In the Matter of the Succession of Wilma Childers Starns
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 04011 IIIIj IN THE MATTER OF THE SUCCESSION OF WILMA CHILDERS STARNS DATE OF JUDGMENT JUN I p 2011 ON APPEAL FROM THE TWENTYFIRST JUDICIAL DISTRICT COURT NUMBER 13 DIVISION D PARISH OF LIVINGSTON 381 STATE OF LOUISIANA HONORABLE M DOUGLAS HUGHES JUDGE Kenneth R Williams Baton Rouge Louisiana Counsel for Plaintiffs Appellants Phillip Wayne Starns Linda Ann Starns and Shirley Louise Starns Gannarelli C Glenn Westmoreland Counsel for DefendantAppellee Livingston Louisiana Jarred Walker BEFORE KUHN PETTIGREW AND HIGGINBOTHAM JJ Disposition AFFIRMED Kuhn J Appellants Phillip Wayne Starns Linda Ann Starns and Shirley Louise Starns Gannarelli the adult children of the decedent Wilma Childers Starns appeal the trial court denial of their petition to annul a document which the trial s court had previously ordered to be filed and executed as Wilma notarial s testament Appellants assert that the trial court erroneously required them to prove that Wilma actually physically destroyed the original document Plaintiffs further contend that appellee Jarred Walker Wilma grandson and Phillip son s s failed to carry his burden of proving by clear and convincing evidence that Wilma did not destroy her testament before her death Finding no error in the trial s court judgment we affirm I PROCEDURAL AND FACTUAL BACKGROUND On January 30 2004 Wilma executed a notarial testament which provided in pertinent part To JARRED I give and bequeath all that I own at the time of my death I hereby nominate constitute and appoint Randal Childers as Executor of my estate Wilma died on March 27 2009 In July 2009 Jarred filed a petition to probate her testament Jarred attached a certified true copy of Wilma Last Will s and Testament to his petition rather than the original document By order dated July 27 2009 the trial court ordered that the 2004 notarial testament be registered recorded filed and executed On August 24 2009 appellants filed a A notarial testament does not need to be proved Upon production of the testament the court shall order it filed and executed and this order shall have the effect of probate La C art P 2891 The copy of the testament was certified as a true copy by Peggy Swetledge the notary before whom Wilma executed the 2004 testament 2 petition to annul the 2004 testament asserting among other contentions that the testament had been revoked during 2006 when Wilma declared that Jarred would receive none of her estate and destroyed the original of the testament The trial court issued an order directing Jarred to show cause why this court should not rule that the purported Last Will and Testament of the deceased previously ordered executed herein is null and void After the show cause hearing the trial court issued written reasons for judgment that stated in pertinent part The only person who allegedly saw the decedent tear up the will is her son Phillip However because of the extreme animosity between all parties that testimony is not enough to annul the testament By judgment dated April 21 2010 the trial court denied the petition to annul the 2004 testament Appellants contend that the trial court erred in requiring them to prove that the deceased revoked the testament by destruction and by not requiring Jarred to prove that the deceased had not revoked it As such appellants contend this court should consider this matter on a de novo basis II ANALYSIS The appellate court review of factual findings is governed by the manifest s error clearly wrong standard With regard to questions of law the appellate review is simply a review of whether the trial court was legally correct or legally incorrect Succession of Bell 061710 p 5 La App 1st Cir 6 964 So 07 8 2d 1067 1071 2 In the proceedings below appellants challenged the validity of the original will on the grounds that it was improperly executed reurged this claim on appeal The trial court rejected this claim and appellants have not 3 In an action to annul a notarial testament the plaintiff always has the burden of proving the invalidity of the testament La C art 2932B However when P the original of a will cannot be found after the testator death the failure to find a s will that was duly executed and in the possession of or readily accessible to the testator gives rise to a legal presumption of revocation by destruction Succession of Talbot 530 So 1 1134 35 La 1988 This presumption is a 2d 132 rebuttable one and so may be overcome by sufficient evidence Id 530 So at 2d 1135 The proponent of the will must produce evidence that persuades the trial court of contrary essential facts Id 530 So at 1136 The presumption may be 2d weak or strong and more or less easily rebuttable depending on the clarity of the evidence as to whether the testator was the author of the will destruction s whether he expressed an intention to revoke the will whether he treated any extent copy of the will as not having been revoked and as to any other issue bearing upon the testator intention with respect to the destruction and revocation of the s will Id 530 So at 1135 see also Succession of Altazan 960409 p 4 La 2d App Ist Cir 11 682 So 1320 1322 where this court stated It is clear 96 8 2d that the Talbot court recognized a sliding scale of proof sufficient to rebut the presumption depending on the weakness or strength of the evidence surrounding the lost original The Talbot court further set forth that this presumption should not be rebuttable except upon clear proof of a contrary contention when the 3 Louisiana Civil Code article 1606 provides that a testator may revoke his testament at any time Methods of revocation include the physical destruction of the testament by the testator or at his direction La C art 1607 1 4 A presumption shifts the burden of producing evidence and serves to assign the burden of persuasion as well Talbot 530 So at 1135 citing McCormick Evidence 2d 343 3rd ed 1984 4 testator in the presence of a witness declares his intention to revoke his