Opinion
2013 CA 0578
12-27-2013
SUCCESSION OF JOSEPH EMMETT BELLANDE, JR.
Thomas J. Hogan, Jr. Hammond, Louisiana Attorney for Plaintiff/Appellant Nancy Jean Bellande Cuizio A. Scott Tillery Metairie, Louisiana Attorney for Defendants/Appellees Susan Bellande Vallee, Independent Executrix of the Succession of Joseph Emmett Bellande, Jr., and Ella Marion Bellande, Surviving Spouse of the Decedent
NOT DESIGNATED FOR PUBLICATION
APPEALED FROM THE TWENTY-FIRST JUDICIAL DISTRICT COURT
IN AND FOR THE PARISH OF TANGIPAHOA
STATE OF LOUISIANA
DOCKET NUMBER 2011-0030277
HONORABLE WAYNE RAY CHUTZ, JUDGE
Thomas J. Hogan, Jr.
Hammond, Louisiana
Attorney for Plaintiff/Appellant
Nancy Jean Bellande Cuizio
A. Scott Tillery
Metairie, Louisiana
Attorney for Defendants/Appellees
Susan Bellande Vallee,
Independent Executrix of the
Succession of Joseph Emmett
Bellande, Jr., and Ella Marion
Bellande, Surviving Spouse of
the Decedent
BEFORE: PETTI GREW, McDONALD, AND McCLENDON, JJ.
McDONALD, J.
This is an appeal from an unsuccessful action to annul a will made by a testator about four months prior to his death, on the grounds that the testator, Joseph Emmett Bellande, Jr. (Mr. Bellande), was not of sound mind on the date that the testament was executed, and for failure to meet the requirements for valid execution. Mr. Bellande died on August 27, 2011, at age 84. He was survived by his wife, Ella Marion Bellande (Mrs. Bellande), and their seven children, Bonnie Bellande Englande, Joseph E. Bellande, III, Peggy Bellande Laborde, Kenneth J. Bellande, Susan Bellande Vallee, Diane M. Bellande, and Nancy Jean Bellande Cuizio (Mrs. Cuizio).
Mr. and Mrs. Bellande lived with Mrs. Cuizio and her husband beginning in 2004. On May 2, 2011, the police were called to the home, and Mr. and Mrs. Bellande moved out with the assistance of several of their other children. Mrs. Bellande testified that she believed Mrs. Cuizio, who had power of attorney for Mr. and Mrs. Bellande, had been taking their money and was leaving them with nothing. On that same day, Mr. and Mrs. Bellande went to attorney Ernest G. Drake IILs law office in Pontchatoula and signed a revocation of the power of attorney they had given to Mrs. Cuizio. Also on that day Mr. Bellande signed a document appointing Susan Bellande Vallee as his agent with full authority to conduct his affairs. Mr. and Mrs. Bellande moved to Monti cello, Mississippi to live with their youngest son, Kenneth J. Bellande.
On May 4, 2011, Mr. and Mrs. Bellande went to the law office of William T. Phillips (Mr. Phillips) in Kentwood, Louisiana and executed notarial wills. Mrs. Bellande went into the office in her wheelchair to sign her document. Mr. Bellande stayed in the car and Mr. Phillips and the witnesses went out to the car for him to sign his will. In this will Mr. Bellande left all of his property to Mrs. Bellande, and in the alternative should she predecease him or die in a common event, he left all of his property in equal shares to their seven children. Mrs. Bellande was named as executrix, with Susan Bellande Vallee as alternative executrix. Mr. Bellande passed away on August 27, 2011.
On December 28, 2011, Mrs. Bellande and Susan Bellande Vallee filed a petition to probate the will and for Susan Bellande Vallee to be appointed executrix of the succession. On January 4, 2012, the district court ordered that the will be registered and executed in accordance with its terms, and Susan Bellande Vallee was appointed as executrix of the succession.
Thereafter, on February 16, 2012 a petition to annul the probated testament was filed by Mrs. Cuizio, asserting that Mr. Bellande was not of sound mind on the day the will was executed. Mrs. Cuizio attached a copy of a previous will executed by Mr. Bellande on February 18, 2005, that left all of his property to Mrs. Bellande, unless she predeceased him, and in the alternative left his property in equal portions to six of their seven children, and as a special bequest left the home in which Mrs. Cuizio and her husband resided to the Cuizios.
