In re Britt
2017 Ohio 8026
| Ohio Ct. App. | 2017Background
- Decedent William E. Britt died June 3, 2012; his wife Beverly was appointed executrix and the will was admitted to probate August 23, 2012.
- Christine Lerussi and Cathleen Britt filed a first will contest (Nov. 8, 2012) alleging lack of testamentary capacity; the probate court dismissed it Feb. 26, 2014 for failure to serve necessary parties and this court affirmed. The Ohio Supreme Court declined review.
- Less than two months after the Supreme Court declined review, Christine, Cathleen, Christopher Britt, and Shannon Britt filed a second will contest (Jan. 4, 2016) alleging undue influence.
- Defendants moved to dismiss the second contest on statute-of-limitations and standing grounds: they argued Christine/Cathleen were time-barred or precluded by res judicata; Christopher had received notice and was bound by R.C. 2107.76; Shannon lacked standing due to a prior waiver.
- Probate court dismissed the second contest as to Christine and Cathleen (res judicata/untimely), Christopher (three‑month notice rule), and Shannon (lack of standing). On appeal the appellate court reversed as to Christine and Cathleen, and affirmed as to Christopher and Shannon.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Christine and Cathleen are barred by res judicata / time limits from refiling after the first dismissal | The first dismissal was procedural (for failure to serve) and therefore was a failure otherwise than on the merits; R.C. 2305.19 (savings statute) permits refiling within one year after such failure | The earlier dismissal and appeal preclude relitigation; actions are time-barred | Reversed as to Christine and Cathleen: first dismissal was without prejudice (procedural), and the savings statute allowed timely refiling; their claims may proceed |
| Whether Christopher’s will contest is barred by R.C. 2107.76 (three-month rule) | Christopher lacked formal statutory notice and the certificate under R.C. 2107.19 was not filed as to him, so the three-month period did not run | Christopher had actual notice (served as defendant in the first suit, attended hearings, received summons) so the three-month limitation ran | Affirmed as to Christopher: actual notice started the limitations period and his later filing was untimely |
| Whether the statutory tolling depends on filing of the R.C. 2107.19(A)(3) certificate | Plaintiffs contend tolling requires the fiduciary to file the certificate; absent filing, limitations do not run | Defendants point to the substance of notice — actual knowledge suffices to start limitations | Court found a certificate was filed (Aug. 10, 2012) and in any event actual notice controls; the argument fails |
| Whether Shannon has standing to contest the will | Plaintiffs included Shannon as a descendant/grandchild potentially injured by the will | Defendants argue Shannon lacks standing because Patrick (her father) executed a waiver of notice as to probate | Affirmed as to Shannon: lack of standing (waiver) upheld |
Key Cases Cited
- Allen v. McBride, 105 Ohio St.3d 21 (Ohio 2004) (savings statute applies to will-contest context)
- Vitantonio, Inc. v. Baxter, 116 Ohio St.3d 195 (Ohio 2007) (discussing legislative amendment history concerning application of savings statute to will contests)
- Triplett v. Beachwood Village, Inc., 158 Ohio App.3d 465 (Ohio Ct. App. 2004) (dismissal for lack of jurisdiction operates as failure otherwise than on the merits and is without prejudice)