In Re Succession of Edwards

11 So. 3d 1234, 2009 La.App. 3 Cir. 175, 2009 La. App. LEXIS 1035
CourtLouisiana Court of Appeal
DecidedJune 3, 2009
Docket09-175
StatusPublished
Cited by2 cases

This text of 11 So. 3d 1234 (In Re Succession of Edwards) 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
In Re Succession of Edwards, 11 So. 3d 1234, 2009 La.App. 3 Cir. 175, 2009 La. App. LEXIS 1035 (La. Ct. App. 2009).

Opinions

PICKETT, J.

| tMary Audrey Edwards, the wife of the decedent, Robert (NMI) Edwards Sr., appeals a judgment of the trial court denying her petition to probate the purported last will and testament of her husband and finding that testament, which was executed on June 8, 2007, null and void for lack of the decedent’s capacity to execute the same. We affirm the judgment of the trial court.

FACTS

Robert Edwards Sr. died on January 12, 2008. On January 28, 2008, his daughter Anita Dejean, filed a petition to be named administratrix of her deceased father’s succession. In her petition, she noted that a will in the name of “Robert Edwards” had been filed in the records of Calcasieu Parish but had not been presented for probate. She prayed to be named admin-istratrix “on information and belief the decedent died intestate.” On January 30, 2008, Ms. Dejean filed a document in the succession proceeding captioned “Opposition to the Probate of the Purported Last Will and Testament of Robert Edwards Dated June 8, 2007.” In the “opposition” document, Ms. Dejean stated three grounds for the basis of her opposition: 1) that at the time the will was executed, the decedent lacked the capacity to perfect a will; 2) that the purported will was the result of undue influence on the part of Mary Audrey Edwards, the decedent’s then wife; and/or 3) that the signature on the purported will is not that of the decedent.

Mary Audrey Edwards, the widow of the deceased, filed a “Petition for Probate of Statutory Testament and Appointment of Executrix and Opposition to Petition for Homologation of Final Account.”

| gin due course, on October 16, 2008, a hearing was held to hear arguments on the issues raised by the parties in their respective filings. Following the hearing, the trial court found that the purported will executed on June 8, 2007, was null and void for the decedent’s lack of comprehension (mental acuity) at that time. This appeal followed.

LAW AND ARGUMENT

On appeal, Ms. Edwards lists three assignments of error:

1. The trial judge erred and committed manifest error in admitting the testimony, over timely objections, of a psychiatrist as an expert in the field of “psychological autopsy” even though the doctor had never seen or examined and ultimately based his opinions on subjective information from partial medical records, which he admitted were inconsistent.
2. The trial judge committed manifest error in ignoring the testimonies of five disinterested parties, including, the attorney who drew up the will, a long time friend who sat with the testator on a daily basis, and three medical professionals who treated the testator.
3. The trial judge was clearly wrong in concluding that the testimony of the psychiatrist and the testator’s daughter proved by clear and convincing evidence that the testator was incapacitated.

“The trial court is accorded vast discretion concerning the admission of evidence, and its decision will not be reversed on appeal absent an abuse of that discretion.” McIntosh v. McElveen, 04-1041, [1236]*1236pp. 9-10 (La.App. 3 Cir. 2/2/05), 893 So.2d 986, 994, writ denied, 05-528 (La.4/29/05), 901 So.2d 1069; citing Maddox v. Omni Drilling Corp., 96-1673 (La.App. 3 Cir. 8/6/97), 698 So.2d 1022, writs denied, 97-2766, 2767 (La.1/30/98), 709 So.2d 706.

Concerning the admissibility of expert testimony, the Louisiana Supreme Court has stated:

Admissibility of expert testimony in Louisiana is governed by La.Code of Evid. art. 702, which provides as follows:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the | sevidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
The above article follows Fed. Rule of Evid. 702, according to Official Comment (b) (1988) to La.Code of Evid. art. 702. A district court is accorded broad discretion in determining whether expert testimony should be held admissible and who should or should not be permitted to testify as an expert. Official Comment (d), citing 3 J. Weinstein & M. Berger, Weinstein’s Evidence ¶ 702[02] (1981). See also Merlin v. Fuselier Const. Inc.[] 2000-1862, p. 12 (La.App. 5 Cir. 5/30/01), 789 So.2d 710, 718 [“Whether an expert meets the qualifications of an expert witness and the competency of the expert witness to testify in specialized areas is within the discretion of the trial court.”] A district court’s decision to qualify an expert will not be overturned absent an abuse of discretion. Id.; State v. Castleberry, 1998-1388 (La.4/13/99),758 So.2d 749, 776.
In Daubert, the United States Supreme Court set a new standard to assist district courts in evaluating the admissibility of expert testimony. The new standard required the district courts to perform a “gatekeeping” function to “ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” 509 U.S. at 589, 113 S.Ct. 2786. See also State v. Chauvin 2002-1188 (La.5/20/03), 846 So.2d 697, 700-01. In Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), the United States Supreme Court held that the analysis established by Daubert is to be applied to determine the admissibility of all expert testimony, not just scientific testimony. Merlin, 2000-1862 at p. 12, 789 So.2d at 718. The Kumho Tire case dealt specifically with the issue of whether Daubert applies to engineering expert testimony. 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238.
Daubert established the following nonexclusive factors to be considered by district courts to determine the admissibility of expert testimony:
(1) The “testability” of the scientific theory or technique;
(2) Whether the theory or technique has been subjected to peer review and publication;
(3) The known or potential rate of error; and
(4) Whether the methodology is generally accepted in the scientific community. Daubert, 509 U.S. at 592-94, 113 S.Ct. 2786. This court in Foret characterized the Daubert factors as “observations” which provide |4a “helpful guide for our lower courts in considering this difficult issue.” 628 So.2d at 1123.

Cheairs v. State, Dep’t of Transp. and Dev., 03-680, p. 6-7 (La.12/3/03), 861 So.2d 536, 540-1.

[1237]*1237In her first assignment of error, the appellant argues that the trial judge erred in admitting the testimony of Dr. James M. Anderson who performed a psychological autopsy of the decedent by examining his medical records, the wills executed by the decedent and by the appellant, and the depositions of various parties involved in this proceeding. Dr. Anderson stated that, for the purpose of determining competency to execute a will, he concentrates

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11 So. 3d 1234, 2009 La.App. 3 Cir. 175, 2009 La. App. LEXIS 1035, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-succession-of-edwards-lactapp-2009.