In re Guardianship of Mull
56 N.E.3d 270
Ohio Ct. App.2015Background
- William and Marie Mull executed identical revocable trusts and a written "Family Agreement" on Oct. 1, 1987 providing that after the first spouse's death trusts could not be changed; the Family Agreement was signed but not witnessed or notarized.
- On Sept. 13, 1993 they executed a properly witnessed and notarized Amendment to the Family Agreement that "ratif[ied] and confirm[ed] the Agreement of October 1, 1987, except as set forth herein."
- William died in 1997; Marie later executed trust amendments in 2002 and 2011 that removed William’s family as beneficiaries and (in 2002) named several charities as beneficiaries.
- David Giffin, long-time financial advisor, became successor trustee of Marie’s trust in 2010; charities challenged validity of the Family Agreement and sought to remove Giffin as trustee.
- Probate court held Florida law applied, found the 1993 Amendment republished/ratified the 1987 Family Agreement, granted summary judgment to Giffin and Quay Mull, and denied charities’ motion to remove trustee; the appeals court affirmed.
Issues
| Issue | Plaintiff's Argument (Giffin/Quay) | Defendant's Argument (Charities) | Held |
|---|---|---|---|
| Whether an improperly executed 1987 Family Agreement is enforceable | 1993 properly executed Amendment incorporated and ratified the 1987 Agreement, republishing it under Florida probate principles | 1987 Agreement void under Florida law because it lacked two attesting witnesses and cannot be validated by later amendment | Amendment validly ratified/republished the 1987 Agreement; Family Agreement enforceable |
| Choice of law: Ohio vs. Florida controlling formalities | If choice-of-law needed, Florida likely controls; but result is same under either jurisdiction | Florida probate statute requires two witnesses; 1987 agreement did not comply | Court applied choice-of-law analysis and concluded result is the same: enforceable (Ohio recognition or Florida ratification) |
| Whether later trust amendments (2002, 2011) revoked the Family Agreement | No evidence William agreed during his lifetime to revoke; the Agreement remained binding upon first death | Amendments reflect revocation/repudiation of the Side Agreement | No evidence of mutual written revocation during both spouses’ lifetimes; Family Agreement not revoked during William’s life |
| Timeliness and standing for trustee-removal appeal | Removal decision was a final, appealable order; charities’ appellate challenge of trustee removal was untimely | Charities argue denial of removal was not final until resolution of all claims (no Civ.R. 54(B) language) | Order denying trustee removal was a final appealable order under R.C. 2505.02(B)(4); charities’ appeal of that order was untimely and dismissed |
Key Cases Cited
- Gries Sports Enterprises, Inc. v. Modell, 15 Ohio St.3d 284 (Ohio 1984) (contacts for choice-of-law analysis adopt Restatement §188 factors)
- Glidden Co. v. Lumbermens Mut. Cas. Co., 112 Ohio St.3d 470 (Ohio 2006) (choice-of-law analysis required only if an actual conflict exists)
- Emerald Pointe Prop. Owners' Ass'n v. Commercial Constr. Indus., Inc., 978 So.2d 873 (Fla. Dist. Ct. App. 2008) (contract interpretation governed by four corners where unambiguous)
- Donner v. Donner, 302 So.2d 452 (Fla. Dist. Ct. App. 1974) (discusses enforceability of out-of-state agreements to bequeath and res judicata effects)
- Boyle v. Schmitt, 602 So.2d 665 (Fla. Dist. Ct. App. 1992) (repudiation of agreement to devise requires clear communication; secret alteration does not release parties)
- In re Geanangle, 147 Ohio App.3d 131 (Ohio App. 2002) (removal of an executor is a final, appealable order under R.C. 2505.02(B)(4))