COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72664 IN RE: ESTATE OF RAFIC HADDAD : : LOWER COURT NO.1124261 Plaintiff-Appellee : PROBATE COURT : : MOTION NO. 97024 : : : : DATE: July 30, 1998 JOURNAL ENTRY The prior Journal Entry and Opinion of this court released on July 23, 1998, contained an error on the cover page, which should read: "Civil appeal from Probate Court." IT IS HEREBY ORDERED that said Journal Entry and Opinion of July 23, 1998, be amended nunc pro tunc to correct the error set forth above. The Amended Journal Entry and Opinion, nunc pro tunc of July 23, 1998, is attached. IT IS FURTHER ORDERED that, as so amended, said Journal Entry and Opinion of July 23, 1998 shall stand in full force and effect as to all its particulars. NAHRA, J., and MICHAEL J. CORRIGAN, J., CONCUR. __________________________ PATRICIA ANN BLACKMON PRESIDING JUDGE COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72664 IN RE: ESTATE OF RAFIC HADDAD : : JOURNAL ENTRY : Plaintiff-Appellee : and : : OPINION : : : : DATE OF ANNOUNCEMENT JULY 23, 1998 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Probate Court Case No. 1124261 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCE: For Plaintiff-Appellee: HENRY J. HILOW, ESQ. MICHAEL MCPHILLIPS, ESQ. McGinty, Gibbons & Hilow One Cleveland Center 1375 E. Ninth St., Ste. 1920 Cleveland, Ohio 44114 For Defendant-Appellant: WILLIAM M. FUMICH, ESQ. 600 Superior Avenue, East Suite 800 Cleveland, Ohio 44114 Next of Kin: SHARON L. AKERS, ESQ. 960 Illuminating Building 55 Public Square Cleveland, Ohio 44113 PATRICIA ANN BLACKMON, A.J.: This appeal involves a contest between proponents of a copy of a will who argue the original will was lost or destroyed during a robbery murder, and the contestants who argue the will is presumed revoked because the original will cannot be found. The probate court agreed with the contestants and adopted the magistrate's report that concluded that the proponents failed to rebut the -3- presumption of revocation with clear and convincing evidence that the original will was lost or destroyed. Consequently, contestants' motion to dismiss was granted. The proponents assign the following errors for our review: I. THE PROBATE COURT BELOW ERRED BY MERELY OVERRULING APPELLANT'S OBJECTIONS WHEN THE REPORT OF MAGISTRATE WAS SO DEFECTIVE IN ITS FAILURE TO FULLY AND FAIRLY REPORT THE FACTS, EVIDENCE AND RULINGS IN THE PROCEEDINGS AS TO FAIL TO SATISFY THE REQUIREMENTS OF CIVIL RULE 53. II. THE TRIAL COURT ERRED IN REQUIRING APPELLANTS TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT THE WILL OF RAFIC HADDAD WAS LOST AFTER HIS DEATH. Having reviewed the record and the legal arguments of the parties, we affirm the decision of the trial court. The apposite facts follow. At the end of the proponents' evidence, the contestants moved to dismiss for failure of the proponents to overcome the presumption of revocation. Magistrate Richard Gedeon, in ruling on the motion to dismiss, made his oral factual findings on the record. The magistrate acknowledged the difficulty of cases such as these. He indicated that he had tried 30 cases of similar import. He went on to find that 17 days had lapsed since the deceased Rafic Haddad appeared in his lawyer's office and signed his will. What happened during those 17 days was unknown. However, he found Haddad did properly execute a will on December 2, 1995. Consequently,because the original will has not been produced, the law presumes it is revoked. The proponents of a copy of the will may rebut this presumption by clear and convincing evidence that -4- the original is lost or was destroyed. The magistrate then pointed out this is not a case where the will is lost before the decedent's death and he is unaware that it is lost. The magistrate then found Haddad had his will prepared on December 2nd and on that day went to Lebanon. His brother, Tony Haddad, is the father of the principal heir, Daniel, and both live in Lebanon. While in Lebanon, it is undisputed that Tony did not see the will but was told of its contents. The magistrate found insufficient evidence that Haddad took the will with him to Lebanon. On December 7, 1995, he returned from Lebanon. And on the 8th went to his bank where he kept a safety deposit box. The magistrate made the following observation: What he did there nobody knows. Did he have the will with him? Had he put it in the safety deposit box before he left for Lebanon? I didn't hear any testimony to that. I don't know. Did he take it out of the safety deposit box on the 8th? I don't know. The magistrate then concluded that 11 days later the will could be located. The magistrate keyed in on the testimony of Lura Blatnica, a 20 year employee of Haddad who was a beneficiary under the will, along with her husband. The magistrate pointed out from her testimony that a week after Haddad returned in that 11 day period, Haddad spoke to her about changing his will. The magistrate pointed to the evidence that Haddad was disturbed because his brother Tony had sold his suburban truck. -5- The magistrate found that Haddad's daughters were indeed disinherited under the copy of the will; however, he concluded at the motion stage the issue was whether the copy of the will was lost or revoked. The magistrate acknowledged he could admit to probate a lost will. Thereafter, he