COURT OF APPEAL
STATE OF
SUCCESSION OF SALVADORE CULOTTA, JR.
NO. 04-CA-1298
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF
NO. 570-414, DIVISION ''A''
HONORABLE JOAN S. BENGE, JUDGE PRESIDING
MARCH 1, 2005
MARION F.
EDWARDS, JUDGE
Panel composed of
Judges Thomas F. Daley, Marion F. Edwards and Clarence E. McManus
ADAM S. LAMBERT,
517 Huntlee Drive, New Orleans, Louisiana 70131-5221, COUNSEL FOR
PLAINTIFF/APPELLANT
MARTHA J. MAHER,
GALLOWAY, JOHNSON, TOMPKINS, BURR & SMITH, 701 Poydras Street, Suite 4040
One Shell Square, New
Orleans, Louisiana 70139, JOSE A. COSTA-BLANCO, 20080 Oak River Place,
Covington, Louisiana 70433, COUNSEL FOR DEFENDANT/APPELLEE
REVERSED AND
RENDERED
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Appellant Anthony
Culotta (“Anthony”) appeals a judgment of the district
court granting a
Rule to Annul Probate of Testament, Vacate Appointment of
Executor and
Probate Previous Will in favor of appellees Judy Culotta Sudo,
Frances Culotta
Blanchard, Michelle Sudo, Renee Sudo Galey, and Cherie Sudo
Lara (hereinafter
referred to in the singular as “Judy Sudo”). The judgment
further appointed
Judy Sudo administratrix of the Succession of Salvadore Culotta
Jr.
In August, 2001,
Anthony filed a Petition For Probate Of Notarial Testament
And Appointment Of
Executor. The petition alleged that Anthony’s father,
Salvadore, died on
April 27, 2001, and left a will in notarial form, dated February
16, 2001, naming
him (Anthony) testamentary executor, without the necessity of
posting bond.
Attached to the petition was a copy of the will and Oath of Office.
In the will,
Salvadore stated that he had a visual impairment which prevented him
from reading the
testament, which was executed under the provisions of
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Civil Code Article
1579. Salvadore left all of his property to Anthony, making
him the executor
without bond. The will bore the signature of Salvadore and two
witnesses, and was
duly notarized. On August 6, 2001, the court signed the Order
of Probate,
permitting the appointment of Anthony as Executor.
On September 14,
2001, Judy Sudo filed a Petition To Annul Probate Of
Testament. The
group alleged that they are the children and grandchildren of
Salvadore, and were
the heirs to his estate under a will dated April 21, 1989. They
further alleged
that the earlier will itself had been improperly destroyed by
Anthony, and that
the court should accept a copy of that will that was attached to
the petition. They
urged that Anthony was not in control of his mental faculties in
February 2001, and
that Anthony had exercised undue influence such that he
substituted his own
volition for that of Salvadore, and therefore, the will should be
declared null and
void.
Trial was held on
June 24, 2004. At trial, Anthony testified that his
relationship with
his sister is strained, and many times he was not allowed to see
his father. A
worker from Elderly Protective Services suggested he visit his father
at Judy’s home
accompanied by a friend, Mr. Johnny Williams.
Anthony and his
wife had come to live with Salvadore, at Salvadore’s home,
on February 4,
2001. Anthony commenced living with him after Salvadore
insisted at dinner
one evening that he would not go back to stay with his daughter,
Judy, in
told him he could
live wherever he wanted to, and thereafter Anthony and his wife
went to stay at
Salvadore’s home with him. Salvadore did suffer from dementia at
times, when he
became agitated. Anthony knew that Salvadore took a lot of
medication, but
could not remember the names or the conditions for which he was
treated. Salvadore
was also on oxygen most of the time.
-4-
Some time after
Anthony and his father came to live together, Anthony had
an attorney, Mr.
James Maguire, draw up a power-of-attorney for his father. Later,
at the request of
his father, he brought Salvadore to see Mr. Maguire again, at
which time
Salvadore made a will. Anthony was not in the room when the terms
of the will were
discussed and signed, and had not talked with Mr. Maguire about
the document.
Salvadore had been
married twice, and had one child, Frances, from a
previous marriage,
with whom Salvadore was not close. Anthony did not know
why the will in
question stated that Salvadore had been married only once.
Anthony never
suggested his father write a new will, or suggest the terms, but he
was certain that
Salvadore was lucid at that time. Investigators from protective
services sent by
Judy had inspected the living situation and verified that Anthony
was caring for
Salvadore.
James Maguire
testified that he had been practicing for over thirty years, and
had executed many
wills. Anthony brought Salvadore into his office, at which
time Salvadore
discussed the power-of-attorney with him; Anthony was not
present when the
power-of-attorney was executed. Approximately ten days later,
Anthony brought his
father back to execute the will. Anthony told Maguire that
his father was not
incompetent. Maguire was not aware that Salvadore had been
married twice, and
had not seen any previous will of Salvadore’s until after his
death. Maguire and
Salvadore discussed the will privately, at which time the
attorney
ascertained that Salvadore wished to leave his entire estate to Anthony
and make him
executor. Maguire was aware that Salvadore could not read, but did
not know the extent
or type of any visual impairment. He did not know that
Salvadore had a
diagnosis of dementia, and was not aware of any other medical
condition.
Salvadore seemed a little confused and a little disoriented, but this is
-5-
fairly common among
older people. However, Maguire believed Salvadore knew
why he was there
and what he wanted to do, and there was no question but that
Salvadore
understood the nature of what he was doing. It was his impression that
Salvadore believed
the other children would inherit from their mother, and that he
wished to leave his
portion of the estate to Anthony. Maguire based his decision to
make the will on
his own evaluation of Salvadore’s mental status and his ability to
express his wishes.
