Succession of Lanasa

948 So. 2d 288, 6 La.App. 5 Cir. 561, 2006 La. App. LEXIS 2942, 2006 WL 3798859
CourtLouisiana Court of Appeal
DecidedDecember 27, 2006
DocketNo. 06-CA-561
StatusPublished
Cited by2 cases

This text of 948 So. 2d 288 (Succession of Lanasa) 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 Lanasa, 948 So. 2d 288, 6 La.App. 5 Cir. 561, 2006 La. App. LEXIS 2942, 2006 WL 3798859 (La. Ct. App. 2006).

Opinion

SUSAN M. CHEHARDY, Judge.

| ¡.This is a succession proceeding involving a contest over the validity of a will. We reverse the trial court’s determination that the will was invalid.

FACTS

Dr. Marion A. LaNasa, Sr. died on November 14, 2004. At the time of his death he was married to and living with his second wife, Barbara Parham LaNasa. His first marriage had ended with the death of his first wife, by whom Dr. LaNa-sa had five children (all majors by the time of his death). Dr. LaNasa had no other children.

On December 6, 2004 Dr. LaNasa’s children petitioned to file and execute a notarial will dated November 6, 2003. In that will Dr. LaNasa left particular legacies to his grandchildren, great-grandchildren, and his son Marion A. LaNasa. He left the remainder of his estate to be divided in [290]*290equal portions among his five children.1 He stated further, “It is my specific desire that my present wife, Barbara LaNasa, get nothing from my estate. This includes but is not limited to any interest in my portion of community property, any usu-fructs or separate property.” He named his two sons to be executors of his estate.

|oOn December 7, 2004 the district court ordered that the will dated November 6, 2003 be filed and executed, that the estate be administered by independent administration, and that Marion A. LaNasa, Jr. and Anthony V. LaNasa be confirmed as independent co-executors.

On January 28, 2005, Mrs. Barbara La-Nasa filed a Petition to Annul Probated Testament. She alleged that the testament of November 6, 2003 is invalid because Dr. LaNasa was physically unable to read due to infirmity and, therefore, any testament by him must conform to the requirements of La.C.C. art. 1579. Article 1579 requires that where the testator is unable to read due to physical impairment, the purported testament must be read aloud in the presence of the testator, the notary, and two competent witnesses, and prescribes other formalities to be observed. Because the testament dated November 6, 2003 does not include a declaration that the formalities prescribed by Article 1579 had taken place, Mrs. La-Nasa alleged it is invalid.

Mrs. LaNasa further alleged that about the time the November 6, 2003 document was prepared and signed, she and Dr. LaNasa were quarreling; that Dr. LaNa-sa’s children encouraged his anger toward her, thus causing Dr. LaNasa to resent her; that Dr. LaNasa’s children seized upon his anger towards Mrs. LaNasa and drove him to an attorney with whom the decedent had no prior relationship for the purpose of having him execute a testament disinheriting his wife; that the actions and influences of Dr. LaNasa’s children resulted in the November 6, 2003 document whereby Dr. LaNasa disinherited Mrs. La-Nasa completely, in favor of his children. Mrs. LaNasa asserted that the alleged November 6, 2003 testament was the product of undue influence exerted by Dr. LaNa-sa’s children and should be declared null.

LThe executors opposed the petition to annul the testament. They admitted that Dr. LaNasa suffered from macular degeneration, but they asserted that he could read with the assistance of a reading machine, a device that magnifies documents onto a television screen. The executors contended that if a testator is able to read with magnification, the attestation clause is not necessary and, moreover, if a testator has the ability to read, his failure to actually read the will does not invalidate the will.

After a trial at which a number of witnesses testified, the district court took the matter under advisement and later rendered judgment finding the will invalid, as follows:

[I]n light of the fact that Dr. LaNasa did not have his or any other reading machine with him at the execution of the November 2003 will, the notarial testament should have been executed in accordance with the formalities of La.C.C. art. 1579. The Court finds that the November 2003 will does not meet the requirements of La.C.C. art. 1579 in that the testament was not read aloud assuring Dr. LaNasa, the notary and the witnesses that the instrument Dr. LaNa-sa signed was the instrument he intended to sign as his testament. Considering that the November 2003 will was not read aloud by the notary to Dr. LaNasa [291]*291and the witnesses and considering Dr. LaNasa was impaired to the extent that he could not read without his reading machine, the Court finds the November 2003 will to be invalid.

The executors appeal. They contend the trial court erred in determining that Dr. LaNasa’s November 2003 will required a sight-attestation clause in conformance with La.C.C. art. 1579, and in failing to grant judgment in favor of the executors. They frame the issues as whether a will must be executed in conformance with La. C.C. art. 1579 if the evidence is undisputed that the testator was able to read with magnification at the time the instrument was executed, and whether a testator who has the physical ability to read with the assistance of | ¡^instrumentality (ieeye-glasses, reading machine, etc.) must read the instrument prior to its execution in order for the vdll to be valid.

At trial the evidence concerned Dr. La-Nasa’s vision problems, the possible reasons he wished to disinherit his wife and, to a limited extent, possible bias of the witnesses to the signing of the will. The trial judge decided the case on the legal issue of whether the will was in the proper form for a person unable to read due to physical impairment. Mrs. LaNasa has not appealed the trial court’s failure to address the issue of undue influence. We limit our discussion of the evidence accordingly.

Dr. Rudolph Franklin, an ophthalmologist who specializes in diseases of the retina, testified he began treating Dr. LaNasa for severe macular degeneration in November 2000. By November 20, 2001,. Dr. LaNasa’s vision had deteriorated so much that he was “legally blind”: the vision in his best eye (the left eye) was 20/400, while the vision in his right eye was so poor he could not see fingers held in front of him farther than one foot away.2 By September 9, 2003 — the visit closest to the date of execution of the contested will — Dr. La-Nasa’s visual acuity in one eye was so poor eye that when shown fingers he was unable to even tell whether it was one or two fingers, although he could tell there were hand motions in front of him. In the other eye he could count fingers at two feet. Dr. Franklin agreed Dr. LaNasa would have been considered legally blind on that date.

When Dr. Franklin next saw Dr. LaNa-sa, on December 23, 2003, he could see hand motions with the right eye, but a little later during the examination was able to count fingers at three feet, which is better vision than hand motions. With the left eye he could count fingers at four feet. Dr. Franklin said Dr. LaNasa would also be considered legally blind on that date. There was no reason for Dr. Franklin | fito think that Dr. LaNasa’s vision would have improved markedly between September 9, 2003 and December 23, 2003.

Dr. Franklin emphasized that due to poor visual acuity, Dr. LaNasa could not have read the will dated November 9, 2003, even with regular eyeglasses, but he may have been able to read it by use of a reading machine. Dr. Franklin recalled that Dr. LaNasa had told him he had purchased and used a reading machine at his home.

John M. Coman, Jr. testified he had been Dr.

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Bluebook (online)
948 So. 2d 288, 6 La.App. 5 Cir. 561, 2006 La. App. LEXIS 2942, 2006 WL 3798859, Counsel Stack Legal Research, https://law.counselstack.com/opinion/succession-of-lanasa-lactapp-2006.