[Cite as Wisner v. Wisner, 2016-Ohio-5095.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

HANCOCK COUNTY 

 

WILLIAM E. WISNER, 

 PLAINTIFF-APPELLANT, CASE NO. 5-15-31 

 v. 

JOHN WISNER, EXECUTOR OF 

THE ESTATE OF BONNIE L. FISHER, 

ET AL., O P I N I O N 

 DEFENDANTS-APPELLEES. 

 

Appeal from Hancock County Common Pleas Court 

Probate Division 

Trial Court No. 201141190A 

Judgment Affirmed 

Date of Decision: July 25, 2016 

 

APPEARANCES: 

 

Michael J. Malone for Appellant 

 Thomas P. Kemp for Appellee 
Case No. 5-15-31 

-2- 

ROGERS, J. 

{¶1} Plaintiff-Appellant, William E. Wisner (“Appellant”), appeals the 

judgment of the Court of Common Pleas of Hancock County, Probate Division, 

granting summary judgment in favor of Defendants-Appellees, John Wisner, as 

the Executor of Bonnie L. Fisher’s estate (“the Executor”), Sharon Horvath, and 

David Wisner (collectively “Appellees”). On appeal, Appellant argues that the 

trial court erred in finding that (1) the doctrine of equitable estoppel does not apply 

in a will contest action under R.C. 2107.76 and (2) he lacked standing to request 

an accounting from the Executor, Fisher’s attorney-in-fact. For the reasons that 

follow, we affirm the judgment of the trial court. 

{¶2} On February 12, 2015, Appellant filed a verified complaint in the 

Court of Common Pleas of Hancock County, Probate Division, against Appellees, 

Kim Fisher Towne, and Ohio University’s College of Fine Arts (“the College”) 

contesting the validity of Fisher’s June 2012 Last Will and Testament (“the 2012 

will”) and requesting an accounting from the Executor, Fisher’s attorney-in-fact.1

 

The complaint alleged: 

FACTS COMMON TO ALL COUNTS 

* * * 

 

1

 Appellant voluntarily dismissed Towne as a party to the action on April 29, 2015. 
Case No. 5-15-31 

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3. On or about June 28, 2012, [Fisher] allegedly executed [the 

2012 will]. [The 2012 will] has been previously filed herein by [the 

Executor] * * *. 

* * * 

5. [The 2012 will] acted so as to disinherit [Appellant] as a 

beneficiary of such Will. 

6. [The 2012 will] acted so as to disinherit [the College] as a 

beneficiary of such Will. 

* * * 

8. On August 1, 2014, Michael J. Malone, Esq., as counsel for 

[Appellant] met with John Koehler, Esq., as counsel for [the 

Executor]. The scheduled meeting was held at the Findlay Inn to 

discuss the issue of the competency of [Fisher] at the time of the 

execution of [the 2012 will] and the impending statute of limitations. 

9. The discussion specifically relating to the fact that the usual 

time constraints of a will contest (limitation of action) would not 

permit [Appellant] to investigate the case with due diligence. 

Thereafter, [Appellant’s] counsel requested that the statutory period 

for a will contest be extended by agreement, and that HIPAA 

releases be provided by [the Executor] to permit [Appellant] precomplaint discovery on the will contest case. 

10. Counsel for [Appellant] and [c]ounsel for [the Appellees] 

agreed that the statute would be extended, and that after due 

diligence by [Appellant], suit could be filed outside the statutory 

limitation of action.2

11. Evidencing the agreement, counsel for the Executor * * * had 

the Executor execute HIPAA releases in favor of [Appellant]. * * * 

 

2

 Although the verified complaint states that “[c]ounsel for Plaintiff and [c]ounsel for Defendant agreed that 

the statute would be extended * * * ”, there is no evidence in the record that John Koehler represented 

anyone other than the Executor. (Docket No. 1, p. 3). 
Case No. 5-15-31 

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12. On information and belief, the records obtained show 

substantial issues relating to the competency of [Fisher] and the 

independence of [Fisher] as of June 28, 2012. 

