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In re Succession of Sirgo

Court of Appeal of Louisiana, Fifth Circuit

October 29, 2014

SUCCESSION OF MARJORIE FERNANDEZ SIRGO

Page 833

Editorial Note:

This Decision is not final until expiration of the fourteen day rehearing period.

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA. NO. 683-879, DIVISION " K" . HONORABLE, ELLEN S. KOVACH, JUDGE PRESIDING.

VALLERIE L. OXNER, ATTORNEY AT LAW, Metairie, Louisiana, COUNSEL FOR PLAINTIFF/APPELLANT.

ELWOOD C. STEVENS, JR., ATTORNEY AT LAW, Lafayette, Louisiana, COUNSEL FOR DEFENDANT/APPELLEE.

Panel composed of Judges Jude G. Gravois, Robert A. Chaisson, and Hans J. Liljeberg.

OPINION

JUDE G. GRAVOIS, J.

Page 834

[14-324 La.App. 5 Cir. 2] Appellants, Marjorie Susan Sirgo Amick and Lester E. Amick, III, appeal a trial court judgment that found Marjorie Fernandez Sirgo's October 13, 2005 testament to be null and void because she lacked testamentary capacity at the time she executed the testament, and that further ordered that Mrs. Sirgo's September 17, 2001 testament be probated. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Marjorie Fernandez Sirgo (" Mrs. Marjorie" ) died on February 20, 2010. She had been married but once and then to Joseph M. Sirgo, Sr., who predeceased her. Of their marriage, four children were born. Two of the children, defendant, Marjorie Susan Sirgo Amick (" Susie" ), and plaintiff, Rene G. Sirgo (" Rene" ), survived their mother. Mrs. Marjorie was predeceased by her other two children, Joseph M. Sirgo, Jr. and Gail Sirgo Loga (" Gail" ). Darnell Loga Bagley (" Darnell" ), Gail's only surviving daughter, is also a plaintiff in this proceeding.

[14-324 La.App. 5 Cir. 3] Mrs. Marjorie was 95 years old at the time of her death. From 2002 until her death in 2010, she lived in three different nursing homes, during which time she suffered from Parkinson's disease and diabetes. On September 17, 2001, while Mrs. Marjorie still lived at her home, she executed a will in which she left the residual of her estate equally to her surviving children (Gail, Susie, and Rene), and to Darnell, if her mother, Gail, predeceased her. In 2002, Mrs. Marjorie began living at Chateau Living Center in Kenner, Louisiana. She stayed there until August 2005, when she evacuated with Susie and her husband, Lester E. Amick, III (" Lester" ) to Mississippi due to Hurricane Katrina. On October 13, 2005, while Mrs. Marjorie was a resident of Poplar Springs Nursing Center in Meridian, Mississippi, Susie and Lester took her to execute another will before Beverly Hubnall, a Notary Public who was employed by a CPA firm that did work for Susie and Lester. Mrs. Marjorie's October 13, 2005 will left her entire estate to Susie, unless Susie predeceased her, in which case Lester would receive Mrs. Marjorie's entire estate. The will

Page 835

also appointed Susie as the independent executrix of Mrs. Marjorie's estate.

On February 23, 2010, Susie filed a petition to probate her mother's October 13, 2005 will and also prayed to be appointed as the independent executrix of her estate. On February 26, 2010, the court ordered that the October 13, 2005 will be filed, recorded, and executed according to law, and that such order was to have the effect of probate of the testament. The court also confirmed the appointment of Susie as the independent executrix of the estate.

On April 12, 2010, Rene (Mrs. Marjorie's son) and Darnell (Mrs. Marjorie's granddaughter) (collectively " plaintiffs" ) filed a petition to annul the probated testament, or in the alternative, to have the will declared invalid due to undue influence. In their petition, plaintiffs claimed that at the time Mrs. Marjorie [14-324 La.App. 5 Cir. 4] executed the October 13, 2005 will, she lacked testamentary capacity, or in the alternative, she was subjected to undue influence by Susie and Lester (collectively, " defendants" ). Plaintiffs requested that the October 13, 2005 will be found null and void, and that Mrs. Marjorie's assets be distributed according to the terms of her September 17, 2001 will, which they presented for probate with their petition. By court order dated April 30, 2010, a copy of the September 17, 2001 will was maintained in the succession record, while the original was stored in the Clerk of Court's vault until further orders of the court. On May 4, 2010, defendants filed an answer to the petition.

A bench trial was conducted on September 17-18, 2013 and October 15, 2013. Following the trial, the parties submitted post-trial memoranda. On December 4, 2013, with written reasons for judgment, the trial court found that plaintiffs proved by clear and convincing evidence that Mrs. Marjorie lacked testamentary capacity at the time she executed the October 13, 2005 will. Thus, the October 13, 2005 will was declared null and void. The court further ordered that Mrs. Marjorie's September 17, 2001 will be probated and that Mrs. Marjorie's assets be distributed in accordance with its terms and conditions. On December 18, 2013, defendants timely filed a motion for an appeal.

On appeal, defendants present 14 assignments of error and 12 issues for review. Many of the assignments and issues pertain to the same topics. Thus, to simplify matters, the assignments of error have been consolidated into broader categories as hereinafter set forth.

[14-324 La.App. 5 Cir. 5] TESTAMENTARY CAPACITY[1]

Through various assignments of errors, defendants first contend that the trial

Page 836

court erred in finding that Mrs. Marjorie lacked testamentary capacity at the time she executed the October 13, 2005 will. They argue that the trial court erred in finding that plaintiffs overcame the presumption that a testator has testamentary capacity because clear and convincing evidence that Mrs. Marjorie lacked testamentary capacity was not presented. They specifically argue that the trial court erred when it relied on the testimony of witnesses who did not see Mrs. Marjorie for some time before she executed the October 13, 2005 will. According to defendants, the court should have relied on the testimony of the witnesses who were present at the time the will was executed. They also ...


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