[Cite as Webb v. Anderson Children Trust, 2020-Ohio-4975.]

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

KIMBERLY A. WEBB, INDIVIDUALLY 

AND AS BENEFICIARY OF THE 

BETTY S. ANDERSON CHILDREN 

TRUST, 

 Plaintiff-Appellant, 

 vs. 

THE BETTY S. ANDERSON 

CHILDREN TRUST, 

 and 

MICHAEL R. WEBB, 

INDIVIDUALLY AND AS TRUSTEE, 

 Defendants-Appellees. 

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APPEAL NO. C-190600 

TRIAL NO. 2017-00246 

 

 O P I N I O N.

 

Appeal From: Hamilton County Court of Common Pleas, Probate Division 

 

Judgment Appealed From Is: Affirmed 

Date of Judgment Entry on Appeal: October 21, 2020 

Robbins, Kelly, Patterson & Tucker, LPA, Robert M. Ernst and Jarrod M. Mohler, 

for Plaintiff-Appellant, 

Haas & Haas Law, LLC, and Herbert J. Haas, for Defendants-Appellees. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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MYERS, Presiding Judge.

{¶1} Kimberly A. Webb (“Kimberly”) appeals from the trial court’s 

judgment in favor of her brother Michael R. Webb (“Michael”), individually and as 

trustee of the Betty S. Anderson Children Trust, on her complaint asserting various 

claims relating to their mother’s opening a new Individual Retirement Account 

(“IRA”) and her designation of Michael as the sole beneficiary of that IRA. 

{¶2} Because the trial court correctly determined that Kimberly failed to 

prove by clear and convincing evidence that their mother Betty S. Anderson lacked 

the mental capacity to enter into the IRA agreement and to designate a beneficiary 

on her IRA, we affirm its judgment. 

I. Background 

{¶3} Several months after Anderson’s death in May 2012, Michael filed an 

application in the probate court to relieve Anderson’s estate from administration, 

alleging that she died intestate. He subsequently filed an application to admit a lost 

will to probate, and the application was granted in August 2013. 

{¶4} Under the terms of Anderson’s will, her net estate was to be 

distributed in equal one-third shares to Michael, to the Betty S. Anderson Children 

Trust, and to the Betty S. Anderson Grandson Trust. Anderson executed the will, 

created the trusts, and appointed Michael her attorney-in-fact under a durable power 

of attorney on June 25, 2003. She designated Michael as the successor trustee of 

both trusts. 

{¶5} According to the terms of the Children Trust, the primary beneficiaries 

of the trust upon Anderson’s death were Kimberly and Michael. The trust stated that 

Anderson’s intention was to create a supplemental needs trust for Kimberly, who was 
OHIO FIRST DISTRICT COURT OF APPEALS 

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a recipient of government benefits, and that the trust property be used to 

supplement, not supplant, Kimberly’s government benefits. 

{¶6} Under the terms of the Grandson Trust, upon Anderson’s death, the 

entire trust estate was to be maintained for the benefit of Kyle M. Webb (“Kyle”), 

Anderson’s grandson. The trust would terminate and the balance of the trust estate 

would be distributed to Kyle upon his reaching the age of 25. 

{¶7} Anderson was the owner of a PaineWebber IRA. Initially, she 

designated Kimberly and Michael as 50 percent beneficiaries of the IRA. On June 4, 

2003, Anderson changed her beneficiary designation on the IRA so that Michael was 

the sole primary beneficiary. On June 26, 2003 (one day after she executed her will 

and created the trusts), Anderson again changed the IRA’s beneficiary designation. 

This time she designated Michael, the Children Trust, and the Grandson Trust as 

primary beneficiaries, each to receive 33 1/3 percent. 

{¶8} When Anderson’s financial advisor left UBS PaineWebber and joined 

the Stanford Financial Group, Anderson transferred her IRA to Stanford Financial 

Group. The beneficiary designation on the account remained unchanged. In early 

2009, Anderson learned that Stanford Financial Group was suffering financial 

difficulties. Michael suggested moving the account to UBS and using his friend 

Stephen Lee as her financial advisor. 

