Succession of Laurie Maria Brocato .

• Court: Louisiana Court of Appeal
• Decided: February 26, 2025
• Docket: 2024-CA-0600
• Status: Published

Opinion

SUCCESSION OF LAURIE * NO. 2024-CA-0600 MARIA BROCATO * COURT OF APPEAL * FOURTH CIRCUIT * STATE OF LOUISIANA *******

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2022-02121, DIVISION “E” Honorable Omar Mason, Judge ****** Judge Paula A. Brown ****** (Court composed of Judge Paula A. Brown, Judge Tiffany Gautier Chase, Judge Dale N. Atkins)

Robert Thomas Garrity, Jr. Pierre W. Mouledoux THE LAW OFFICE OF ROBERT T. GARRITY, JR. 615 Hickory Avenue Harahan, LA 70123

COUNSEL FOR PLAINTIFF/APPELLANT

Edward John Lilly CRULL, CASTAING & LILLY 1217 Coliseum Street New Orleans, LA 70130

COUNSEL FOR APPELLEE

AFFIRMED FEBRUARY 26, 2025 PAB TGC DNA

This appeal arises out of a dispute over the validity of an olographic

testament. Appellants, Brandon Glorioso (“Mr. Glorioso”) and Barbara Brocato

Duvall (“Ms. Duvall”) (collectively, “Appellants”), seek to appeal the district

court’s June 17, 2024 judgment, which granted Appellee’s, Lisa Vickers (“Ms.

Vickers”), Petition to Revoke and Annul Probated Testament Dated November 4,

2019; ordered that the order probating the November 2019 will and the

appointment of Mr. Glorioso as Dative Administrator be annulled; and accepted

the olographic testament of Laurie Maria Brocato, dated January 21, 2021,

February 1, 2021, and February 2, 2021 for probate. For the reasons that follow,

we affirm the district court’s judgment.

FACTS AND PROCEDURAL HISTORY

Laurie Maria Brocato (“Decedent”) died on October 5, 2021. On March 14,

2022, Decedent’s nephew, Mr. Glorioso, filed a Petition to Probate Olographic

Testament and Appointment of Dative Independent Executrix, seeking to have an

olographic testament of Decedent’s, dated November 4, 2019, probated and to

have his mother and Decedent’s sister, Ms. Duvall, appointed as the dative

independent executrix of Decedent’s estate. On the same day, the district court

1 ordered that the November 4, 2019 testament be recorded, filed, and executed by

its terms. Ms. Duvall was appointed as the executor of Decedent’s estate on March

22, 2022. However, on April 7, 2022, Mr. Glorioso replaced Ms. Duvall as the

executor of Decedent’s estate due to personal health reasons.

On June 28, 2022, Decedent’s surviving spouse, Ms. Vickers, filed a

Petition to Revoke and Annul Probated Testament Dated November 4, 2019, to

Revoke Appointment of Brandon Glorioso as Dative Testamentary Executor, in

Due Course to Probate Olographic Testament Dated January 31, 2021, February

1, 2021, and February 2, 2021, and to Appoint Administratrix (the “petition to

revoke”). The petition to revoke sought to have the November 4, 2019 testament

revoked, to have Mr. Glorioso removed as executor and replaced by Ms. Vickers,

and to have a subsequent testament dated on three consecutive days—January 31,

2021, February 1, 2021, and February 2, 2021—probated as Decedent’s last will

and testament. This testament was written on consecutive pages in a bound

notebook. The petition to revoke was originally set for a summary hearing on

November 18, 2022. However, on November 11, 2022, Mr. Glorioso filed an

unopposed motion for continuance, which was granted on November 18, 2022, and

the hearing was continued and reset without date.

On May 2, 2023, Mr. Glorioso filed a motion to reset, seeking to have the

district court order a resetting of Ms. Vickers’ rule to show cause, with testimony,

why Decedent’s November 4, 2019 testament should not be revoked and why he

should not be removed and replaced as the executor. After multiple continuances,

on August 28, 2023, the district court ordered that the hearing on the petition to

revoke was set for October 30, 2023. Due to issues with service of the petition to

revoke on all legatees named in the November 4, 2019 testament, the hearing was

2 again continued until March 5, 2024. Although any further requests for a

continuance are absent from the record, the bench trial on the petition to revoke

ultimately commenced on April 30, 2024.

