IN RE SUCCESSION OF PEDESCLEAUX

No. 21-CA-611.

SUCCESSION OF CHARLES C. PEDESCLEAUX.

Court of Appeal of Louisiana, Fifth Circuit.

May 11, 2022.


Attorney(s) appearing for the Case

Benjamin L. Johnson , COUNSEL FOR PLAINTIFF/APPELLEE, CHARLES PEDESCLEAUX, JR.

Arthur A. Morrell , Madro Bandaries , COUNSEL FOR DEFENDANT/APPELLANT, OLGA PEDESCLEAUX.

Panel composed of Judges Susan M. Chehardy, Marc E. Johnson, and Hans J. Liljeberg.


MEJ SMC HJL

Appellant, Olga Pedescleaux, seeks review of the Twenty-Third Judicial District Court's March 31, 2021 judgment that found her late husband's 2016 statutory will was valid and enforceable, and that he had the right to grant his son, Charles Jr., power of attorney to alienate his assets, including community property. For the following reasons, we affirm the district court judgment that found that the will and the power of attorney were valid and enforceable.

FACTS AND PROCEDURAL HISTORY

Charles C. Pedescleaux, Sr. (the "decedent") died at the age of 96 on April 16, 2017. Olga Pedescleaux ("Mrs. Pedescleaux"), the widow of the decedent who is in her 90s, filed a Petition to Open Succession on April 20, 2017, alleging that the decedent died intestate, and requesting that she be appointed Administratrix over the estate. The petition acknowledged the decedent's five surviving children born of a previous marriage by name: "Charlesetta, Connie, Charles Jr., Jessica and [Deedra]." Mrs. Pedescleaux was appointed Administratrix for the decedent's estate on April 27, 2017.

On June 1, 2017, Charles Pedescleaux, Jr. ("Charles Jr.") filed a "Petition to Admit the Last Will and Testament of Charles C. Pedescleaux, Sr." The will purported to leave all of the decedent's property "both real and personal, separate and community, movable and immovable corporeal and incorporeal" to the decendent's children—"Charles Pedescleaux, Jr., Charlesetta Pedescleaux Knight, Constance Pedescleaux Bernard, Jessica Pedescleaux Geason and Deedra Pedescleaux Grant"—to be shared equally. Charles Jr. requested that he be appointed Executor of the estate, per the will's provisions, and that certain real estate, located at 10561 Charles Lane in St. James Parish, Louisiana, be declared separate property, as the decedent purchased the property prior to his marriage to Mrs. Pedescleaux.

Thereafter, on December 20, 2018, Mrs. Pedescleaux filed a motion and memorandum titled:

Motion and Rule to Show Cause Why The Last Will and Testament of Charles C. Pedescleaux, Sr. Should Not be Null and Void Because of Failure to Observe Statutory Formalities; Why Mrs. Olga H. Pedescleaux, Spouse of Deceased Charles C. Pedescleaux, Sr. Should Not be Declared Administratrix of Decedent's Estate; Why All Financial Documents and Any and All Documents Whatsoever Being Held by Decedent's Children: Charles Pedescleaux, Jr., Charlesetta Pedescleaux Knight, Constance Pedescleaux Bernard, Jessica Pedescleaux Geason, And Deidra Pedescleaux Grant or Anyone Else Should Not Turn Over Said Documents to Mover and With Full Accounting of Said Financial Records and Documents and Why the Marital Domiciled [sic] Should Not be Designated as Community Property.

The district court held a hearing on Mrs. Pedescleaux's motion on January 22, 2019. The district court denied her request that the last will and testament be declared null and void and took the issue of whether the home on Charles Lane was community property under advisement. A judgment was issued on January 25, 2019, which designated the family home located at 10561 Charles Lane as community property. Both parties appealed the district court's judgment.

However, on November 4, 2019, this Court on its own motion, found that the January 25, 2019 judgment was not a final judgment sufficient to invoke appellate jurisdiction. Therefore, we remanded the matter for the district court to render a final judgment and supplement the record. See Succession of Charles C. Pedescleaux, 19-250 (La. App. 5 Cir. 11/4/19) (per curtain). After we received a final, appealable judgment filed into the record on November 12, 2019, Charles Jr. filed a peremptory exception of nonjoinder under La. C.C.P. arts. 641 and 642, arguing that the decedent's four other children must be joined as parties to the proceedings due to their interests as legatees named in the will and individuals with an interest in the family home. We sustained the peremptory exception of nonjoinder, finding that the joinder of all of the decedent's children was required for proper adjudication of the matter. Therefore, we vacated the district court's amended final judgment and remanded the matter for joinder of the absent parties and retrial of the case. See Succession of Pedescleaux, 19-250 (La. App. 5 Cir. 2/7/20); 290 So.3d 749, 751.

