Succession of Sandifer

923 So. 2d 862, 2006 La. App. LEXIS 438, 2006 WL 470593
CourtLouisiana Court of Appeal
DecidedMarch 1, 2006
DocketNo. 05-860
StatusPublished
Cited by4 cases

This text of 923 So. 2d 862 (Succession of Sandifer) 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 Sandifer, 923 So. 2d 862, 2006 La. App. LEXIS 438, 2006 WL 470593 (La. Ct. App. 2006).

Opinion

AMY, Judge.

_JjThe testator executed a notarial will in which he bequeathed his entire estate to one of his eight children. The remaining siblings attacked the will alleging that their father could not read and that the procedure set forth in La.Civ.Code art. 1579 for testators who are unable to read was not followed. Following a bench trial, the trial court found that the testator was illiterate and declared his will null and void. The dative testamentary executor appeals, arguing that the trial court committed manifest error in finding that the testator could not read at the time he executed his will. For the following reasons, we affirm.

Factual and Procedural Background

The record indicates that Matthew Leon Sandifer (hereinafter “testator”) died on February 28, 2002. Prior to his death, the testator executed a notarial will dated August 7, 2000, in which his entire estate was left to his daughter, Alice Jean Sandifer Bell. The will also named Mrs. Bell as the executrix of the succession. Mrs. Bell presented the will for probate. . According to the record, the defendants, the testator’s remaining seven children, opposed the probate of the will, alleging that the testator could not read and that the procedure set forth in La.Civ.Code art. 15791 was not | ^followed. The defendants requested that the testator’s “will be declared invalid and void and that [the testator’s] estate pass intestate.”

The record shows that Mrs. Bell died before this matter went to trial, and as a result, her son, Anthony Dewayne Bell, was appointed dative testamentary executor. On February 17th and 18th of 2004, a trial was held in which several of the testator’s family members and friends testified as to his ability to read and write. Although the witnesses differed on the testator’s ability to read, many agreed that the testator was able to sign his name.

The trial court found that, the testator w.as illiterate and that the proper procedure under Article 1579 was not followed with regard to a testator who .cannot.read. The trial court declared the, testator’s will null and void. Mr. Bell filed a motion for a [864]*864new trial, alleging that newly discovered evidence supported his contention that the testator could read. Upon denial of his motion, Mr. Bell appealed.

Discussion

In his sole assignment of error, Mr. Bell argues that it was not shown by clear and convincing evidence that the testator was unable to read. He contends that the witnesses’ testimony proved that the testator was able to read; therefore, the trial court’s finding is manifest error and the judgment should be reversed.

[¡¡“A party is presumed to have testamentary capacity, and the opponent bears the burden of defeating this presumption by putting forth clear and convincing evidence to the contrary.” Succession of Fletcher, 94-1426, p. 4 (La.App. 3 Cir. 4/5/95), 653 So.2d 119, 121, writ denied, 95-1105 (La.6/16/95), 655 So.2d 338. “Whether a testator has the ability to read is a question of fact, and his ability to read is an element of testamentary capacity.” Succession of Graham, 01-676, p. 5 (La.App. 5 Cir. 11/27/01), 803 So.2d 195, 197 (footnotes omitted). In the event that the trial court finds that the testator cannot read, the testament will only be valid if it comports with the procedure enunciated in Article 1579. Id. The trial court’s finding will not be overturned on appeal absent manifest error. Fletcher, 653 So.2d 119.

In its reasons for judgment, the trial court explained that:

At trial, evidence was provided which shows that the proper procedure, under La.C.C.Art. 1579, was not followed with regard to a testator who cannot read. Thus the only issue for this Court to resolve is one of fact: whether or not the decedent could read.
After a review of the testimony and evidence presented at trial, the arguments of counsel, as well [as] the evidence introduced into the record after trial[,] its [sic] is the factual finding of this Court that Matthew Leon Sandifer could not read at the time he purportedly executed the will which is the subject of this litigation.

The trial court heard the testimony of several witnesses who opined whether or not the testator could read. Many witnesses were certain that the testator could not read. Ms. Jimmy Alderman, the testator’s cousin, testified that the testator only attended school through the third grade and that the testator could not read. When asked how she knew this, Ms. Aider-man answered, “[w]ell, I’ve known it all my life.... I spent a lot of time in their home when I was younger and I’ve been around the family all my life, so naturally I know.” She testified that everybody in the family J^knew he could not read. Ms. Alderman further testified that she never saw the testator read a book, a newspaper, or a Bible.

Richard Mark Newton was the testator’s son-in-law and had known him for approximately forty-five years. Mr. Newton recalled one occasion where the testator was asked at church to read a passage and could not. According to Mr. Newton, he held the testator’s power of attorney for a period of time and “during that time [the testator] bought the land where his house is situated now, and he bought it in parcels from various heirs.” Mr. Newton testified that he “prepared most of those deeds for him and, as such, [he] would read it to him or/and tell him what it, what it said.” He further testified that when the testator “paid the people, [he] wrote the check and the only thing [the testator] would do is sign his name.”

According to Ms. Thellos Maxwell, the testator’s niece, she never saw the testator read anything. She testified that her father “told [her] all, all [her] life, you know, [865]*865he didn’t learn to read because he only got to the third grade.” Ms. Lionel Jackson, the testator’s daughter, testified that the testator told her that he only had a third grade education and could not read or write. Furthermore, Ms. Jackson and her sister, Mrs. Patricia Whitehead, both testified that they would read things to the testator.

Other members of the testator’s family testified that he could read. According to their testimony, the testator appeared to be reading books, magazines, the Bible, blueprints, and insurance policies. The witnesses testified that the testator never read anything out loud. Nevertheless, Mr. Anthony Bell and Mr. Luther Whitehead testified that the testator wore his glasses when he was “reading.” They allege that he only wore glasses when he was reading.

|sMr. Bell and Mr. Whitehead also testified that they saw the testator write checks. According to Mr. Bell, he saw the testator write a check approximately once every two or three months. He testified that when they would buy building materials, the testator occasionally paid with a check. When asked if he saw the testator write the check or just sign the check, Mr. Bell responded, “[h]e had to write the check, because ,.. unless he wrote it out earlier, which I don’t think he would have, but ... because you’ve got to write the amount in, so.”

Counsel for Mr. Bell introduced into evidence several checks which were allegedly written by the testator over the years. When he was presented with copies of the check, Mr.

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