{¶9} Anderson contacted Lee by phone about transferring her IRA. She 

then met with Lee in person, by herself. Lee believes they may have met in person a 

second time. Anderson provided Lee the information necessary to make this 

transition, including filling out a form designating who she wanted as beneficiary. 

UBS personnel then printed forms for her to sign, which included the information 

she provided. 

{¶10} On February 25, 2009, Anderson executed several documents in 

relation to opening an account at UBS and transferring her IRA there. At Anderson’s 
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request, Michael assisted her with the execution of the forms at her home. Anderson 

signed a UBS power-of-attorney form designating Michael as power of attorney with 

respect to the UBS account. Kimberly signed the power-of-attorney form as a 

witness. Anderson also signed a UBS account-transfer form authorizing the transfer 

of her IRA from Stanford Financial Group to UBS. 

{¶11} In addition, Anderson signed a UBS signature page acknowledging 

that she had read, understood, and agreed to the terms and conditions of the UBS 

“Client Relationship Agreement” as well as the terms, conditions, and disclosures 

included in her “New Account Booklet.” The “Client Relationship Agreement” was a 

single-spaced seven-page document and the “New Account Booklet” incorporated 

more than 60 pages of account documents pertaining to account information, terms, 

conditions, and disclosures. The “Client Relationship Agreement” contained a 

transfer-on-death designation, so that upon Anderson’s death, the IRA would be 

transferred to Michael, the sole beneficiary. Michael delivered the executed 

documents to Lee. 

{¶12} Over a year later, and at Michael’s request, the probate court declared 

Anderson incompetent due to dementia and appointed Michael her guardian in June 

2010. 

{¶13} On July 20, 2012, two months after Anderson’s death, her UBS 

account, then valued at $433,379.87, was closed and the funds were transferred to 

Michael. 

Procedural History 

{¶14} In June 2017, Kimberly filed a complaint for a declaratory judgment, 

trust accounting, money damages and removal of Michael as trustee of the Children 

Trust. She alleged that Michael knew Anderson suffered from dementia at the time 

she opened the UBS IRA in February 2009 and that he allowed himself to be 
OHIO FIRST DISTRICT COURT OF APPEALS 

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designated as the account’s sole beneficiary in contravention of Anderson’s will and 

overall estate plan. Kimberly alleged that Michael converted her share of the UBS 

IRA, and that he breached his duty as financial power of attorney by designating 

himself as sole beneficiary. Kimberly also alleged that Michael breached his 

fiduciary duty when he acted in his own self-interest, failed to disclose his conflict of 

interest, exerted undue influence on Anderson and/or caused her to execute 

documents under a mistake of fact. She also alleged that Michael intentionally 

interfered with her expected inheritance from the account. 

{¶15} Kimberly sought a declaration that “the beneficiary designation of 

Michael as sole beneficiary of the February 25, 2009 UBS IRA account be struck as 

void, and the beneficiary designations as set forth in the earlier UBS IRA account is 

[sic] the correct, appropriate, and applicable designations and be applied to the 

assets contained in [Anderson’s] February 25, 2009 UBS IRA.” (The earlier UBS IRA 

that Kimberly referred to designated Michael, the Children Trust, and the Grandson 

trust as primary beneficiaries, each to receive 33 1/3 percent.) She sought an order 

that Michael provide an accounting of the IRA, that he be removed as trustee of the 

Children Trust, and that a constructive trust be imposed over the trust assets. 

{¶16} Stephen Lee testified by way of deposition that he met with Anderson 

alone in his office at least once before February 25, 2009. Anderson told Lee that she 

needed to transfer her funds out of the Stanford firm as soon as she could in light of 

its impending bankruptcy. She brought in copies of her Stanford account statements 

and discussed with Lee her concern that her assets would be safe. Lee testified that 

Anderson “was a lady that knew what she wanted to do” and that “her objective was 

to get her assets initially out of the place where she was where she felt that it was in 

danger and it was a risky situation for her to someplace where she could be 

comfortable that the assets were being held.” 
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{¶17} According to Lee, when he met with Anderson or talked with her on 

the phone, she was “sharp,” and “she had it together when I had conversations with 

her.” Lee testified that when he met with Anderson, she was “a confident lady” who 

was “strong in her will” and she “had together what she wanted to do.” According to 

Lee, Anderson was “a capable person.” 

