[Cite as Whitacre v. Crowe, 2012-Ohio-2981.]

STATE OF OHIO ) IN THE COURT OF APPEALS 

 )ss: NINTH JUDICIAL DISTRICT 

COUNTY OF MEDINA ) 

SHAWN WHITACRE, et al. 

 Appellees 

 v. 

MICHAEL A. CROWE, et al. 

 Appellants 

C.A. No. 11CA0019-M 

APPEAL FROM JUDGMENT 

ENTERED IN THE 

COURT OF COMMON PLEAS 

COUNTY OF MEDINA, OHIO 

CASE No. 2010 07 CA 00019 

DECISION AND JOURNAL ENTRY

Dated: June 29, 2012 

 

CARR, Judge. 

{¶1} Appellant, Victoria Hobson, appeals the judgment of the Medina County Court of 

Common Pleas, Probate Division. This Court affirms. 

I. 

{¶2} Kay Whitacre had five adult children at the time of her death. Her will was 

admitted to probate. Her daughter Victoria was named as the sole beneficiary, while her son 

Michael was named as executor. Kay’s three remaining children, Shawn, Angie, and Nick, were 

not mentioned in the will. Subsequently, Shawn, Angie, and Nick filed a complaint to contest 

the will. They later moved for summary judgment. Victoria and Michael responded in 

opposition. The trial court granted the plaintiffs’ motion for summary judgment, concluded that 

Kay’s will was not executed pursuant to the formalities required in R.C. 2107.03, and revoked an 

earlier order admitting the will to probate. Victoria appealed, raising three interrelated 

assignments of error for review. 
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II. 

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED IN FINDING THAT THE EXECUTION OF THE 

WILL DID NOT MEET THE FORMALITIES REQUIRED UNDER []R.C. 

2107.03. 

ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED IN GRANTING PLAINTIFF/APPELLEE’S 

MOTION FOR SUMMARY JUDGMENT FINDING THAT THE WITNESSES 

WERE NOT IN THE CONSCIOUS PRESENCE OF KAY WHITACRE, THE 

TESTATOR. 

ASSIGNMENT OF ERROR III

THE TRIAL COURT ERRED IN REVOKING ITS PRIOR ORDER 

ADMITTING THE PROPERLY EXECUTED WILL TO PROBATE. 

{¶3} Victoria challenges the trial court’s granting of summary judgment in favor of the 

plaintiffs which resulted in the court’s revocation of its prior order admitting Kay’s will to 

probate. Her arguments are not persuasive. 

{¶4} This Court reviews an award of summary judgment de novo. Grafton v. Ohio 

Edison Co., 77 Ohio St.3d 102, 105 (1996). This Court applies the same standard as the trial 

court, viewing the facts in the case in the light most favorable to the non-moving party and 

resolving any doubt in favor of the non-moving party. Viock v. Stowe-Woodward Co., 13 Ohio 

App.3d 7, 12 (6th Dist.1983). 

{¶5} Pursuant to Civ.R. 56(C), summary judgment is proper if: 

No genuine issue as to any material fact remains to be litigated; (2) the moving 

party is entitled to judgment as a matter of law; and (3) it appears from the 

evidence that reasonable minds can come to but one conclusion, and viewing such 

evidence most strongly in favor of the party against whom the motion for 

summary judgment is made, that conclusion is adverse to that party. 

Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977). 
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{¶6} To prevail on a motion for summary judgment, the party moving for summary 

judgment must be able to point to evidentiary materials that show that there is no genuine issue 

as to any material fact, and that the moving party is entitled to judgment as a matter of law. 

Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). Once a moving party satisfies its burden of 

supporting its motion for summary judgment with sufficient and acceptable evidence pursuant to 

Civ.R. 56(C), Civ.R. 56(E) provides that the non-moving party may not rest upon the mere 

allegations or denials of the moving party’s pleadings. Rather, the non-moving party has a 

reciprocal burden of responding by setting forth specific facts, demonstrating that a “genuine 

triable issue” exists to be litigated for trial. State ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d 

447, 449 (1996). 

{¶7} The non-moving party’s reciprocal burden does not arise until after the moving 

party has met its initial evidentiary burden. To do so, the moving party must set forth evidence 

of the limited types enumerated in Civ.R. 56(C), specifically, “the pleadings, depositions, 

answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written 

stipulations of fact[.]” Civ.R. 56(C) further provides that “[n]o evidence or stipulation may be 

considered except as stated in this rule.” 

