Cline v. ClineCline v. Cline
- Reporters:
- ,
- Before:
- Waite, Donofrio, DeGenaro
{¶ 1} Appellant submits this pro se appeal to challenge the validity of his father‘s will almost five years after the will was admitted to probate in the Carroll County Court of Common Pleas, Probate Division. Appellant has submitted a number of hand-written documents on appeal, none of which present any recognizable assignments of error. Appellant appears to argue that he expected to inherit a certain amount of real estate from his father‘s estate, and he now claims thаt the will is a forgery because it does not bequeath the property to him. He also contends that he had no notice of the forgery until shortly before he filed his complaint. The probate court dismissed the complaint because it was filed lоng after the four-month statutory time limit for challenging a will pursuant to former
HISTORY OF THE CASE
{¶ 2} This case involves the will of Clair E. Cline, who died on May 10, 2000, and who was Appellant‘s father. On June 6, 1997, the decedent executed a one-page form will that left his entire estate to his wife, Ellen Cline, Appellant‘s stepmother. Ellen Cline was also named in the will as executrix of the estate. The will was admitted to probate on October 3, 2000.
{¶ 3} The probate record indicates that the decedent had two other surviving children in addition to Appellant; Robert Cline and Anthony Leek.
{¶ 4} At the time of the decedent‘s death, and during the entire lower court proceedings, Appellant was incarcerated at St. Mary‘s Correctional Center in St. Mary‘s, West Virginia.
{¶ 5} The probate records show that the decedent owned a number of motor vehicles, along with 12.351 acres of land in Carroll County, Ohio. The total value of the estate was considerably less than $100,000.
{¶ 6} On October 3, 2000, all three sons signed waivers of notice of probate of will, and these notices are part of the reсord. Appellant does not contend that these documents are forged or altered in any way.
{¶ 7} Also on October 3, 2000, Ellen Cline filed an application to relieve the estate from administration. Appellant and his brothers signed waivers of notice of application to relieve estate from administration, which are also in the record. The probate court relieved the estate from administration that same day. The final report of distribution was filed on May 2, 2002.
{¶ 8} On May 4, 2005, Appellant filеd a complaint with the probate court that challenged the validity of the will. Appellant requested that the May 2, 2002, journal entry be set aside, and he requested the court to award him the 12.351 acres of land that had been in his father‘s estate. Appеllant asserted that the decedent‘s signature on the will was forged.
{¶ 9} The action was dismissed on May 13, 2005, as being barred by
ASSIGNMENT OF ERROR
{¶ 10} There is no recognizable assignment of error in this appeal.
ARGUMENT
{¶ 11} Appellant contends that the signature on the will is forged, and that he cooperated with the probate proceedings because he believed that Appellee would give him the 12.351-acre property after it was transferred to her. Appellant submits that Appellee committed fraud in not transferring the prоperty to him, and that he only discovered the fraud a short time before he filed his complaint. Appellant apparently believes that he will receive some or all of the 12.351-acre property if his father‘s will is determined to be a forgery аnd if his father is determined to have died intestate.
{¶ 12} Appellee, on the other hand, contends that
{¶ 13} Appellant signed a “Waiver of Notice of Probate of Will“, which was filed on October 3, 2000. This waivers states:
{¶ 14} “The undersigned, being persons entitled to notice to the probate of this will, waive such notice[.] Any action to contest the validity of this will must be filed no more than four months after the certificate is filed evidencing these waivers and any notices given by the fiduciary.”
{¶ 15} Appellee and the trial court are correct that the waiver of notice signed by Appellant bars his complaint pursuant to the former version of
{¶ 16} “No person who has received or waived the right tо receive the notice of the admission of a will to probate required by section
{¶ 17} The current version of this statute is very similar, except that it allows only three months to contest the validity of a will.