At the April 30, 2024 hearing, several witnesses testified. First, Ms. Vickers

testified as to her relationship with Decedent as well as Decedent’s health history

and the circumstances surrounding Decedent’s death. Ms. Vickers also provided

testimony that the testament at issue in this appeal was written and signed in the

hand of Decedent. Specifically, Ms. Vickers testified that she recognized the

handwriting and signature as Decedent’s based on the following:

She was always writing in notebooks, in journals . . . . Sometimes she practiced her handwriting. She’d do her signature—just a whole page full of her signatures. She would write on the back of the scrap of paper. She was always writing notes as she went through the house, grocery lists—you know—all kinds of things. Notes to me, cards.

As to Decedent’s signature specifically, Ms. Vickers testified that “[s]he had a very

specific signature.”

Next, Adele Thonn, who was qualified as a handwriting expert and forensic

document examiner, testified that, after considering Decedent’s writing samples

that she was given, there was a “strong probability” that the testament was drafted

by Decedent. Ms. Thonn explained that the term “strong probability” is a technical

term in the field of handwriting analysis and is the second highest opinion,

meaning that the evidence is very persuasive and “the examiner is virtually certain

that the questioned and the known documents were written by the same person.”

Following, Douglas Bourgeois, a decades-long friend of Decedent, also

provided testimony in support of the handwriting in the testament belonging to

Decedent. While Mr. Bourgeois did not testify as to Decedent’s signature, he

testified that the testament at issue was unequivocally written in her handwriting.

3 Mr. Bourgeois relayed that he believed the testament was written in Decedent’s

handwriting “[b]ased on the handwriting [he] had in [his] own cards—you know—

cards and letters [from Decedent]. And just the general way she wrote . . . the way

she did capital L’s and capital M’s.”

The remaining two witnesses, James Duvall (“Mr. Duvall”) and Mr.

Glorioso, testified as to the acquiring of one of Decedent’s previously written

testaments. Mr. Duvall provided that Decedent had given him an envelope

containing a will, which he was instructed to deliver to his wife, Ms. Duvall, who

then gave it to Mr. Glorioso. Mr. Duvall testified that he never saw the contents of

the envelope until the proceedings in this matter began. Likewise, Mr. Glorioso

testified that he had been given the envelope from his mother, which he then

placed inside of his own blue envelope. Mr. Glorioso stated that he did not open

the envelope from his mother until after Decedent passed away and Ms. Duvall

reminded him that he had them. At the conclusion of the hearing, the district court

judge requested that each party file a post-trial memorandum, both of which were

filed on May 23, 2024.

On June 17, 2024, the district court rendered its written judgment, granting

Ms. Vickers’ petition to revoke; annulling the order that probated the November 4,

2019 testament and appointed Mr. Glorioso as executor; and accepting for probate

the January 31, 2021, February 1, 2021, and February 2, 2021 testament. The

district court also provided extensive written reasons for judgment on the same

day. Specifically, the district court found that Decedent’s January 31, 2021,

February 1, 2021, and February 2, 2021 testament complied with the date

requirements, the signature requirement, and the hand writing requirement for an

4 olographic testament. Appellants filed a motion for appeal on April 30, 2024,

which was granted on July 2, 2024. This timely appeal followed.

DISCUSSION

Appellants raise only one assignment of error: the district court erred in

holding the alleged latest dated olographic testament of Decedent as statutorily

valid. Before addressing the merits of this appeal, we begin our discussion setting

forth the standard of review, burden of proof and applicable law.

Standard of Review

“Absent a finding of manifest error, in will contest cases, the factual findings

of the [district] court are accorded great weight and will not be disturbed on

appeal.” Succession of McKlinski, 21-0369, p. 3 (La. App. 4 Cir. 11/10/21), 331

So.3d 414, 416, rev’d on other grounds (quoting In re Succession of Caillouet, 05-

0957, p. 4 (La. App. 4 Cir. 6/14/06), 935 So.2d 713, 715).