{¶8} R.C. 2107.18 provides that “[t]he probate court shall admit a will to probate if * * 

* the execution of the will complies with the law in force at the time of the execution of the will 

in the jurisdiction in which it was executed, with the law in force in this state at the time of the 

death of the testator, or with the law in force in the jurisdiction in which the testator was 

domiciled at the time of the testator’s death.” 
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{¶9} Kay purported to execute her will in Ohio on May 14, 2010. The applicable 

version of R.C. 2107.03, in effect at both the time of the execution of the will and at the time of 

Kay’s death, states: 

Except oral wills, every last will and testament shall be in writing, but may be 

handwritten or typewritten. The will shall be signed at the end by the testator 

making it or by some other person in the testator’s conscious presence and at the 

testator’s express direction, and be attested and subscribed in the conscious 

presence of the testator, by two or more competent witnesses, who saw the 

testator subscribe, or heard the testator acknowledge the testator’s signature. 

For purposes of this section, “conscious presence” means within the range of any 

of the testator’s senses, excluding the sense of sight or sound that is sensed by 

telephonic, electronic, or other distant communication. 

{¶10} In their motion for summary judgment, the plaintiffs challenged the valid 

execution of Kay’s will on two grounds, specifically, (1) that Kay did not sign her will in the 

conscious presence of the witnesses because the witnesses viewed the signing from another room 

by way of a video monitor, and (2) that the witnesses did not attest and subscribe the will in the 

conscious presence of the testator. In its order granting summary judgment to the plaintiffs, the 

trial court found that the witnesses “technically” never saw Kay sign her will because they 

viewed the event on a monitor, and that the witnesses were not in the conscious presence of Kay 

when she signed her will. The trial court concluded that the execution of the will did not meet 

the formal requirements of R.C. 2107.03 and it, therefore, revoked its prior order admitting the 

will to probate. Although the trial court’s findings are inartfully crafted, this Court concludes 

that the trial court properly granted summary judgment in favor of Shawn, Angie, and Nick, and 

therefore properly revoked its prior order admitting Kay’s will to probate. 

{¶11} No party argues that the indecipherable scribble on the will does not constitute 

Kay’s signature, and we do not address that matter further. 
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{¶12} Victoria argues that the trial court erred because genuine issues of material fact 

existed regarding whether the two witnesses attested and subscribed the will in the conscious 

presence of the testator. Because that issue is dispositive of the appeal, we confine our analysis 

to that issue. 

{¶13} Subscription is “the physical act of affixing a signature for purposes of 

identification.” Jackson v. Estate of Henderson, 8th Dist. No. 93231, 2010-Ohio-3084, ¶ 18. 

Attestation, a separate and distinct act from subscription, “is the act by which the subscribing 

witnesses hear the testator acknowledge his signature or see him sign the document in their 

presence.” Id.; see also Timberlake v. Sayre, 4th Dist. No. 09CA3269, 2009-Ohio-6005, ¶ 26. 

{¶14} By the plain language of R.C. 2107.03, the witnesses attesting and subscribing the 

will must do so “within the range of any of the testator’s senses,” which expressly excludes 

sights and sounds relayed through electronic means. The evidence appended to both the motion 

for summary judgment and response in opposition clearly establishes that the monitor involved 

in this situation worked one way in that it only allowed the witnesses to see and hear Kay, while 

Kay could not see and hear the witnesses via any electronic means. To the extent, then, that any 

party has argued that the use of the audio/video monitor precluded the witnesses from being in 

Kay’s “conscious presence,” such an argument is a red herring.

{¶15} The issue of what satisfies the requirement of “conscious presence” is one of first 

impression in Ohio. Historically, however, other jurisdictions which required witnesses to attest 

and subscribe the will in the presence of the testator interpreted “presence” to mean “conscious 

presence.” See, e.g., In re Estate of Holden, 113 N.W.2d 87 (Minn.1962); In re Demaris’ Estate, 

110 P.2d 571, 581 (Or.1941); Calkins v. Calkins, 75 N.E. 182, 183-184 (Ill.1905); Watson v. 

Pipes, 32 Miss. 451 (1856); Nock v. Nock’s Exrs., 51 Va. 106 (1853); Nichols v. Rowan, 422 
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S.W.2d 21, 24 (Tex.Civ.App.1967). The test has been referred to as a “mental apprehension 

test” and is stated as follows: 

“When a testator is not prevented by physical infirmities from seeing and hearing 

what goes on around him, it is the general, if not universal, rule that his will is 

attested in his presence if he understands and is conscious of what the witnesses 

are doing when they write their names, and can, if he is so disposed, readily 

change his position so that he can see and hear what they do and say. * * * In 

other words, if he has knowledge of their presence, and can, if he is so disposed, 

readily see them write their names, the will is attested in his presence, even if he 

does not see them do it, and could not without some slight physical exertion. It is 

not necessary that he should actually see the witnesses, for them to be in his 

presence. They are in his presence whenever they are so near him that he is 

conscious of where they are and of what they are doing, through any of his senses, 

and are where he can readily see them if he is so disposed. The test, therefore, to 

determine whether the will of a person who has the use of all his faculties is 

attested in his presence, is to inquire whether he understood what the witnesses 

were doing when they affixed their names to his will, and could, if he had been so 

disposed, readily have seen them do it.” 

