[Cite as Wallace v. Davies, 2020-Ohio-93.]

STATE OF OHIO ) IN THE COURT OF APPEALS 

 )ss: NINTH JUDICIAL DISTRICT 

COUNTY OF SUMMIT ) 

DAWN WALLACE, et al. 

 Appellant 

 v. 

WILLIAM DAVIES 

 Appellee 

C.A. No. 29379 

APPEAL FROM JUDGMENT 

ENTERED IN THE 

COURT OF COMMON PLEAS 

COUNTY OF SUMMIT, OHIO 

CASE No. 2018-CV-93 

DECISION AND JOURNAL ENTRY 

Dated: January 15, 2020 

 

HENSAL, Judge. 

{¶1} Dawn Wallace appeals from the judgment of the Summit County Court of 

Common Pleas, Probate Division, granting summary judgment in favor of William Davies. This 

Court affirms. 

I. 

{¶2} This appeal stems from a will-contest action wherein Ms. Wallace and her four 

siblings contested a later-dated will of their mother, Bonnie Becker. By way of background, Ms. 

Becker was married to Mr. Davies until their divorce in 2015. On December 19, 2014, while 

they were married, Ms. Becker executed a will (“2014 Will”). In it, she devised all of her real 

and personal property to her five children equally, and appointed Ms. Wallace as the executor. 

The 2014 Will contained no provision for Mr. Davies. Then, on August 8, 2017, Ms. Becker 

executed a new will (“2017 Will”). In the 2017 Will, Ms. Becker devised 10% of her real and 

personal property to each of her five children, and devised the remaining 50% to a trust for the 
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benefit of her grandson, whom she had custody of. The 2017 Will appointed Mr. Davies as the 

trustee of that trust, and as the executor. Ms. Becker passed away weeks after she executed the 

2017 Will. 

{¶3} After she passed, Ms. Becker’s five children filed a will-contest action, alleging, 

in part, that Ms. Becker was unduly influenced by Mr. Davies at the time she executed the 2017 

Will, that she lacked the requisite testamentary capacity, and that the signature on the 2017 Will 

was not Ms. Becker’s signature, or that it was procured as a result of fraud committed by Mr. 

Davies. 

{¶4} Mr. Davies moved for summary judgment, arguing that there was no evidence of 

undue influence, that Ms. Becker had testamentary capacity, and that the signature on the 2017 

Will was valid. The probate court granted Mr. Davies’s motion. Ms. Wallace now appeals, 

raising one assignment of error for this Court’s review. 

II. 

ASSIGNMENT OF ERROR 

THE LOWER COURT ERRED IN GRANTING MOTION FOR SUMMARY 

JUDGMENT IN FAVOR O[F] THE DEFENDANT/APPELLEE. 

{¶5} In her assignment of error, Ms. Wallace argues that the probate court erred by 

granting summary judgment because a genuine issue of material fact remained as to whether Mr. 

Davies exerted undue influence over Ms. Becker. Ms. Wallace has not challenged the probate 

court’s determination regarding Ms. Becker’s testamentary capacity or the validity of her 

signature. This Court’s analysis, therefore, will focus solely on the issue of undue influence. 

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

Edison Co., 77 Ohio St.3d 102, 105 (1996). Pursuant to Civil Rule 56(C), summary judgment is 

proper if: 
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(1) 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). 

{¶7} The party moving for summary judgment bears the initial burden of 

demonstrating the absence of genuine issues of material facts concerning the essential elements 

of the non-moving party’s case. Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). Specifically, 

the moving party must support the motion by pointing to some evidence in the record of the type 

listed in Civil Rule 56(C). Id. at 292-293. If the moving party satisfies this burden, then the 

non-moving party has the reciprocal burden to demonstrate a genuine issue for trial remains. Id.

at 293. The non-moving party may not rest upon the mere allegations or denials in her 

pleadings, but must point to or submit evidence of the type specified in Civil Rule 56(C). Id.; 

Civ.R. 56(E). We now turn to the law regarding undue influence. 

{¶8} “The burden of proving undue influence is upon the contestants * * *.” 

