Opinion
2022 CA 0162
09-16-2022
SUCCESSION OF SIDNEY WILLIAM FRECHOU, III
Justin E. Molaison Harold E. Molaison Metairie, Louisiana Counsel for Appellant Joseph A. Frechou Frank J. Divittorio Elsbet C. Smith Hammond, Louisiana Counsel for Appellees Paul A. Frechou and Mary F. Smith
NOT DESIGNATED FOR PUBLICATION
Appealed from the 22nd Judicial District Court In and for the Parish of St. Tammany State of Louisiana Case No. 2017-31058, Division I The Honorable Reginald T. Badeaux, III, Judge Presiding
Justin E. Molaison Harold E. Molaison Metairie, Louisiana Counsel for Appellant Joseph A. Frechou
Frank J. Divittorio Elsbet C. Smith Hammond, Louisiana Counsel for Appellees Paul A. Frechou and Mary F. Smith
BEFORE: THERIOT, CHUTZ, AND HESTER, JJ.
THERIOT, J.
Joseph A. Frechou ("Joseph") appeals the summary judgment by the Twenty-Second Judicial District Court, which was granted in favor of the appellees, Mary F. Smith and Paul A. Frechou (sometimes referred to as the "coindependent executors"), and dismissed Joseph's claims with prejudice. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
The decedent, Sidney William Frechou, III, died on November 29, 2017. He was married four times and had one child, Joseph, with his first wife. At the time of his death, the decedent was married to Teresa Raine Frechou ("Teresa"). The decedent executed notarial testaments on September 19, 2017, October 17, 2017, and October 27, 2017. Each will contained a provision that all previous wills were revoked upon the creation of the new will. The October 27, 2017 will appointed the decedent's siblings, Anne F. Dandry ("Anne"), Mary F. Smith ("Mary"), and Paul A. Frechou ("Paul"), as the co-independent executors of the decedent's estate.
On November 22, 2017, Teresa filed a petition for notice of application to appoint administrator/executor, and on December 19, 2017, she filed a motion for accounting and act of deposit. On January 4, 2018, Anne, Mary, and Paul filed a petition for order of probate and for confirmation of the independent executors. On January 10, 2018, the trial court signed an order probating the October 27, 2017 will, confirming Anne, Mary, and Paul as co-independent executors, and issuing letters of independent administration upon their filing of the oath required by law. On January 11, 2018, Anne, Mary, and Paul were named, appointed and confirmed as co-independent executors of the last will and testament of the decedent. On March 12, 2018, Anne, Mary, Paul, and Joseph filed a petition for partial possession, and the trial court ordered that Joseph be sent into possession of the 2009 Chevrolet Silverado and $8,925.00 in cash pursuant to the will dated October 27, 2017.
On June 12, 2018, Joseph filed a petition to annul the probated notarial testament, for accounting, and for appointment of a succession representative. Joseph's petition alleged that the October 27, 2017 notarial testament was null and sought for the will to be vacated and set aside. Specifically, Joseph alleged that the will was forged, that the will was a product of undue influence, fraud, or duress due to substantial influence by Anne, Mary, Paul, and Teresa, and that the decedent lacked testamentary capacity. Anne, Mary, and Paul filed an answer to Joseph's petition, seeking for Joseph's claims to be dismissed at Joseph's sole cost. Teresa also filed an answer, seeking for Joseph's claims to be dismissed at Joseph's sole costs.
On March 19, 2021, Mary and Paul filed a motion for summary judgment.The motion alleged that Mary and Paul were entitled to summary judgment as to the petition to annul probate of the last will and testament of the decedent because there was no genuine issue of material fact concerning Joseph's claims and the coindependent executors were entitled to judgment as a matter of law. In support of their motion for summary judgment, Mary and Paul attached (1) the deposition of Debra Henkels and (2) requests for admission propounded to Joseph.
On July 27, 2020, Anne filed a motion to withdraw as co-independent executor, and on August 4, 2020, the trial court signed an order releasing Anne as co-independent executor.