13. [Appellant] now files this Complaint because no further 

discovery or evidence can be obtained without full legal process. 

14. [Appellant’s] counsel states in this verified complaint the 

following: 

A. That [Appellees] consented to extension of the time frame 

in which to file complaint; 

B. That [Appellees] took action consistent with that agreement 

extending the statute of limitations; 

C. That [Appellant] has acted in reliance thereon and acted in 

good faith; 

D. That without the extension of the statute of limitations, 

Appellant would be damaged to his detriment. 

COUNT ONE 

Will Contest 

* * * 

16. [Appellant] and [the College] are interested in [the 2012 will] 

to the extent that they were/are disinherited as beneficiaries 

thereunder, and was [sic] previously named as beneficiaries of 

[Fisher’s estate] in a previously executed Last Will and Testament, 

dated August 11, 2003 [(“the 2003 will”)]; 

* * * 

COUNT TWO 

Action for Accounting 

* * * 

22. Upon information and belief, [the Executor] operated, as 

Attorney in Fact for [Fisher] for several years before her death. 
Case No. 5-15-31 

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[Appellant] demands that [the Executor] be held to account for the 

uses of the funds of [Fisher] during that time. 

23. No accounting has ever been offered or presented by [the 

Executor] to any of the interested parties. 

24. Plaintiff demands an accounting here, particularly since the 

review of the medical/psychiatric records of [Fisher] repeatedly 

reference her being in a “[c]atatonic” state. 

(Docket No. 1, p. 1-7). Attached to the verified complaint was a copy of the 2012 

will. 

{¶3} On March 17, 2015, Appellees filed a motion for a more definite 

statement arguing that Appellant failed to attach a copy of the durable power of 

attorney purportedly naming the Executor as Fisher’s attorney-in-fact. The trial 

court granted Appellee’s motion, and on March 31, 2015, Appellant filed an 

amended verified complaint, adding the following allegations: 

FACTS COMMON TO ALL COUNTS 

3. On August 11, 2003, [Fisher] executed a general business 

Power of Attorney from herself to [the Executor] as her Attorney in 

Fact * * *.3

4. On August 11, 2003, [Fisher] executed [the 2003 will] which 

made various and sundry bequests which included the bequeath to 

[the Executor] and [Appellant], in equal shares, all of the securities 

in her Price Waterhous [sic] Securities. * * * 

* * * 

 

3

 Paragraphs three and four of the amended verified complaint originally stated that the 2003 will and the 

power of attorney were executed on August 11, 2013. Appellant was later granted leave to correct this 

error. 
Case No. 5-15-31 

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COUNT TWO 

Action for Accounting 

25. On or about September 9, 2003, [the Executor] filed his Power 

of Attorney from [Fisher] * * * in the office of the Recorder of Knox 

County, Ohio in Book 824, Page 646 to 652. 

26. On or about September 9, 2003, the Power of Attorney for 

[Fisher] was used by [the Executor] to effect the transfer and sale of 

real property of [Fisher] located in Knox County, Ohio. * * * 

27. Upon information and belief, the proceeds of the sale of the 

Knox County, Ohio real estate was received by [the Executor] under 

[Fisher’s] Power of Attorney; 

28. The Price Waterhouse Securities are not listed as an asset in the 

probate inventory or account of the estate of [Fisher]. * * * 

Therefore, upon information and belief, these funds must have been 

either exhausted or used by [the Executor] or transferred elsewhere. 

(Docket No. 13, p. 2-3). Attached to the amended verified complaint was a copy 

of (1) Fisher’s durable power of attorney naming the Executor as her attorney-infact; (2) the 2003 will; (3) the 2012 will; (4) a general warranty deed, executed by 

the Executor, transferring title of Fisher’s Knox County real estate; (4) Fisher’s 

estate’s “Inventory and Appraisal”; and (5) the “Fiduciary’s Account.” 

