[Cite as Powell v. Williams, 2022-Ohio-526.]

 COURT OF APPEALS OF OHIO 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

SOPHIA POWELL, ET AL., : 

 Plaintiffs-Appellants, : 

 No. 110536 

 v. : 

 

ERIC BRANDON WILLIAMS, ET AL., : 

 

 Defendants-Appellees. : 

 

JOURNAL ENTRY AND OPINION 

 JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: February 24, 2022 

 

Civil Appeal from the Cuyahoga County Court of Common Pleas 

Probate Division 

Case No. 2020 ADV 251913 

 

Appearances: 

Joseph Lewandowski, for appellants.

KATHLEEN ANN KEOUGH, J.: 

Plaintiffs-appellants, Sophia Powell and Tiffany Powell 

(“appellants”), appeal the probate court’s denial of their motion for genetic testing 

and dismissal of their will-contest complaint. For the reasons that follow, we affirm. 
Larry Williams (“decedent”) died, testate, on August 14, 2019. The 

decedent’s Last Will and Testament, dated May 29, 2018 (hereinafter “will”), 

specified that he had four children — defendant-appellee, Eric Brandon Williams 

(“Williams”), who is an adult, and three minor-aged children. The will appointed 

Williams to serve as executor and identified him as the sole primary beneficiary of 

the decedent’s estate. The will further designated the decedent’s minor children and 

Williams’s children, if any, as contingent beneficiaries. 

On September 26, 2019, Williams applied to the probate court to 

probate the decedent’s will and to administer his estate. As part of that application, 

Williams identified appellants as the decedent’s “alleged daughters.” The probate 

court subsequently appointed Williams as executor and issued him letters of 

authority to administer the estate. 

On May 21, 2020, appellants filed an action contesting the decedent’s 

will, contending that they were the decedent’s daughters and alleging that the 

decedent lacked testamentary capacity to execute the will or was under undue 

influence and duress by Williams in executing the will. As such, appellants 

requested that the probate court set aside the will, declare that the decedent died 

intestate, and award them a share of the decedent’s estate. Appellants further 

requested that if Williams contested that appellants were, in fact, the decedent’s 

natural-born children, that the court order genetic testing of Williams or that the 

decedent’s remains be exhumed for genetic testing. Williams filed an answer, 

denying the allegations, including that appellants are the decedent’s daughters. 
After several pretrials and discovery, appellants filed a motion for 

genetic testing to determine whether they are, in fact, the decedent’s natural-born 

children. The motion requested that the court order DNA genetic testing on 

Williams and sought permission to request the voluntary consent of their mother 

and the decedent’s brother to submit to DNA genetic testing. Appellants asserted 

that as their “first step” in contesting the decedent’s will, they must establish that 

they are the biological children of the decedent. They claimed that in addition to an 

affidavit from their mother, birthday cards from the decedent, “beneficiary 

designations,” and their inclusion in the decedent’s obituary, the genetic testing 

would conclusively prove that they are the decedent’s children. Appellants generally 

asserted that “illegitimate children” are entitled to inherit under the laws of intestate 

succession and any deprivation of that right violates the Equal Protection Clause. 

Appellants appeared to argue that the trial court’s failure to order genetic testing 

would violate their constitutional right to equal protection under the law. 

Williams did not file any opposition to appellants’ motion, and the 

probate court did not conduct a hearing. 

On April 29, 2021, the probate court denied appellants’ motion for 

genetic testing, concluding that it lacked jurisdiction over any parentage action 

pursuant to R.C. 3111.381 because the statute of limitations in determining the 

existence or nonexistence of a parent-child relationship had expired. Consequently, 

the court determined that because the appellants are not “interested persons” as 
required under R.C. 2107.71(A), they lacked standing to contest the decedent’s will. 

Accordingly, the court dismissed appellants’ complaint. 

Appellants now appeal, raising the following sole assignment of error: 

Ohio’s statutory scheme denying an illegitimate child who is now an 

adult, (over 23), the right to inherit by intestate succession from the 

child’s natural father unless the natural father has married the mother, 

the illegitimate child has been acknowledged in a court proceeding by 

the natural father[,] or the illegitimate child has been adopted by the 

natural father constitutes a violation of the [Fourteenth] Amendment’s 

guarantee to the “Equal Protection of the Laws.” 

I. Appeal1

Appellants raise a constitutional argument challenging Ohio’s 

statutory scheme regarding adult illegitimate children (i.e., natural-born children), 

and their ability to initiate proceedings to recognize a parent-child relationship after 

the alleged father’s death for the purpose of inheriting under the laws of intestate 

succession. 