dismissed as being irrelevant at the motion stage the relationship issue between Haddad and his daughters. The magistrate then turned to the basis of the proponent's argument, which was the robber took the will when he stole Haddad's watch, wallet, and briefcase. The magistrate found evidence of a theft of Haddad at his home but not at his company. The magistrate dismissed the conspiracy theory, which was that the will was stolen during the inventory at his office that was conducted by Lura Blatnica in the presence of Haddad's daughters. The magistrate, thereafter, found that the proponents had not sustained their burden of producing clear and convincing evidence that the will was lost or destroyed after Haddad's death. Consequently, he granted the daughters' Civ.R. 41 motion to dismiss. The magistrate submitted the following written findings of fact and conclusions of law: FINDINGS OF FACT 1. Decedent duly executed a document titled Last Will and Testament of Rafic Haddad on December 2, 1995. 2. The decedent's Last Will and Testament was properly witnessed by Mark Musial and Donald Machovina. 3. The decedent traveled out of the United States from December 2 - December 7, 1995. -6- 4. The decedent accessed his safe deposit box at Star Bank on December 8, 1995. 5. The decedent was murdered on December 19, 1995 in his home in Parma Heights, Ohio. 6. A search of the decedent's home, his office, and safe deposit box following his demise has failed to produce the original Last Will and Testament of the decedent, Rafic Haddad. CONCLUSIONS OF LAW Based on the foregoing facts and applicable law, it is the opinion of this Magistrate that the proponent, David Rutt, has failed to present clear and convincing evidence that the original will was not revoked at the death of the testator. Movant's own witness testified that eleven days prior to his unfortunate death, the decedent had made a statement indicating his intention to change the contents of his Last Will and Testament. The decedent had the opportunity and the apparent intent to alter or revoke his own will. The presumption of revocation has not been overcome by clear and convincing evidence. It is, therefore, the recommendation of this Magistrate that the Application to Probate the Lost or Spoliated will of Rafic Haddad be denied. After presentment by the magistrate of his report, the probate court held in its entry that after reviewing the entire record , including the report and recommendation of the magistrate, it found against the proponents. The record showed the probate judge had the magistrate's report, the proponent's objections to the report, the contestants' brief opposing the objections, the transcript of the testimony, and the exhibits. The court concluded it had reviewed all of the material and found against the proponents. From this, we conclude -7- the probate judge felt the proponents had not overcome the presumption of revocation. We looked to the record and found on December 2, 1995 Haddad left the country to visit Lebanon. Before he left, he properly executed a will. A copy of which was retained by his lawyer who stated Haddad had a will before he executed this one, but he had not seen it. The first will also remains unfound. Haddad's new will disinherited his daughters whom he blamed for his divorce and because of the lifestyle of one of the daughters. It is undisputed that Haddad intended, on December 2, 1995, before his trip, to disinherit his daughters. It is undisputed that 16 days later after returning home, Haddad wanted to change his will and he was also murdered and robbed. After the robbery, his wallet, watch, keys, and car were stolen. During the trial, the proponents argued the robber took the narrow tan suede briefcase that Haddad had carried with him on December 2ndand December 8th. Thus, they argue because he had the briefcase on the 2nd and 8th, he must have carried it on December 18th, the day of his death. To support this inference, the proponents argue the power of attorney to Rutt, his friend and named executor in the will, and his second passport were also missing. Thus, they argue the will is with those missing items, which the robber must have. Joint Exhibit #1, a briefcase, was introduced into evidence. Rutt and Haddad's banker said this was not the briefcase Haddad -8- usually carried. Lura Blatnica who saw Haddad over a considerable period as his employee said Joint Exhibit #1 was the only briefcase Haddad ever carried and as far as she was concerned, it was tan in color. We will discuss the proponent's second assigned error first because they argue that the clear and convincing evidence standard of proof is not required in this case. Proponents argue R.C. 2107.26 has replaced the prior case law because it mandates that the clear and convincing standard of proof applies only to lost, spoliated, or destroyed will when the will is lost spoliated, or destroyed prior to testator's death and without his knowledge. All other instances, such as the one here, where it is believed the will was lost or destroyed after testator's death, the proponents argue the lesser standard of proof is required to establish that the unfound will is lost and not revoked. We disagree. We recognize that in matters as personal as wills the law is that an unfound, not located will is presumed revoked unless shown by