On March 3, 2020, Charles Jr. filed a Motion to Probate Statutory Will, to Appoint Testamentary Executor and to Rescind Appointment of Administratrix. On June 3, 2020, the district court ordered that the statutory will of decedent dated June 1, 2016 be filed for probate and executed, appointed Charles Jr. as executor of decedent's estate without the need of posting bond, and vacated the prior appointment of Mrs. Pedescleaux as Administratrix of the estate.

Mrs. Pedescleaux filed a First Supplemental and Amended Petition on August 7, 2020. The petition named all five of the decedent's children and heirs as defendants and prayed for judgment as follows: that the amended petition be made part of the record; that Charles Jr. provide a copy of the Power of Attorney, describe how he obtained it, and account for funds received through the Power of Attorney; that the family home at 10561 Charles Lane in St. James Parish be recognized as community property; and that the "alleged" will dated June 2 (sic), 2016, be declared "null and void." Mrs. Pedescleaux also asked that damages be awarded for her financial loss and the emotional distress she has suffered "due to the tortuous [sic] acts of defendants." Mrs. Pedescleaux later filed a Motion and Annexed Memorandum in Support of a Judgment Declaring the "Alleged Will" of Charles Pedescleaux, Sr. Null & Void and requested an expedited hearing pursuant to La. C.C.P. 1573 because of her advanced age and "poor health" on December 23, 2020. Mrs. Pedescleaux stated in her motion that the will was "null on its face [and] brought with malice and fraud on the part of her former step-children." Further, Mrs. Pedescleaux claimed that the statutory requirement that the will be read and signed in front of two competent witnesses and a notary was not met, and argued that her husband did not have the requisite capacity to execute a valid will. Attached as exhibits to the memorandum were a copy of the June 1, 2016 will, the transcript from the September 2, 2020 deposition of Charles Jr., Mrs. Pedescleaux's affidavit regarding the decedent's medical issues, and a copy of the Power of Attorney.

Defendants filed an answer to Mrs. Pedescleaux's supplemental and amended petition on December 3, 2020, and filed a Memorandum in Opposition to Rule to Show Cause on March 9, 2021. Attached to the memorandum in opposition were affidavits from Jessica Pedescleaux Geason and Brettaiene Celestin, the two witnesses present at the time the will was executed, to counter Mrs. Pedescleaux's allegation that the document did not meet the formal requirements of a statutory will because there was only one witness. The memorandum also addressed Mrs. Pedescleaux's claims of fraud and conversion regarding the couple's community property, but stated her arguments "[were] not relevant to the limited scope of the rule to show cause."

At the hearing on the rule to show cause held on March 19, 2021, Defendants' counsel first made two motions in limine: the first, to exclude "anything alluding to [Mrs. Pedescleaux's] statements or anything else," as she was not present in court that day and available for cross-examination; and, second, to exclude an "assessment" of decedent's health — a October 12, 2015 CMI Employee Benefit Care Plan Report ("care plan") attached as an exhibit to Mrs. Pedescleaux's Opposition Brief to the [Defendants'] Pending Motion for Summary Judgment, filed on August 7, 2020.1 Although Charles Jr. was questioned about the care plan at his deposition, counsel for Mrs. Pedescleaux said that they "did not need to use the assessment" during the hearing on the rule to show cause. Counsel also argued that Defendants did not subpoena Mrs. Pedescleaux, who was 93 years old at the time, and not a party to the will, or the power of attorney. The district court denied the first motion to exclude Mrs. Pedescleaux's statements, and determined the second motion to exclude the care plan was moot due to counsel's indication that it would not be introduced into evidence.