{¶4} On April 16, 2015, Appellees filed their answer and a motion for 

summary judgment. In their motion for summary judgment, Appellees argued that 

(1) Appellant’s will contest action was barred by the statute of limitations because 

it was not commenced within three months of the filing of his “Waiver of Notice 

of Probate of the Will”; (2) Appellant’s will contest action was barred by the 
Case No. 5-15-31 

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doctrine of res judicata; (3) the Executor did not have the authority to waive the 

statute of limitations; (4) the statute of limitations should not be tolled by the 

doctrine of equitable estoppel; (5) Appellant lacked standing to request an 

accounting because he was neither a party to the power of attorney nor a 

beneficiary under the 2012 will; and (6) Appellant’s request for an accounting was 

barred by the ten-year statute of limitations. Attached to their motion was a copy 

of (1) the “Application to Probate Will” and “Entry Admitting Will to Probate”; 

(2) Appellant’s “Waiver of Notice of Probate of Will” filed on June 13, 2014; (3) 

the “Certificate of Service of Notice of Probate of Will”; (4) the “Fiduciary’s 

Account”; (5) the “Entry Approving and Settling Account”; and (6) relevant case 

law. 

{¶5} On May 15, 2015, Appellant filed a memorandum in opposition 

arguing that (1) the trial court did not need to consider whether the statute of 

limitations could be waived because the doctrine of equitable estoppel may be 

used to prohibit the inequitable use of a statute of limitations defense; (2) his will 

contest action was not barred by res judicata because not filing a will contest 

action within the statute of limitations was not equivalent to a final valid decision 

on the merits; (3) the doctrine of equitable estoppel may be used to prohibit the 

inequitable use of a statute of limitations defense; (4) he did not lack standing to 

request an accounting because the request was “inextricably linked” to the will 
Case No. 5-15-31 

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contest action; and (5) his request for an accounting was not barred by the statute 

of limitations because it was not limited to the Executor’s sale of the Knox County 

property. (Docket No. 23, p. 13). 

{¶6} On May 22, 2015, Appellees filed their reply arguing that (1) a will 

contest action filed outside the statute of limitations is barred; and (2) Appellant 

lacked standing to request an accounting from Fisher’s attorney-in-fact unless and 

until he could invalidate the 2012 will and reinstate the 2003 will. 

{¶7} On November 23, 2015, the trial court granted Appellees’ motion for 

summary judgment finding that Appellant’s will contest action was filed outside 

the statute of limitations and neither the Executor nor his counsel had the authority 

to waive that the statute of limitations. In doing so, it stated 

[Appellant] contends that the argument of equitable estoppel will 

prevail and permit his filing to proceed nonetheless. [Appellant] 

states that his attorney and the [E]xecutor’s attorney met in June 

2014 and agreed to waive the statute of limitations. For purposes of 

this motion for summary judgment, the [c]ourt need not consider 

whether that argument is true. It should, in fact, take the statement 

as true and consider all other facts in the light most favorable to the 

[Appellant] as he is the nonmoving party. So for purposes of this 

motion, the [c]ourt hereby considers that such a meeting did in fact 

happen and the two agreed to waive the statute of limitations. The 

question remains: so what? If the attorney for an executor lacks the 

power to make such a waiver, the argument fails. Therefore, the 

[c]ourt will next consider the question: does the attorney for an 

executor possess the power to waive the statute of limitations. 

* * * 
Case No. 5-15-31 

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Based upon the authorities cited and the undisputed facts in this 

case, * * * [t]he [c]ourt * * * finds that neither an executor nor his 

counsel can waive the statutory limitations outlined in the Ohio 

Revised Code. 

(Docket No. 32, p. 4). It further found that Appellant lacked standing to request 

an accounting because he was not a beneficiary of any of the funds held by Fisher 

and spent by the Executor, Fisher’s attorney-in-fact. 

{¶8} It is from this judgment that Appellant appeals, presenting the 

following assignments of error for our review. 

Assignment of Error No. I 

THE PROBATE COURT ERRED IN GRANTING SUMMARY 

JUDGMENT TO APPELLEES IN THIS WILL CONTEST 

ACTION. 