(Alterations sic.) Young v. Conry, 9th Dist. Lorain No. 12CA010152, 2013-Ohio-1223, ¶ 18, 

quoting Krischbaum v. Dillon, 58 Ohio St.3d 58, 64 (1991). “The essential elements of undue 

influence are: (1) a susceptible testator, (2) another’s opportunity to exert influence on the 

testator, (3) the fact of improper influence exerted or attempted, and (4) a result showing the 

effect of such influence.” Daubel v. Dineen, 9th Dist. Lorain No. 11CA009994, 2012-Ohio5924, ¶ 34. “In the context of summary judgment, the failure to meet one’s burden as to any one 

of the essential elements can be dispositive.” Kryder v. Kryder, 9th Dist. Summit No. 25665, 

2012-Ohio-2280, ¶ 30. 
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{¶9} “To invalidate a will, undue influence ‘must so overpower and subjugate the mind 

of the testator as to destroy his free agency and make him express the will of another rather than 

his own, and the mere presence of influence is not sufficient.’” Hutchison v. Kaforey, 9th Dist. 

Summit No. 27761, 2016-Ohio-3541, ¶ 39, quoting West v. Henry, 173 Ohio St. 498, 501 (1962). 

“In addition, the ‘[u]ndue influence must be present or operative at the time of the execution of 

the will resulting in dispositions which the testator would not otherwise have made.’” Id. 

{¶10} In his motion for summary judgment, Mr. Davies cited the deposition testimony 

of Ms. Becker’s estate-planning attorney, Cynthia Mason. Attorney Mason testified that Ms. 

Becker retained her to create a new will because Ms. Becker wanted her grandson to inherit 50% 

of her estate. Attorney Mason testified that she met with Ms. Becker twice, and that Mr. Davies 

was briefly present for the first meeting only. At the first meeting, Mr. Davies introduced 

himself, indicated that he was fine with whatever Ms. Becker wanted to do, and left. Ms. Becker 

then expressed her wishes to Attorney Mason in the presence of one of her daughters (not Ms. 

Wallace) and her grandson, who also attended the meeting. Attorney Mason testified that Ms. 

Becker’s intentions were clear, and that she knew exactly what she was doing. Attorney Mason 

also testified that Ms. Becker told her that she and Mr. Davies were considering getting 

remarried. 

{¶11} After the first meeting, Attorney Mason drafted a will for Ms. Becker’s review, 

and Ms. Becker came back to her office – along with her grandson and daughter – to sign the 

will. Attorney Mason and her secretary served as witnesses. Attorney Mason testified that Ms. 

Becker was competent to sign her will at that time. 

{¶12} Mr. Davies relied upon Attorney Mason’s testimony to support his position that 

there was no evidence of undue influence. In response to Mr. Davies’s motion, Ms. Wallace 
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relied on a motion filed in Ms. Becker and Mr. Davies’s divorce case. That motion, filed in 

January 2015 – two and one-half years before the execution of the 2017 Will – indicated that: 

[Ms. Becker] is a cancer patient who is not able to get up without intense pain and 

needs assistance in maintaining herself. She has relatives staying with her to 

assist her. Since [Mr. Davies] has been served with the Complaint, he has taken 

the keys to all the vehicles so if an emergency arises, [Ms. Becker] has no 

transportation. He refuses to assist [Ms. Becker] in any way, and arrives home 

from work inebriated. He is threatening to refuse to allow the relatives to remain 

in the home to help [Ms. Becker]. 

Ms. Wallace also asserted that Ms. Becker was on high levels of Morphine and pain medications 

at the time she executed the 2017 Will, but did not point to anything in the record to support that 

assertion. Ms. Wallace further asserted that, after Ms. Becker’s death, Mr. Davies cashed a 

settlement check that Ms. Becker’s children were entitled to, and impermissibly transferred Ms. 

Becker’s home into his name. 

{¶13} In granting summary judgment in favor of Mr. Davies, the probate court 

determined that there was no evidence that Ms. Becker was a susceptible party and, therefore, 

that no genuine issue of material fact remained as to whether she was unduly influenced. For the 

reasons that follow, this Court agrees. 