Demaris at 582, quoting Healey v. Bartlett, 59 A. 617, 618 (N.H.1904). 

{¶16} In In re Estate of Holden, 113 N.W.2d at 92-93, the Supreme Court of Minnesota 

concluded that witnesses signing the will while standing eight feet away in the doorway to the 

testator’s room were in the testator’s “range of vision” and, therefore, within his conscious 

presence. In Nock, 51 Va. at 126, the Supreme Court of Appeals of Virginia concluded that the 

witnesses who attested the will did so in the conscious presence of the testator even though they 

were in another room, 16-17 feet away, and the testator could not from his position see the 

witnesses’ forearms, writing hands, or the will itself without changing position. The court 

concluded that the conscious presence test was met, however, because the testator could have 

seen the witnesses attesting the will merely by changing his position. Id. 

{¶17} California has also construed the presence requirement by applying the 

“conscious presence” test. In re Tracy’s Estate, 182 P.2d 336, 337 (Cal.App.1947). The Tracy

court, citing a long history of cases from various states, set out the following elements to 
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establish conscious presence, where the testator cannot actually view the witnesses’ signing: “(1) 

the witnesses must sign within the testator’s hearing, (2) the testator must know what is being 

done, and (3) the signing by the witnesses and the testator must constitute one continuous 

transaction.” Id. In Tracy, the witnesses signed the will in another room 25 feet away and, 

although the testator could not see them, she could hear the witnesses’ conversation evidencing 

their contemporaneous signing. Given the timing of the witnesses’ signatures immediately after 

the testator’s and the testator’s ability to hear the witnesses and understand by their conversation 

that they were attesting her will, the court concluded that the will was properly executed. Id. 

{¶18} The Supreme Court of Mississippi explained the rationale behind the conscious 

presence test. In re Estate of Jefferson, 349 So.2d 1032 (Miss.1977). The Jefferson court wrote 

that “the purpose of signing by the attesting witnesses in the presence of the testator is that the 

testator will know that the witnesses are attesting the testator’s will and not another document; 

that the witnesses will know the same; these reasons being to avoid imposition or fraud on either 

the testator or the witnesses by substitution of another will in place of that signed by the testator; 

and that the witnesses will be reasonably satisfied that the testator is of sound and disposing 

mind and capable of making a will.” Id. at 1036. In that case, the high court concluded that a 

witness who telephoned the testator and informed him that he was then signing and attesting the 

testator’s will was not in the conscious presence of the testator. 

{¶19} More recently, the Supreme Court of New Hampshire relied on the conscious 

presence test as enunciated in Healey, supra, and concluded that the witnesses had not attested 

the will in the testator’s presence. In re Estate of Fischer, 886 A.2d 996 (N.H. 2005). In 

Fischer, the testatrix was bedridden with cancer. After signing her will in her bed in front of the 

witnesses, the witnesses signed the will on the porch. The court concluded that there was no 
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evidence in the record that the testatrix could have readily seen or heard what the witnesses were 

doing but for her infirmities or that they were so near the testatrix that she was conscious of their 

actions when they signed the will. Id. at 999. Moreover, the high court concluded that the 

witnesses’ signing in the presence of the testatrix’ attorney was not adequate to meet the 

statutory requirement. Id. at 1000. 

{¶20} Based on our review of the considerations long recognized throughout the 

country, we adopt a “conscious presence” test in line with historical precedent which requires 

that the subscribing and attesting witnesses be in the testator’s range of vision or that the testator 

hear and understand that the witnesses are subscribing and attesting the will at the time they are 

doing so. 

{¶21} Sara White and Joseph Reich were asked to witness the execution of Kay’s will. 

In this case, both Ms. White and Mr. Reich testified during their depositions that Kay, who was 

on another floor of the home when she signed her will, could not see them from either bedroom. 

In fact, Ms. White understood that Kay did not want the witnesses in the same room with her 

because she did not want any strangers to see her in her state of illness. Ms. White testified that 

she had no knowledge about whether Kay could hear the witnesses on the floor below her. Both 

witnesses testified that they signed the will within mere feet of one another but that Kay did not 

see the witnesses sign from upstairs. Mr. Reich further testified that no one asked him to 

communicate in any way with Kay that day regarding her understanding of the will. 

{¶22} Based on our review of the evidence submitted by Shawn, Angie, and Nick in 

support of their motion for summary judgment, this Court concludes that they met their initial 

burden of presenting evidence to demonstrate that there was no genuine issue of material fact 

and that they were entitled to judgment as a matter of law. The plaintiffs presented evidence that 
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the witnesses were not in Kay’s range of vision when they subscribed and attested the will and 

further that she could not hear what they were doing and, therefore, had no understanding that 

the witnesses were signing the will. 