Assignment of Error No. II 

THE PROBATE COURT ERRED IN GRANTING SUMMARY 

JUDGMENT TO APPELLEES IN THIS ACTION FOR 

ACCOUNTING. 

Assignment of Error No. I

{¶9} In his first assignment of error, Appellant argues that the trial court 

erred in granting Appellees summary judgment on his will contest action. 

Specifically, Appellant argues that the trial court erred in finding that (1) the 

doctrine of equitable estoppel does not apply as a matter of law in a will contest 

action; and (2) because neither the Executor nor his counsel had the authority to 
Case No. 5-15-31 

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waive the statute of limitations, his equitable estoppel argument fails.4

 We 

disagree. 

{¶10} An appellate court reviews a summary judgment order de 

novo. Hillyer v. State Farm Mut. Auto. Ins. Co., 131 Ohio App.3d 172, 175 (8th 

Dist.1999). However, a reviewing court will not reverse an otherwise correct 

judgment merely because the lower court utilized different or erroneous reasons as 

the basis for its determination. Diamond Wine & Spirits, Inc. v. Dayton 

Heidelberg Distrib. Co., Inc., 148 Ohio App.3d 596, 2002-Ohio-3932, ¶ 25 (3d 

Dist.), citing State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn., 69 Ohio 

St.3d 217, 222 (1994). Summary judgment is appropriate when, looking at the 

evidence as a whole: (1) there is no genuine issue as to any material fact, and (2) 

the moving party is entitled to judgment as a matter of law. Civ.R. 56(C). In 

conducting this analysis the court must determine “that reasonable minds can 

come to but one conclusion and that conclusion is adverse to the party against 

whom the motion for summary judgment is made, [the nonmoving] party being 

entitled to have the evidence or stipulation construed most strongly in the 

[nonmoving] party’s favor.” Id. If any doubts exist, the issue must be resolved in 

 

4

 The trial court did not find that equitable estoppel does not apply, as a matter of law, in a will contest 

action. Rather, it found that Appellant’s will contest action was barred by the statute of limitations because 

neither the Executor nor his counsel had the ability to waive the statute of limitations. It explained, “If the 

attorney for an executor lacks the power to make such a waiver, the [equitable estoppel] argument fails.” 

(Docket No. 32, p. 4). This suggests that the trial court would have considered Appellant’s equitable 

estoppel claim had it found that the Executor or his counsel had the ability to waive the statute of 

limitations. 
Case No. 5-15-31 

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favor of the nonmoving party. Murphy v. City of Reynoldsburg, 65 Ohio St.3d 

356, 358-359 (1992). 

{¶11} The party moving for summary judgment has the initial burden of 

producing some evidence which demonstrates the lack of a genuine issue of 

material fact. Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). In doing so, the 

moving party is not required to produce any affirmative evidence, but must 

identify those portions of the record which affirmatively support his argument. Id. 

at 292. The nonmoving party must then rebut with specific facts showing the 

existence of a genuine triable issue; he may not rest on the mere allegations or 

denials of his pleadings. Id.; Civ.R. 56(E). 

{¶12} “A person interested in a will * * * admitted to probate in the 

probate court that has not been declared valid by judgment of a probate court * * * 

may contest its validity by filing a complaint in the probate court in the county in 

which the will * * * was admitted to probate.” R.C. 2107.71(A). “No person who 

has * * * waived the right to receive notice of the admission of a will to probate * 

* * may commence [a will contest action] more than three months after the filing 

of the [waiver of notice] * * *.” R.C. 2107.76. The only exception to this filing 

requirement concerns persons under legal disability. Id. 

