In re Walker

• Decision Date: 14 August 2019
• Docket Number: 18-447
• Citation: 279 So.3d 1030
• Parties: SUCCESSION OF Clarence WALKER
• Court: Court of Appeal of Louisiana — District of US

279 So.3d 1030

SUCCESSION OF Clarence WALKER

18-447

Court of Appeal of Louisiana, Third Circuit.

August 14, 2019

Michael Hathorn Davis, Law Office of Michael H. Davis, Post Office Drawer 12180, Alexandria, Louisiana 71315, (318) 445-3621, COUNSEL FOR OTHER/APPELLANTS: Gary Mitchell, Sheila Mitchell Johnson

Zebulon M. Winstead, Andree Braud Leddy, Crowell & Owens, LLC, 3416 North Boulevard, Alexandria, Louisiana 71301, (318) 445-1488 COUNSEL FOR OTHER/APPELLEE: Joan Robertson

Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and D. Kent Savoie, Judges.

SAVOIE, Judge.

Plaintiffs-in-Rule Gary Mitchell and Sheila Mitchell Johnson appeal the judgment of the trial court, finding they have not met the required burden of proof to nullify the May 26, 2017 testament of decedent Clarence Walker. For the following reasons, we reverse.

FACTS AND PROCEDURAL HISTORY

Clarence Walker died on June 14, 2017, in Torrance, California. His wife, Virginia Walker, predeceased him, and there were no children born of the marriage. Clarence had children prior to his marriage - a daughter, Joan Robertson, and a son, Paul Davis. Gary Mitchell and Sheila Mitchell Johnson are the children of Virginia Walker's sister. They grew up in the Walker home and were raised primarily by Clarence and Virginia.

Joan Robertson filed a Petition for Order of Effect of Probate and for Confirmation of Independent Executrix on June 29, 2017. The Petition states that Clarence Walker was a resident of Alexandria, Louisiana, when he died. The Last Will and Testament of Clarence Walker dated May 26, 2017, is attached to the petition. Joan Robertson is listed as Independent Executrix in the will, and she executed the oath of office, attaching it to the petition. In the will, Clarence made Joan Robertson his sole heir by stating that after funeral expenses, administrative expenses, and taxes are paid, "I devise and bequeath the remainder of my estate to my daughter, JOAN ROBERTSON." If she predeceases him, his estate would be passed to her "lawful issue," and if she dies without lawful issue, then it would go to his son, Paul Davis. The May 26, 2017 will was executed three weeks prior to Clarence Walker's death while he was hospitalized in California.

Also attached to the petition are two Affidavits of Death, Domicile and Heirship. One was executed by Robert Robertson, Joan's husband, and the other by Betty Washington Walker, a family friend. They both attest that they were well acquainted with Clarence Walker, affirm certain facts listed in the petition, and add that Joan and Paul are over the age of twenty-three years, suffer from no mental incapacity nor physical infirmity and are capable of taking care of their person and administering their estates. An Order of Effect of Probate and Confirmation of Independent Executrix was signed by the trial court on June 29, 2017.

Gary Mitchell and Sheila Mitchell Johnson filed a Rule to Show Cause to Annul Probated Testament and Rule to Remove Independent Administratrix on July 11, 2017. Gary and Sheila allege that they are legatees of Clarence Walker under a will executed by Clarence on June 15, 2016, which they attached to the rule. Gary and Sheila further allege that the probated will dated May 26, 2017, is invalid because Clarence could not read and the will is not executed in the proper form for a person who cannot read, specifically, "the [w]ill failed to declare that the testament had been read aloud in the presence of the Notary and the witnesses, and further failed to declare that the witnesses followed such reading on copies of the testament, and that the Testator declared or signified that he heard the reading and that the instrument is his testament." They further allege that Clarence "lacked the testamentary capacity to make a [w]ill on May 26, 2017[,] due to his severe dementia and his terminal illness which rendered his mental capacity to such a state as to not know and be aware of his execution of the [w]ill on May 27, 2017." The rule also requests that Joan Robertson be removed as executrix because her appointment was based on an invalid testament, and she is not a resident or domiciliary of the State of Louisiana.¹

In addition to the rule, Gary and Sheila filed a Petition for Probate of Statutory Will and for Appointment of Independent Executrix, wherein they ask the trial court to probate the will dated June 15, 2016, and to appoint Sheila Mitchell Johnson as Independent Executrix. In the June 15, 2016 testament, Clarence leaves his estate to Gary, Sheila, Joan and Paul to share equally. This will was executed in Alexandria, Louisiana, one year, almost to the day, prior to Clarence's death.