clear and convincing evidence to be lost. Behrens v. Behrens (1890), 47 Ohio St. 323; In re Simon (1961), 20 Ohio Op.2d 56 Syllabus 4; In re Estate of Haynes (1986), 25 Ohio St.3d 101. This burden of proof is on the proponents to prove that the original will is lost. Id. An original will is preferred in a will contest because of the overwhelming need for accuracy. Accuracy is guaranteed when the original Will is presented. This need for accuracy is not rigid. -9- Clear and convincing evidence is evidence that will produce in the fact finder's mind a firm belief or conviction as to the facts sought to be established. See Cross v. Ledford (1954), 161 Ohio St. 469. In order for the proponents to sustain this burden they must present sufficient proof to rebut the presumption of revocation with some probative value leftover. Crawford v. Howard (1969), 17 Ohio App.2d 233. Additionally in Haynes the Ohio Supreme Court held The standard of proof necessary to admit a lost, spoliated, or destroyed will to probate is clear and convincing evidence that the loss, spoliation, or destruction of the original will occurred subsequent to the death of the testator or before the death of the testator, but without his knowledge. Haynes at pgs. 103, 104. Before Haynes the court held in various types of cases the stricter standard of proof is required, i.e., clear and convincing. Merick v. Ditzler (1975), 90 Ohio St. 256. The court went on to state the following kinds of cases require this proof: where the charge of fraud is involved; proving the existence of a lost or spoliated will; an agreement to bequeath by will; mutual mistake sufficient to justify reformation of an instrument; engrafting of trusts; establishment of an equitable mortgage out of deed absolute on its face, and kindred questions. (Emphasis added.) Id. At 261. Regardless of the historical view, the proponents argue Haynes was wrongly decided and R.C. 2107.26 changed the standard. We disagree. R.C. 2107.26, which states: -10- When an original will is lost, spoliated, or destroyed subsequent to the death of a testator, or before the death of such testator if the testator's lack of knowledge of such loss, spoliation, or destruction can be proved by clear and convincing testimony, or after he became incapable of making a will by reason of insanity, and such will cannot be produced in the probate court in as complete a manner as the originals of last wills and testaments which are actually produced therein for probate, the court may admit such lost, spoliated, or destroyed will to probate, if such court is satisfied the will was executed according to the law in force at the time of its execution and not revoked at the death of the testator. (Emphasis added.) R.C. 2107.26 provides that a lost, spoliated, or destroyed will may be admitted to probate if it was `lost, spoliated, or destroyed subsequent to the death of a testator, or before the death of such testator if the testator's lack of knowledge of such loss, spoliation, or destruction can be proved by clear and convincing testimony.' Sheridan v. Harbison (1995), 101 Ohio App.3d 206. On its facts, the Sheridan court stated: The statute was drafted to allow an alleged beneficiary of a lost or destroyed will an opportunity to rebut the presumption that the will was disposed of by the testator with the intention of revoking it. This she may do by showing that the will was not in the testator's custody after it was executed, or that the testator was otherwise not capable of exercising control over it, by proof of the relationship between the testator and the persons involved, by showing that the testator behaved as though she deemed the will valid and unrevoked up to the time of her death, or by `testimony -11- that a third party fraudulently destroyed the will.' citing Haynes at 153. Sheridanrecognized as this court does that the statute is designed to give those ordinarily foreclosed an opportunity to probate a will when the testator does not know of the change. This involves circumstances where someone steals the will without the testator's knowledge. The use of the language before testator's death at least implies he had something to do with the lost, destruction or spoliation. The use of the language subsequent or after implies someone else may be responsible for the loss. These two categories were always recognized. Haynes at 103, 104. R.C. 2107.26 was designed to add the circumstance where the testator was unaware. R.C. 2107.26 was not designed to regulate the standard of proof under any circumstance. In light of Haynes, we conclude an unfound original will is presumed revoked and proponents of a copy must show by clear and convincing evidence that the will is lost in order to overcome the presumption of revocation. Accordingly, proponents' second assigned error is overruled. Having resolved the issue of the standard of proof required in a lost or destroyed will, we turn to the proponents' first assigned error. Proponents mix many issues in this error and at first it is difficult to entertain their complaint. They argue that the magistrate's report is too tenuous to sustain its ruling and as such the trial court could not have made an independent analysis. In this case, the trial court had the -12- transcript, the magistrate report, and the objections to the magistrate's report. Consequently, we