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:
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.
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
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.
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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