The matter proceeded to trial. At the trial numerous witnesses testified including Mrs. Bellande, Mr. Phillips, Suzanne Travis, a witness to the will signing, Mary Prescott, a witness to the will signing, Diane Bellande, Wanda Allen, a nursing assistant who rendered home health care to Mr. Bellande, and Traci Beebe, a neighbor who lived next door to the Cuizios. After listening to the testimony and considering the evidence, the district court ruled against Mrs. Cuizio and dismissed her petition with prejudice.
Mrs. Cuizio appealed that judgment, maintaining that the will is void for failure to meet the requirements for valid execution, and because of lack of testamentary capacity. In her argument that the will was void for failure to meet the requirements for valid execution, Mrs. Cuizio asserts that her father did not indicate at the will signing that he knew how to read and sign his name or that he was physically able to do both. Exceptionally compelling proof of the nonobservance of the formalities must be presented to rebut the presumption of the validity of a will. Succession of Remont, 462 So.2d 224, 226 (La. App. 1 Cir. 1984).
Mr. Bellande signed an attestation clause to the will declaring it to be his testament, indicating that he knew how to read and sign his name and was physically able to do so. The purpose of an attestation clause is to show the will was executed in conformity with the statute. Succession of Brown, 458 So.2d 140, 142-143 (La. App. 1 Cir. 1984). Mr. Phillips testified that he believed Mr. Bellande was able to see and read and sign his name, and that he watched Mr. Bellande sign his name. Diane Bellande testified that she heard Mr. Phillips explain the will to Mr. Bellande, heard Mr. Bellande respond affirmatively, and watched Mr. Bellande sign the will. Suzanne Travis testified that she watched Mr. Bellande sign the will in the presence of Mr. Phillips and the witnesses.
We find no manifest or legal error in the district court's determination that Mrs. Cuizio failed to present exceptionally compelling proof of nonobservance of the formalities of Mr. Bellande's will.
To have the capacity of make a donation inter vivos or mortis causa, a person must also be able to comprehend generally the nature and consequences of the disposition that he is making. La. C.C. art. 1477. Testamentary capacity is presumed, and the burden of proving a lack of capacity at the time the will was executed is placed upon the person attacking the will. Succession of Remont, 462 So.2d at 226. A party alleging lack of testamentary capacity must overcome the presumption of capacity by clear and convincing evidence. In Re Succession of Theriot, 2008-1233 (La. App. 1 Cir. 12/23/08), 4 So.3d 878, 882.
Mrs. Bellande testified that her husband had told her that he wanted to leave everything to her and, in the alternative, equal shares to their seven children. She testified there was no doubt in her mind that her husband knew what he was doing and understood what he was doing when he signed the will. Mr. Phillips testified that he spoke with Mr. Bellande about the will at the time of the execution of the will, that he spoke to Mr. Bellande about his wishes, that Mr. Bellande appeared to be mentally competent and that he saw nothing in his demeanor or behavior to indicate that he was not competent. Diane Bellande, who was present at the will signing, testified that her father was capable of understanding the consequences and effects of his will and that he was mentally competent.
While the testimony of Wanda Allen, a home health care nursing assistant, and Traci Beebe, a next-door neighbor to the Cuizios, was that they did not believe Mr. Bellande had the necessary capacity to execute a will, neither of these witnesses was present at the will signing, and neither of these witnesses had seen Mr. Bellande after he moved away from Mrs. Cuizio's home. Ms. Allen testified that she saw Mr. Bellande at most three times a week for 45 minutes to an hour (although she was not always the nurse who visited him). Ms. Beebe testified that she had not talked to Mr. Bellande in the last year before he moved away. While the home health care records indicated that Mr. Bellande suffered from Alzheimer's disease, the medical records of Mr. Bellande\s treating physician were not introduced into evidence, and there was no medical testimony presented to establish a lack of testamentary capacity.
Proof of the presence of a mentally debilitating condition at the approximate time that the testament was executed is insufficient to prove by clear and convincing evidence the lack of testamentary capacity at the time the testament was executed, especially where there is contrary evidence of the decedent's capacity at the actual time the testament was executed. Succession of Crawford, 2004-0977, (La. App. 1 Cir. 9/23/05), 923 So.2d 642, 649, writ denied, 2005-2407 (La. 4/17/06), 926 So.2d511.
After a thorough review of the record, we find no manifest or legal error in the district court's determination that Mrs. Cuizio failed to overcome, by clear and convincing evidence, the presumption of testamentary capacity at the time Mr. Bellande's will was executed.
Therefore, for the foregoing reasons, the district court judgment is affirmed. Costs are assessed against the plaintiff-appellant, Nancy Jean Bellande Cuizio.
AFFIRMED.