It is well established that a party cannot raise a constitutional issue 

for the first time on appeal. See State v. Awan, 22 Ohio St.3d 120, 489 N.E.2d 277 

(1986), syllabus (“Failure to raise at the trial court level the issue of the 

constitutionality of a statute or its application, which issue is apparent at the time of 

trial, constitutes a waiver and therefore need not be heard for the first time on 

appeal.”) Moreover, even if appellants had properly raised and argued the 

1 The appellants’ brief contains facts that are not included in the appellate record. 

This court will only review those facts that can be found in the appellate record. Although 

the trial court conducted multiple pretrials, appellants have not provided any transcript 

of those proceedings to this court. 
constitutional issue with the probate court, this case can be decided without 

reaching the constitutional issue. Reviewing courts should avoid reaching 

constitutional issues “when ‘other issues are apparent in the record which will 

dispose of the case on its merits.’” In re D.S., 152 Ohio St.3d 109, 2017-Ohio-8289, 

93 N.E.3d 937, ¶ 7, quoting Greenhills Home Owners Corp. v. Greenhills, 5 Ohio 

St.2d 207, 212, 215 N.E.2d 403 (1966); State v. Talty, 103 Ohio St.3d 177, 2004-

Ohio-4888, 814 N.E.2d 1201, ¶ 9. 

Although appellants generally argued in the probate court that 

denying a natural-born child her right to inherit under intestate succession violates 

the constitutional right of equal protection under the law, they failed to set forth 

specific challenges to Ohio’s Parentage scheme, including its statute of limitations 

to bring such an action, and how Ohio’s statutory scheme deprives appellants equal 

protection under the law. Accordingly, because appellants did not raise the equal 

protection issues in the probate court that they now raise on appeal, those 

arguments are waived for purposes of appeal. 

Nevertheless, the Ohio Supreme Court has previously determined 

that Ohio’s statutory scheme, which only allows natural-born children to inherit 

from their natural fathers under certain circumstances, is constitutional and does 

not violate natural born children’s rights to equal protection of the law as guaranteed 

by the Fourteenth Amendment or Article I, Section 2, of the Ohio Constitution. 

White v. Randolph, 59 Ohio St.2d 6, 11, 391 N.E.2d 333 (1979); Brookbank v. Gray, 

74 Ohio St.3d 279, 287, 658 N.E.2d 724 (1996) (differentiating the equal protection 
analysis regarding illegitimate rights in wrongful death actions and those in 

inheritance cases — “Even if the Parentage Act were interpreted to preclude 

illegitimate children from claiming inheritance rights from and through their 

natural fathers absent an adjudication of paternity inter vivos, it is clear that the 

Ohio intestate succession scheme would nevertheless be constitutional.”); Rushford 

v. Caines, 10th Dist. Franklin No. 00AP-1072, 2001 Ohio App. LEXIS 1512, 9-10 

(Mar. 30, 2001). 

II. Probate Court’s Jurisdiction 

Appellants focus their appeal on the constitutional challenges to 

Ohio’s statutory scheme regarding illegitimate children, but do not make any 

specific argument challenging the probate court’s denial of their motion for genetic 

testing or dismissal of their will contest complaint. Nevertheless, we find no error. 

Although appellants brought this matter as a will-contest action, it 

morphed into a parentage action when appellants requested that the probate court 

order Williams and other nonparty individuals to submit to genetic testing. The 

probate court, in its well-written opinion, properly dismissed the complaint, finding 

that it lacked jurisdiction to proceed. 

It is well-settled that proceedings in probate court are restricted to 

those actions permitted by statute and by the Constitution because the probate court 

is a court of limited jurisdiction. Corron v. Corron, 40 Ohio St.3d 75, 531 N.E.2d 

708 (1988), paragraph one of the syllabus, citing Schucker v. Metcalf, 22 Ohio St.3d 
33, 488 N.E.2d 210 (1986). Pursuant to R.C. 2101.24(A)(1)(p), the probate court is 

vested with exclusive jurisdiction involving will-contest actions. 

Additionally, the probate court retains jurisdiction to determine the 

existence of a parent-child relationship in certain circumstances.2 When the alleged 

father is deceased, the probate court retains jurisdiction of a parentage action under 

R.C. 3111.381(E). That statute provides that 

[i]f the alleged father of the child is deceased and proceedings for the 

probate of the estate of the alleged father have been or can be 

commenced, the court with the jurisdiction over the probate 

proceedings shall retain jurisdiction to determine the existence or 

nonexistence of a parent and child relationship between the alleged 

father and any child. 

