2013 Ohio 1498
Ohio Ct. App.2013Background
- Beverly died intestate on March 6, 2012; he was survived by four daughters (Appellants), Paula Jackson, and Audrey Beverly.
- Appellants sought joint fiduciary status; Jackson sought sole fiduciary appointment for the Estate.
- A Banking POA (Aug. 29, 2011) named Jackson as Beverly’s agent for all bank accounts; Sullivan testified to the POA’s terms.
- Beverly executed a Health Care POA naming Jackson as agent.
- May 14, 2012, a hearing resolved competing fiduciary applications; testimony and records were admitted.
- Trial court appointed Jackson administrator on May 29, 2012; Appellants appeal the admission of certain hearsay statements by Beverly about trust in Jackson.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Beverly’s hearsay statements about trust under 804(B)(5). | Stauffer/Sauber contend 804(B)(5) applies to decedent statements. | Jackson argues 804(B)(5) permits decedent statements when estate rep is party. | 804(B)(5) not applicable at hearing; error admitted but harmless. |
| Admissibility of Beverly’s then-existing state of mind statements under 803(3). | Appellants contend statements about why Beverly trusted Jackson are admissible as then-existing state of mind. | Jackson contends some statements are admissible as 803(3) but not the basis for trust. | Some statements admissible under 803(3); other portions inadmissible; error deemed harmless as invited. |
Key Cases Cited
- McGrew v. Popham, 2007-Ohio-428 (5th Dist. 2007) (admissibility of decedent’s intent under 803(3))
- State v. Stewart, 75 Ohio App.3d 141 (11th Dist.1991) (limits on 803(3) admissibility for state of mind)
- State v. Apanovitch, 33 Ohio St.3d 19 (1987) (scope of then-existing state of mind exceptions)
- Testa v. Roberts, 44 Ohio App.3d 161 (6th Dist.1988) (application of hearsay exceptions in estate matters)
- Bilikam, Huntington Natl. Bank of Columbus v. Bilikam, 2 Ohio App.3d 300 (10th Dist.1982) (Evid.R. 804(B)(5) limited to decedent’s representatives)
- Boley v. Kennedy, 2003-Ohio-1663 (3d Dist. No. 3-02-35) (interpretation of 804(B)(5) benefitting estate representatives)