Lance v. Boldman, 2018 Ohio 44

Background

Decedent Raymond "Uncle Bill" Lance lived alone, was placed in a nursing home, revoked an earlier POA and executed a durable general power of attorney naming Peggy Boldman and another as attorneys-in-fact, and executed a new will the same day.
Boldman (a niece) managed Uncle Bill’s finances, paid nursing-home invoices using insurance, benefits, and other funds, closed his checking account before his death, and removed a guitar and mandolin from his home and later gave them to her daughters, who are his great-nieces.
Eight family members (Complainants) filed a R.C. 2109.50 concealment/embezzlement complaint against Boldman alleging she concealed/embezzled estate assets (instruments, checking-account balance, insurance proceeds, nursing-home refunds, and a car-insurance payment).
Probate court dismissed some complainants for failure to prosecute, dismissed claim against co-agent after inventory was filed, and found Boldman not guilty of concealment/embezzlement as to all contested assets.
On appeal, the Ninth District addressed two assignments of error: (1) manifest-weight challenge to the probate court’s not-guilty findings; and (2) whether testimony recounting the decedent’s statements (donative intent) admitted under Evid.R. 804(B)(5) was inadmissible hearsay.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of deceased’s out-of-court statements under Evid.R. 804(B)(5)	Heirs: testimony by Boldman and daughters as to Uncle Bill’s repeated expressed intent to give the instruments was inadmissible hearsay and not within 804(B)(5).	Boldman: 804(B)(5) allowed admission; she was acting to carry out decedent’s intent and treated as representative; testimony was also elicited on cross or compelled examination.	Court: Overturned — testimony was inadmissible hearsay; Boldman was an adverse party (not estate representative) and 804(B)(5) did not apply; classification as cross-examination was incorrect.
Validity of gifts (guitar and mandolin) made by attorney-in-fact without express POA power to gift	Heirs: No valid inter vivos gift; POA lacked express authority to make gifts to third parties; gifts presumed invalid and must be proven by clear and convincing evidence.	Boldman: Decedent repeatedly expressed intent over 20 years; she acted to carry out his wishes; instruments were delivered to donees.	Court: Reversed probate court as to instruments — Boldman failed to prove by clear and convincing evidence donative intent (reliance was on inadmissible hearsay).
Alleged conversion of cash (closed checking-account balance, insurance proceeds, nursing-home refunds)	Heirs: Boldman deposited funds into her account and failed to account; thus concealed/embezzled funds.	Boldman: Funds were used to pay nursing-home invoices, credit-card debts, and for decedent’s spending; invoices paid and some overpayments refunded.	Court: Affirmed probate court as to monetary items — Heirs failed to prove concealment/embezzlement by a preponderance; finding not against manifest weight.
Car insurance payment/other apparent concealment issues raised only at hearing but not argued below	Heirs: (on appeal) Boldman paid car insurance on vehicle used by daughter; evidence of concealment.	Boldman: Issue not raised in written closing; therefore waived.	Court: Waived — appellate court declined to consider arguments not raised in trial court filings.

Key Cases Cited

State v. Ahmed, 103 Ohio St.3d 27 (2004) (abuse-of-discretion standard for evidentiary rulings)
In re Estate of Fife, 164 Ohio St. 449 (1956) (describes R.C. 2109.50 concealment proceeding as an inquisitional discovery process and court-controlled examination)
Goldberg v. Maloney, 111 Ohio St.3d 211 (2006) (R.C. 2109.50 may reach assets transferred inter vivos when validity of the transfer is challenged)
West v. Henry, 173 Ohio St. 498 (1962) (elements of undue influence)
Stone v. Davis, 66 Ohio St.2d 74 (1981) (definition of fiduciary relationship and court’s role in guarding against abuse of trust)