Burden of Proof

“The proponent of an olographic will has the burden of proving that it was

entirely written, dated and signed by the testator.” Caillouet, 05-0957, p. 3, 935

So.2d at 715 (citing La. C.C.P. art. 2903). Specifically, “[t]he olographic

testament must be proved by the testimony of two credible witnesses that the

testament was entirely written, dated, and signed in the testator’s handwriting.” La.

C.C.P art. 2883. “The court must satisfy itself, through interrogation or from the

written affidavits or the depositions of the witnesses, that the handwriting and

signature are those of the testator, and except as provided in Article 2890,1 must

mention these facts in its proces verbal.” La. C.C.P art. 2883.

1 Louisiana Code of Civil Procedure article 2890 provides, in pertinent part:

5 Applicable Law

“There are two forms of testaments: olographic and notarial.” La. C.C. art.

1574. Louisiana Civil Code article 1575 describes the formality requirements for a

valid olographic testament:

A. An olographic testament is one entirely written, dated, and signed in the handwriting of the testator. Although the date may appear anywhere in the testament, the testator must sign the testament at the end of the testament. If anything is written by the testator after his signature, the testament shall not be invalid and such writing may be considered by the court, in its discretion, as part of the testament. The olographic testament is subject to no other requirement as to form. The date is sufficiently indicated if the day, month, and year are reasonably ascertainable from information in the testament, as clarified by extrinsic evidence, if necessary.

B. Additions and deletions on the testament may be given effect only if made by the hand of the testator.

With regard to the date, La. C.C. art. 1575 “does not require that an olographic will

be written in its entirety on the same date . . . .” Caillouet, 05-0957, p. 4, 935

So.2d at 715 (citing Succession of Smart, 214 La. 63, 68 (La. 1948)). Further,

“extrinsic evidence can be admitted to clarify an ambiguous date . . . .” Cf. In re

Succession of Duskin, 14-0236, p. 6 (La. App. 4 Cir. 11/19/14), 153 So.3d 567, 573

(citation omitted) (where this Court held that, although extrinsic evidence can be

utilized for date clarification, “when the testament contains no date at all in the

handwriting of the testator, a date cannot be inferred”); In re Succession of Aycock,

02-0701 (La. 5/24/02), 819 So.2d 290 (where the Louisiana Supreme Court held

that “[w]hile extrinsic evidence may be allowable in some circumstances to clarify

an ambiguity, when the testament contains no date at all in the handwriting of the

B. If written affidavits only are used to prove a will under Articles 2883 through 2887, the proces verbal shall be dispensed with, and the court shall render a written order that the testament be recorded, filed, and executed, if the court finds that it has been proved in accordance with law, or a written order refusing to probate the testament, giving the substance of the court's reasons therefor.

6 testator, a date cannot be inferred”). As to the signature, this Court has noted that

“the sole object of a signature is the identification of the testator, and that any

signature that will identify the testator as the author of the testament will suffice.”

Caillouet, 05-0957, p. 5, 935 So.2d at 716 (citing Succession of Cordaro, 126

So.2d 809, 813 (La. App. 2d Cir. 1961)).

“Under Louisiana law, there is a presumption in favor of the validity of

testaments in general and proof of the nonobservance of formalities must be

exceptionally compelling to rebut that presumption.” Succession of Armstrong,

93-2385 (La. App. 4 Cir. 4/28/94), 636 So.2d 1109, 1111. Moreover, “[w]hen a

testament is written in olographic form without the aid of counsel, the intention of

the testator is to be given paramount importance.” Caillouet, 05-0957, p. 5, 935

So.2d at 716 (citing Succession of Diaz, 617 So.2d 34, 37 (La. App. 4th Cir.

1993)). “Because Louisiana law favors maintaining the validity of testaments,

courts liberally construe the requirements, maintaining the validity of the will if at

all possible, as long as it is in substantial compliance with the statute.” Succession

of Martin, 22-1370, p. 5 (La. App. 1 Cir. 6/2/23), 370 So.3d 37, 40-41 (citing In re

Succession of Holbrook, 13-1181, p. 8 (La. 1/28/14), 144 So.3d 845, 851). Having

discussed the relevant law, we now turn to Appellants’ sole assigned error.