presume that the court conducted the proper independent analysis. Inman v. Inman (1995), 101 Ohio App.3d 115, 118. In Inman, the court went on to state that the record must affirmatively demonstrate that the trial court failed to make an independent analysis. Id. In Inman, the court looked to the face of the entry and concluded it was a form and a rubber stamp. The court then looked at the speed of the judge's decision. In this case, the entry was filed May 13, 1997. The magistrate's report was filed September 3, 1996. The entry overrules the objections as not well taken. The court stated it reviewed the entire record. Thus, we conclude the trial court is presumed to have made an independent analysis. Civ.R. 53(E)(5) requires the following: The report of a referee shall be effective and binding only when approved and entered as a matter of record by the court. The referee's findings of fact must be sufficient for the court to make an independent analysis of the issues and to apply appropriate rules of law in reaching a judgment order. The court may adopt the referee's recommendations about appropriate conclusions of law and the appropriate resolution of any issues. However, the court shall determine whether there is any error of law or other defect on the face of the referee's report even if no party objects an error or defect. The court shall enter its own judgment the issues submitted for action and report by the referee. -13- This is designed so that the court may make an independent analysis. See Zacek v. Zacek (1983), 11 Ohio App.3d 91, and Nolte v. Nolte (1978), 60 Ohio App.2d 227. At the core of the proponents' argument is the weight of the evidence. In their objections to the magistrate's report, they challenged the weight of the evidence. The law requires when the magistrate's report is challenged as insufficient or the objection goes to weight, the judge is required to refer to the transcript. Zacek at 94. Here, the trial judge specifically stated after reviewing the record which included the transcript, he overruled the objections. The proponents argue the trial court did not have the benefit of their position and the magistrate failed to resolve some factual disputes. The magistrate's report is not voluminous but it does address the issue before it. The magistrate concluded the proponents did not present clear and convincing evidence that the will was lost not revoked. Yet, the witness who was named in the will said that before his death, Rafic Haddad told her he wanted to make some changes to his will. Under the clear and convincing standard, the fact finder must have a firm belief or conviction as to the facts sought to be established. Here, the fact finder did not have that belief and we are not convinced that it abused its discretion. The trial court concluded it did not have clear and convincing evidence that the will was lost and not revoked. The trial court concluded the presumption of revocation was unshaken by the -14- proponents' evidence. The proponents' premise was that Haddad intended to disinherit his daughters and but for the robbery murder, the original will would be presented. The trial court, using the clear and convincing standard, concluded the proponents did not prove the will was lost. The trial court concluded Lura Blatnica's testimony was profound. She stated Joint Exhibit 1 was the only briefcase she knew Haddad to carry and when she and the others searched it, the will was not found. The trial court must have surmised that if the robber stole all of the items on Haddad's person, why was the briefcase left behind. Finally, the trial court concluded Lura Blatnica's testimony that Haddad had told her he planned to change his will was substantial evidence against the proponent's contention. The trial court concluded Blatnica who was named in the will was most credible. Additionally, the court was aware of Haddad's dissatisfaction with his brother upon returning from Lebanon, Haddad's brother's son being the principal heir. We are mindful that Haddad had another will. It remains unfound as well. Because he had at one time disposed of one will, the trial court must have concluded he disposed of this will in a like manner. His lawyer testified he did not discuss the manner of revocation with Haddad. However, he knew of the first will but had not seen it. In light of this record and the clear and convincing standard of proof to negate revocation, we conclude the trial court's decision was not unreasonable. We acknowledge and appreciate that -15- a copy of a will is prima facie evidence of its contents and proper execution. Crawford at 5. However, a copy is not prima facie evidence that the original will is lost. The proponents' burden was to show by clear and convincing evidence that the will is lost; thereby rebutting the presumption of revocation. The probate court concluded it failed to sustain its burden and thus the presumption of revocation remained unshaken. We agree with the trial court, and accordingly overrule proponents' first assigned error. Judgment affirmed. herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Probate 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. Exceptions. NAHRA, J., and MICHAEL J. CORRIGAN, J., CONCUR. PATRICIA ANN BLACKMON ADMINISTRATIVE JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the .