Sub. H.B. 144

126th General Assembly

(As Passed by the General Assembly)

 

Reps.     Buehrer, Aslanides, Barrett, Daniels, Domenick, C. Evans, D. Evans, Faber, Flowers, Gilb, Harwood, Hughes, Latta, McGregor, Miller, Oelslager, Reidelbach, Schneider, Seaver, Seitz, G. Smith

Sen.        Goodman

Effective date:  *

·        Prohibits a person who has not received, and has not waived the right to receive, notice of the admission of a will to probate from commencing a will contest action more than three months after the filing of the certificate.

·        Provides that the R.C. 2305.19 savings statute does not apply to a will contest action.

·        Changes, from four months after the legal disability is removed to three months after the legal disability is removed, the time within which a person under legal disability may commence an action to contest the validity of a will and retains the preexisting protections specified under that provision for the rights of a purchaser, lessee, encumbrancer, fiduciary, or transferor, etc.

·        Provides in a new exception that the testimonial privilege of an attorney concerning communications made to the attorney by a client or the attorney's advice to a client does not apply concerning a communication between a client who has since died and the deceased client's attorney if the communication is relevant to a dispute between parties who claim through that deceased client and the dispute addresses the competency of the deceased client when executing a document that is the basis of the dispute or whether the deceased client was a victim of fraud, undue influence, or duress when executing a document that is the basis of the dispute.

·        Repeals a provision that specifies that the testimonial privilege of a physician or dentist concerning a communication made to either of them by a patient in that relation or the physician's or dentist's advice to a patient does not apply and that a physician or dentist may testify or be compelled to testify if the patient is deceased and a party to a will contest action requests the testimony, demonstrates that the party has a specified type of interest regarding the patient's estate, and demonstrates that it is necessary to establish the party's rights, and a provision that specifies that a physician or dentist may be compelled to testify or to submit to discovery in such a will contest action only as to the patient in question on issues relevant to the competency of the patient at the time of the execution of the will.

·        Provides in a new exception that the testimonial privilege of a physician or dentist concerning a communication made to either of them by a patient in that relation or the physician's or dentist's advice to a patient does not apply and either may testify or be compelled to testify if the communication was between a patient who has since died and the deceased patient's physician or dentist, the communication is relevant to a dispute between parties who claim through that deceased patient, and the dispute addresses the competency of the deceased patient when executing a document that is the basis of the dispute or whether the deceased patient was a victim of fraud, undue influence, or duress when executing a document that is the basis of the dispute.

·        Regarding the new exception to the physician-patient and dentist-patient testimonial privilege, provides that if neither the spouse of a patient nor the executor or administrator of that patient's estate gives express consent to a physician's or dentist's testimony, testimony or the disclosure of the patient's medical records under the new exception by a physician, dentist, or other health care provider is a permitted use or disclosure of protected health information under a specified federal regulation and an authorization or opportunity to be heard is not required.

·        Regarding the new exception to the physician-patient and dentist-patient testimonial privilege, permits an interested party who objects to testimony or the disclosure of a communication between a patient who has since died and the deceased patient's physician or dentist under the new exception to seek a protective order pursuant to Civil Rule 26.

·        Regarding the new exception to the physician-patient and dentist-patient testimonial privilege, prohibits a person to whom protected health information is disclosed under the new exception from using or disclosing the protected health information for any purpose other than the litigation or proceeding for which the information was requested and requires the person to return the protected health information to the covered entity or destroy the protected health information, including all copies made, at the conclusion of the litigation or proceeding.

Will contest action

Preexisting law, unchanged by the act, bars a person who has received or waived the right to receive notice of the admission of a will to probate from commencing an action to contest the validity of the will more than three months after the filing of the certificate that evidences the giving of that notice or the waiver of the right to receive that notice.  A related provision of preexisting law formerly specified that a person under legal disability nevertheless could commence an action to contest the validity of a will within four months after the disability was removed, but the rights saved did not affect the rights of a purchaser, lessee, or encumbrancer for value in good faith and did not impose any liability upon a fiduciary who acted in good faith, or upon a person delivering or transferring property to any other person under authority of a will, whether or not the purchaser, lessee, encumbrancer, fiduciary, or other person had actual or constructive notice of the legal disability.  (R.C. 2107.76(A).)

