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Succession of Walker

Court of Appeals of Louisiana, Third Circuit

August 14, 2019

SUCCESSION OF Clarence WALKER

          APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT, PARISH OF RAPIDES, NO. 43,555, HONORABLE WILLIAM GREGORY BEARD, DISTRICT JUDGE

         Michael Hathorn Davis, Law Office of Michael H. Davis, COUNSEL FOR OTHER/APPELLANTS: Gary Mitchell, Sheila Mitchell Johnson

         Zebulon M. Winstead, Andree Braud Leddy, Crowell & Owens, LLC, COUNSEL FOR OTHER/APPELLEE: Joan Robertson

         Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and D. Kent Savoie, Judges.

          OPINION

         SAVOIE, Judge.

Page 1031

         [2018-447 La.App. 3 Cir. 1] Plaintiffs-in-Rule Gary Mitchell and Sheila Mitchell Johnson appeal the judgment of the trial court, finding they have not met the required burden of proof to nullify the May 26, 2017 testament of decedent Clarence Walker. For the following reasons, we reverse.

          FACTS AND PROCEDURAL HISTORY

          Clarence Walker died on June 14, 2017, in Torrance, California. His wife, Virginia Walker, predeceased him, and there were no children born of the marriage. Clarence had children prior to his marriage - a daughter, Joan Robertson, and a son, Paul Davis. Gary Mitchell and Sheila Mitchell Johnson are the children of Virginia Walker’s sister. They grew up in the Walker home and were raised primarily by Clarence and Virginia.

          Joan Robertson filed a Petition for Order of Effect of Probate and for Confirmation of Independent Executrix on June 29, 2017. The Petition states that Clarence Walker was a resident of Alexandria, Louisiana, when he died. The Last Will and Testament of Clarence Walker dated May 26, 2017, is attached to the petition. Joan Robertson is listed as Independent Executrix in the will, and she executed the oath of office, attaching it to the petition. In the will, Clarence made Joan Robertson his sole heir by stating that after funeral expenses, administrative expenses, and taxes are paid, "I devise and bequeath the remainder of my estate to my daughter, JOAN ROBERTSON." If she predeceases him, his estate would be passed to her "lawful issue," and if she dies without lawful issue, then it would go to his son, Paul Davis. The May 26, 2017 will was executed three weeks prior to Clarence Walker’s death while he was hospitalized in California.

         [2018-447 La.App. 3 Cir. 2] Also attached to the petition are two Affidavits of Death, Domicile and Heirship. One was executed by Robert Robertson, Joan’s husband, and the other by Betty Washington Walker, a family friend. They both attest that they were well acquainted with Clarence Walker, affirm certain facts listed in the petition, and add that Joan and Paul are over the age of twenty-three years, suffer from no mental incapacity nor physical infirmity and are capable of taking care of their person and administering their estates. An Order of Effect of Probate and Confirmation of Independent Executrix was signed by the trial court on June 29, 2017.

         Gary Mitchell and Sheila Mitchell Johnson filed a Rule to Show Cause to Annul Probated Testament and Rule to Remove Independent Administratrix on July 11, 2017. Gary and Sheila allege that they are legatees of Clarence Walker under a will executed by Clarence on June 15, 2016, which they attached to the rule. Gary and Sheila further allege that the probated will dated May 26, 2017, is invalid because Clarence could not read and the will is not executed in the proper form for a person who cannot read, specifically, "the [w]ill failed to declare that the testament had been read aloud in the presence of the Notary and the witnesses, and further failed to declare that the witnesses followed such reading on copies of the testament, and that the Testator declared or signified that he heard the reading and that the instrument is his testament." They further allege that Clarence "lacked the testamentary capacity to make a [w]ill on May 26, 2017[,] due to his severe dementia and his terminal illness which rendered his mental capacity to such a state

Page 1032

as to not know and be aware of his execution of the [w]ill on May 27, 2017." The rule also requests that Joan Robertson be removed as executrix because her [2018-447 La.App. 3 Cir. 3] appointment was based on an invalid testament, and she is not a resident or domiciliary of the State of Louisiana.[1]

          In addition to the rule, Gary and Sheila filed a Petition for Probate of Statutory Will and for Appointment of Independent Executrix, wherein they ask the trial court to probate the will dated June 15, 2016, and to appoint Sheila Mitchell Johnson as Independent Executrix. In the June 15, 2016 testament, Clarence leaves his estate to Gary, Sheila, Joan and Paul to share equally. This will was executed in Alexandria, Louisiana, one year, almost to the day, prior to Clarence’s death.

          The trial court signed an Order on July 13, 2017, ordering Joan Robertson to show cause why the May 26, 2017 testament should not be annulled and why Joan should not be removed as Independent Executrix. The matter was heard on October 16 and 17, 2017. The trial court took the matter under advisement and issued Written Reasons on November 30, 2017. Judgment was signed on December 20, 2017, with the trial court denying Gary and Sheila’s rule to annul the probated May 26, 2017 will and the removal of the executrix. Gary and Sheila now appeal.

          ASSIGNMENTS OF ERROR

1. The trial judge erred as a matter of law by imposing the burden of proof beyond a reasonable doubt as opposed to proof by clear and convincing evidence.
2. The trial judge erred in finding that the revocation clause contained in the will of May 26, 2017, was a ...

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