The trial court signed an Order on July 13, 2017, ordering Joan Robertson to show cause why the May 26, 2017 testament should not be annulled and why Joan should not be removed as Independent Executrix. The matter was heard on October 16 and 17, 2017. The trial court took the matter under advisement and issued Written Reasons on November 30, 2017. Judgment was signed on December 20, 2017, with the trial court denying Gary and Sheila's rule to annul the probated May 26, 2017 will and the removal of the executrix. Gary and Sheila now appeal.

ASSIGNMENTS OF ERROR

1. The trial judge erred as a matter of law by imposing the burden of proof beyond a reasonable doubt as opposed to proof by clear and convincing evidence.

2. The trial judge erred in finding that the revocation clause contained in the will of May 26, 2017, was a valid, authentic act.

LAW AND DISCUSSION

The law regarding the nullity of a testament based on lack of testamentary capacity is set forth in In Re Succession of Brackins , 12-1311, pp. 2-3 (La.App. 3 Cir. 4/3/13), 112 So.3d 963, 965-66, as follows:

"Capacity to donate mortis causa must exist at the time the testator executes the testament." La.Civ.Code art. 1471. "To have capacity to make a donation ... mortis causa, a person must also be capable to comprehend generally the nature and consequences of the disposition that he is making." La.Civ.Code art. 1477. "In an action to annul a notarial testament ... the plaintiff always has the burden of proving the invalidity of the testament." La.Code Civ.P. art. 2932(B). " ‘A party is presumed to have testamentary capacity, and the opponent bears the burden of defeating this presumption by putting forth clear and convincing evidence to the contrary.’ " In re Succession of Sandifer , 05-860, p. 3 (La.App. 3 Cir. 3/1/06), 923 So.2d 862, 865 (quoting Succession of Fletcher , 94-1426, p. 4 (La.App. 3 Cir. 4/5/95), 653 So.2d 119, 121, writ denied, 95-1105 (La. 6/16/95), 655 So.2d 338 ).

Louisiana Civil Code Article 1577 states:

The notarial testament shall be prepared in writing and dated and shall be executed in the following manner. If the testator knows how to sign his name and to read and is physically able to do both, then:

(1) n the presence of a notary and two competent witnesses, the testator shall declare or signify to them that the instrument is his testament and shall sign his name at the end of the testament and on each other separate page.

(2) In the presence of the testator and each other, the notary and the witnesses shall sign the following declaration, or one substantially similar: "In our presence the testator has declared or signified that this instrument is his testament and has signed it at the end and on each other separate page, and in the presence of the testator and each other we have hereunto subscribed our names this ___ day of _____, ___."

At the trial of this matter, Gary and Sheila focused on Clarence's inability to read as the reason to nullify the 2017 testament, not his alleged dementia. As such, there are no medical records introduced into the record, and the trial court did not mention Clarence Walker's terminal illness in its Written Reasons. Therefore, we will direct our opinion to the issue of Clarence's ability or inability to read.

The May 26, 2017 testament was in the proper form for a testator who knows how and is physically able to read. However, it is Gary and Sheila's contention that Clarence Walker could not read. The law regarding the required form for a testator who does not know how to read is found in La.Civ.Code art. 1579 which states:

When a testator does not know how to read, or is physically impaired to the extent that he cannot read, whether or not he is able to sign his name, the procedure for execution of a notarial testament is as follows:

(1) The written testament must be read aloud in the presence of the testator, the notary, and two competent witnesses. The witnesses, and the notary if he is not the person who reads the testament aloud, must follow the reading on copies of the testament. After the reading, the testator must declare or signify to them that he heard the reading, and that the instrument is his testament. If he knows how, and is able to do so, the testator must sign his name at the end of the testament and on each other separate page of the instrument.

(2) In the presence of the testator and each other, the notary and witnesses must sign the following declaration, or one substantially similar: "This testament has been read aloud in our presence and in the presence of the testator, such reading having been followed on copies of the testament by the witnesses [, and the notary if he is not the person who reads it aloud,] and in our presence the testator declared or signified that he heard the reading, and that the instrument is his testament, and that he signed his name at the end of the testament and on each other separate page; and in the presence of the testator and each other, we have subscribed our names this ____day of ____, ______."

(3) If the testator does not know how to sign his name or is unable to sign because of a physical infirmity, he must so declare or signify and then affix his mark, or cause it to be affixed, where his signature would otherwise be required; and if he

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