In re Estate of Worstell

Not overruled or negatively treated on appealinfoCoverage
Supreme Court of OhioDec 17, 2003
100 Ohio St. 3d 1258 (Ohio 2003)
100 Ohio St. 3d 1258799 N.E.2d 6362003 Ohio 6387

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No. 2002-1981.

Submitted November 4, 2003.

Decided December 17, 2003.

Appeal from the Court of Appeals for Montgomery County, No. 19133,2002-Ohio-5385.

Murray, Murphy, Moul Basil, L.L.P., and Joseph F. Murray; Ekonomou, Atkinson Lambros, L.L.C., Michael G. Lambros, Thomas J. Cullen and Paul E. Nystrom III, for appellant Gary M. Worstell.

Porter, Wright, Morris Arthur, L.L.P., Paul G. Hallinan, Armistead W. Gilliam Jr., Philip E. Kessler and Robin D. Ryan, for appellee American Cancer Society, Western Ohio Division, Inc.


{¶ 1} The cause is dismissed, sua sponte, as having been improvidently allowed.

Moyer, C.J., Lundberg Stratton, O'Connor and O'Donnell, JJ., concur.

Resnick, F.E. Sweeney and Pfeifer, JJ., Dissent.


{¶ 2} A jury found that Mr. Ralph Worstell did not have testamentary capacity to make a will. The jury based its decision on the testimony of Worstell's nephew, Worstell's tenant, and most important, on the testimony of Dr. Albert Bayer, a medical doctor and board-certified geriatric psychiatrist. Little contrary evidence was presented, primarily that of the attorney who drafted the will, who could hardly be expected to testify that he allowed a man lacking testamentary capacity to sign a will. Nevertheless, the court of appeals determined that the jury verdict was against the manifest weight of the evidence and reversed the judgment.

{¶ 3} The court of appeals relied on State v. Thompkins (1997), 78 Ohio St.3d 380, 678 N.E.2d 541, where this court explained when it is appropriate to overturn a jury verdict to prevent a manifest miscarriage of justice in a criminal trial. This reliance was misplaced because the standard of proof in a criminal trial is higher than in a civil trial. We should render an opinion in this case that clarifies the standard. I dissent and would reverse the judgment of the court of appeals.

Resnick and F.E. Sweeney, JJ., concur in the foregoing dissenting opinion.