In re Westerchil
| Decision Date | 09 December 2020 |
| Docket Number | CA 20-192 |
| Parties | SUCCESSION OF Charles R. WESTERCHIL |
| Court | Court of Appeal of Louisiana — District of US |
William Alan Pesnell, Alan Pesnell Lawyer, LLC, 120 E. Mark St., Marksville, LA 71351, (318) 717-2380, COUNSEL FOR PLAINTIFFS/APPELLANTS: Jennifer Westerchil, Lacey Westerchil Fulson, Paul Westerchil
Jeremy C. Cedars, Fine Legal Services, L.L.C., 4615 Parliament Drive, Ste 202, Alexandria, LA 71303, (318) 767-2226 COUNSEL FOR DEFENDANT/APPELLEE: Kimberly Westerchil
Court composed of Billy Howard Ezell, Phyllis M. Keaty, and D. Kent Savoie, Judges.
Plaintiffs, who are the adult children of Charles Westerchil ("Chuck"), appeal the trial court's dismissal of their Petition seeking to annul Chuck's Last Will and Testament dated February 26, 2014 ("Testament"), as well as a trust created that same day. Specifically, Plaintiffs challenge the form of the Testament, as well as Chuck's capacity to execute the Testament and Trust. For the following reasons, we affirm.
Chuck and Kimberly ("Kim") Westerchil were married in 1997. Prior thereto, on March 14, 1997, they signed a Matrimonial Agreement stating that, in anticipation of their upcoming marriage, "they desired to contractually modify the regime of property between married persons[,]" such that "all property presently owned or hereinafter acquired by each, in his or her individual name, shall be separate property of that party[.]" The Matrimonial Agreement further provided that "the income of either party whether derived from business, profession, investments, or otherwise, shall be that spouse's separate income and property[,]" and that "to the extent the parties may acquire property jointly, said property shall be considered community property insofar as it is an advantage of the taxpayer for the purposes of computation of taxes due ...."
Prior to his marriage to Kim, Chuck had two children with his first wife, as well as an adopted third child. Those children, who are now adults, are Jennifer Westerchil ("Jennifer"), Lacey Westerchil Fulson ("Lacey"), and Paul Westerchil ("Paul"). Kim also had two daughters from a prior relationship, Emily Morgan and Ashley Bowen. Chuck and Kim did not have any children together.
On September 17, 1998, Kim donated to Chuck through a written Act of Donation an undivided one-half interest in property bearing the address of 1805 Yupon Drive, in Alexandria, Louisiana ("Yupon property"). The Act of Donation stated that "they currently reside together as husband and wife; and they have agreed to establish the residence at 1805 Yupon Drive as their matrimonial domicile and have jointly expended sums in renovation of the same." They thereafter resided at this address as husband and wife.
Throughout the marriage, Chuck was the owner of Westerchil Construction Company, and Kim owned a check cashing business. In 2012, however, Chuck was diagnosed with dementia
. In late 2012, Kim closed her business and began working with Chuck and Chuck's daughter, Jennifer, at Westerchil Construction.
On July 10, 2013, Chuck signed a Power of Attorney designating Kim to be his "mandatary agent and attorney-in-fact, granting to [her] full authority to act for [him] in conduct of all of [his] affairs."1
On February 26, 2014, Chuck signed a Last Will and Testament, which is the Testament at issue herein. The Testament provides for the following bequests:
Also on February 26, 2014, Chuck and Kim established the Westerchil Family Irrevocable Trust ("Trust"), and certain property was transferred to the Trust via an Act of Transfer signed and dated the same date. This property included the Yupon property, a brokerage account in Kim's name, three financial accounts in Chuck's name, and four tracts of property belonging to Chuck.
The Trust names Kim as the initial Trustee over the Trust's assets, with Chuck's daughter, Jennifer, named as the successor Trustee. The Trust further provides that Chuck and Kim are "the lifetime income beneficiaries of this Trust[,]" and then further enumerates successor income beneficiaries and principal beneficiaries. Specifically, Kim's children, Emily Morgan and Ashley Bowen, were named as the "successor income beneficiaries and initial principal beneficiaries" of the Yupon property. In addition, Chuck's children, Jennifer, Lacey, and Paul, were named as the "successor income beneficiaries and initial principal beneficiaries" of three tracts of land formerly owned by their grandparents. The Trust further contemplated that Chuck's grandchildren, as well as Kim's grandchildren, were each to receive a principal interest of $10,000.00. In addition, any future grandchild of either Chuck or Kim was also to receive a principal of interest of $10,000.00.
Chuck subsequently passed away on February 16, 2016. Thereafter, Kim filed a Petition to probate Chuck's Testament, and she was appointed Executrix of the Succession.
On August 16, 2017, Chuck's adult children, Jennifer, Lacey, and Paul ("Plaintiffs"), filed a Petition to Annul Probated Testament and Related Matters. Kim was named as Defendant in her capacity as the Executrix of the Succession, the Trustee of the Trust, and individually. In their Petition, Plaintiffs sought to nullify both the Testament and the Trust, alleging that Chuck suffered from dementia and Alzheimer's "for some years prior to his death[,]" and "as a result of the debilitating effects of those diseases and problems[,]" he did not have the requisite mental capacity to execute the Testament or Trust. They further sought to revoke the Testament and Trust because they are "the product of influence by the Executrix that so impaired the volition of the Decedent as to substitute the volition of the Executrix for the volition of the Decedent."
Plaintiffs also noted in their Petition that Chuck's marriage to Kim was governed by the Matrimonial Agreement establishing a separate property regime, and they further alleged that, in accordance with Chuck's prior testament dated July 7, 2000, "the children receive[d] outright bequests, and [Chuck] left certain specific bequests to [Kimberly]." However, according to Plaintiffs’ petition, despite the language of the Matrimonial Agreement, the February 2014 Testament and Trust transferred all of Chuck's properties to the benefit of Kim for her life, as well as granted a fifty percent interest to Kim's children, thereby effectively abrogating the matrimonial agreement between the parties.
Following trial on July 9, 2019, the trial court rendered a judgment against Plaintiffs and dismissed their Petition. Plaintiffs appeal and assert the following as assignments of error:
In their first assignment of error, Plaintiffs argue that because Chuck's otherwise typewritten Testament included dates filled in by hand by the notary, the Testament is not in the form required by La.Civ.Code art. 1577.3 The trial court's determination as to the validity of a testament's form is a matter of law and subject to de novo review. Succession of Biscamp , 16-673 (La.App. 3 Cir. 2/1/17), 211 So.3d 472, writ denied , 17-408 (La. 4/27/18), 241 So.3d 305.
Chuck's Testament is a notarial testament contemplated by La.Civ.Code art. 1576. "A notarial testament is one that is executed in accordance with the formalities of Articles 1577 through 1580.1." La.Civ.Code art. 1576. Louisiana Civil Code Article 1577 (emphasis added) provides as follows with respect to the form requirements of notarial testaments:
Successions of Toney , 16-1534, p. 5 (La. 5/3/17), 226 So.3d 397, 401.
It is undisputed that Chuck's Testament was prepared and notarized by attorney Steve Cook. The Testament is typewritten and contains two pages. The second page contains the following attestation clause:
The testator has signed this Will at the end and on each other separate page, and has declared or signified in our presence that it is his Last Will and Testament, and in the presence of...
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