In re Gendron

• Citation: 325 So.3d 584
• Decision Date: 23 June 2021
• Docket Number: NO. 21-CA-14,21-CA-14
• Parties: SUCCESSION OF Raymond Roy GENDRON (Sr.)
• Court: Court of Appeal of Louisiana — District of US

325 So.3d 584

SUCCESSION OF Raymond Roy GENDRON (Sr.)

NO. 21-CA-14

Court of Appeal of Louisiana, Fifth Circuit.

June 23, 2021

COUNSEL FOR INTERVENOR/APPELLANT, KAREN GENDRON, MARIA GENDRON LAMBERT, TRACEY GENDRON BOYLE, RAYE CLAIRE GENDRON, AND JUDY GENDRON KLINE Robert R. Faucheux, Jr. Christophe L. Faucheux Isaac H. Ryan

COUNSEL FOR DEFENDANT/APPELLEE, RAYMOND GENDRON, JR. Michael A. McNulty, Jr. Charles R. Jones

Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Jude G. Gravois

CHEHARDY, C.J.

In this succession proceeding, intervenors seek review of the trial court's February 22, 2019 judgment dismissing their claims after finding that they failed to carry their burden of proving the invalidity of the probated olographic testament by a preponderance of the evidence. For the following reasons, we affirm the trial court's judgment.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Raymond Roy Gendron, Sr. ("Decedent" or "Mr. Gendron") died on June 5, 2015. At the time of his death, Decedent was living with and was married to Josephine Catalano Gendron, his wife of approximately 60 years. Of their marriage, six children were born: Karen Gendron, Maria G. Lambert, Tracey G. Boyle, Raye Claire Gendron, Judy G. Kline (collectively "the Gendron sisters," intervenors herein), and Raymond Gendron, Jr. ("Raymond, Jr.," defendant).¹

On June 18, 2015, Mrs. Gendron filed a petition for probate of Decedent's last will and testament (the "Testament") in the Fortieth Judicial District Court for the Parish St. John the Baptist. Mrs. Gendron presented the Testament for probate, dated June 10, 1986, in olographic form, together with the requisite affidavit establishing that the Testament—written entirely in cursive—was wholly written, dated and signed in Decedent's handwriting. The affidavit supporting probate of the Testament was attested to by both Mrs. Gendron and Raymond, Jr.

In the Testament, which named Mrs. Gendron as executrix, Decedent bequeathed "to [his] wife the disposable portion of [his] estate," "the lifetime usufruct of the remainder of [his] estate," and directed the forced portion "under the Laws of this state" to go to his children. Letters testamentary were issued to Mrs. Gendron on June 23, 2015. After a brief administration by Mrs. Gendron as executrix of Decedent's estate, she filed a petition for possession on December 29, 2015. A judgment of possession was signed on January 4, 2016, placing Mrs. Gendron in possession of the entirety of Decedent's estate, for at the time of Decedent's death, none of his surviving children qualified as forced heirs "under the Laws of this state." Shortly thereafter, Mrs. Gendron died on May 12, 2016.²

On July 7, 2016—over one year after their father's death, six months after his olographic Testament had been probated, and after their mother's death—the Gendron sisters intervened in the Succession of Mr. Gendron, Sr., contesting the validity of Decedent's probated Testament, by filing a "Petition to Reopen Succession and Recover Decedent's Funds and Petition to Annul the Decedent's Probated Testament." In their petition, the Gendron sisters challenged the authenticity of the probated Testament on the basis that it was a forgery and not entirely written, dated, and signed by Decedent. The Gendron sisters alleged that they were each familiar with their father's handwriting and that the June 10, 1986 Testament was incompatible with numerous handwriting samples in their possession known by them to have been written by their father. Thus, the Gendron sisters averred that the probated Testament was invalid as it was not entirely written, dated and signed by their father. Consequently, the Gendron sisters urged that their father died intestate, entitling them to be placed in possession of his estate. The Gendron sisters also attacked the affidavit of death, domicile, and heirship that stated that each of Decedent's children had attained the age of 24 years and, thus, were not forced heirs under the law, because at the time Decedent executed the Testament in 1986, the law provided that all descendants of the first degree were forced heirs.³