Validity of Decedent’s Last Dated Testament

Appellants argue that because Decedent’s signature does not appear at the

very end of the testament, but rather at the top of the second of four pages, that

renders the testament invalid in form. Appellants also assert that the testament

contains conflicting dates on the second page of the testament, which creates

uncertainty and invalidates the testament. Conversely, Ms. Vickers argues that she

provided sufficient proof that the January 31, 2021, February 1, 2021, and

7 February 2, 2021 testament was written, signed and dated in the hand of Decedent.

Specifically, Ms. Vickers asserts that the dates on the testament are not ambiguous

and that the district court properly exercised its discretion in considering writings

after Decedent’s signature. Noteworthy is the fact that there are no issues in this

appeal pertaining to whether the testament was written by Decedent. Rather, this

issue focuses solely on the form requirements of date and signature for a valid

olographic testament, which we will address separately.

The Date

The testament at issue in this appeal consists of four consecutive pages from

a composition notebook. It is uncontested in this case that the first page is dated

January 31, 2021, and the third and fourth pages are each dated February 2, 2021.

The date at issue is found on the second page of the testament—there are two dates

written on this page. At the top of the second page, it appears that the date is

written as “2/1/2021.” The Appellant asserts that the “2” representing the month

of February was actually a “1” with a “2” subsequently written over it. The

handwriting expert testified at the hearing that she would not consider the

discrepancy to be an overwriting, but rather a patching. When asked to clarify

what that terminology meant, she provided, “[m]eaning correcting a mistake . . . .

It could also be a malfunctioning pen, or it could be that there’s a lack of fine

motor control, and so the writing is kind of smeared a little bit.” The district court,

in its reasons for judgment, found that “[t]he alleged 1 the [Appellants] point[] out

under the 2 is barely noticeable; it is a light scratch.” We agree. From our review

of the second page of the testament, the “2” is clearly written without any

ambiguity, making the correct date “2/1/2021.”

8 The second date on page two is written in the left margin as “2/2/2012.”

The district court found that this date, taken in context with the dates on the other

three pages, as well as the “2/1/2021” date on the same page, was “clearly an error

and does not reflect the testator’s intent as to the date of this olographic will . . . .”

In considering whether the district court abused its discretion in coming to this

conclusion, we note that there exists “a strong public policy of the State to sustain

the validity of the will and give effect to the testator’s wishes whenever possible.”

Succession of Roniger, 97-1088, p. 4 (La. App. 4 Cir. 1/14/98), 706 So.2d 1025,

1027 (citing Succession of LaBarre, 179 La. 45, 48, 153 So. 15, 16 (La. 1934)).

Considering the consecutive dates on the four pages of the testament, and the

simple switching of the numbers from “2012” to “2021,” we do not find that the

district court erred by concluding that this mistake by the testator does not render

the date uncertain so as to invalidate the testament. This argument is unpersuasive.

The Signature

We begin by noting that Appellants rely on Succession of Ally for the

proposition that Decedent signing at the end of a testament is imperative for

upholding testamentary intent and ensuring that mere drafts of testaments are not

probated. 22-0016 (La. App. 5 Cir. 12/31/22), 354 So.3d 1248. In Ally, the

decedent drafted an olographic testament which began with the date, and was

followed by “I Ruth Ally a resident of Metairie . . . .” Id. at p. 1, 354 So.3d at

1249. That was the only location wherein the decedent signed her testament. In

discussing the same concern asserted by Appellants as to purported drafts of

testaments being probated, the appellate court noted that the testator’s signature

being at the end of the testament signifies that the testator is satisfied with the

dispositions contained therein, whereas a signature at the commencement of the

9 testament only indicates that the process of drafting the testament has begun.

Because of the placement of the decedent’s signature immediately at the beginning

of the testament, before any dispositions had been made, the appellate court found

that the testament did not satisfy the requirements found in La. C.C. art. 1575.

