A dispute arose between brothers about updates made to their father’s will a few years before he died at age 93.

A dispute arose between brothers about updates made to their father’s will a few years before he died at age 93.

An Ohio appeals court has ruled that a Columbus man embezzled $1.38 million of his father’s assets and that the father’s will, updated a few years before his death at age 93, is invalid.

Thomas Means handled the daily care of his father, Johnston, a retired attorney and Korean War veteran, starting in 2019. Thomas also acted on his father’s behalf under his power of attorney. In 2020, Johnston’s will was updated, shifting the equal division of property between Thomas and Johnston’s other son, Daniel, in earlier wills to a split that favored Thomas. After Johnston’s death in June 2021, Daniel challenged the will, pointing to the secrecy surrounding the drafting and execution of the 2020 will and his brother’s management of their father’s assets.

The Third District Court of Appeals unanimously upheld the Union County Probate Court’s decision to revoke the 2020 will because of undue influence by Thomas. The Third District concluded that Thomas’ arguments to support the 2020 will were contradicted by the evidence showing his control over Johnston’s estate planning, Johnston’s isolation from independent legal counsel, and the secretive creation of that will.

The Third District also affirmed the probate court finding that Thomas and his wife, Ann, had improperly concealed, embezzled, and transferred Johnston’s assets. Thomas and Ann have been ordered to pay Johnston’s estate the $1.38 million in embezzled funds plus hundreds of thousands of dollars for lost capital growth. They also must pay Daniel about $463,000 in statutory penalties, costs, and attorney fees. Thomas is currently facing criminal charges for aggravated theft and other offenses in Union County.

Father Depends on Nearby Son for Care
When Johnston was a practicing attorney, he focused on estate, tax, employee, and business organization law. Johnston had significant hearing loss and, in his later years, suffered from Parkinson’s disease. He lived alone after his wife’s death in 2014, and relied on Thomas for daily care, transportation, and communication when he stopped driving in 2019. Daniel lived in Seattle. Following a fall in November 2019, Johnston was hospitalized, and he moved into a nursing care facility the next month.

Before 2020, Johnston had estate plans that treated his sons equally. He established a partnership in 1980 – the Means Investment Company – to manage Delaware County farmland. The partnership allocated 50% to himself and 25% to each son. Wills and trusts from 1998 and 2005 reflected the same equal divisions, with one amendment that would pay Daniel an extra $400,000 to offset a prior gift to Thomas. Johnston’s investment account designated that his sons would receive equal shares when Johnston died.

In summer 2019, Johnston and Thomas began working with a law firm for additional estate planning for Johnston. Based on what Johnston communicated, the attorneys recommended that he discuss the changes with Daniel and take specific steps to minimize a contest to the will. According to Thomas, Johnston then decided to write the will himself to save on legal fees. He didn’t incorporate the attorneys’ suggestions or discuss the changes to the distributions in the new will with Daniel.

In late 2020, while Johnston was in nursing care, Thomas transferred his father’s investment funds to his and his wife’s accounts and executed a mortgage on his father’s home to pay a property developer based on a nearly $2 million deal his father made in 2017, court documents state. Thomas also wrote distribution checks from the company partnership to his father, signed his father’s name and deposited the checks, then later transferred the funds to his and his wife’s account, depleting the company account.

Other Son Challenges Father’s Updated Will
After their father’s death in June 2021, Daniel filed a complaint in Union County Probate Court, contesting the validity of the will. He alleged it was fraudulent, procedurally defective, and the result of Thomas’ undue influence. Daniel raised concerns about inconsistencies across the will’s pages, including different paper types, fonts, and margins, and argued the circumstances surrounding the will’s handling, custody, and delayed submission were suspicious. He also requested an accounting of their father’s assets.

In June 2023, the probate court granted summary judgment to Daniel on most points, finding that Johnston’s 2020 will was the product of Thomas’ undue influence. The court noted that Johnston was susceptible because he was in his 90s at the time his will was changed, had Parkinson’s disease and hearing loss, and was dependent on Thomas for his daily needs. Thomas had a “confidential relationship” with his father under the law because he provided extensive care for his father. Thomas also had a fiduciary relationship, serving as his father’s attorney-in-fact under the power of attorney.

The court stated that Thomas’ undue influence over his father included making repeated withdrawals from his father’s accounts. Johnston was aware of Thomas’ extensive financial needs and inability to repay the money, which pressured Johnston to include a debt forgiveness clause in the 2020 will. The new terms in the 2020 will demonstrated the results of Thomas’ undue influence, the court concluded.

In December 2023, Thomas acknowledged in a joint stipulation that he improperly transferred a total of $1.38 million from Johnston’s bank account to his own between 2017 and 2021. The probate court ordered Thomas and his wife to pay Johnston’s estate $1.86 million – comprising the embezzled funds plus $486,315 for lost capital growth on Johnston’s assets. Daniel was awarded $181,162 in a statutory penalty and $281,686 for costs and attorney fees.

Thomas and his wife appealed the decision to the Third District.

Appeals Court Evaluates Undue Influence Claims
Writing for the Third District, Judge William R. Zimmerman explained in the July 21 opinion that an unequal distribution of property in a will, or a distribution different from earlier statements, isn’t enough on its own to invalidate a will. Instead, for a will to be invalid, it must be shown that undue influence was actually exerted on the person making the will.

Courts will presume undue influence if the challenging party establishes that a fiduciary or a confidential relationship existed between the person who died and a beneficiary of the will. The burden then shifts to the person who is benefiting, who must demonstrate that the person making the will acted voluntarily, exercised their own free will, and fully understood their actions and the resulting consequences. Because Thomas had confidential and fiduciary relationships with his father, the burden was on Thomas to show that his father acted freely when updating the will and understood the effects of the changes, the Third District opinion explained.

Thomas and Ann argued that the probate court failed to consider that Johnston was competent and in good health when the updated will was executed in March 2020. The couple maintained that statements by the attorneys who Johnston initially consulted to update the will supported the view that Thomas didn’t exert improper influence and that Johnston wanted to reward Thomas for his care.

The Third District determined, though, that a deeper review of the attorneys’ testimonies show Thomas’ “pervasive involvement,” their concerns about his influence, and the unfulfilled requests to speak privately with Johnston. The attorneys weren’t consulted about the significant redistribution of the assets or the new debt forgiveness clause, nor were they aware of the 2020 will until April 2021, after Johnston’s health has declined substantially.

“[I]n addition to the evidence outlining Thomas’s conduct and influence over Johnston, the product of Thomas’s improper influence is self-evident in the 2020 will itself, which greatly benefitted the defendants,” the opinion stated.

Regarding the challenge by Thomas and Ann to the finding that they were guilty of wrongful concealment, embezzlement, and conveyance of assets, the Third District noted the claim “is arguably rendered untenable” given the joint stipulation they made to the probate court. The Third District also pointed out that a person in a fiduciary role owes an overriding duty of loyalty to act for the benefit of the principal, in this case Johnston.

“[B]ecause Thomas’s self-serving explanations are inconsistent and not supported by sufficient objective evidence to prove the fairness of his conduct, the defendants failed to meet their burden to rebut the presumption that the transfers were invalid,” the opinion concluded.

Judges Mark C. Miller and John R. Willamowski joined the opinion.

In re Estate of Means, 2025-Ohio-2564.

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion, but only for noteworthy cases. Opinion summaries are not to be considered as official headnotes or syllabi of court opinions. The full text of this and other court opinions are available online.

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