{¶13} Equitable estoppel—a defensive doctrine preventing one party from 

taking unfair advantage of another—requires proof of the following elements: (1) 
Case No. 5-15-31 

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the defendant made a factual misrepresentation; (2) that is misleading; (3) that 

induces actual reliance that is reasonable and in good faith; and (4) that causes 

detriment to the relying party.” Heskett v. Paulig, 131 Ohio App.3d 221, 226-27, 

(3rd Dist.1999), quoting Walworth v. BP Oil Co., 112 Ohio App.3d 340, 345 (8th 

Dist.1996). This doctrine has been used to challenge a statute of limitations 

defense. See, e.g., Helman v. EPL Prolong, Inc., 139 Ohio App.3d 231 (7th 

Dist.2000) (action for fraud); Hutchinson v. Wenzke, 131 Ohio App.3d 613 (2nd 

Dist. 1999) (medical malpractice action); Schrader v. Gillette, 48 Ohio App.3d 

181 (11th Dist.1988) (medical malpractice action). 

{¶14} This Court is unaware of any Ohio court that has addressed the issue 

in this case: whether equitable estoppel applies in a will contest action under R.C. 

2107.76.5

 This Court has addressed, however, a related issue: whether equitable 

principles apply in an action between a creditor and a decedent’s estate under R.C. 

2117.06. 

{¶15} R.C. 2117.06 provides that “[a]ll creditors having claims against an 

estate, including claims arising out of contract, out of tort, on cognovit notes, or on 

judgments, whether due or not due, secured or unsecured, liquidated or 

unliquidated” shall present their claims to the executor or the administrator within 

 

5

 Although the trial court found that Appellant’s equitable estoppel argument failed because neither the 

Executor nor his counsel had the ability to waive the statute of limitations, we need not consider this issue 

because whether the statute of limitations is waivable does not affect Appellant’s ability to assert an 

equitable estoppel claim to prevent the inequitable use of a statute of limitations defense. 
Case No. 5-15-31 

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six months after the decedent’s death. The only exceptions to this filing 

requirement concern contingent claims and certain State claims. See R.C. 

2117.06(C), 2117.37-2117.42. 

{¶16} In Dilbert v. Watson, 3rd. Dist. Logan No. 8-09-02, 2009-Ohio-2098 

and Harshbarger v. Moody, 3rd Dist. Logan No. 8-09-13, 2010-Ohio-103, this 

Court found that a creditor could not bring an untimely claim against an estate 

unless one of the above-mentioned exceptions were met; we expressly rejected 

the appellants’ argument that the discovery rule—an equitable principle providing 

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—could challenge a statute of limitations 

defense. In doing so, we noted that the statute of limitations could not be ignored 

on the basis of “general equitable principles.” Dilbert at ¶ 15, citing The Ohio 

Savings Assn. v. Friedman, 8th Dist. Cuyahoga No. 40001, 1980 WL 354413, *3 

(Jan. 4, 1980). 

{¶17} Appellant argues that our findings in Dilbert and Harshbarger

should not apply in this case because those findings relate to the discovery rule, 

which focuses on the plaintiff’s conduct, as opposed to equitable estoppel, which 

focuses on the defendant’s conduct. However, we declined to ignore R.C. 

2117.06’s statute of limitations on the basis of “general equitable principles” 
Case No. 5-15-31 

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which necessarily encompasses equitable estoppel, and if we declined to apply 

“general equitable principles” in an action against a decedent’s estate under R.C. 

2117.06 because it was outside the purview of the statute, then it logically follows 

that we would decline to apply “general equitable principles” in an action against a 

decedent’s estate under R.C. 2107.76 because it is outside the purview of the 

statute. 

{¶18} Moreover, equitable estoppel perpetuates the delay in finalizing a 

decedent’s estate. This fact becomes significant when considering the General 

Assembly’s intent behind R.C. 2107.71: “to accelerate the settlement of estates.” 

Fletcher v. First Natl. Bank of Zanesville, 167 Ohio St. 211, 215 (1958). This 

intent was recently underscored through an amendment to R.C. 2305.19, Ohio’s 

“savings statute.” Under former R.C. 2305.19, in any action that was commenced 

or attempted to be commenced, if in due time a judgment for the plaintiff was 

reversed or if the plaintiff failed otherwise than upon the merits, the plaintiff, or 

the plaintiff’s representative, could commence a new action within one year or 

within the period of the original statute of limitations, whichever occurred later. 