Regarding the prohibition described in the preceding paragraph, the act additionally prohibits any other person from commencing an action to contest the validity of the will more than three months after the initial filing of that certificate.  As a result of the act's enactment of the additional prohibition, all persons are prohibited from commencing an action to contest the validity of the will more than three months after the filing of the certificate regardless of whether they receive or waive the right to receive the notice.  The act also modifies the time period specified under the "legal disability exception" within which a person under legal disability nevertheless may commence an action to contest the validity of a will--under the act, a person under a legal disability may commence such an action within three months after the disability was removed.  The act does not change the preexisting protections specified under that exception for the rights of a purchaser, lessee, encumbrancer, fiduciary, or transferor, etc.  (R.C. 2107.76(A).)  (See COMMENT 1.)

Savings statute

Preexisting law, unchanged by the act, provides that, in any action that is commenced or attempted to be commenced, if in due time a judgment for the plaintiff is reversed or if the plaintiff fails otherwise than upon the merits, the plaintiff or, if the plaintiff dies and the cause of action survives, the plaintiff's representative may commence a new action within one year after the date of the reversal of the judgment or the plaintiff's failure otherwise than upon the merits or within the period of the original applicable statute of limitations, whichever occurs later.  This provision applies to any claim asserted in any pleading by a defendant.  (R.C. 2305.19(A)--not in the act.)  The act provides that the above-described provision does not apply to a will contest action (R.C. 2107.76(B)).  (See COMMENT 2.)

Privileged communications

The preexisting Privileged Communications Law precludes persons in specified professions or having specified relationships from testifying in certain respects.  The act eliminates the physician-patient, dentist-patient, and attorney-client testimonial privilege in probate cases under certain circumstances.

Attorney-client privilege

Formerly.  One part of the preexisting Privileged Communications Law, unchanged by the act except for the new exception described in the next paragraph, provides that an attorney cannot testify concerning a communication made to the attorney by a client in that relation or the attorney's advice to a client, except that the attorney may testify by express consent of the client, or, if the client is deceased, by the express consent of the surviving spouse or the executor or administrator of the estate of the deceased client and except that if the client voluntarily testifies or is deemed to have waived any testimonial privilege, the attorney may be compelled to testify on the same subject (R.C. 2317.02(A)).

Operation of the act.  The act expands the circumstances in which the testimonial privilege of an attorney does not apply.  The act provides that the attorney-client testimonial privilege does not apply concerning a communication between a client who has since died and the deceased client's attorney if the communication is relevant to a dispute between parties who claim through that deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction, and the dispute addresses the competency of the deceased client when executing a document that is the basis of the dispute or whether the deceased client was a victim of fraud, undue influence, or duress when executing a document that is the basis of the dispute.  (R.C. 2317.02(A).)

Physician-patient and dentist-patient privilege

Formerly.  Another part of the preexisting Privileged Communications Law, unchanged by the act except for the repeal of a current exception and the enactment of the new exception described below in "Operation of the act," provides that, subject to certain exceptions specified in that Law, a physician or a dentist cannot testify concerning a communication made to the physician or dentist by a patient in that relation or the physician's or dentist's advice to a patient.  This testimonial privilege does not apply, and a physician or dentist may testify or may be compelled to testify, in any of the following circumstances (R.C. 2317.02(B)(1)(a) to (e)):

(1)  In any civil action, in accordance with the discovery provisions of the Rules of Civil Procedure in connection with a civil action, or in connection with a claim under the Worker's Compensation Law, if any of the following apply:  (a) the patient or the patient's guardian or other legal representative gives express consent, (b) the patient is deceased, and the spouse of the patient or the executor or administrator of the patient's estate gives express consent, or (c) a medical claim, dental claim, chiropractic claim, or optometric claim, an action for wrongful death, any other type of civil action, or a claim under the Worker's Compensation Law is filed by the patient, the personal representative of the estate of the patient if deceased, or the patient's guardian or other legal representative;

(2)  In any civil action concerning court-ordered treatment or services received by a patient, if the court-ordered treatment or services were ordered as part of a case plan journalized under the Juvenile Court Law or the court-ordered treatment or services are necessary or relevant to dependency, neglect, or abuse or temporary or permanent custody proceedings under that law;

(3)  In any criminal action concerning any test or the results of any test that determines the presence or concentration of alcohol, a drug of abuse, or both in the patient's blood, breath, urine, or other bodily substance at any time relevant to the criminal offense in question;