The hearing on the motion for summary judgment was set for May 25, 2021. However, Joseph filed a motion to continue, and the hearing was continued to August 31, 2021. On August 4, 2021, Joseph filed another motion to continue the hearing on the motion for summary judgment, and on August 11, 2021, the trial court continued the hearing to October 26, 2021.
On October 12, 2021, Joseph filed a memorandum in opposition to the coindependent executors' motion for summary judgment. In support of his memorandum in opposition, Joseph filed: (1) medical records of the decedent, (2) the deposition of Teresa dated September 27, 2021, (3) a draft of a last will and testament, (4) the deposition of Anne dated August 10, 2021, (5) the deposition of Robert Brandt dated July 20, 2021, (6) the deposition of Mary dated August 10, 2021, (7) the affidavit of Victor Chou, M.D. dated October 8, 2021, (8) the motion for accounting and act of deposit filed December 19, 2017, (9) the deposition of Debra Henkels dated December 17, 2020, (10) the petition for notice of application to appoint administrator/executor, (11) the affidavit of Adele Thonn dated October 8, 2021, (12) the declaration/affidavit of Thomas and Christina Arnold dated April 22, 2021, (13) the affidavit of Joseph dated October 8, 2021, (14) Anne, Mary, and Paul's answers to interrogatories and requests for production of documents dated December 17, 2017, (15) the deposition of Paul dated August 10, 2021, and (16) Joseph's answers to interrogatories.
Mary and Paul filed a reply memorandum in support of their motion for summary judgment on October 20, 2021. In their reply memorandum, Mary and Paul objected to the affidavit of Adele Thonn and the affidavit of Victor Chou, M.D. Teresa also filed a reply memorandum in support of the co-independent executors' motion for summary judgment.
The hearing on the motion for summary judgment was held on October 26, 2021. On November 8, 2021, the trial court signed a judgment granting the motion for summary judgment and dismissing the petition to annul the probated notarial testament filed by Joseph with prejudice. The judgment indicated that each party was to bear their own costs. It is from this judgment that Joseph appeals.
ASSIGNMENTS OF ERROR
Joseph contends that the trial court erred in granting the co-independent executors' motion for summary judgment and dismissing Joseph's claims against the succession because (1) the decedent's last will and testament dated October 27, 2017 was a product of forgery; (2) the decedent lacked the requisite testamentary capacity when he executed the last will and testament dated October 27, 2017; and (3) the decedent's last will and testament dated October 27, 2017 was a product of undue influence.
STANDARD OF REVIEW
A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Murphy v. Savannah, 2018-0991 (La. 5/8/19), 282 So.3d 1034, 1038 (per curiam). After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3). The only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions. La. C.C.P. art. 966(A)(4). However, the court shall consider any documents filed in support of or in opposition to the motion for summary judgment to which no objection is made. La. C.C.P. art. 966(D)(2).
The burden of proof on a motion for summary judgment rests with the mover. La. C.C.P. art. 966(D)(1). Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. La. C.C.P. art. 966(D)(1).
Appellate courts review evidence de novo under the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Leet v. Hospital Services District No. 1 of East Baton Rouge Parish, 2018-1148 (La.App. 1st Cir. 2/28/19), 274 So.3d 583, 587. In ruling on a motion for summary judgment, the court's role is not to evaluate the weight of the evidence or to make a credibility determination, but instead to determine whether or not there is a genuine issue of material fact. Collins v. Franciscan Missionaries of Our Lady Health Sys., Inc., 2019-0577 (La.App. 1st Cir. 2/21/20), 298 So.3d 191, 194, writ denied, 2020-00480 (La. 6/22/20), 297 So.3d 773. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, summary judgment is appropriate. Collins, 298 So.3d at 194-195. A fact is "material" when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery. Simply put, a "material" fact is one that would matter at a trial on the merits. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of a trial on the merits. Collins, 298 So.3d at 195.