Next, Defendant and heir, Jessica Pedescleaux Geason testified, followed by Brettaiene Celestin, the long-time secretary of the Pedescleaux family's attorney, Benjamin Johnson. Ms. Geason testified that counsel read the will aloud, then her father read the will afterwards. She said that she questioned her father to ensure that he understood what was being done. Ms. Geason witnessed counsel signing the will after her father, Ms. Geason, and Ms. Celestin had done so — in that order. She further testified that her father could read and wore his glasses when he read the will, could hold a pen, had not been declared an interdict or mentally incompetent, and had not been prescribed any medication for dementia or Alzheimer's disease. On cross-examination, Ms. Geason identified her father's signature and initials at the bottom of page two of the will.

Ms. Celestin testified that she had typed the will at Attorney Johnson's direction, based on a previous discussion between the decedent and counsel. She confirmed that she witnessed the decedent and Ms. Geason signing the will, and further confirmed that her signature appeared on the will as a witness. She also testified that the will was read aloud by counsel and then by the decedent while wearing glasses. She testified that she left the decedent's residence after counsel signed the will. Both Mrs. Pedescleaux and Ms. Celestin testified that Charles Jr. was not present during the reading and signing of the will.

Last, Charles Jr. testified that he was not present when the will was executed, but arrived at the home afterwards. Counsel questioned Charles Jr. regarding his prior deposition testimony in September 2020 where he indicated that he was present when the decedent executed the will, but could not recall whether Ms. Celestin was present. Charles Jr. explained that any discrepancies with his testimony at his September 2020 deposition occurred because he was nervous and he had never been deposed before. Charles Jr. stated that he did not have any input into the contents of the will and that his father told him that he had read and understood the will. Charles Jr. further testified that after executing the will, his father asked his counsel to prepare a power of attorney to appoint Charles Jr. to handle his bank accounts and health matters on his behalf. Charles Jr. averred that his stepmother knew about the power of attorney, but he could not say when she was informed of its existence. The power of attorney was used to assist the decedent with medical decisions and to write checks to cover medical and utility bills. Charles Jr., further testified that he got both his father and his stepmother's permission to write checks against their joint bank accounts. Charles Jr. testified that when he took his father to the VA hospital for treatment, "Ms. Olga asked me or told me she didn't realize that the power of attorney was for his health also. She thought it was just for finances." After arguments from counsel, the court took the matter under advisement.

The district court issued judgment in favor of Defendants on March 31, 2021. The June 1, 2016 will was declared valid and enforceable after the court found that the will "substantially complied" with the form requirements outlined in La. C.C.P. art. 1577. The district court also found that Mrs. Pedescleaux did not prove by clear and convincing evidence that decedent lacked capacity at the time of its execution, but found, instead, that the decedent was of "sound mind." The court also ordered that the decedent had the right to appoint Charles Jr. as power of attorney to alienate his assets, including community property, "based on the Second Circuit's ruling in Succession of Caraway[, 639 So.2d 415 (La. App. 2nd Cir. 1994)] and La. C.C. arts. 2985 and 2989." The district court subsequently denied Mrs. Pedescleaux's motion for new trial on May 12, 2021 and granted her notice of appeal on May 25, 2021.

ASSIGNMENTS OF ERROR

In her first assignment of error, Mrs. Pedescleaux urges that the district court committed reversible error when it ruled that the decedent's will substantially complied with the form requirements of La. C.C.P. art. 1577 and was valid. She raises several different grounds in support of this assignment of error. First, she claims that Ms. Celestin was not present when the decedent signed the will and the district court should not have credited Charles Jr.'s testimony at trial because it conflicted with his earlier deposition testimony. Second, she argues that the district court failed to give any credence to her affidavit and her late husband's care plan, which she contends both support her claim that her late husband did not have the capacity to execute the will, because he suffered from dementia and could not read, write, or comprehend the will at the time of its execution. Third, she complains that the will states it was signed in Ascension Parish when the decedent executed the will at his home in St. James Parish. Finally, she argues that the will does not comport with the requirements of La. C.C.P. art. 1577 because the decedent only initialed and did not sign at the bottom of each page of the will. She also complains that the will contains an extra attestation clause signed by the decedent, and the notary and witnesses signed separate attestation clauses.

In her second assignment of error, Mrs. Pedescleaux also claims the district court committed reversible error when it ruled that the power of attorney presented by Charles Jr. was valid pursuant to Succession of Caraway, supra, and La. C.C. arts. 2985 and 2989.