{¶23} In support of her reciprocal burden, Victoria appended her affidavit in which she 

averred that “the voices of the witnesses and sounds they were making moving around in the 

living room were clearly audible and within the sound of my mother’s ears, being only several 

yards away and directly below her in the living room[.]” She further averred that Michael took 

the will from Kay downstairs to the witnesses and that “they had a discussion that could be heard 

in my mother’s upstairs bedroom while they were signing as witnesses[.]” Victoria also 

appended the affidavit of Ms. White who averred that “[d]ue to our close proximity, Kay 

Whitacre could hear me talking with her son and daughter, as well as the other witness, Joseph 

Reich, and I believe she could hear our movements about the living room, so she was fully aware 

of our presence[.]” 

{¶24} Based on our review of the evidence, we conclude that Victoria did not meet her 

reciprocal burden of responding by setting forth specific facts, demonstrating that a “genuine 

triable issue” exists to be litigated for trial. Tompkins, 75 Ohio St.3d 447 at 449. Although she 

presented evidence that Kay could hear conversations and movements in the downstairs living 

room, she presented no evidence regarding the substance of any of those conversations or that 

Kay was aware that the witnesses were subscribing and attesting her will at the time they were 

doing so. Accordingly, the trial court did not err when it found that the will was not executed in 

compliance with the requirements of R.C. 2107.03, and when it therefore revoked its prior order 

admitting the will to probate. Victoria’s assignments of error are overruled. 
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III. 

{¶25} Victoria’s assignments of error are overruled. The judgment of the Medina 

County Court of Common Pleas, Probate Division, is affirmed. 

Judgment affirmed. 

 There were reasonable grounds for this appeal. 

 We order that a special mandate issue out of this Court, directing the Court of Common 

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy 

of this journal entry shall constitute the mandate, pursuant to App.R. 27. 

 Immediately upon the filing hereof, this document shall constitute the journal entry of 

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the 

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is 

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the 

mailing in the docket, pursuant to App.R. 30. 

 Costs taxed to Appellants. 

 

 DONNA J. CARR 

 FOR THE COURT 

DICKINSON, J. 

CONCURS.
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BELFANCE, P. J. 

DISSENTING.

{¶26} I respectfully dissent from the judgment of the majority, as I would conclude there 

is a genuine dispute of material fact precluding summary judgment. 

{¶27} R.C. 2107.03 states in part that the will shall “be attested and subscribed in the 

conscious presence of the testator, by two or more competent witnesses, who saw the testator 

subscribe, or heard the testator acknowledge the testator’s signature.” The statute goes on to 

define the phrase conscious presence as “within the range of any of the testator’s senses, 

excluding the sense of sight or sound that is sensed by telephonic, electronic, or other distant 

communication.” R.C. 2107.03. Because that phrase has been defined by the legislature, I 

would rely first and primarily on that definition in determining whether there was a genuine 

dispute of material fact with respect to whether the will was attested and subscribed in Kay’s 

conscious presence. 

{¶28} Viewing the evidence in a light most favorable to Victoria, I would conclude that 

she met her reciprocal burden and demonstrated that a genuine dispute of material fact exists 

with respect to whether the will was attested and subscribed in Kay’s conscious presence. While 

I do not dispute that Victoria’s affidavit is somewhat ambiguous, this Court is required to resolve 

that ambiguity in favor of Victoria. See Garner v. Robart, 9th Dist. No. 25427, 2011-Ohio-1519, 

¶ 8. Victoria’s affidavit states, inter alia, that “the voices of the witnesses and sounds they were 

making moving around in the living room were clearly audible and within the sound of [her] 

mother’s ears * * *[,]” that the fan was turned off “so the sounds of the witnesses on the first 

floor were clearly heard by her,” and, that, at the time the witnesses were going to sign the will 

the discussion the witnesses were having “could be heard in [Kay’s] bedroom while [the 

witnesses] were signing * * *.” In addition, Victoria’s affidavit indicates that the doors to the 
12 

 

upstairs rooms where Kay was at were kept open and that Kay was “not more than 12-15 feet[]” 

from where the witnesses were located. Viewing this evidence in a light most favorable to 

Victoria, it could be said that the witnesses attested and subscribed to the will in the conscious 

presence of Kay, as the witnesses were within range of her hearing. See R.C. 2107.03. 

Accordingly, I would conclude that the movant was not entitled to summary judgment. 

APPEARANCES:

LAURA M. FAUST and RONALD B. LEE, Attorneys at Law, for Appellants. 

HAL BOWERS, Attorney at Law, for Appellants. 

CLIFFORD C. MASCH, LEON A. WEISS, and FRANKLIN C. MALEMUD, Attorneys at Law, 

for Appellees.