{¶18} Lee testified that before February 25, 2009, neither Anderson nor 

Michael told him that she had been diagnosed with dementia in January 2009. 

According to Lee, if he had felt that Anderson was not aware of what she was doing, 

he would have referred the matter to his firm’s legal compliance department. 

{¶19} According to Lee, he did not discuss Anderson’s beneficiary 

designations with Michael and those decisions were made by Anderson alone. Lee 

testified: 

In fact, what would have happened is, is that she and I would have 

talked, she would have made a decision that she wanted to open an 

account with UBS, and I would have instructed a secretary, an 

assistant to prepare, you know, the documents, you know, for her and 

they would have been sent to her and she would have filled them out, 

and she would then sent them back. 

{¶20} Michael testified that he and Kimberly were present in Anderson’s 

apartment on February 25, 2009, when Anderson executed the UBS documents. He 

took the executed documents to Lee. He testified that, to his knowledge, Anderson 

was not suffering from dementia and had not been diagnosed with dementia when 

she signed the documents. Michael said that he had no discussions with Anderson or 

Lee about making himself the sole beneficiary of the UBS IRA. 

{¶21} Kimberly testified that she remembered being at Anderson’s 

apartment when Michael brought documents for Anderson to sign. She 

acknowledged that her signature appears on the UBS power-of-attorney form, but 
OHIO FIRST DISTRICT COURT OF APPEALS 

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stated that she had not read the document before she signed it. She said that her 

mother was not in the apartment at the time. According to Kimberly, at the time the 

documents were signed, her mother “absolutely” knew who Kimberly was. She also 

knew who Michael and her grandson Kyle were. 

{¶22} Kimberly testified that she remembered going to probate court with 

Anderson in 2010 when Michael applied to have Anderson declared incompetent. 

She acknowledged that in a prior 2016 deposition she had testified that she thought 

Michael was going to gain guardianship of Anderson and that, when asked whether 

Anderson had needed a guardian at that time, she had responded, “No,” and when 

asked, “Because she could take care of her own affairs?,” she had responded: 

Basically. She was taking care of her own affairs. Mike would step in 

periodically. I took her to the doctors. I took her to the bank. I made 

sure she had her meds. I made sure she ate. I took care of her. * * * 

She wrote her own checks. 

{¶23} Kimberly acknowledged that when asked in the prior deposition 

whether Anderson was taking care of her own financial affairs in 2010 at the time 

that Michael sought guardianship, she had responded, “Yes,” and had testified that 

she thought that Anderson did not need a guardian. 

{¶24} Barbara Brewer, Ph.D., testified that she first evaluated Anderson on 

April 2, 2009, because Michael was concerned that Anderson was experiencing a lot 

of confusion. Dr. Brewer testified that Anderson performed a Mini Mental Status 

Exam (“MMSE”), and scored 19 out of 30, which meant that she “was on the edge of 

the mild” range of cognitive impairment. 

{¶25} Dr. Brewer testified that she evaluated Anderson again about a year 

later on March 11, 2010, and that Anderson scored 17 out of 30 on an MMSE, which 

indicated “severe cognitive impairment.” Dr. Brewer used a scoring instrument for 

the MMSE that interpreted a score of 24-30 as “No cognitive impairment,” a score of 
OHIO FIRST DISTRICT COURT OF APPEALS 

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18-23 as “Mild cognitive impairment,” and a score of 0-17 as “Severe cognitive 

impairment.” 

{¶26} In conjunction with Michael’s 2010 guardianship application, Dr. 

Brewer completed a “Statement of Expert Evaluation,” which recommended that 

Michael’s application for guardianship be granted. In that statement, Dr. Brewer 

noted that Anderson was mentally impaired by reason of “Dementia, NOS,” and that 

her prognosis was “poor.” 

