Update: On December 28, 2020, the Normans filed a motion for clarification or reconsideration of the merit decision in this case. On December 31, 2020, the Court granted the Normans’ motion, and explained, in footnote one of the reconsidered opinion that

“On December 16, 2020, this court issued its judgment and original opinion in this case. Appellees, Zachary Norman and Juley Norman, filed a motion for clarification and/or reconsideration, noting that this court had declined to review, and therefore did not disturb, the portion of the decision of the Sixth District Court of Appeals holding that the document at issue was intended to be Joseph Shaffer’s will. See 156 Ohio St.3d 1442, 2019-Ohio-2496, 125 N.E.3d 913 (accepting review of proposition of law No. I and declining review of proposition of law No. II). We agree with the Normans and therefore grant the motion for clarification and/or reconsideration. The reissued opinion alters the final sentences of paragraphs 2 and 30 of our original opinion to indicate that the judgment of the Sixth District Court of Appeals is reversed in part and that the cause is remanded to the Lucas County Probate Court for further proceedings.”

Translation: Joe’s notecard will should have been admitted to probate but Juley cannot take under it.  

Read the original opinion here, and the reconsidered opinion in the case here.

Analysis of original opinion:

“Irrespective of whether R.C. 2107.24 allows incompetent witnesses to establish that a document is a will, the voiding provision of R.C. 2107.15 applies to devises contained in any will.”

Justice Donnelly, opinion of the Court

On December 16, 2020, the Supreme Court of Ohio handed down a merit decision in In re Estate of Shaffer, 2020-Ohio-6672. In a unanimous opinion written by Justice Donnelly, the Court held that an interested witness to a noncomplying will cannot inherit under it. The case was argued March 11, 2020.

Case Background

Joseph Shaffer, who was a psychologist and part owner of several sleep clinics, executed a traditional will on August 11, 1967, which left his entire estate in trust to his two sons, Mark and Terry, if his wife predeceased him, which she did.  Joseph died July 20, 2015, and his 1967 will was admitted to probate on September 15, 2015. Terry Shaffer is the executor under that will, and the appellant in this appeal. 

In January of 2016, appellee Juley Norman filed a creditor’s claim against the estate for the care and services she had provided to Joseph. The two had been companions for many years. Attached to Juley’s claim was a copy of a three-by-five handwritten notecard which purported to leave all Joseph’s sleep network stock to his son Terry and one quarter of his estate to Juley. The card stated, “this is my will,” and was signed by Joseph Shaffer, but no one else. Terry Shaffer, as administrator of his father’s estate rejected this claim.

In July 2016, appellee Zachary Norman, Juley’s son, to whom Joseph had entrusted the original notecard for safekeeping, filed an application in probate court to treat the notecard as a will subject to probate. Zachary also filed an amendment to the list of Joseph’s devisees, adding his mother as a beneficiary.

A magistrate held a hearing pursuant to Ohio’s Remediation Statute (R.C. 2107.24) to consider whether this notecard, which did not meet the formal will-making requirements of R.C. 2107.03, should be admitted to probate. The magistrate found that Zachary had failed to establish by clear and convincing evidence that the notecard was intended to be Joseph’s will.  The magistrate determined that while Ohio’s Remediation Statute allows nonconforming documents to be treated as wills under certain circumstances, that statute does not eliminate the competent-witness-attestation requirement of R.C. 2107.03. The magistrate recommended to the probate court that Zachary’s application to admit the 2006 notecard as a will be denied, and that Zachary’s amended list of Joseph’s devisees to include his mother be stricken. The probate judge adopted the magistrate’s recommendations over Zachary’s objections. Zachary appealed.

The Sixth District Court of Appeals reversed the judgment of the probate court, holding 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, the appeals court held that R.C. 2107.15—Ohio’s voiding statute—does not apply to a nonconforming will under R.C. 2107.24.

Read the oral argument preview of the case here and the analysis here.

Key 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.)

In re Hathaway’s Will, 4 Ohio St. 383 (1854) (When determining whether to admit a will, a court must verify that the document was properly executed and should not examine the contents of the will.)

Fowler v. Stagner, 55 Tex. 393 (1881) (Statutes such as the Voiding Statute  invalidate the portion of a will related to the interested witness’s devise, and preserve the valid portion of the will.)

Tims v. Tims, 22 Ohio C.D. 506 (1911) (Attestation and subscription consist of: (1) a personal observation of the signing or acknowledgement of signature by the testator; and (2) a physical act of signing the document, under the observation of the testator.)

Bloechle v. Davis, 132 Ohio St. 415 (1937) (To be a will, a document must comply with R.C. 2107.03, unless the Remediation Statute, which is a narrow exception, applies.)

In re Elvin’s Will, 146 Ohio St. 448 (1946) (If a will bears all the signatures indicating proper execution and attestation, the court must admit the will to probate, regardless of whether the will’s validity could be challenged on other grounds.)

Rogers v. Helmes, 69 Ohio St.2d 323 (1982) (A witness may be competent, even if that person gains an interest from the will. But if the validity of the will depends on that interested person acting as an essential witness to the execution of the will, that person’s interest under the will is eliminated.)

Terry Shaffer’s 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.

Does the Court Adopt Shaffer’s Proposition of Law?

Yes

Merit Decision

Analysis

The opinion in this case examines the role of witnesses in the execution of wills and the laws that apply to these witnesses and to the wills themselves.

Statutes Implicated in this Case

R.C. 2107.03 covers the formal requirements for the execution of a written will. R.C. 2107.24 sets forth a process for admitting a purported will to probate that does not fully adhere to the formal requirements set forth in R.C. 2107.03. R.C. 2107.15 voids a bequest to a witness who is necessary to establish the validity of the will. R.C. 2107.03 and R.C. 2105.15 refer to “competent” witnesses, while R.C. 2107.24 does not.

