Standing/Ripeness Denied on Son’s Fraud/Interference Claims Arising out of Mother’s Execution of Transfer on Death Designation Affidavit

Standing/Ripeness Denied on Son’s Fraud/Interference Claims Arising out of Mother’s Execution of Transfer on Death Designation Affidavit

Eleanor Sirak executed a Transfer on Death (TOD) designation affidavit in favor of Gail Arenstein, Ms. Sirak's daughter. Thereafter, plaintiff/appellant, Eleanor's son, filed suit against Gail and others. The complaint recited various incidents which plaintiff/appellant urged demonstrate physical and psychological elder abuse and exploitation. Specifically, the complaint asserted five causes of action; fraud, conversion, fraud in the inducement, breach of fiduciary duty, and intentional interference with an expectancy of an inheritance.

In Sirak v. Arenstein, 2011 Ohio 5266 (Ohio Ct. App., Stark County Oct. 11, 2011) [enhanced version available to lexis.com subscribers / unenhanced version available from lexisONE Free Case Law], the court upheld the complaint's dismissal. Noting that appellant's factual allegations were insufficient to demonstrate he had a reasonable expectation of inheritance, the court stated:

An essential element of each of appellant's causes of action is a demonstration of damages to appellant. As the trial court pointed out, appellant had no property rights in assets the complaint refers to which would give him standing to bring an action for deception or fraud in the inducement of the execution of the TOD designation affidavit or any of the assets allegedly converted.  We agree with the trial court the claims for deception or fraud in the inducement are Eleanor Sirak's claims because she is the owner of the property. Likewise, appellant alleged breach of fiduciary duty, but did not allege there was a fiduciary relationship between Eleanor Sirak and any of the other appellees. Appellant speculated there could be a power of attorney or other document.

We find the trial court did not err in determining appellant had no standing to bring an action on behalf of Eleanor Sirak to recover or safeguard her property. Appellant could not demonstrate he was damaged.

Appellant also argued that the trial court erred in deeming the case not ripe. Regarding the intentional interference with the expectancy of inheritance claim, appellant asserted that waiting for Ms. Sirak's death would eliminate the best evidence of her state of mind and understanding of events. In rejecting this argument, the court noted that:

Frequently a court is called upon to determine a deceased person's competency or to decide whether a bequest or other transaction was the result of undue influence or fraud. We reject appellant's argument a cause of action for intentional interference with the expectancy of inheritance requires the grantor's live testimony. Appellant is also incorrect in stating there is no vehicle by which he can have Eleanor's competency evaluated. He can do so in Probate Court.

We agree with the trial court this cause of action is not ripe. Appellees argue Eleanor Sirak can change her mind at any point, and disavow the TOD designation. Appellant alleges she is mentally and emotionally unable to do so. If Eleanor Sirak is incompetent to see to her own affairs, the Probate Court has the mechanism to intervene and assist her. If she is competent, Ohio law does not provide a means to prevent a competent person from using or disposing of property as he or she wishes, even if to do so may appear unfair or unwise to other persons.

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