LAW AND DISCUSSION

June 1, 2016 Will2

In her first assignment of error, Mrs. Pedescleaux claims that the trial court erred by failing to nullify the probated will because 1) the will did not comply with the formalities required by La. C.C. art. 1577; and 2) the decedent lacked capacity to execute the will.

Compliance with La. C.C. art. 1577

La. C.C. art. 1576 provides that "[a] notarial testament is one that is executed in accordance with the formalities of Articles 1577 through 1580.1." Succession of Teal, 21-226, p.2 (La. App. 5 Cir. 6/4/21); 2021 WL 2301802. La. C.C. art. 1577 provides the requirements relevant to the notarial will at issue in this matter:

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 ____."

According to La. C.C. art. 1573, if the formalities prescribed for the execution of a testament are not observed, the testament is absolutely null. See also In re Succession of Smith, 01-930 (La. App. 5 Cir. 1/15/02); 806 So.2d 909, 911, writ denied, 02-633 (La. 5/3/02); 815 So.2d 105. The plaintiff in an action to annul a statutory or notarial testament has the burden of proving the invalidity of the testament. Succession of Brandt, 21-88 (La. App. 5 Cir. 4/13/21); ___ So.3d ___, 2021 WL 1394693, at *3, writ denied, 21-741 (La. 10/19/21); 326 So.3d 253, and writ denied, 21-750 (La. 10/19/21); 326 So.3d 256, citing La. C.C.P. art. 2932(B). 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 the presumption. In re Succession of Holbrook, 13-1181 (La. 1/28/14); 144 So.3d 845, 853.

In Succession of Liner, 19-2011 (La. 6/30/21); 320 So.3d 1133, 1137-38, the Louisiana Supreme Court recently explained that courts should consider whether the deviations or departures from testamentary requirements are material or slight depending on whether they indicate an increased likelihood that fraud may have been perpetrated. If there is an indication of an increased likelihood or risk of fraud, the deviations require a finding that the will is null; if not, the deviations are slight and should be disregarded:

Our legislature adopted the statutory — now notarial — will from the common law to avoid the rigid formal requirements of the civil law. Succession of Guezuraga, 512 So.2d 366, 368 (La. 1987). `In accordance with this legislative intent, courts liberally construe and apply the statute, maintaining the validity of the will if at all possible, as long as it is in substantial compliance with the statute.' Id. Given this presumption in favor of validity, `proof of the nonobservance of formalities must be exceptionally compelling to rebut that presumption.' Succession of Holbrook, 13-1181, p. 11 (La. 1/28/14); 144 So.3d 845, 853 (citation omitted). * * * A cardinal rule of the interpretation of wills is that the intention of the testator as expressed in the will must govern. Soileau v. Ortego, 189 La. 713, 718, 180 So. 496, 497 (1938); see also La. C.C. arts. 1611 and 1612. In service to this rule, the formalities of a notarial will provide a protective function of guarding the testator against the risk of fraud. See Soileau, 189 La. at 718-19, 180 So. at 497; George Holmes, Testamentary Formalism in Louisiana: Curing Notarial Will Defects through a Likelihood of Fraud Analysis, 75 La. L. Rev. 511, 517 (2014) (the protective function is ... most directly tied to testamentary intent' as `evidence of undue fraud or influence indicates that the testator did not truly intend for the document to be his or her will'). However, in guarding against the risk of fraud, courts should not favor the hypothetical over the facts at hand — potentially undermining the very purpose the formalities serve — by `elevating form over function.' Holbrook, 13-1181, p. 8, 144 So.3d at 851; Ronald J. Scalise, Jr., Will Formalities in Louisiana: Yesterday, Today, and Tomorrow, 80 La. L. Rev. 1331, 1434-35 (2020) (`form requirements are not an end in themselves but only a means to an end' and `should always be viewed by courts as a vehicle which protects the testator ... from imposition, fraud, and undue influence') (internal quotation omitted); Loretta Garvey Whyte, Donations-Imperfect Compliance with the Formal Requirements of the Statutory Will, 15 Loy. L. Rev. 362, 365 (1969) (`[i]t was the intention of the legislature to provide a will form which was not complicated by rigid formalities ... and which would be executed without fear that it would be declared null in probate proceedings'). The result for a testator's estate would be the same as if fraud had actually been proven. See Successions of Toney, 16-1534, p. 5 (La. 5/3/17); 226 So.3d 397, 411 (Weimer, J., dissenting); John H. Langbein, Substantial Compliance with the Wills Act, 88 Harv. L. Rev. 489, 517 (1976) (by forbidding a will's proponents from proving that no fraud had occurred, the law is made to irrebuttably presume that it had). This is contrary to the legislature's adoption of the "substantially similar" language in the Civil Code, the established liberal interpretative standard in favor of a will's validity, and ignores consideration of whether `the instrument as a whole shows that [the] formalities have been satisfied.' Porche, 288 So.2d at 29. In Guezuraga, this Court emphasized that deviations from the notarial form are evaluated in relation to their effect on the risk of fraud: Where the departure from form has nothing whatsoever to do with fraud, ordinary common sense dictates that such departure should not produce nullity. It was the intent of the legislature to reduce form to the minimum necessary to prevent fraud. It is submitted that in keeping with this intent, slight departures from form should be viewed in the light of their probable cause. If they indicate an increased likelihood that fraud may have been perpetrated they would be considered substantial and thus a cause to nullify the will. If not, they should be disregarded. * * * Courts must determine if a notarial will, with all formalities and evidence taken into consideration, reflects the testator was sufficiently protected against the risk of fraud. Holmes, supra, at 541. This involves a contextual analysis of the protective function of a will's formalities in light of the document itself If the court's analysis reveals an increased likelihood that fraud may have been perpetrated, the deviations are material and cause to nullify the will exists. If not, the deviations are slight and should be disregarded. Guezuraga, 512 So.2d at 368. Whether the deviating language sufficiently protects against the risk of fraud is construed liberally in favor of maintaining the validity of the will. Id.; Holbrook, 13-1181, p. 11, 144 So.3d at 853. Mere allegations of fraud are not outcome determinative.