General Requirements to Admit a Will to Probate

When deciding whether to admit a will, a court must determine from the face of the document that it was executed in accordance with law. The basic requirements for written wills are that they be signed at the end by the testator or someone in the testator’s conscious presence, attested and subscribed in the testator’s conscious presence by two or more competent witnesses who saw the testator sign, or heard the testator acknowledge his or her signature.  If all these requirements are met, the will must be admitted to probate. Challenges can still be brought later.

A will that does not meet all the formal requirements of R.C. 2107.03 can still be admitted to probate if, after a hearing, the probate court finds that the proponent has established by clear and convincing evidence that the purported will meets all the requirements of R.C. 2107.24, Ohio’s remediation statute. Those requirements are that the decedent prepared the document or had it prepared, signed the document in the conscious presence of two or more witnesses, and intended the document to be his or her will. Thus, R.C. 2107.24 provides a narrow exception to the formalities required in R.C. 2107.03 by excusing the failure of a witness to sign the will. The statute allows for a bequest to an interested witness to be voided while leaving the rest of the will intact.  In determining whether this narrow exception applies, the court’s role is to determine if the document was validly executed, not to examine the validity of its contents.

Will Witness Formalities

R.C. 2107.03 requires wills to be attested and subscribed by two or more competent witnesses. Everyone except a subset of children under ten and persons of unsound mind are deemed to be competent witnesses. A person who stands to inherit under a will is not incompetent for that reason to witness the will’s execution–a witness to a will does not have to be a disinterested witness. Witnesses must both attest and subscribe to the signing, meaning personally observe the signing or acknowledgment of the signature by the testator, and physically sign the document while the testator observes.

Because the ramifications of failure to meet the strict formal will witnessing requirements are so harsh, R.C. 2107.24 was passed as a remedial measure to excuse the requirement that the will be “subscribed” by the witness and allows a witness’s attestation to be proven by other means.

So, if a will is facially valid, the court must admit it to probate, and need not scrutinize the competency of its witnesses and the fact of their attestation. But with a noncompliant will such scrutiny may be required pursuant to R.C. 2107.24 to determine the will’s validity, and the probate court has the discretion to weigh evidence for or against the validity of the document as a will.

“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…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,” Donnelly notes.

Limitations on Dispositions in a Will

Once a will has been admitted to probate, disposition of the testator’s property is set by statute. One such statute is R.C. 2107.15, which voids any devise or bequest to a person who is one of only two witnesses to a will. But once the bequest or devise is voided, that person is then competent to testify to the execution of the will as if the bequest or devise had not been made.

“In essence, 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,” wrote Donnelly, citing to the Court’s decision in Rogers v. Helmes. Donnelly added that laws like R.C. 2107.15 serve the purpose of preventing fraud while also protecting a testator’s intentions. The bottom line here, says Donnelly, is that “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 R.C. 2107.24

The Court rejects the reasoning of the appeals court that R.C. 2107.15 does not apply to R.C. 2107.24 because a probate judge can assess the credibility of any interested witness during the evidentiary hearing required in R.C. 2107.24. The Court also rejects appellees’ argument that the failure of the legislature to use the word “competent” in R.C. 2107.24 indicates its intent to depart from strict will formalities to ensure the testator’s intent be fully carried out. The Court concludes that the failure of the legislature to use the word “competent” to describe witnesses in R.C. 2107.24 is of no consequence since that statute does not determine competency.

While conceding that a probate court might gain more insight into the circumstances surrounding a particular will and the credibility of various parties through the evidentiary hearing required for noncompliant wills, according to the plain terms of R.C. 2107.24(A), at that hearing the court is limited to determining if the decedent prepared the document, signed it intending for it to be his will, and signed the document in the conscious presence of two or more witnesses.  That’s it. The court is not authorized to determine anything else. It is not a process in which parties can address or contest the contents of a will, and it would be inappropriate for a probate court to rule on the contents of a document before deciding it is a will. Nor is it the purpose of R.C. 2107.24, in relaxing the strict formalities related to witness attestation and subscription, to carry out the testator’s intent. The probate court’s only job is to decide if the document at issue is a will.

The Court acknowledges that the proposed Uniform Probate Code  (on which Zachary Norman extensively relied) would explicitly abolish voiding statutes by providing that “the signing of a will by an interested witness does not invalidate the will or any provision of it,” but notes that Ohio has not adopted it. In Ohio, the voiding provision of R.C. 2107.15 is still in effect.

“While the General Assembly in enacting R.C. 2107.24 removed some of the formal barriers to creating a will, it did not remove the substantive barrier in R.C. 2107.15 that annuls dispositions to interested witnesses that were essential to establishing the validity of any will, whether through subscription or through testimony at an evidentiary hearing. Therefore, if a devise or bequest is made to a person who is one of only two witnesses to a will, the devise or bequest to that witness is void whether the will is executed in compliance with R.C. 2107.03 or submitted pursuant to R.C. 2107.24,” Donnelly concludes.

Bottom Line

Zachary Norman’s claim to admit the notecard as a will fails, and Juley Norman cannot be listed as a beneficiary of Joseph Shaffer’s estate.

Case Disposition

The court of appeals is reversed, and the judgment of the probate court is reinstated.

Probate Court Magistrate (affirmed)

Paul Jomantas

Probate Court Judge (affirmed)

Judge Jack R. Puffenberger

Sixth District Panel (reversed)

Opinion by Judge Arlene Singer and joined by Judges James D. Jensen and Christine E. Mayle

Concluding Observations

Both student contributor Maria Ruwe and I correctly called this for Terry Shaffer.  After argument I wrote that it looked

“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.” And it didn’t.

And here’s what Maria wrote:

“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.”