(4)  In any criminal action against a physician or dentist, subject to the requirement that a court that permits or compels a physician or dentist to testify in such an action or permits (under a related provision) the introduction into evidence of patient records or other communications between a patient and the physician or dentist in such an action must require that appropriate measures be taken to ensure that the confidentiality of any patient named or otherwise identified in the records is maintained;

(5)  In any will contest action under the Probate Law if both of the following apply:  (a) the patient is deceased, and (b) a party to the will contest action requests the testimony, demonstrates to the court that that party would be an heir of the patient if the patient died without a will, is a beneficiary under the will that is the subject of the will contest action, or is a beneficiary under another testamentary document allegedly executed by the patient, and demonstrates to the court that the testimony is necessary to establish the party's rights as described in this paragraph.

If the physician-patient and dentist-patient testimonial privilege does not apply as described in paragraph (5) above, a physician or dentist may be compelled to testify or to submit to discovery in the will contest action only as to the patient in question on issues relevant to the competency of the patient at the time of the execution of the will.  Testimony or discovery conducted pursuant to this provision must be conducted in accordance with the Civil Rules.  (R.C. 2317.02(B)(3)(c).)

Operation of the act.  The act repeals the provision described in paragraph (5) above under "Formerly" and the following related paragraph.  It replaces them with a provision that states that the testimonial privilege of a physician or dentist does not apply, and a physician or dentist may testify or may be compelled to testify, if the communication was between a patient who has since died and the deceased patient's physician or dentist, the communication is relevant to a dispute between parties who claim through that deceased patient, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction, and the dispute addresses the competency of the deceased patient when executing a document that is the basis of the dispute or whether the deceased patient was a victim of fraud, undue influence, or duress when executing a document that is the basis of the dispute.  The act states that this exemption from the testimonial privilege does not require a mental health professional to disclose psychotherapy notes, as defined in 45 C.F.R. 164.501.[1]  (R.C. 2317.02(B)(1)(e)(i) and (iii) and repeal of R.C. 2317.02(B)(3)(c).)

The act further provides that:  (1) if neither the spouse of a patient nor the executor or administrator of that patient's estate gives express consent under the provision described above in (1)(b) under "Formerly," testimony or the disclosure of the patient's medical records by a physician, dentist, or other health care provider under the new exception to the testimonial privilege discussed in the preceding paragraph is a permitted use or disclosure of protected health information, as defined in 45 C.F.R. 160.103,[2] and an authorization or opportunity to be heard is not required, (2) an interested party who objects to testimony or the disclosure of a communication between a patient who has since died and the deceased patient's physician or dentist pursuant to that new exception may seek a protective order pursuant to Civil Rule 26, and (3) a person to whom protected health information is disclosed pursuant to that new exception may not use or disclose the protected health information for any purpose other than the litigation or proceeding for which the information was requested and must return the protected health information to the covered entity or destroy the protected health information, including all copies made, at the conclusion of the litigation or proceeding.  (R.C. 2317.02(B)(1)(e)(i), (ii), (iv), and (v).)

1.  In Tomasik v. Tomasik (2004), 2004 WL 2348170, former devisees and legatees, who had been named in the decedent's prior will, but were not named in the decedent's last will and testament that was admitted to probate, filed an action to contest the will.  Devisees and legatees who were named in the last will and testament filed a motion to dismiss the will contest action based on the expiration of the statute of limitations.  The Ninth District Court of Appeals held that the former devisees and legatees were not subject to the three-month statute of limitations applicable to will contests.  R.C. 2107.19 provides that the persons who must receive notice of the admission of a will to probate are (1) the surviving spouse, (2) those who would inherit intestate, and (3) those named in the will.  The former devisees and legatees did not fit into any of these three categories, therefore they argued that their claim is not barred by the statute of limitations.  The Court of Appeals agreed with their argument based on the plain language of the statute.

2.  In Allen v. McBride (2004), 105 Ohio St.3d 121, the Ohio Supreme Court found that the savings statute under R.C. 2305.19 applied to a will contest action under R.C. 2107.71.

ACTION	DATE
Introduced	03-22-05
Reported, H. Judiciary	05-03-05
Passed House (96-0)	05-11-05
Reported, S. Judiciary on Civil Justice	01-11-06
Passed Senate (33-0)	01-11-06
House concurred in Senate changes (95-0)	01-18-06

 

 

 

06-hb144-126.doc/kl