Liner, 320 So.3d at 1137-38.

The factual findings of the trial court, in will contest cases, are afforded great weight and will not be set aside on appeal absent manifest error. In re Succession of Spitzfaden, 09-212 (La. App. 5 Cir. 12/8/09); 30 So.3d 88, 91. When fact findings are based on determinations regarding the credibility of witnesses, the manifest error/clearly wrong standard demands great deference to the trier of fact's findings. Succession of Gendron, p.9, 19-206 (La. App. 5 Cir. 4/28/21); 2021 WL 1659853. It is not the function of the appellate court to assess the credibility of witnesses or reweigh the evidence. McKinnis v. Reine, 10-753 (La. App. 5 Cir. 4/26/11); 65 So.3d 688, 693.

Ms. Celestin's Presence as a Witness

Mrs. Pedescleaux first contends that the will is a nullity because one of the witnesses, Ms. Celestin, was not present when the decedent executed the will. As quoted above, La. C.C. art. 1577(1) requires the testator to sign the will in the presence of the notary and two witnesses, and when the record indicates that these formalities were not followed, the testament must be declared a nullity. See Succession of Smith, 806 So.2d at 911. Mrs. Pedescleaux contends that the trial court committed reversible error by failing to give any weight to Charles Jr.'s prior deposition testimony, which she contends supports a finding that Ms. Celestin was not present at the time the decedent executed the will. Mrs. Pedescleaux points to the deposition testimony of Charles Jr., wherein he stated he was present when his father signed the will. Mrs. Pedescleaux also represents that Charles Jr. testified that Ms. Celestin was not present when the decedent signed the will. However, our review of the deposition testimony cited in Mrs. Pedescleaux's appellate brief indicates that Charles Jr. only stated that he could not recall if Ms. Celestin was present when he observed his father signing the will.3

Upon review of the record, we find that the trial court was not manifestly erroneous in finding that Ms. Celestin was present at the time the decedent signed the will. Both witnesses to the will, Ms. Geason and Ms. Celestin, testified at the hearing that they were present when the decedent executed the will and made the following observations at the family home on June 1, 2016: 1) the testator, attorney, and the other witness' presence; 2) the attorney read the will aloud; 3) the testator read the will while wearing his glasses; 4) the testator, other witness, and attorney affixed their signatures to the will; 5) Ms. Celestin left the home after the will was executed; and 6) Charles Jr. was not present at the time the decedent and witnesses signed, and the attorney notarized, the will. Furthermore, Charles Jr. explained at the March 19, 2021 hearing, that his deposition testimony regarding his presence at the time of the signing was inaccurate because he was nervous.