{¶27} Dr. Brewer testified that she prepared an opinion letter for Kimberly’s 

counsel dated March 23, 2018, in which she gave the following opinions: 

The answer to your first question: “On February 25, 2009, was Betty 

Anderson mentally impaired by reason of Dementia, NOS?” is YES. 

* * * 

Based on my 2009 (and later, 2010), evaluation of Betty Anderson, it 

is my opinion that she suffered significant impairments in cognitive 

comprehension and judgment that make it extremely unlikely that she 

was able to read or comprehend the Client Relationship Agreement 

she signed on February 25, 2009.1

{¶28} At the conclusion of the trial, the magistrate entered judgment in favor 

of Michael. The magistrate pointed out that a diagnosis of dementia is not enough to 

declare Anderson’s 2009 beneficiary designation invalid because there must be 

evidence that the dementia actually affected Anderson’s ability to make the 

designation. The magistrate concluded, therefore, that Dr. Brewer’s opinion that 

Anderson suffered from dementia at the time she made the beneficiary designation 

was not, in and of itself, determinative of whether the dementia actually affected 

Anderson’s ability to make the designation. The magistrate found no evidence that 

 

1 Dr. Brewer did not comment on Anderson’s ability to comprehend the power-of-attorney form 

or the account-transfer form. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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Michael manipulated Anderson into making the beneficiary designation. In 

addition, the magistrate found no evidence that Michael unduly influenced Anderson 

in making the beneficiary designation or that Michael acted out of self-interest when 

he assisted her with the transfer of her IRA to UBS. 

{¶29} Kimberly objected to the magistrate’s decision, specifically 

challenging the magistrate’s conclusion that Kimberly did not present sufficient 

evidence for the court to declare the 2009 beneficiary designation void. 

{¶30} The trial court overruled Kimberly’s objections and adopted the 

magistrate’s decision as the judgment of the court. The court determined that 

Kimberly failed to prove that Anderson lacked the mental capacity to execute the 

2009 beneficiary designation. Kimberly now appeals. 

{¶31} In a single assignment of error, Kimberly argues that the trial court 

erred in finding that she failed to present clear and convincing evidence of 

Anderson’s lack of mental capacity to contract. She argues that the court applied the 

wrong test for mental capacity to contract and that the court’s decision was against 

the manifest weight of the evidence. 

Mental Capacity 

{¶32} First, Kimberly asserts that the trial court erred by applying the test for 

testamentary capacity to its determination that Anderson possessed the mental 

capacity to contract to open the IRA with a transfer-on-death beneficiary 

designation. She argues that under the Ohio Uniform Transfer-on-Death Security 

Registration Act, the transfer on Anderson’s death was not testamentary so the test 

for testamentary capacity did not apply to a determination of her capacity to enter 

into the contract. Rather, she argues that the general test for capacity to enter into a 

contract governs.
OHIO FIRST DISTRICT COURT OF APPEALS 

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{¶33} The Ohio Uniform Transfer-on-Death Security Registration Act 

provides for “designation of a beneficiary to take ownership of the security at the 

time of the death of the owner.” R.C. 1709.04; Kropf v. Kropf, 6th Dist. Erie No. E09-068, 2010-Ohio-4207, ¶ 43. IRA proceeds transfer by virtue of the Act, which 

provides: 

Any transfer-on-death resulting from a registration in beneficiary form 

is effective by reason of the contract regarding the registration between 

the owner of the security and the registering entity by reason of 

sections 1709.01 to 1709.11 of the Revised Code and is not 

testamentary. 

R.C. 1709.09(A); LeBlanc v. Wells Fargo, 134 Ohio St.3d 250, 2012-Ohio-5458, 981 

N.E.2d 839, ¶ 31. The Act establishes that upon the death of the owner, ownership of 

the security shall pass to the designated beneficiary. R.C. 1709.07; LeBlanc at ¶ 31. 