{¶ 18} Appellant contends that the current version of
{¶ 19} With some difficulty, Appellant also tries to color his claim as a fraud claim in order to take advantage of a longer statute оf limitations. The statute of limitations for fraud is four years. See
{¶ 20} “Where the next of kin have no notice or knowledge of such fraud, and because of ignorance of the same fail to bring an action to contest such alleged will within the period of one year after they respectively arrive at majority, they may maintain a suit in equity within th[e] period of four years after discovery of the fraud.” Id. at paragraph two of the syllabus.
{¶ 21} The Seeds case is describing an early version of what is now known as the “discovery rule“: “The `discovery rule’ generally provides that a cause of action accrues for purposes of the governing statute of limitations at the time when the plaintiff discovers or, in the exercise of reasonable care, should have discovered the complained of injury.” Investors REIT One v. Jacobs (1989), 46 Ohio St.3d 176, 179, 546 N.E.2d 206.
{¶ 22} It must be noted that in Seeds, the plaintiffs ignorance of the fraud prevented him from challenging the will in probate within the statutory limitations period (which was one-year at the timе Seeds was decided). Thus, in the instant case, if Appellant‘s inability to discover that the will was forged prevented him from filing a will contest within four months after he signed his waiver, as set by former
{¶ 23} Appellant does not allege any type of fraud concerning the will thаt could not have been discovered on October 3, 2000, when the will was admitted to probate. Appellant chose not to examine the will (which was available to him if he had desired to see it), and chose to waive notice of the probate proceedings, because he claims that he entered into an agreement with Appellee to receive the 12.351 acre property outside of the probate proceedings. This was a choice that Appellant mаde, and the fact that he now regrets that choice does not change the
{¶ 24} By signing the waiver of notice on October 3, 2000, Appellant was clearly notified that there was a will and that he was not going to be receiving аny notice of the probate of the will. There was nothing preventing him from requesting a copy of the will. The will was on record with the probate court, and was not being concealed. Since Appellant knew there was a will, had the ability to view the will, and waived his right to notice of the probate proceedings, he cannot rely on lack of notice as a reason for waiting almost five years to challenge the validity of the will, whether in a will contest or in a separate civil aсtion.
{¶ 25} There is a second significant reason, a jurisdictional reason, for affirming the trial court‘s judgment. Appellant is attempting to have the probate court overturn its judgment concerning the validity of the will. There is caselaw which questions whether Apрellant could receive any relief at all in the probate court after the will had been admitted to probate and after the will remained unchallenged beyond the statutory period for initiating a will contest. In Petitt v. Morton, the Eighth District Court of Appeals held that there was no relief available in probate court, citing to Seeds v. Seeds:
{¶ 26} “In the case of Seeds v. Seeds, 116 Ohio St. 144, 157, 156 N.E. 193, 52 A. L. R. 761, it is intimated that proceedings in the probate court pertaining to wills, where judgments have been procured by fraud, are entitled to no greater sanctity or finality than other рroceedings in other courts. The question, however, was not squarely before the court, and we do not find the Seeds Case an authority, in view of other pronouncements of the Supreme Court that a probate court has no inherent power to vаcate an order made in the probating of a will, but rather that its jurisdiction is derived solely from constitutional and statutory provision. And, there being no [s]uch provision, the probate court has no power in this state in this instance to vacate its order of probate even if it had been conclusively proven that the second will was a forged instrument, and we are led to the belief that the plaintiff could obtain no relief whatever in the probate court, for he is without a remedy in that court.” Petitt v. Morton (1930), 38 Ohio App. 348, 352, 176 N.E. 494, affirmed 124 Ohio St. 241, 177 N.E. 591; see also Weissberg v. Kurtz (Oct. 8, 1982), 8th Dist. No. 44571.
{¶ 27} In summation, Appellant is statutorily barred from challenging the validity of the will, and has alleged no fraud on Appellee‘s part that prevented him from examining the will in a timely manner. Furthermore, the probate court has no authority to vacate its order even if the will was forged. Since Appellant has not filed any recognizable assignments of error, it is not entirely clear how he is challenging the trial court‘s judgment, but based on a reasonable review of the material that Appellant has filed on appeal, his arguments are without merit. The probate court
Donofrio, J., concurs.
DeGenaro, P.J., concurs.