{¶14} As previously noted, Mr. Davies’s motion for summary judgment pointed to 

Attorney Mason’s deposition testimony to support his position that there was no genuine issue of 

material fact regarding the issue of undue influence. This shifted the burden to Ms. Becker’s 

children to demonstrate that a genuine issue of material fact did, in fact, exist. Dresher, 75 Ohio 

St.3d 280, at 293. In doing so, Ms. Becker’s children were not permitted to “rest upon the mere 

allegations or denials in her pleadings,” but instead were required to “point to or submit evidence 

of the type specified in Civil Rule 56(C).” Lehmier v. W. Res. Chem. Corp., 9th Dist. Summit 

No. 29297, 2019-Ohio-4245, ¶ 15, citing Dresher at 293. The only evidence Ms. Wallace relied 
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upon was a motion from Ms. Becker and Mr. Davies’s divorce case more than two years prior. 

While the motion referenced Ms. Becker’s health issues and her relationship with Mr. Davies at 

the time of their divorce, it did not support a conclusion that, at the time she executed the 2017 

Will over two years later, she was susceptible to undue influence. Hutchison, 2016-Ohio-3541, 

at ¶ 39, quoting West, 173 Ohio St. 498, at 501 (requiring undue influence to be “present or 

operative at the time of the execution of the will[.]”). Nor did Ms. Wallace’s unsupported 

assertion that Ms. Becker was on high levels of pain medications at the time she executed the 

2017 Will. See Webster v. Davis, 9th Dist. Wayne No. 10CA0021, 2011-Ohio-1536, ¶ 20 

(noting that the non-moving party is “not permitted to rest upon mere allegations[,]” and is 

instead required to “point to or submit some evidentiary material that demonstrate[s] a genuine 

dispute over a material fact[.]”). Further, Ms. Wallace’s reliance upon events that occurred after 

Ms. Becker’s death (i.e., Mr. Davies cashing a settlement check and transferring Ms. Becker’s 

home into his name), did not create a genuine issue of material fact as to whether Mr. Davies 

exerted undue influence over Ms. Becker at the time she executed the 2017 Will. See Young, 

2013-Ohio-1223, at ¶ 32 (noting that events that occur after the testator’s death “are not relevant 

to support a claim of undue influence[.]”). Lastly, to the extent that Ms. Wallace argues on 

appeal that a presumption of undue influence arose in this case in light of Mr. Davies’s 

confidential and/or fiduciary relationship with Ms. Becker, Ms. Wallace did not raise that 

argument in her response to Mr. Davies’s motion for summary judgment and, accordingly, 

cannot do so for the first time on appeal. JPMorgan Chase Bank, Natl. Assn. v. Burden, 9th Dist. 

Summit No. 27104, 2014-Ohio-2746, ¶ 12 (“Arguments that were not raised in the trial court 

cannot be raised for the first time on appeal.”). 
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{¶15} Having reviewed the record, we cannot say that the probate court erred by 

determining that Ms. Wallace failed to meet her reciprocal burden of demonstrating that a 

genuine issue of material fact remained as to whether Ms. Becker was a susceptible party. It, 

therefore, follows that Ms. Wallace failed to establish that a genuine issue of material fact 

remained regarding the issue of undue influence. See Kryder, 2012-Ohio-2280, at ¶ 30 (“In the 

context of summary judgment, the failure to meet one’s burden as to any one of the essential 

elements [of undue influence] can be dispositive.”). Accordingly, we hold that the probate court 

did not err by granting summary judgment in favor of Mr. Davies. Ms. Wallace’s assignment of 

error is overruled. 

III. 

{¶16} Ms. Wallace’s assignment of error is overruled. The judgment of the Summit 

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 Summit, 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 
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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 Appellant. 

 

 JENNIFER HENSAL 

 FOR THE COURT 

TEODOSIO, P. J. 

CALLAHAN, J. 

CONCUR. 

APPEARANCES: 

CHARLES TYLER, SR., Attorney at Law, for Appellant. 

NICHOLAS SCHNECKENBURGER, Attorney at Law, for Appellee.