“Accordingly, the Act removes such transfers on death from the decedent’s 

testamentary estate, and also from the purview of Ohio’s Statute of Wills, which 

outlines the formalities that apply to testamentary dispositions.” (Emphasis 

omitted.) Bielat v. Bielat, 87 Ohio St.3d 350, 351, 721 N.E.2d 28 (2000). 

{¶34} The test for mental capacity to enter a contract is whether the person 

understood the nature of the transaction and the effects of her or his own actions and 

is similar to the test used to determine testamentary capacity. Giurbino v. Giurbino, 

89 Ohio App.3d 646, 658, 626 N.E.2d 1017 (8th Dist.1993). Even though the 

transfer on death of IRA proceeds to a designated beneficiary is contractual and not 

testamentary, Ohio courts have held that “the test of testamentary capacity can also 

be used as a standard for mental capacity to execute a beneficiary designation.” 

Stanek v. Stanek, 2d Dist. Greene No. 2018-CA-39, 2019-Ohio-2841, ¶ 38, quoting In 

re Estate of Flowers, 2017-Ohio-1310, 88 N.E.3d 599, ¶ 84 (6th Dist.). Similarly, 

courts have applied the test for testamentary capacity to determine whether a 
OHIO FIRST DISTRICT COURT OF APPEALS 

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decedent possessed the mental capacity to create a contract for a payable-on-death 

bank account because such an account provides a vehicle for a person to make 

dispositions similar to those made under a will. Giurbino at 658; Davis v. Marshall, 

10th Dist. Franklin No. 94APE02-158, 1994 WL 425169, *3 (Aug. 4, 1994); see 

Schiavoni v. Roy, 9th Dist. Medina No. 11CA0108-M, 2012-Ohio-4435, ¶ 17 

(annuities). Accordingly, we find no error in the trial court’s application of the test 

for testamentary capacity in the case at bar. 

{¶35} The test for testamentary capacity is whether the person “has sufficient 

mind and memory: First, to understand the nature of the business in which he is 

engaged; Second, to comprehend generally the nature and extent of his property; 

Third, to hold in his mind the names and identity of those who have natural claims 

upon his bounty; [and] Fourth, to be able to appreciate his relation to the members 

of his family.” Flowers at ¶ 84, quoting Niemes v. Niemes, 97 Ohio St. 145, 119 N.E. 

503 (1917). 

{¶36} To prove a contract or beneficiary designation is voidable on the 

ground that a party lacked the mental capacity to enter into it, the complaining party 

must establish the lack of mental capacity by clear and convincing evidence. Flowers

at ¶ 84; Giurbino at 658. Evidence that a person had dementia is insufficient by 

itself to establish the person’s lack of testamentary capacity; there must be evidence 

that dementia actually affected the person’s capacity to make the testamentary 

disposition. Flowers at ¶ 86; Stewart v. Boland, 2015-Ohio-1712, 33 N.E.3d 551, ¶ 15 

(1st Dist.). 

{¶37} Kimberly argues that the court improperly limited its review of 

Anderson’s mental capacity to her designation of a beneficiary and not the sevenpage “Client Relationship Agreement” as a whole, which incorporated the 60-plus 

page “New Account Booklet.” Kimberly’s complaint, however, sought a declaration 

striking only the beneficiary designation, not the entire contract, as void. And her 
OHIO FIRST DISTRICT COURT OF APPEALS 

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objections to the magistrate’s decision were limited to the magistrate’s refusal to 

declare the beneficiary designation void. Although Kimberly now asserts that the 

trial court’s review should have taken into consideration the entire “Client 

Relationship Agreement,” she really only challenges the beneficiary designation. 

{¶38} Kimberly points to Dr. Brewer’s testimony that it was highly unlikely 

that Anderson was capable of reading and comprehending the entire agreement, 

filled with legal clauses and detailed technical information. However, as the trial 

court pointed out, Dr. Brewer’s testimony failed to address the elements of 

testamentary capacity and whether Anderson’s dementia actually affected her ability 

to make beneficiary designations. And neither the test for testamentary capacity nor 

the test for capacity to contract generally requires that a person understand each 

provision of a 60-page agreement. 