Comparing Ally to the matter sub judice, the two cases are readily distinguishable.2

In the instant matter, Decedent also begins her testament with the date—January

31, 2021—and then starts by writing, “I, Laurie Marie Brocato. . . .” However, at

the bottom of the first page of the testament, she makes dispositions to Ms. Vickers

of both her home and her fifty percent interest in a Mercedes vehicle. Decedent’s

signature appears at the top of the second page, which is after the dispositions have

already begun. Because the Ally court based its decision on the fact that there was

no signature following any of the dispositions in that testament, we find this case to

be inapposite and unpersuasive as it fails to render Decedent’s testament invalid.

Appellants further assert that the district court erred in relying on Succession

of Enos in its written reasons for judgment. 20-0329 (La. App. 3 Cir. 12/16/20),

310 So.3d 236. In Enos, the sole issue was the location of the decedent’s signature

in the testament. Similar to the matter before us, the Enos decedent’s testament

was found in a spiral notebook and spanned two pages. The first page consisted of

the decedent’s wishes that her property be equally divided among her children and

that her husband had the right to live in her home until his remarriage or death.

The decedent’s signature was found on the first line of the second page. Following

the signature, the decedent included further descriptions of the property that was to

be divided among her children. The appellate court found that the decedent’s

2 We note that this Court is not bound by opinions published by other Louisiana appellate courts.

See Marchand v. Asbestos Defendants, 10-0476, p. 7 (La. App. 4 Cir. 11/10/10), 52 So.3d 196, 200 (wherein this Court held that it is “not bound by decisions of other circuits”).

10 signature located at the top of the second page, rather than at the bottom of the first

page, did not invalidate the testament. Appellants argue that, because only two

dispositions precede Decedent’s signature in the instant matter with several more

dispositions following the signature, the testament is invalid. We note that the

testament in Enos did not have additional dispositions after the signature, but rather

a specific list of the property already bequeathed to her children. This is dissimilar

from the instant testament where there are dispositions made before and after

Decedent’s signature. However, in discussing Enos, the district court merely noted

that the similarities of the two testaments were that both were written in notebooks

and were signed at the top of the second page with more language following the

signature. The district court did not state that each contained more dispositions

after the signature. Thus, the district court recognized that the Enos testament was

valid despite the signature not appearing at the end of the testament. We do not

find that the district court erred in relying on Enos for the proposition that language

after a signature can be considered by the court.

The contested testament at issue here includes one signature and two sets of

initials. As noted above, it is not disputed in this appeal that the signature and

initials were in the handwriting of Decedent. Rather, the issue centers around the

location of the signature in the testament and whether that location meets the form

requirements of La. C.C. art. 1575. To revisit the previously cited law, La. C.C.

art. 1575 provides, as to signatures, that “the testator must sign the testament at the

end of the testament. If anything is written by the testator after his signature, the

testament shall not be invalid and such writing may be considered by the court, in

its discretion, as part of the testament.” The text of the article specifically provides

that the signature not being at the end of the testament does not invalidate the

11 testament. The revision comments to La. C.C. art. 1575 provide that “[t]he 2001

amendment is intended to legislatively overrule Succession of King, 595 So.2d 805

(La. App. 2 Cir. 1992), which held that in an olographic testament the signature

should be at the end of the testament.” The language of the code article itself

combined with the intent provided in the revision comment leads us to conclude

that the signature being located at the end of the testament is not of paramount

importance in meeting the form requirements for a valid olographic testament. In

choosing to consider the language of the testament which followed the signature,

the district court exercised the great discretion given to it by the Civil Code.

Another factor that we find supports the district court’s decision to find this

testament valid is the inclusion of Decedent’s initials in two subsequent locations

of the testament. The first set of initials appear on page two in the left-hand

margin, and the second set of initials appear at the top of the third page of the

testament. Decedent’s continued initialing of the testament after her signature

convinces us that she was intending to write this testament as one document,

although drafted over several days. We find no error in the district court’s decision

to give Decedent’s intent paramount importance based upon the presented

testament in this matter. See Caillouet, 05-0957, p. 5, 935 So.2d at 716. This

argument is unpersuasive.

DECREE

For the aforementioned reasons, we affirm the district court’s June 17, 2024

judgment.

AFFIRMED

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