DISCUSSION
There are two forms of testaments: olographic and notarial. La. C.C. art. 1574. A notarial testament is one that is executed in accordance with the formalities of Louisiana Civil Code articles 1577 through 1580.1. La. C.C. art. 1576. Under Article 1577,
The notarial testament shall be prepared in writing and dated and shall be executed in the following manner. If the testator knows how to sign his name and to read and is physically able to do both, then:
(1) In the presence of a notary and two competent witnesses, the testator shall declare or signify to them that the instrument is his testament and shall sign his name at the end of the testament and on each other separate page.
(2) In the presence of the testator and each other, the notary and the witnesses shall sign the following declaration, or one substantially similar: "In our presence the testator has declared or signified that this instrument is his testament and has signed it at the end and on each other separate page, and in the presence of the testator and each other
we have hereunto subscribed our names this__day of__, 99
The decedent executed a notarial testament on October 27, 2017. The testament was prepared in writing and dated, it was executed in front of a notary and two competent witnesses, the decedent declared or signified that the instrument was his testament, and the decedent signed his name at the end of the testament and on each other separate page. Further, in the presence of the decedent and each other, the notary and the witnesses signed the following declaration:
In our presence, the Testator has declared or signified that this instrument is his testament and has signed it at the end and on each other separate page, and in the presence of the Testator and each other we have hereunto subscribed our names this 27th day of October, 2017. This document was issued in three originals.
Therefore, under Louisiana Civil Code article 1577, the testament dated October 27, 2017 is a notarial testament. On January 10, 2018, the trial court signed an order probating the will, and on June 12, 2018, Joseph filed a petition to annul the probated will.
A probated testament may be annulled only by a direct action brought in the succession proceeding against the legatees, the residuary heir, if any, and the executor, if he has not been discharged. The action shall be tried as a summary proceeding. La. C.C.P. art. 2931. In an action to annul a notarial testament, the plaintiff always has the burden of proving the invalidity of the testament. La. C.C.P. art. 2932(B). In this case, Joseph brought an action to annul the decedent's notarial testament, so Joseph would have had the burden of proving the invalidity of the testament at a trial on the issue. See La. C.C.P. art. 2932(B). Further, since the co-independent executors would not bear the burden of proof at trial, they were only required to point out to the court the absence of factual support for one or more elements essential to Joseph's claim, action, or defense. See La. C.C.P. art. 966(D)(1).
In his first assignment of error, Joseph contends that the trial court erred in granting the motion for summary judgment and dismissing his claims against the succession that the decedent's last will and testament dated October 27, 2017 was a product of forgery. Joseph asserts that the trial court erred in disregarding the affidavit of Adele Thonn, which created a genuine issue of material fact as to whether the decedent signed the will. Joseph submitted the affidavit of Adele Thonn, a board certified forensic document examiner, to support his assertion that the testament was forged, and the co-independent executors objected to the affidavit.
The co-independent executors contended that the affidavit does not establish that the affiant has the requisite and scientific training or specific knowledge and that the methods she used follow proper protocol. They further alleged that it is not clear as to which board she is certified by and that there is no basis to establish that the example signatures used were the signatures of the decedent. In the report attached to her affidavit, Adele Thonn opined that there is a ''''Strong Probability that the writer of the Known Sidney Frechou Exemplars Did Not sign... the Last Will and Testament dated October 27, 2017" and that there is a "Strong Probability that the writer of the Known Sidney Frechou Exemplars Did Not sign... the Last Will and Testament dated October 27, 2017 (filed in St. Tammany Parish Court Record)." The trial court found that the affidavit of Adele Thonn did not create a genuine issue of material fact that would preclude the granting of Mary and Paul's motion summary judgment. We agree.
There were four people who witnessed the decedent sign the will. Since the will is a notarial will, a notary and two witnesses were present at the time the decedent signed it. The co-independent executors attached the deposition of Debra Henkels, the notary, to their motion for summary judgment. During her deposition, Debra Henkels was asked "...when Mr. Frechou executed that last will and testament... did he declare that the instrument was his last will and testament in the presence of you and the witnesses listed on the document?" She replied, "Yes."
