Succession of Bordelon

149 So. 3d 396, 14 La.App. 3 Cir. 274, 2014 La. App. LEXIS 2335, 2014 WL 4851811
CourtLouisiana Court of Appeal
DecidedOctober 1, 2014
DocketNo. 14-274
StatusPublished

This text of 149 So. 3d 396 (Succession of Bordelon) 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
Succession of Bordelon, 149 So. 3d 396, 14 La.App. 3 Cir. 274, 2014 La. App. LEXIS 2335, 2014 WL 4851811 (La. Ct. App. 2014).

Opinion

SAUNDERS, Judge.

|,This is a succession case dealing with a will executed in 1999, a codicil executed in 2010, and second codicil executed in 2011. At trial, Appellees asserted the 2011 codicil was invalid because it was executed at a time the decedent lacked testamentary capacity and was the product of undue influ[398]*398ence. The trial court found the decedent lacked testamentary capacity at the time the 2011 codicil was executed and that Appellant exerted undue influence on the decedent. On appeal, Appellant raises three assignments of error. Appellees answered the appeal, asserting the trial court erred in finding the 2011 codicil was valid in form. For the reasons discussed herein, we affirm the trial court’s judgment. FACTS AND PROCEDURAL HISTORY

This case involves the testament of Jacob Bordelon (hereafter “decedent”) and two codicils.

The decedent was the father of three children, Marsha, Vickie, and Wade, and was married to Marilyn Bordelon. Marsha has a son, Lucas Desselle, who is the Appellant. Vickie had two sons, Clint and Jase Arnouville. The decedent made his living farming and raising cattle.

The decedent executed an original will on August 23, 1999, dividing naked ownership of most of his estate amongst his children with a usufruct in favor of Marilyn. Some items were bequeathed to his children free of the usufruct in favor of Marilyn. On June 8, 2010, to reflect the acquisition of additional property, the decedent executed a codicil to the original will. The 2010 codicil disposed of additional property and amended some former legacies. Appellant was not a legatee in either the 1999 will, or the 2010 codicil. On December 14, 2011, the decedent executed a second codicil. The 2011 codicil granted naked ownership of 12the property formerly bequeathed to Wade to Appellant. Wade was left a usufruct of the property formerly bequeathed to him in naked ownership. Several items were bequeathed to Appellant in full ownership, unencumbered by the usufruct in favor of Wade. Appellant had never been a legatee before.

The decedent died on August 8, 2012. Appellant filed a petition to probate the decedent’s 1999 will and the 2011 codicil on October 16, 2012. On October 17, 2012, the original will and 2011 codicil were probated and Appellant was appointed provisional administrator of the decedent’s estate. On November 9, 2012, the decedent’s wife, Marilyn, filed a Motion to Remove Provisional Administrator, to File Original Will and Codicil, to Appoint Executrix, for Authority to Lease Property, and to Continue Business Enterprises, in which she alleged the 2011 codicil was unenforceable because the decedent lacked capacity to execute it and because Appellant unduly influenced the decedent. A judgment probating the original will and 2010 codicil was issued on May 10, 2013, On May 14, 2013, Appellant filed a Motion to Re-Fix Hearing on Rule to Show Cause, alleging the May 10, 2013 judgment did not address the validity of the 2011 codicil. After trial on the merits, judgment was rendered on January 21, 2014, declaring the 2011 codicil null. It is from this judgment that this appeal arises.

In June of 2011, Dr. James Quillan conducted a mental status examination on the decedent, reporting that the decedent was not oriented as to time but was able to speak fluently and coherently. His deposition testimony was admitted into evidence at trial. Multiple witnesses testified that the decedent behaved unusually and was confused in the months surrounding the execution of the 2011 codicil. However, the attorney who notarized the 2011 codicil testified that the decedent appeared coherent on the two days he met with him, including the day the 2011 codicil was executed. On the evening of December 14, 2011, following the ^execution of the second codicil, the decedent inappropriately discharged a firearm in his home.

Appellant spent a significant amount of time with the decedent throughout his life and had a close relationship with the dece[399]*399dent. For many years, Appellant helped the decedent with the farming and cattle operations. In the last few years of the decedent’s life, the frequency of their contact decreased. However, Appellant’s girlfriend, Kasey, spent a substantial amount of time with the decedent in the year preceding his death, often taking him to doctors’ appointments, to visit friends, to joyride, and to visit Appellant and others while they worked in the field. Marilyn primarily cared for the decedent in the time preceding his death, although she was often assisted by her children and Kasey.

In his appeal, Appellant raised the following assignments of error:

ASSIGNMENTS OF ERROR:

1. The trial court erred in finding that the decedent lacked testamentary capacity.
2. The trial court erred in finding that Appellant exerted undue influence on the decedent.
3. The trial court erred in denying Appellant’s motion in limine to exclude the deposition testimony of Dr. James Quillan.

ASSIGNMENT OF ERROR NUMBER ONE:

Appellant asserts that the trial court erred by declaring the 2011 codicil null on the grounds that the decedent lacked testamentary capacity. This assignment of error is without merit.

“An appellate court may not set aside a trial court’s finding of fact absent manifest error or unless it is clearly wrong.” Succession of Moss, 00-62, p. 3 (La.App. 3 Cir. 6/21/00), 769 So.2d 614, 617, writ denied, 00-2834 (La.12/8/00), 776 So.2d 462 (citing Rosell v. ESCO, 549 So.2d 840 (La.1989)). “[T]he question of testamentary capacity is a question of fact.” Succession of Ellis, 486 So.2d 260, 262 (La.App. 3 Cir.1986).

The trial court found the evidence showed the decedent “had the capacity to execute the document and to understand the nature of the document, [but the decedent] did not have the capacity to understand the consequences thereof,” and, thus, that decedent “did not have the necessary testamentary capacity to execute the Codicil in December 2011.” Therefore, the trial court found the 2011 codicil invalid. To warrant reversal, Appellant must show that the trial court’s finding that the decedent lacked testamentary capacity was manifestly erroneous or clearly wrong.

To have the capacity to donate inter vivos or mortis causa, a person must be able “to comprehend generally the nature and consequences” of his action. La.Civ. Code art. 1477. “Capacity to donate mor-tis causa must exist at the time the testator executes the testament.” La.Civ.Code art. 1471. A person challenging the capacity of a testator must prove lack of capacity at the time the testament was executed by clear and convincing evidence. La.Civ. Code art. 1482(A).

After reviewing the record, we find ample evidence to support the trial court’s finding that the decedent lacked testamentary capacity at the time the 2011 codicil was executed. James W. Quillan, Ph.D., a medical psychologist who holds a post-doctoral Master’s Degree in Clinical Psycho-pharmacology, performed a mental status examination on the decedent on May 25, 2011.

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Bluebook (online)
149 So. 3d 396, 14 La.App. 3 Cir. 274, 2014 La. App. LEXIS 2335, 2014 WL 4851811, Counsel Stack Legal Research, https://law.counselstack.com/opinion/succession-of-bordelon-lactapp-2014.