{¶39} Here, the trial court properly applied the test for testamentary capacity 

in determining whether Anderson lacked the mental capacity to designate a 

beneficiary on her IRA. The court determined that (1) Anderson contacted Lee to 

move her IRA because the institution holding her account was having financial 

difficulty; (2) Anderson met with Lee independently to open the account; (3) 

according to Lee, Anderson appeared sharp and confident and knew what she 

wanted to do; and (4) Anderson’s selection of Michael as beneficiary was not 

inconsistent with at least one of Anderson’s prior estate plans and it continued to 

fulfill Anderson’s objective of protecting Kimberly’s government benefits. The court 

concluded that the factors supported a finding of testamentary capacity. Therefore, 

even though there was evidence that Anderson may not have understood all of the 

terms of the transfer documents, there was ample evidence that she was capable of 

knowingly and competently executing the beneficiary designation. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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{¶40} Even applying the test for competency to contract generally, we reach 

the same result. It is clear that Anderson understood the nature of the transaction in 

opening the UBS IRA and the effects of her actions in doing so. 

Weight of the Evidence 

{¶41} Kimberly next argues that the trial court’s decision was against the 

weight of the evidence because Dr. Brewer’s expert opinion testimony outweighed 

the lay opinion testimony of Lee. When reviewing the manifest weight of the 

evidence in a civil case, “[w]e weigh the evidence and all reasonable inferences, 

consider the credibility of the witnesses, and determine whether in resolving 

conflicts in the evidence, the trial court clearly lost its way and created such a 

manifest miscarriage of justice that its judgment must be reversed and a new trial 

ordered.” United States Fire Ins. v. Am. Bonding Co., Inc., 1st Dist. Hamilton Nos. 

C-160307 and C-160317, 2016-Ohio-7968, ¶ 16, citing Eastley v. Volkman, 132 Ohio 

St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 20. 

{¶42} Here, the trial court’s decision makes clear that the court gave careful 

consideration to the testimony of both Dr. Brewer and Lee. As the court pointed out, 

while Dr. Brewer testified that she believed it was highly unlikely that Anderson was 

capable of comprehending the “Client Relationship Agreement,” an MMSE 

administered by Dr. Brewer five weeks after the agreement was signed indicated that 

Anderson scored in the range of having only mild cognitive impairment. The court 

also noted Dr. Brewer’s acknowledgement that a person with dementia may have 

periods of lucidity. In addition, the court noted that Dr. Brewer’s opinion relied in 

part on her second evaluation of Anderson, which was conducted more than a year 

after the signing. 

{¶43} The trial court noted Lee’s testimony that, in assisting Anderson with 

the opening of the UBS IRA, Anderson was sharp, confident, strong in her will, and 
OHIO FIRST DISTRICT COURT OF APPEALS 

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knew what she wanted to do. The court noted Lee’s testimony that Anderson relayed 

to him that she needed to move her IRA because the company that currently held the 

account was having financial difficulty. The court pointed to Lee’s testimony that if 

he had believed Anderson was not aware of what she was doing, he would have 

referred the matter to their legal compliance department. 

{¶44} We cannot say that the trial court clearly lost its way in evaluating the 

evidence. Therefore, we hold that the court reasonably concluded that Kimberly 

failed to prove by clear and convincing evidence that Anderson lacked the mental 

capacity to open the IRA and to make the beneficiary designation. See Flowers, 

2017-Ohio-1310, 88 N.E.3d 599, at ¶ 96 (where conflicting evidence was presented as 

to the decedent’s testamentary capacity and there was a difference of opinion as to 

the weight to be given lay and expert witness evidence, the probate court, as the trier 

of fact, did not lose its way in resolving those conflicts). 

{¶45} Consequently, we overrule the assignment of error and affirm the trial 

court’s judgment. 

Judgment affirmed. 

BERGERON and CROUSE, JJ., concur. 

Please note: 

 The court has recorded its own entry on the date of the release of this opinion.