Considering the deference owed to the trial court's reasonable evaluations of credibility, we do not find that the trial court's conclusion that Ms. Celestin and Ms. Geason contemporaneously witnessed the decedent sign the will was manifestly erroneous.

Decedent's Signature, Attestation Clauses, and Incorrect Parish

Mrs. Pedescleaux next complains that the will is not in substantial compliance with the requirements set forth in La. C.C. art. 1577 because 1) the decedent only placed his initials, rather than his full signature, at the bottom of each page of the will; 2) the will contains three attestation clauses; and 3) the will incorrectly states that it was signed in Ascension Parish rather than St. James Parish.

First, Mrs. Pedescleaux does not cite to any statute or case law that required the decedent's full signature on the bottom of each page of the will, which is only two pages. The first page contains all of the dispositive and appointive provisions and the second page contains the attestation clauses. The decedent placed his full signature at the end of the dispositive and appointive provisions of the testament on the first page. Two lines of the attestation clause followed his signature and the decedent placed his initials at the very bottom of the page. In addition, the decedent signed his full name on the second page of the will, prior to the attestation clauses signed by the witnesses and notary. He also placed his initials again at the bottom of the second page.

La. C.C. art. 1577 requires the testator to "sign his name at the end of the testament and on each other separate page." Comment (b) to La. C.C. art. 1577 explains that the testator must "sign at the end of the dispositive, appointive, or directive provisions" of the testament, and further explains that the testator does not need to sign the same page again at the end of the attestation clause. In the present matter, the decedent signed at the end of the dispositive provisions of his testament on the first page and also signed his complete signature near the top of the second page, the only other page of the will. In addition to placing his full signature on both pages of the will as described, the decedent placed his initials at the bottom of both pages of the will. Considering the foregoing, we find that the will substantially complied with the requirements of La. C.C. art. 1577. See Succession of McKlinski, 21-369 (La. App. 4 Cir. 11/10/21); 331 So.3d 414, 419-20, writ denied, 21-1818 (La. 2/8/22); 332 So.3d 642 (finding that will was in substantial compliance where the testator initialed each page of the will, then signed her full name at the end of the dispositive provisions on the second page of the will.)

Mrs. Pedescleaux next contends that the district court should have declared the will null because it contains multiple attestation clauses, signed separately by the testator, the witnesses, and the notary, and there is "confusion" as to whether the notary is mentioned in the attestation clauses. First, we recognize that La. C.C. art. 1577 does not require the testator to sign an attestation clause. However, we do not find that the clause signed by the testator serves as a basis to invalidate the will as it in no way indicates an increased likelihood of fraud.

We further observe that it is unusual for the witnesses and notary to sign separate attestation clauses. However, the language of each attestation clause is substantially similar to the attestation language provided in La. C.C. art. 1577(2) See Liner, 320 So.3d at 1137 ("an attestation clause need only be `substantially similar' to the language provided by the Civil Code.") The clauses indicate that the testator signed at the end of the testament and on the following page in the presence of the notary and witnesses, and that the testator was present when the witnesses and notary signed their names to the testament. Furthermore, the witnesses testified at the hearing that the testator, witnesses, and notary all signed the will in each other's presence. Therefore, we find that the attestation clauses are in substantial compliance with La. C.C. art. 1577, and that the use of multiple attestation clauses in the will is not indicative of an increased likelihood of fraud.

Finally, Mrs. Pedescleaux suggests that will is invalid because it states that the will was executed in Ascension Parish, instead of St. James Parish, where the decedent's home is located and the will was executed. La. C.C. art. 1577 does not require that the will name the parish of execution in order for the will to be valid. Accordingly, we do not find that this error serves as grounds to invalidate the will.

Decedent's Capacity

Mrs. Pedescleaux also contends that the trial court erred by failing to find the will was null and void due to the decedent's diminished capacity. She specifically argues that the trial court failed to give any weight to the decedent's care plan, which she contends provided that the decedent required constant care, as well as her affidavit wherein she stated that the decedent could not read without reading glasses and was unable to write or hold a pen due to his arthritis.