In this case, the alleged father has a pending estate action subject to 

the jurisdiction of the probate court. Accordingly, under R.C. Chapter 3111, the 

probate court could also retain jurisdiction to determine the existence or 

nonexistence of a parent and child relationship between the decedent and 

appellants, if properly commenced. 

A. Will Contest Action 

Only a person with standing can bring an action or continue to 

prosecute an action. State ex rel. Dallman v. Franklin Cty. Court of Common Pleas, 

35 Ohio St.2d 176, 178, 298 N.E.2d 515 (1973). Under to R.C. 2107.71(A), a party 

challenging the will of a decedent must be a “person interested” in the will. A 

2Under R.C. 2105.25, a probate court also has authority to review and determine 

actions by a man alleging himself to the father of an adult child (a person over the age of 

23). This statute does not apply in this case because the alleged father is deceased. 
“person interested,” as defined by the statute, is one who has a “‘direct, immediate 

and legally ascertained pecuniary interest in the devolution of the testator’s estate 

as would be impaired or defeated by the probate of the will, or be benefitted by 

setting aside the will.’” York v. Nunley, 80 Ohio App.3d 697, 610 N.E.2d 576 (8th 

Dist.1992), quoting Bloor v. Platt, 78 Ohio St. 46, 49-50, 84 N.E. 604 (1908); see 

also In re Estate of Scanlon, 8th Dist. Cuyahoga No. 95264, 2011-Ohio-1097, ¶ 12. 

In this case, appellants cannot claim to be “person[s] interested” 

under the decedent’s will because they are not named as beneficiaries. Accordingly, 

to have standing to bring a will-contest action as a “person interested,” appellants 

would have to establish that they could inherit under the laws of intestate succession 

if the decedent’s will was declared invalid.3 To do this, the appellants must establish 

the existence of a parent-child relationship. 

B. Parentage Action 

Prior to 1982, an illegitimate child could inherit from her natural 

father only through certain means. The father had to: (1) marry the mother and 

acknowledge the child as his; (2) formally acknowledge in probate court that the 

child was his with the consent of the mother; (3) designate the child as an heir-atlaw; (4) adopt the child; or (5) make a provision for the child in his will. See White 

3 Pursuant to R.C. 2105.06, when a person dies intestate, his property is distributed 

according to laws of intestate succession. Relevant to this case, under R.C. 2105.06(A), a 

decedent’s property would pass “if there is no surviving spouse, to the children of the 

intestate or their lineal descendants, per stirpes.” 
v. Randolph, 59 Ohio St.2d 6, 11, 391 N.E.2d 333; Garrison v. Smith, 55 Ohio App.3d 

14, 15, 561 N.E.2d 1041 (6th Dist.1988). 

Currently, however, a child born out of wedlock can also inherit from 

her natural father by alternate means under the Ohio Parentage Act, promulgated 

under R.C. Chapter 3111. This chapter provides procedures for the judicial 

establishment of the parent-child relationship. 

Relative to this appeal, an action to determine the existence or 

nonexistence of the father and child relationship may be brought by the child under 

R.C. 3111.04(A)(1).4 However, pursuant to R.C. 3111.05, such action must be 

brought within five years after the child reaches the age of majority. The statute 

provides: 

An action to determine the existence or nonexistence of the father and 

child relationship may not be brought later than five years after the 

child reaches the age of eighteen. Neither section 3111.04 of the 

Revised Code nor this section extends the time within which a right of 

inheritance or a right to a succession may be asserted beyond the time 

provided by Chapter 2105., 2107., 2113., 2117., or 2123. of the Revised 

Code. 

R.C. 3111.05.5 

4 R.C. 3111.03 also sets forth presumptions of paternity wherein a man is presumed 

to be the natural father of a child under certain circumstances. Appellants do not contend 

that any of these presumptions apply. 

5 Based on the plain language of the statute, it is apparent that the General 

Assembly contemplated the laws of inheritance when drafting and implementing this 

limitation period. Accordingly, any change is the law must be done by the General 

Assembly; this court cannot legislate from the bench. 
In this case, no assertion has been made that either of the appellants 

are 23 years old or younger. Accordingly, even if appellants properly brought a 

parentage action through the will-contest proceeding, their parentage action is timebarred under the applicable statute of limitations. As such, no determination could 

be made by the probate court regarding whether the decedent is the natural father 

of the appellants so as to allow appellants to inherit under the laws of intestate 

succession. 

Insofar as appellants contend that the limitation period in R.C. 

3111.05 violates their constitutional rights, the Ohio Supreme Court in Wright v. 