credible will and in fact destroys an original thereof Talbot 530 So at 1136 2d At the hearing Jarred testified that he had seen his grandmother original s will hanging in a manila folder on the wall in her bedroom He did not recall the exact date on which he saw it but he testified that it was before his s grandmother death and around the time she passed away Jarred also testified that his grandmother had shown him the will and had given him a copy of the will before he graduated from high school in 2006 At that time he and his grandmother understood that he would possibly attend college and she told him that she intended to pay his college tuition He stated that when he decided not to go to college after graduation his grandmother understood and accepted his decision She also initially opposed his decision to marry soon after his graduation and she did not attend his wedding or the wedding shower While acknowledging that he had been arrested on charges of spousal abuse and assault against his child Jarred stated that his grandmother was aware of the criminal charges and that both charges were expunged before she died Jarred also testified that he and his wife had lived next door to his grandmother mobile s home in an old travel trailer both of which were located on the same piece of property When his grandmother passed away Jarred still resided next door to his grandmother He explained that his grandmother had never refused him anything that he had needed during her lifetime He stated that she had never told him that Phillip testified that he owned the mobile home that Wilma resided in the last few years of her life but he did not live with her 5 she did not want him to inherit her property and that she never changed or destroyed her will She also never told him that she had torn up her will Jarred testified that his grandmother also gave him her pickup truck shortly before she passed away and that she had previously given him money He related that his grandmother had been suffering from cancer for about a year before she died In anticipation of her death she had wanted to give him the mobile home in which she lived but he told her that he did not want it In the first few days following his grandmother death many family s members were present and had access to her bedroom Jarred searched her bedroom for the original will but he stated that it was not where she had always kept it He testified that the appellants never told him that Wilma had torn up her will The only testimony that referenced the alleged destruction of the will was offered by Phillip He testified that Wilma had always stated she would send Jarred to college and that she was devastated when she found out he was not going to attend He related that she and Jarred argued about it regularly Phillip also testified that in July 2006 he was visiting his mother who was at that time upset with Jarred Phillip stated that Wilma went into her bedroom where she kept her personal things she brought out a piece of paper that he briefly read and stated That little bastard not going to get anything and then she tore up the paper s Phillip testified that he returned to the house a week later when Jarred was present and that Wilma told Jarred that she had torn the will and he was not getting 6 s Phillip testimony does not specify that he actually identified the paper as Wilma will before s she tore it 6 anything Phillip did not tell his siblings however that he had seen Wilma destroy her will in 2006 Phillip also testified that he had moved into the mobile home that Wilma lived in about one month before her death He acknowledged that Jarred was staying in the little trailer next door off and on and that he saw Jarred now and then Phillip stated that when Wilma died he Jarred and other family members were present Shirley Wilma eldest daughter testified that her mother had never s mentioned a will but Wilma had indicated that her brother Mr Childers knew her wishes Shirley first heard of a will after her mother died when Jarred showed her a copy of the will Shirley also recounted that Wilma was angry in 2006 when she learned Jarred was getting married rather than going to college Our review of the record establishes that the trial court judgment is s supported by the record Further we find no legal error that would support a de novo review by this court Because the original testament which was readily accessible to Wilma could not be found after her death the legal presumption that it was revoked by destruction arose Talbot 530 So at 113435 also see La 2d C art 1607 But the trial court was not manifestly erroneous in implicitly 1 concluding that this presumption was rebutted by the testimony regarding the close relationship between Jarred and his grandmother While they had experienced conflicts the evidence established that they had remained close during Wilma lifetime and that she had apparently forgiven him for the actions s Where legal errors have interdicted the fact finding process if the record is otherwise complete the appellate court should make its own independent de novo review of the record Wegener v Lafayette Ins Co 100810 p 11 La 3 11 15 7 3d So that had upset her Wilma allowed Jarred to live on the same property that she lived on until the time of her death and shortly before her death she gave him her pickup truck This evidence was sufficient to rebut the presumption that she had destroyed her will that bequeathed her property to Jarred Appellants contend s Jarred proof was not clear proof of a contention contrary to destruction However we find no manifest error in the trial court implicit findings that this s evidence constituted clear proof that was sufficient to prove that Wilma did not intend to destroy her will and further that Phillip the only witness of the alleged destruction was not a credible witness For these reasons we conclude the trial court properly denied the petition to annul the testament Appeal costs are assessed against appellants AFFIRMED 8
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