With respect to the issue of capacity to execute a will, the jurisprudence is clear that "testamentary capacity is always presumed and the burden is on the party attacking the validity of the will to prove a lack of capacity at the time the will was executed." Spitzfaden, 30 So.3d at 91 citing Succession of Dorand, 596 So.2d 411, 412 (La. App. 4 Cir. 1992). "`[T]he opponent bears the burden of defeating this presumption by putting forth clear and convincing evidence to the contrary.' Succession of Walker, 18-447 (La. App. 3 Cir. 8/14/19); 279 So.3d 1030, 1032, writ denied, 19-1456 (La. 11/5/19); 281 So.3d 673; La. C.C. art. 1482.

We find that the district court did not commit manifest error when it found that Charles, Sr. had the capacity to execute the will. As noted above, Mrs. Pedescleaux did not introduce the care plan into evidence because her counsel indicated that they did not intend to use the plan at the hearing in response to the motion in limine raised by defendants. In addition, Ms. Pedescleaux's affidavit was not introduced into evidence. Our review of the record indicates that these documents were merely attached to a memorandum in support of Mrs. Pedescleaux's motion to invalidate the will, and never introduced into evidence. See Wells Fargo, supra. Furthermore, the decedent's daughter, Ms. Geason, as well as Ms. Celestin testified that the decedent read the will with his reading glasses and signed the will. Ms. Geason testified that her father could read and he could hear. She admitted that her father was diagnosed with arthritis, but stated that this did not affect his mental capacity or his ability to take care of himself. The trial court correctly determined that Ms. Pedescleaux failed to provide clear and convincing evidence of proof of the decedent's lack of capacity to execute the will.

September 15, 2015 Power of Attorney

In her second assignment of error, Mrs. Pedescleaux contends that the trial court committed reversible error when it ruled that the power of attorney the decedent provided to Charles Jr. was valid. Mrs. Pedescleaux contends that the power of attorney was invalid because it permitted Charles Jr. to alienate community property without her permission, and further argues that the trial court improperly relied on La. C.C. arts. 29854 and 2989,5 as well as the findings in Succession of Caraway, 25,879 (La. App. 2 Cir. 6/22/94); 639 So.2d 415, in its decision to uphold the validity of the power of attorney.

First, we observe that the power of attorney was not entered into evidence. However, Charles Jr. testified at the hearing that he had a power of attorney for his father. He explained that his father asked the attorney to draft the power of attorney for him so that he could assist with managing his bank accounts. Charles Jr. recognized that the accounts were joint accounts for the decedent and Mrs. Pedescleaux. However, he testified that his father told him he needed help because the accounts were depleted and checks written against the accounts were being returned for insufficient funds. Charles Jr. testified that he used the power of attorney to pay his father and Mrs. Pedescleaux's bills, with their permission, and also to help his father make medical decisions. He further testified that Mrs. Pedescleaux was aware of the power of attorney.

Mrs. Pedescleaux's primary complaint is that the power of attorney permitted Charles Jr. to transfer her interests in the marital home, which she contends is a community immovable.6 We recognize that La. C.C. art. 3247 requires the concurrence of both spouses to alienate or encumber a community immovable. However, there is no evidence to support her claim that the power of attorney granted Charles Jr. the right to transfer a community immovable without her consent.

Finally, we do not find that the trial court erred by relying on the following findings in Succession of Caraway, supra, to find that prior to his death, the decedent could give Charles Jr. power of attorney to manage and transact his financial affairs:

[T]hrough the power of attorney, [the decedent] authorized his [daughter as] mandatary to `conduct, manage, and transact' all affairs for him and to `sell, transfer, and convey' his property. Thus, his daughter could deal with his assets, community or separate, and engage in other financial activities, to the same extent as her father. See LSA-C.C. Arts. 2985, 2987, 3002. Cf. Haynes v. Haynes, 545 So.2d 1245 (La. App. 2d Cir. 1989) (approving a curator's execution of even a declaration of paraphernality on behalf of the interdict). We can discern no reason to impose a greater burden upon this gratuitous mandatary, when dealing with community property, than would be thrust upon the husband himself in similar situations. See LSA-C.C. Art. 3003; cf. Haynes, supra. The primary responsibility of the attorney-in-fact is to conduct affairs in conformity with his principal's best interest and wishes. See LSA-C.C. Art. 3002. [...]Although, at the termination of the community, a spouse owes an accounting to the other spouse for community property under his control, he stands liable only for loss or damage caused by fraudulent or bad faith management. LSA-C.C. Arts. 2354, 2369; Roberts v. Roberts, 542 So.2d 517 (La. App. 5th Cir. 1989), writ denied. Furthermore, prior to that dissolution, either spouse alone may dispose of community assets unless otherwise provided by law, and may likewise so satisfy community obligations. LSA-C.C. Arts. 2345, 2346; Keller v. Schilling, 593 So.2d 926 (La. App. 4th Cir. 1992); Patin v. Patin, 462 So.2d 1356 (La. App. 3d Cir. 1985), writ denied. Logically then, these same principles apply to [the mandatary], who by means of the mandate exercised her father's right to manage [community assets].

