Mike Moloney and Scott Davies discuss aspects of Probate Litigation, including creditor claims, will contests, disputes over inventory and disputes over guardianship of minors, as well as suggestions regarding how to reduce Probate Litigation through planning, use of trusts and mediation.

1. PROBATE LITIGATION
Presented by: Michael P. Moloney, Esq.
Scott S. Davies, Esq.
Sebaly Shillito + Dyer
A Legal Professional Association

2. Two Main Categories Dispute
• Before a person’s death
• After their death

3. Risks
FIRST CLAIM
1. Plaintiff, Jane Doe is a black person and a resident of Greene
County, Ohio. She was married to John Doe, a white man, from
on or about February 14, 1994 until his death on or about January
14, 2005.
2. Defendant Michael P. Moloney is a white person and an attorney
at law, duly licensed an authorized to practice in the State of Ohio
and is a resident of and/or does business in Greene County, Ohio.
FOURTH CLAIM
1. The actions of defendants constitute conspiracy to deprive plaintiff
of her inheritance/trust distribution and her property based upon
her race, black.

4. Risks

5. Disputes Before Death
• In general, prior to death disputes relate to
– Influencing the person
– Use of Powers of Attorney
– Appointment of Guardians

6. Influence
• What is undo influence?
• What is unfair but not undo influence?

7. Misuse of Power of Attorney
• People using power before they are distributed
• People use a power properly given for improper
purposes
• Dueling Powers of Attorney
• Power of Attorney when a Guardian is appointed

8. Guardianships
• When is a Guardian needed?
• What is the standard for needing a Guardian?
– Is ward competent?
– Evidence of less restrictive means?
– Is applicant suitable?

9. Guardianships
• Procedural Issues
– Rules of evidence do not apply
– Statement of expert evaluation
– Physician patient privilege
– Standard of review
– Final Appealable order

10. Guardianships
• Removal of Guardian (also applies to executors
and administrators)
– Not doing the job
• Failure to file inventory
• Failure to account
• Failure to bring claims
– Concealment of assets
– Personal use of assets
– Failure to invest

11. Guardianships
• Ward loses right to contract on application for
guardianship
– O.R.C. §2111.04(D) “From the service of notice until the hearing,
no sale, gift, conveyance, or encumbrance of the property of an
alleged incompetent shall be valid as to persons having notice of
the proceeding.”
• Competency compared to capacity
• Nursing home bill of rights
– O.R.C. §3721.13
• Ohio Civil Rule 35 provides for compelling a person to
submit to a psychological evaluation. See In re
Guardianship of Johnson, (1987) 35 O. App. 3d 41, 519
N.E. 2d 655

12. Disputes After Death
• Probate disputes
– Creditor claims
• Can you defeat creditor period by allowing claims period to
expire before opening estate?
• Rights of creditors in Ohio against non-probate property
– Will contests – O.R.C. § 2107.67
• 3 months after filing certificate of service of notice of probate
of will
• As to person under disability – 4 months after removal from
disability
– Disputes over inventory
– Disputes over guardianship of minors

13. Non-Probate Disputes
• Dower - O.R.C. §2103.02
– What is it?
– How does it attach?
– How do you enforce it?
– O.R.C. §2103.05 – Adultery is a bar to dower
• Trusts
– Claims against the trustee
– Right of trust beneficiary to complain about action of the trustee
• If vested and contingent beneficiaries
• Vested v. contingent beneficiaries
• Use of Irrevocable Trusts
– Avoid creditors
– Disinherit a spouse

14. Disputes Over Non-Probate Assets
• Bank account designations
• Beneficiary designations

15. Right to Bury
• R.C. 2108.70 – Allows a person to direct the right of
disposition of their bodily remains.
• R.C. 2108.79 – if more than one person is designated,
majority rules. If no majority then the Probate Court
decides.

16. Procedural Stuff
• Evidence
– Guardianship proceedings are non-adversarial and
because of this, the rules of evidence do not apply.
See In re Guardianship & Conservation of Stancin,
2003-Ohio-1106
– Evidence Rule 804(B)(5) – Defensive, not offensive
– How do you prove lack of capacity or lack there of?

17. Procedural Stuff
• Medical privilege
– Whose is it?
– Who can waive it?
– When do you have to waive it?
• Statute limitation
• Proper parties

18. Reducing Probate Litigation
• Through planning
• Use of trusts
• Mediation

19. Attorney Issues
• Conflicts
• Ohio Rules of Professional Conduct 1.14 –
Client with diminished capacity
• Ohio Rules of Professional Conduct 3.7 –
Lawyer as witness