Atkins v. Roberts

561 So. 2d 837, 1990 WL 60931
CourtLouisiana Court of Appeal
DecidedMay 9, 1990
Docket21497-CA
StatusPublished
Cited by16 cases

This text of 561 So. 2d 837 (Atkins v. Roberts) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Atkins v. Roberts, 561 So. 2d 837, 1990 WL 60931 (La. Ct. App. 1990).

Opinion

561 So.2d 837 (1990)

Henry Edwin ATKINS and Harold William Atkins, Appellees,
v.
Opal Atkins ROBERTS, Appellant.

No. 21497-CA.

Court of Appeal of Louisiana, Second Circuit.

May 9, 1990.

Dawkins, Coyle and Carter by Michael S. Coyle, Ruston, for appellees.

Jack R. Gamble, Jr., Mansfield, for appellant.

Before FRED W. JONES, Jr., SEXTON and LINDSAY, JJ.

FRED W. JONES, Jr., Judge.

Defendant, Opal Matthews Atkins Roberts, appealed the judgment of the trial court in favor of plaintiffs, Henry and Harold Atkins, annulling the last will and testament of F.E. Atkins. Finding that the trial court was not clearly wrong in holding that testator lacked testamentary capacity but erred in the assessment of costs, we *838 amend the judgment and as amended, affirm.

Assignments of Error

On appeal, defendant asserts the following assignments of error:

1) The trial court erred in finding the deceased could not read and accordingly could not make a valid will under the provisions of La.R.S. 9:2442;
2) The trial court erred in holding that an ability to read is required to make a valid will when it had been proven the proposed will had been read aloud to testator and he knew the contents thereof when it was executed; and,
3) The trial court erred in assessing court costs to defendant individually when her actions were done in her capacity as testamentary executrix of the succession and thus costs should have been assessed against the estate.

Factual Context

On April 3, 1984 F.E. Atkins executed a last will and testament bequeathing to his second wife, Opal Roberts, a lifetime usufruct over his entire estate and bequeathing to his two children from a previous marriage, Henry and Harold Atkins, his entire estate subject to the spousal usufruct. Roberts was named executrix of the estate without bond. The testament stated it was executed pursuant to La.R.S. 9:2442 and 2443 and consisted of a one page typewritten document signed by the testator, a notary public and two witnesses. The testator died on August 24, 1985.

On July 24, 1986 defendant filed a petition for probate of the statutory testament requesting it be probated and that she be named executrix of the estate. On that same date, the trial court found the testament of the deceased in statutory form was proven and ordered the testament executed according to law. Defendant was duly qualified as executrix of the estate.

On March 3, 1989 plaintiffs instituted this action to annul the testament, alleging the purported testament in statutory form was a nullity because the deceased-testator could not read. Plaintiffs contended the testament was not in proper form for execution by a person who could not read because it was not witnessed by three witnesses and did not contain an attestation clause certifying it had been read to the testator by the notary in the presence of three witnesses who followed a reading of the testament on copies provided to them. Therefore, plaintiffs asserted the testament should be declared null and the court order probating the testament and appointing defendant as executrix should be recalled.

The testimony of the witnesses at the hearing on the rule centered upon whether the testator could read and established the testator was a contractor with little formal education.

Plaintiffs, Henry and Harold Atkins, testified that their father had never been able to read. Plaintiffs indicated the testator was "good" with figures and numbers but could not read. The testator could "read" blueprints involved in his work as they consisted primarily of figures but could not read the written specifications. Both sons had assisted their father in his work and testified they had read specifications for him. Further, the testator had requested menus and newspaper articles be read to him. The plaintiffs testified their mother had also read to the testator during their marriage. The testimony established testator could sign his name and was taught to do so by his first wife. The testator hid his inability to read as he was ashamed and had indicated he had not completed the first grade.

The brother-in-law of defendant, M.J. Captain, testified he was a neighbor of the testator for a period in excess of ten years before his death. Captain testified the testator could not read by his own admission and had demonstrated his inability to read when he handed a newspaper to Captain and asked him to read it to him. Captain testified that when he questioned testator, the testator indicated he had little education and could not read. From time to time, the testator would ask Captain to read something for him and seemed embarrassed by his illiteracy. Captain stated he *839 had never seen the testator write anything other than his name.

Hazel Captain, sister of defendant, testified she had known the testator for approximately 22 years and he had never demonstrated an ability to read or write. She testified testator had asked her to help him find his pain medication in the medicine cabinet because he could not read the labels on the medicine bottles in order to identify the correct medication.

Mr. & Mrs. Emory Matthews, brother and sister-in-law of defendant, testified that the testator could not read and they had never seen the testator read anything. Mr. Matthews worked with the testator for approximately 10 to 12 years and testified he had never seen the testator write a check. When in restaurants, Matthews stated the testator would ask what was on the menu or would simply order the same thing as the others.

The defendant testified that she and the testator were married for approximately 20 years, but during that time she had never heard the testator read anything aloud. The defendant would read letters to the testator, but testified she had seen him pick the letters up afterwards and look at them. She admitted she had never seen the testator read a menu but stated the testator always knew what he wanted. The defendant kept all of the business records and did the payroll. Defendant testified the testator would occasionally fill in the employees' time on the time records next to the names she had written. She had observed the testator looking at magazines which he appeared to be reading as well as examining his blueprints and specifications. Defendant was unable to produce any document she had seen the testator write other than his signature.

Jack Averett, the notary public on the testator's will, testified he had read the will aloud to the testator as a courtesy because the testator had one or two questions and indicated there were some parts he wanted to clarify. Averett stated the testator appeared to know what he was doing when the will was executed and he always asked people before they signed a document if they had read and understood what they were signing. Averett made no determination of whether the testator could read prior to executing the will and had no personal knowledge of the testator's ability to read.

Henry Thomas, a former employee of the testator, testified he had known the testator for approximately 20 years. He stated the testator had read blueprints and specifications to him and would then tell Thomas what kind of fixtures went into the building. Thomas testified the testator would appear to be reading the blueprints and specifications and would point things out. Based upon his observations of the testator, Thomas did not have any doubt the testator could read. Thomas admitted he had never heard the testator read aloud from anything other than blueprints and specifications.

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Cite This Page — Counsel Stack

Bluebook (online)
561 So. 2d 837, 1990 WL 60931, Counsel Stack Legal Research, https://law.counselstack.com/opinion/atkins-v-roberts-lactapp-1990.