Id. at 418-19.

Ms. Pedescleaux does not dispute Charles Jr.'s testimony that he only used the power of attorney to pay bills from the joint bank accounts — that is, use community funds to pay community obligations. Therefore, because the decedent could dispose of the community funds in the bank accounts without Mrs. Pedescleaux's consent, Charles Jr. could use the power of attorney in the same manner. Accordingly, the trial court did not err in denying Mrs. Pedescleaux's request to find the power of attorney invalid.

DECREE

Considering the foregoing, the March 31, 2021 district court judgment declaring the June 1, 2016 will of Charles C. Pedescleaux, Sr. and the September 15, 2015 power of attorney valid and enforceable is affirmed.

AFFIRMED.

FootNotes


1. Defendants had moved for summary judgment on June 23, 2020, asking that Mrs. Pedescleaux be made to show cause why the family home should not be declared the separate property of decedent at the time of his death, and why the June 1, 2016 will should not be declared a valid statutory testament. But, Defendants later withdrew their motion for summary judgment and the district court ordered the hearing on that motion to be removed from the docket on September 11, 2020.
2. Upon review of the record, which includes the record from the earlier appeal (19-CA-250), we observe that the parties did not introduce any exhibits into evidence at either hearing held by the trial court regarding the validity of the will. An appellate court must render judgment upon the record on appeal. La. C.C.P. art. 2164; Boes Iron Works, Inc. v. Travelers Cas. & Sur. Co. of Am., 05-782 (La. App. 5 Cir. 3/28/06); 927 So.2d 553, 556. "Evidence not properly and officially offered and introduced cannot be considered, even if it is physically placed in the record. Documents attached to memoranda do not constitute evidence and cannot be considered as such on appeal." Wells Fargo Fin. Louisiana, Inc. v. Bordelon, 21-80, pp. 9-10 (La. App. 5 Cir. 12/22/21); 2021 WL 6039472 (citations omitted). However, this Court has previously recognized its ability to take judicial notice of a probated will. Brazan v. Brazan, 07-565 (La. App. 5 Cir. 11/27/07); 973 So.2d 80, 83. Considering the extensive and tortured procedural history of this matter, we take judicial notice of the probated will contained in the record and consider the merits of Ms. Pedescleaux's appeal regarding the validity of the will.
3. The transcript of Charles Jr.'s deposition was not entered into evidence at the hearing.
4. La. C.C. art. 2985 provides, "[a] person may represent another person in legal relations as provided by law or by juridical act. This is called representation."
5. La. C.C. art. 2989 provides, "[a] mandate is a contract by which a person, the principal, confers authority on another person, the mandatary, to transact one or more affairs for the principal."
6. Although it was not presented as an issue for review, in their appellate briefs, the parties mention the issue of whether the marital home located at 10561 Charles Lane is community property. The trial court concluded the home was community property in its prior amended judgment entered into the record on November 12, 2019. However, as explained above, this Court vacated that judgment in Succession of Pedescleaux, 290 So.3d at 752, due to the failure to join all of the decedent's heirs as defendants. The judgment currently at issue before this Court does not address whether the home is community property. We further observe that on May 4, 2021, Mrs. Pedescleaux filed a motion for new trial requesting that the trial court address the community property issue. On May 12, 2021, the trial court summarily denied the motion for new trial, indicating that it issued judgment on the house on November 12, 2019. However, this judgment was vacated and it appears, from the record before this Court, that the issue of whether the marital home is community property remains unresolved.

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