Further, Teresa indicated during her deposition that she witnessed the decedent sign the last few pages of the will and that she saw the attorney and the two witnesses present in the office while the decedent was executing the will. The depositions of Debra Henkels and Teresa show that the will was not a product of forgery. It is evident that at least four people observed the decedent signing a part of or all of the will dated October 27, 2017. Thus, Joseph's first assignment of error, that the decedent's last will and testament dated October 27, 2017 was a product of forgery, is without merit.
In his second assignment of error, Joseph contends that the trial court erred in granting the co-independent executors' motion for summary judgment and dismissing Joseph's claims against the succession that the decedent lacked the requisite testamentary capacity when he executed the last will and testament dated October 27, 2017. Joseph contends that the trial court failed to consider the expert report of Victor Chou, M.D. The co-independent executors objected to the affidavit of Dr. Chou. They asserted that the affidavit does not identify which medical records were reviewed, does not mention the qualifications of Dr. Chou, does not identify whether he reviewed the notes from Dr. Wolfe, and does not provide any basis for his ability to render opinions regarding toxicology. According to the affidavit of Dr. Chou, Dr. Chou is a licensed medical doctor specializing in the practice of medical marijuana since 2018. The affidavit indicates that Dr. Chou was retained to review a subset of medical records pertaining to the decedent's prescriptions as well as a journal and calendar kept by Teresa. The affidavit further indicates that, assuming all medications were taken as prescribed by the decedent, the decedent could have had diminished mental capacity. The trial court found that the affidavit of Dr. Chou did not create a genuine issue of material fact that would preclude the granting of the motion summary judgment. We agree.
To have capacity to make a donation mortis causa, a person must be able to comprehend generally the nature and consequences of the disposition that he is making. La. C.C. art. 1477. This capacity must exist at the time the testator executes the testament. La. C.C. art. 1471. There is a presumption in favor of testamentary capacity. In re Succession of Crawford, 2004-0977 (La.App. 1st Cir. 9/23/05), 923 So.2d 642, 647, writ denied, 2005-2407 (La. 4/17/06), 926 So.2d 511. A person who challenges the capacity of a donor must prove by clear and convincing evidence that the donor lacked capacity at the time the donor executed the testament. La. C.C. art. 1482(A). To prove a matter by clear and convincing evidence means to demonstrate that the existence of a disputed fact is highly probable, that is, much more probable than its nonexistence. In re Succession of Crawford, 923 So.2d at 647. Comment (f) of Louisiana Civil Code article 1477 provides, in part:
Cases involving challenges to capacity are fact-intensive. The courts will look both to objective and subjective indicia. Illness, old age, delusions, sedation, etc. may not establish lack of capacity but may be important evidentiary factors. If illness has impaired the donor's mind and rendered him unable to understand, then that evidentiary fact will establish that he does not have donative capacity. Outrageous behavior by an individual may or may not be indicative of lack of ability to understand. Some outrageous behavior may be nothing more than a personality quirk, while other outrageous behavior may manifest serious mental disturbance. Each case is unique. Heavy sedation should be a strong factor to consider, since the sedative effects of the drug may impair the ability of the person to comprehend the nature and consequences of his act.
The courts will look to the medical evidence that is available, such as the medical records and the testimony of treating doctors, and to other expert testimony, and to the testimony of lay witnesses. Clearly, no quick litmus-paper test exists to apply to the evaluation of mental capacity in all cases.
During her deposition, Debra Henkels testified that the decedent was oriented as to time and location when he was with her. She also stated that the will was prepared according to the decedent's instructions and he appeared to be smart, coherent, directive, and knew what he wanted. Thus, at the time the decedent executed the October 27, 2017 will, he was able to comprehend generally the nature and consequences of the disposition that he was making. See La. C.C. art. 1477. The deposition of Debra Henkels shows that the decedent did not lack the requisite testamentary capacity at the time he executed the October 27, 2017 will. Thus, Joseph's second assignment of error, that the decedent lacked the requisite testamentary capacity when he executed the last will and testament dated October 27, 2017, is without merit.