A two-day bench trial was held on July 25 and August 8, 2018, respectively. At trial, each of the Gendron sisters testified regarding the invalidity of the probated Testament. They also submitted numerous notes and letters known by them to be handwritten by their father, all of which were written partially in print and partially in cursive.⁴ The Gendron sisters produced a handwriting expert, Robert Foley, who was stipulated as an expert in forensic document examination. Mr. Foley is certified by the American Board of Forensic Examiners as a handwriting expert. Using a methodology recognized by the industry, Mr. Foley compared exemplars of Decedent's handwritten notes to the probated Testament and, based on the inconsistences he observed in the writing styles, concluded that the Testament was "probably not written" entirely in Decedent's handwriting. In reaching this conclusion, Mr. Foley opined that the observed differences—between the writing styles found in the exemplars of Decedent's printed handwriting in his business and informal personal documents and the formal cursive writing found in the probated Testament—outweighed the similarities. For instance, he noted that the way the word "La Place" appeared at the top of the probated Testament differed from the way it appeared in the body of the Testament as "Laplace." According to all of the Gendron sisters, their father never wrote the word "Laplace" as one word, as seen in the body of the probated Testament.

Mr. Foley testified that Decedent's handwritten personal notes suggested that he wrote in a casual style, and not in the rigid style observed in the formal probated Testament. Though Mr. Foley conceded that his examination would have been more conclusive had he had more exemplars that were written entirely by Decedent in cursive, he stood by his determination that the date and the body of the probated Testament were "probably not" written by Decedent; however, he testified that Decedent probably did actually sign the will. In short, because Mr. Foley had insufficient cursive exemplars for comparison, he could not determine that the handwriting in the body of the probated Testament was, indeed, that of Decedent; consequently, the differences having outweighed the similarities, he concluded that it probably was not.

Mary Ann Sherry testified as a handwriting expert on behalf of Raymond, Jr.⁵ Contrary to Mr. Foley, who focused on the differences between the handwriting when comparing the documents, Ms. Sherry, in reaching her conclusion, concentrated on the similarities . Specifically, she compared the cursive letters and certain words written in Decedent's "hybrid," often illegible, style of writing found in his informal notes and letters, with the cursive writing contained in the probated Testament and, given the numerous similarities she observed, concluded that the handwriting in the exemplars and the handwriting in the probated Testament "definitely point[ed] to one writer"—Decedent.

In addition to comparing similar letter and word formations, Ms. Sherry observed that the formatting habits seen in the handwriting exemplars, such as the natural indentations and spacing between each paragraph, were identical to the formatting used in the probated Testament. She testified that there were other idiosyncratic habits noted in Decedent's writing style that were evident in both the exemplars and the Testament. For example, the unique way in which Decedent formed his capital "Es" and "Ls," and the fact that he tended to capitalize words beginning with "L" even where the word was not found at the beginning of a sentence, otherwise referred to as a "misplaced capital." According to Ms. Sherry, there was a sufficient number of cursive writings contained in the exemplars to support her conclusion that, when compared to the cursive writing in the probated Testament, based on the numerous similarities in the letter and word formations, the consistencies in the formatting habits, and the idiosyncratic habits, the entirety of the probated Testament was written in Decedent's own hand.

In addition to the expert witnesses, each of the Gendron sisters testified that she was familiar with her father's handwriting because she had worked for him in some capacity over the years. Each sister also testified that she did not recognize the handwriting in the probated Testament to be that of her father. The Gendron sisters focused largely on three factors: they never knew their father to have written entirely in cursive; he never wrote "Laplace" as one word using a small "p" as seen in the body of the probated Testament; and he never wrote the letter "J" in cursive as it was written (i.e. , "June") in the probated Testament.

Marie Gendron Lambert testified that she worked for her father for ten years, from 1998 to 2008. She claimed that her father did not even know how to write in cursive. On cross-examination, however, she conceded that he would "sometimes" write using a hybrid of block lettering and cursive, but never did he write solely in cursive. Marie also stated that her father was meticulous about his spelling and would never have spelled "revoke" as "revolke."

Raye Claire Gendron, who also worked for her father in 1976, testified that the cursive handwriting in the Testament was not her father's. She stated that because she never saw him write entirely in cursive, she did not know if her father knew how to write in cursive.

Similarly, Judy Gendron Kline, who claimed that she was familiar with "all of her father's handwriting," including how he wrote each letter of the alphabet, testified that the probated Testament did not contain her father's handwriting because her father never wrote totally in cursive.

Karen Gendron, who also did not recognize the handwriting in the probated Testament as her f...