Oliver, 35 Ohio St.3d 10, 517 N.E.2d 883 (1988), applied this five-year statute of 

limitations in deciding a parentage action between a mother and an alleged father, 

and unquestionably found that R.C. 3111.05 is constitutional. 

There is no question regarding the constitutionality of this statute. The 

R.C. 3111.05 limitations period avoids the equal protection infirmities 

of shorter limitations periods, which the United States Supreme Court 

declared unconstitutional in Mills v. Habluetzel (1982), 456 U.S. 91, 

and Pickett v. Brown (1983), 462 U.S. 1. It also recognizes a child’s 

right to paternal support throughout his or her minority and protects 

the state’s interest in enforcing a father’s duty to support illegitimate as 

well as legitimate children. See Johnson v. Norman (1981), 66 Ohio St. 

2d 186, 20 O.O. 3d 196, 421 N.E. 2d 124; Franklin v. Julian (1972), 30 

Ohio St. 2d 228, 59 O.O. 2d 264, 283 N.E. 2d 813. 

Id. at 11, fn 1. Accordingly, until otherwise determined, the statute of limitations 

contained in R.C. 3111.05 is constitutional. 

III. Conclusion 

Because appellants are not named as beneficiaries under the 

decedent’s will, and they would not inherit under the laws of intestate succession, 
the probate court properly found that appellants are not “persons interested” to have 

standing to bring a will contest action. As such, the court lacked jurisdiction over 

the matter and properly dismissed the case. 

The facts of this case are quite concerning, and unfortunately, this 

court cannot afford appellants the relief they are requesting. This court sympathizes 

with appellants, but until the General Assembly either changes the statute of 

limitations or creates an avenue to allow alleged natural-born children who have 

been socially recognized and known to the decedent or his heirs to obtain or 

establish the parent-child relationship beyond the existing statute of limitations, this 

court is bound by the laws as written. 

Judgment affirmed. 

It is ordered that appellees recover from appellants costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate be sent to said court to carry this judgment 

into execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 

of the Rules of Appellate Procedure. 

 

KATHLEEN ANN KEOUGH, JUDGE 

FRANK D. CELEBREZZE, JR., P.J., CONCURS; 

MARY EILEEN KILBANE, J., DISSENTS (WITH SEPARATE OPINION) 
MARY EILEEN KILBANE, J., DISSENTING: 

I respectfully dissent with the majority opinion. I would find that R.C. 

3111.05, the Ohio Parentage Act’s statute of limitations, is fundamentally unfair to 

natural born children who wish to legally establish a parent-child relationship. 

Specifically, children born out of wedlock who want to establish a legally recognized 

parent-child relationship with their biological father need an extended statute of 

limitations beyond the current threshold of five years after the age of majority. 

I propose that Ohio’s Parentage Act, R.C. 3111, et seq., places 

unreasonable expectations on persons under the age of 23. These individuals are 

expected to have the wherewithal and mental acuity to understand the merits of 

legally declaring a parent-child relationship and to have the financial means to 

secure counsel that will help them facilitate the proceedings. Further, the current 

statute of limitations ignores that some children may not learn the identity of their 

biological parent prior to the children turning 23 years of age. Young individuals 

need additional time within which they can legally establish the parent-child 

relationship. Such a mechanism is employed in the juvenile context to provide 

minor victims of sexual abuse an extended statute of limitations, and I recommend 

adopting a similar extension of time here. See R.C. 2305.111(C) (a claim of childhood 

sexual abuse shall be filed within 12 years after the child reaches the age of majority). 

Here, appellants offer an affidavit from their mother, birthday cards 

from the decedent, and their names listed in the decedent’s obituary to support their 

parentage claim. Additionally, the decedent named the appellants as beneficiaries 
to his supplemental State Teachers Retirement System’s pension. It is argued that 

the appellants were held out publicly as the biological daughters of the decedent. 

Yet, because the appellants did not legally establish a parent-child relationship 

before the age of 23, the current law prevents them from potentially inheriting their 

rightful shares of their father’s estate. It is difficult to accept that the current law is 

in the best interest of the appellants and the large pool of similarly situated natural 

born children who must demonstrate a certain level of savviness at a relatively young 

age or forever be blocked from seeking and establishing a legally binding parentchild relationship.6

For these reasons, I respectfully dissent. 

6 Our parentage laws have a potentially wide-sweeping impact since in 2019 forty 

percent of the children born in the United States of America were born out of wedlock.

National Vital Statistics Reports, Vol. 70, No. 2, March 23, 2021, p.6.