the son who was involved in the business. His other son was not involved in the business. He gave to Juley Norman, his meaningful other, someone who was very important to him, the person named as his health care power of attorney, a quarter of his estate. That was his intent. He clearly directed to us what he wanted to happen after he died.  And he believed that will was 100% valid. While he was wrong about the Ohio formalities, he believed he was right. We ask that his intent be carried out and that the court of appeals be affirmed.

What Was On Their Minds

Shaffer’s Will

There’s no dispute that this was in his handwriting, and was his signature  is there, asked Chief Justice O’Connor? (answer:no) If the 2006 notecard is a valid will, does whatever wasn’t disposed of in the notecard go intestate? What about the fact that one of the witnesses, Juley, was a beneficiary? Given the circumstances under which this notecard was executed, can the probate court just ignore the code section that says a witness can’t be a beneficiary? By what authority? Since Mr. Shaffer didn’t die until several years later, why didn’t he go and make a new, formal will?

Couldn’t Juley Norman testify to rehabilitate the document, asked Justice DeWine? But she just can’t take under that document?

What did the rest of the document entail, asked Justice Stewart? Were Terry Shaffer and Juley Norman the only two beneficiaries under this 2006 notecard will? Was Terry Shaffer also a beneficiary under the 1967 will?  If this 2006 notecard will is valid, is it a codicil?

The Interplay Between the Remediation Statute and the Voiding Statute

What is an example of an error in execution only, asked Chief Justice O’Connor? Can’t the notecard be rehabilitated by R.C. 2107. 24? Doesn’t saying that someone who stands to inherit a significant part of the testator’s estate in the body of the will, and then signs it, fly in the face of the interest that the statutes are put in place to protect? The fact that the witnesses didn’t sign in the testator’s presence, and the fact that one of the witnesses is a beneficiary is harmless error? All of this can be fixed with this Remediation Statute?

Can’t Juley Norman be a competent witness to the will, but not a beneficiary under it, asked Justice Stewart? So, this is really just serving to exclude Juley Norman’s devise under the Voiding Statute?

Why does it matter that the word “competent” was omitted from the Remediation Statute, asked Justice DeWine? Doesn’t competency go to the ability to testify, not to the ability to take under a will? The Voiding Statute seems absolutely clear -if a devise or bequest is made to a person who is one of only two witnesses to a will -that is clearly the case here—the devise or bequest is void. Why shouldn’t we just apply what this statute says? How do you avoid that plain language?

Why was the word “competent” omitted, asked Justice Fischer?  Shouldn’t we place some significance on the omission?

Clear and Convincing Evidence Standard

Didn’t the probate court find there was not clear and convincing evidence here, asked Justice Fischer?

How do we know what the testator’s intent was here, asked Chief Justice O’Connor?

How it Looks from the Bleachers

To Professor Emerita Marianna Bettman

Like a win for Terry Shaffer, which I personally find very sad, because I have no doubt that Joe Shaffer wanted to leave a quarter of his estate to Juley Norman. This is a case that I wish had been settled. I guess it still could be. But I think legally, the Court is absolutely going to buy Shaffer’s argument that 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, and that if one of the beneficiaries of that will is a witness, the bequest to that person is void. Justice DeWine summed it all up when he said the statute seemed absolutely clear -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. I don’t think Zachary Norman’s argument that the voiding and remediation statutes aren’t meant to work together, and that the clear and convincing evidence standard in the remediation statute is all that is necessary for nonconforming wills will find any takers.

I will say this—for a pro se litigant, Mr. Norman was certainly as good as many lawyers. I’m guessing he had legal training somewhere.  My short google search unearthed a Zachary Z Norman as a staff writer for the Harvard Crimson in 2001, 2002 and 2004. Chief Justice O’Connor, who can be a tough and sometimes brusque questioner, was very kind to Mr. Norman, whose mother Juley appeared with him at what is usually counsel table during the argument.

To Student Contributor Maria Ruwe

I think the Court will find for Shaffer and rule that the handwritten notecard may not be admitted as a will. Shaffer argued that, if Juley Norman had signed the notecard, then the Voiding Statute would unquestionably apply. Simply because Juley had not signed the notecard should not be reason enough to avoid applying the Voiding Statute. Although the Court was sympathetic to Zachary Norman, I think the Court will construe the statute according to Shaffer’s interpretation. 

On a personal note, it seems unfair to the Normans. Clearly, Mr. Shaffer wanted to leave part of his estate to Juley Norman, and he clearly believed that he was doing so. I agree with Zachary Norman’s argument that the statutory formalities should facilitate the testator’s intent, not replace it. But I think the Court will feel bound by the statutory language and rule for Shaffer.