In his third assignment of error, Joseph contends that the trial court erred in granting the co-independent executors' motion for summary judgment and dismissing Joseph's claims against the succession that the decedent's last will and testament dated October 27, 2017 was a product of undue influence. Pursuant to Louisiana Civil Code article 1479, a donation inter vivos or mortis causa shall be declared null upon proof that it is the product of influence by the donee or another person that so impaired the volition of the donor as to substitute the volition of the donee or other person for the volition of the donor. Succession of Frazier, 20210165 (La.App. 1st Cir. 10/21/21), 332 So.3d 91, 93, writ denied, 2022-00025 (La. 4/5/22), 335 So.3d 837. Concerning the type of influence that would result in the invalidity of a donation, Comment (b) of Louisiana Civil Code article 1479 provides, in pertinent part:
[T]he objective aspects of undue influence are generally veiled in secrecy, and the proof of undue influence is either largely or entirely circumstantial.... [E]veryone is more or less swayed by associations with other persons, so this Article attempts to describe the kind of influence that would cause the invalidity of a gift or disposition. Physical coercion and duress clearly fall within the proscription of the previous Article. The more subtle influences, such as creating resentment toward a natural object of a testator's bounty by false statements, may constitute the kind of influence that is reprobated by this Article, but will still call for evaluation by the trier of fact. Since the ways of influencing another person are infinite, the definition
given in this Article is used in an attempt to place a limit on the kind of influence that is deemed offensive. Mere advice, or persuasion, or kindness and assistance, should not constitute influence that would destroy the free agency of a donor and substitute someone else's volition for his own.
The influence may be exerted by the donee himself or by a third person, even under circumstances where the donee takes no part in the activities and may be unaware of them, as long as some person exercises control over the donor, presumably one who is interested in the fortunes of the donee. See La. C.C. art. 1479, Comment (c); Succession of Himel v. Todd, 2011-1638 (La.App. 1st Cir. 7/17/12), 2012 WL 2921495, *4 (unpublished), writ denied, 2012-1878 (La. 11/9/12), 100 So.3d 839. A person who challenges a donation because of fraud, duress, or undue influence, must prove it by clear and convincing evidence. La. C.C. art. 1483; Succession of Frazier, 332 So.3d at 93.
Joseph contends that the trial court failed to account for Teresa's alleged admission that the will was a product of undue influence. Specifically, that the October 27, 2017 will was "the will Anne wanted." During her deposition, Teresa testified that the decedent had her contact Anne, Mary, and Paul so he could tell them what his wishes were regarding his will. Teresa stated that the decedent wanted Anne, Mary, and Paul to be there for the discussion but he did not include Joseph in the meeting. When asked what she meant when she stated that the will was "the will Anne wanted," Teresa indicated that Anne told the decedent that the will was too complicated. However, Anne did not tell the decedent to make specific changes to the will.
While the decedent may have been swayed by his siblings, mere influence is not sufficient for a will to be declared null. For undue influence to exist, the influence by the decedent's siblings would have to have been so strong that it impaired the volition of the decedent as to substitute the volition of the siblings for the volition of the decedent. See Succession of Frazier, 332 So.3d at 93. It is evident from Teresa's deposition that the decedent sought out the advice and assistance of his siblings before he executed the will, and advice and assistance do not constitute undue influence. See La. C.C. art. 1479. Further, Teresa indicated that when she stated that the October 27, 2017 will was "the will Anne wanted," she specifically meant that Anne told the decedent that the will was too complicated. Anne did not tell the decedent to make any specific changes to the will. Thus, the decedent's last will and testament dated October 27, 2017 was not a product of undue influence, and Joseph's third assignment of error is without merit.
DECREE
The summary judgment granted by the Twenty-Second Judicial District Court in favor of the appellees, Mary F. Smith and Paul A. Frechou, and against the appellant, Joseph A. Frechou, is affirmed. All costs of this appeal are assessed to Joseph A. Frechou.
AFFIRMED.