However, effective March 2012, this statute no longer applies to an action under 

R.C. 2107.76. R.C. 2305.19. The practical result: under the Revised Code, no 

will contest action can be commenced beyond the statute of limitations, except in 

the case of a legal disability. 
Case No. 5-15-31 

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{¶19} Based on our findings in Dilbert and Harshbarger, and the General 

Assembly’s intent behind R.C. 2107.71, we find that equitable estoppel does not 

apply in an action under R.C. 2107.71. Therefore, we cannot say that the trial 

court erred in granting summary judgment in favor of Appellees on Appellant’s 

will contest action, as the action was filed beyond the statute of limitations and 

does not fit within the exception under R.C. 2107.76 

{¶20} Accordingly, we overrule Appellant’s first assignment of error. 

Assignment of Error No. II 

{¶21} In his second assignment of error, Appellant argues that the trial 

court erred in determining that he lacked standing to request an accounting 

because he was not a beneficiary of any funds held by the decedent and spent by 

the Executor, Fisher’s attorney-in-fact. We disagree. 

{¶22} “Traditional standing principles require litigants to show, at a 

minimum, that they have suffered ‘(1) an injury that is (2) fairly traceable to the 

defendant's allegedly unlawful conduct, and (3) likely to be redressed by the 

requested relief.’ ” ProgressOhio.org, Inc. v. JobsOhio, 139 Ohio St.3d 520, 2014-

Ohio-2382, ¶ 7, citing Moore v. Middletown, 133 Ohio St.3d 55, 2012-Ohio-3897, 

¶ 22. Standing is determined at the commencement of a suit. Fed. Home Loan 

Mortg. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, ¶ 24. 
Case No. 5-15-31 

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{¶23} R.C. 1337.36(A) provides that any of the following persons may 

petition a court to construe a power of attorney or review an agent’s conduct and 

grant appropriate relief: 

* * * 

(6) A person named as a beneficiary to receive any property, 

benefit, or contractual right on the principal’s death or as a 

beneficiary of a trust created by or for the principal that has a 

financial interest in the principal’s estate; 

* * *

An agent is a “person granted authority to act for a principal under a power of 

attorney, whether denominated an agent, attorney in fact, or otherwise.” R.C. 

1337.22(A). 

{¶24} While these statutes took effect in March 2012, as part of the 

adoption of the Uniform Power of Attorney Act, R.C. 1337.36(A) applies to (1) 

“[a] power of attorney created before, on, or after the effective date of this section” 

and (2) “[a] judicial proceeding concerning a power of attorney commenced on or 

after the effective date of this section.” R.C. 1337.64. 

{¶25} Appellant concedes that he was not a named beneficiary under the 

2012 will. He argues, however, that because he is contesting the validity of the 

2012 and seeking reinstatement of the 2003 will, he has standing to request an 

accounting from the Executor, Fisher’s attorney-in-fact. But, under the statute’s 

plain language, only those persons named as a beneficiary on the principal’s death 
Case No. 5-15-31 

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may petition the court to review an agent’s conduct; former beneficiaries are 

outside the purview of the statute. Moreover, as explained above, there is no 

scenario under which the 2003 will can be declared Fisher’s Last Will and 

Testament, and therefore, there is no scenario under which Appellant can become 

a beneficiary within the meaning of the statute. 

{¶26} Therefore, we cannot say that the trial court erred in granting 

summary judgment in favor of Appellees on Appellant’s action for an accounting, 

as Appellant lacked standing to petition the court to review the conduct of the 

Executor, Fisher’s attorney-in-fact. 

{¶27} Accordingly, we overrule Appellant’s second assignment of error. 

{¶28} Having found no error prejudicial to the appellant, in the particulars 

assigned and argued, we affirm the judgment of the trial court. 

Judgment Affirmed 

SHAW, P.J. and WILLAMOWSKI, J., concur. 

/jlr