Naquin v. Hile

536 So. 2d 676, 1988 WL 133779
CourtLouisiana Court of Appeal
DecidedDecember 14, 1988
Docket87-1053
StatusPublished
Cited by4 cases

This text of 536 So. 2d 676 (Naquin v. Hile) 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
Naquin v. Hile, 536 So. 2d 676, 1988 WL 133779 (La. Ct. App. 1988).

Opinion

536 So.2d 676 (1988)

Elmer NAQUIN, Plaintiff-Appellant,
v.
Lillian Dekerlegand HILE, Administratrix of the Succession of Marie Rose Naquin, Defendant-Appellee.

No. 87-1053.

Court of Appeal of Louisiana, Third Circuit.

December 14, 1988.

*677 David A. Blanchet, Lafayette, for plaintiff-appellant.

Fruge & DeJean, Ellen M. Walker, Lafayette, for defendant-appellee.

Before GUIDRY, FORET and KNOLL, JJ.

KNOLL, Judge.

Elmer Naquin appeals the dismissal of his action against Lillian Dekerlegand Hile, the administratrix of the Succession of Marie Rose Naquin, to annul the probated statutory testament of Marie Rose Naquin (hereafter the deceased) and to set aside the judgment of possession which recognized Mrs. Hile as the sole legatee of the deceased. The trial court found: (1) the testament was in authentic form; (2) Naquin failed to prove that the deceased lacked the necessary testamentary capacity at the time the testament was executed; (3) LSA-R.S. 9:2442 requires only that the testator know how to and is physically able to read, not that she actually have read the statutory testament at the time of execution; and, (4) Naquin failed to prove the deceased was physically unable to read at the time of the execution of the testament.

Naquin contends that the trial court erred in holding: (1) that a statutory will prepared in accordance with LSA-R.S. 9:2442 could be perfected by a person who was physically unable to read at the moment of execution; and (2) as a matter-of-fact that the deceased possessed the requisite mental capacity to execute a last will and testament. We affirm.

FACTS

Marie Rose Naquin, a retired school teacher fluent in English and French, died at Our Lady of Lourdes Hospital on March 4, 1984, at the age of 88. The deceased was never married, had no children, and was survived only by nieces and nephews.

The deceased lived alone, for the most part, in Carencro until March 1, 1983, when she was hospitalized at Our Lady of Lourdes Hospital in Lafayette for congestive heart failure, and an injury to her right leg. Upon discharge from the hospital, the *678 deceased resided first in the Lafayette Guest House for thirty days, and then was transferred to Bethany Nursing Home on April 4, 1983, where she remained until her death almost a year later.

On July 18, 1983, approximately 8 months prior to her death, the deceased executed a statutory will in the presence of G. Paul Marx, an attorney and notary public, with Anna Jane Marks and Margaret Bourque serving as witnesses. In the will the deceased designated Mrs. Hile, a niece of the deceased, as her sole legatee and the administratrix of her succession.

The district court probated the deceased's last will and testament on May 18, 1984, and on that same date signed a judgment of possession adjudicating the deceased's entire estate to Mrs. Hile.

Naquin, a nephew of the deceased, instituted an action to annul the decedent's last will and testament, as well as the judgment of possession, on August 18, 1984, within three months of the date of probate. Naquin's contentions were that the deceased lacked the mental capacity to execute a will, that the deceased's eyesight was so impaired that she was physically unable to read at the time her will was executed, and that the deceased's last will and testament was not executed in accordance with LSA-R.S. 9:2443 to qualify as a will executed by a person with a vision impairment.

ABILITY TO READ

Naquin first contends that the trial court erred in holding that a statutory will prepared in accordance with LSA-R.S. 9:2442 could be perfected by a person who was physically unable to read at the moment of execution. The trial court did not so hold. Rather, the trial court held in written reasons for judgment, that plaintiff failed to carry his burden of proof that the decedent was physically unable to read at the time the will was executed. Finding no manifest error in the trial court's conclusion that the deceased could read at the time her will was executed, we affirm.

In its written reasons for judgment, the trial court ultimately concluded, "[T]he Court finds the plaintiff [Naquin] has not met his burden of proof that the decedent was physically unable to read at the time the will was executed."

The capacity to make a will is tested at the time the will is made. LSA-C.C. Art. 1472; Succession of Caprito v. Mayhew, 478 So.2d 243 (La.App. 3rd Cir.1985), writ denied, 481 So.2d 1331 (La.1986). One of the requirements of LSA-R.S. 9:2442 is that the testator must be physically able to read at the time the testament is executed. Succession of Budwah, 441 So.2d 39 (La. App. 3rd Cir.1983). The testator's ability to read is an element of testamentary capacity. Id. at page 41. The burden of proving lack of testamentary capacity is upon the party alleging it. Succession of Schmidt, 219 La. 675, 53 So.2d 834 (1951).

There is a presumption in favor of testamentary capacity. Succession of Mithoff, 168 La. 624, 122 So. 886 (1929). A party alleging lack of testamentary capacity must overcome the presumption of capacity by clear and convincing evidence. Succession of Lyons, 452 So.2d 1161 (La.1984). Proof by clear and convincing evidence "requires more than a `preponderance of the evidence' but less than `beyond a reasonable doubt'. The existence of the disputed fact must be highly probable, that is, much more probable than its non-existence." Id. at page 1165.

Naquin relies on expert ophthalmological and optometric testimony, emphasizing that Dr. Rickey Lacombe, an optometrist who examined the deceased on July 12, 1983, six days prior to the execution of the will, found the deceased's best corrected near vision was 20/200 and opined that the deceased could not have read the type size of her last will and testament with her eyeglasses.

Sister Vivian Dekerlegand, a niece of the deceased and Mrs. Hile's sister, and a member of a religious order of nuns, and Anna Jane Marks, a close friend of the deceased, brought the deceased to the Carencro Eye Clinic, operated by Dr. Lacombe, six days before the will was executed. By deposition Dr. Lacombe testified that the deceased's main objective "was to read". According *679 to Dr. Lacombe, the deceased suffered from senile cataracts and macular degeneration of the eyes. Dr. Lacombe found that the deceased's visual acuity at near distances was 20/200. However, he did not change her eyeglass prescription because he felt the cost of the new pair of eyeglasses did not justify the slight improvement they would afford. Dr. Lacombe testified that even if he had prescribed stronger lenses, the deceased would have been unable to read the last will and testament. In order to pick and choose letters, Dr. Lacombe felt that the deceased would have needed to use at least a four (4) power magnifying glass in conjunction with her eyeglasses. Dr. Lacombe further stated that picking and choosing letters is not necessarily reading: when a person picks and chooses letters with a magnifying glass it must be done one at a time, and then the person must first form those letters into words, and then convert those words into a sentence.

Anna Marks and Sister Vivian testified that the deceased wore her eyeglasses at the execution of the will, and did not have a magnifying glass with her.

Present at the will execution were G. Paul Marx, an attorney, his secretary, Margaret Bourque, Mrs. Hile, Sister Vivian and Anna Marks. They all testified that the deceased did not use a magnifying glass at the will execution. However, Mr.

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Cite This Page — Counsel Stack

Bluebook (online)
536 So. 2d 676, 1988 WL 133779, Counsel Stack Legal Research, https://law.counselstack.com/opinion/naquin-v-hile-lactapp-1988.