There were disputes
between Anthony and Judy over the care of their father,
as well as over the
management of his assets. Maguire had the impression that
Judy had total
control over Salvadore, and that Anthony was concerned about his
medical treatment
as well as his finances. Maguire knew there would be some
controversy over
this new will, but was convinced that Salvadore understood what
he was doing with
the property. Salvadore had some money, ten or fifteen
thousand dollars,
and a house on
Plaquemines Parish
that pays royalties.
Judy Sudo testified
that Salvadore first came to live with her in September,
1999 while her
mother was sick, then he went home for a time until her mother
died. He came back
to stay with her in December, 1999. Salvadore could not be
left alone and did
not remember how to take care of himself. After his wife’s
death, Salvadore
was devastated and got worse. He took medication for blood
pressure and
dementia, and had heart and lung problems for which he had to take
oxygen. When not
taking oxygen, Salvadore would become sluggish and
sometimes not
remember where he was or what he was doing. During the time
that he lived with
Judy, Salvadore was often confused and didn’t know the time or
date, and this
confusion progressed. He sometimes called Judy by his wife’s name
-6-
and had other
delusions. However, at other times he knew family members and
knew what was going
on, and there were days when he did not suffer delirium.
Salvadore never
expressed unhappiness in her home, but did want to live in
his own place. Judy
could not move there with him, and Salvadore could not live
alone. Anthony
visited Salvadore every four to six weeks, but did not provide
support or care for
him. After he went to live with Anthony, it appeared his mental
status got worse.
When asked why she contested the will in question, Judy replied
that she did not
think Salvadore remembered what he was doing at the time, and
that he always said
he would take care of all the children.
Judy Sudo’s
daughter, Michelle, testified that she assisted her grandfather in
taking his
medications when he lived in Judy’s home. Salvadore’s mental status
was bad, and got
worse as time went on. On the day that Anthony went to live
with Salvadore, a
policeman came to the house to collect Salvadore’s things and
told her that her
grandfather was going to live in his home with Anthony. She did
not speak to
Salvadore at that time. She saw him again some time later at a
restaurant, where
he looked deplorable and did not eat anything. Salvadore stated
that he regretted
going home, and that Anthony and his wife slept in his bedroom.
On that day,
Michelle tried to use the telephone at Salvadore’s home, and Anthony
tried to hit her
with it because she did not ask his permission.
In her opinion, her
grandfather died because Anthony did not take good care
of him. On one
occasion, she visited Salvadore at home and he was not wearing
his oxygen. She had
no evidence, other than what she believed, regarding
Salvadore changing
his will.
Johnnie Williams, a
long time friend of Salvadore’s, testified that he went to
visit Salvadore
after he moved in with Judy. At the suggestion of a worker from
Elderly Protection,
he accompanied Anthony and took notes on the visits. There
-7-
was a lot of
tension between Judy and Anthony, and they argued in front of
Salvadore. This
upset Salvadore very much. On February 4th, Mr. Williams was
with Anthony when
they picked him up from Judy’s. Mr. Sam, as Williams called
him, said: “Thank
God you’re here. I’m not coming back. There’s no way I will
come back to this
home. Things have just become too bad. I can’t take it
anymore…I’d rather
be in the penitentiary then come back to this house.”
Salvadore was upset
because he was questioned after Anthony would take him out,
and called Michelle
a “bitch” and said the family was evil. Salvadore said he was
afraid of Judy’s
husband Michael, because Michael would go through his things.
When Williams tried
to reassure him, Salvadore said: “You don’t know this
family.” When
Salvadore said these things, Anthony did not egg him on.
“Mr. Sam” had
dementia, and there were times when he was confused. On
the date he said he
wanted to leave, he was not in a confused state. When he first
moved back to his
home, he was no longer terrified as he had been on the visits to
Judy’s, but he did
continue to have episodes of dementia. Williams accompanied
Salvadore on the
day he signed the will. Salvadore asked for Williams’ opinion on
what he should do,
but Williams refused to comment. Salvadore was still angry
about Michael, and
had told Williams more than once that he didn’t want his
daughters and
granddaughters “to get a damn thing.” On February 16, 2001,
Salvadore was not
in a demented state. Williams accompanied Anthony and
Salvadore to the
attorney’s office, and sat in the waiting room. At that time,
Salvadore had his
oxygen. Williams did not see Salvadore discuss the will with his
attorney or sign
it.
Admitted into
evidence was a letter from Dr. Said Ahmed, dated February
20, 2001, in which
he stated that Salvadore had been his patient for over ten years,
that he had
examined Salvadore that day, and that Salvadore was totally coherent
-8-
with no dementia.
The doctor concluded that Salvadore was of sound mind and
able to handle any
and all of his own affairs.
Other medical
records were introduced. Dr. Pedro Serrant, an internist who
treated Salvadore,
stated that Salvadore took numerous medications, among them
Exelon for
dementia, which helps maintain the current level of brain functioning.
The physician
testified that Salvadore needed oxygen for his lung problems, and it
also helped his
brain functioning. Salvadore could have improved at times, and
regressed at
others. Dr. Serrant last saw Salvadore in January 2001 after he had
fallen, at which
time he was also having a flare-up of this lung disease and suffered
deteriorating
general health. He was a little less coherent, according to the family,
with periods of
disorientation. The Exelon was increased to improve his mental
status. Dr. Serrant
testified that in his best state, Salvadore was cooperative and
able to
communicate, but his mental status changed frequently.
Dr. Ratnakar
Pernenkil, a cardiologist, testified that in addition to Exelon,
Salvadore took
numerous medications, including Haldol, which is also prescribed
for agitation,
Ambien, a sleeping aid, Valium, and Celexa, which is given for
depression. Dr.
Pernenkil was aware that Salvadore had progressive dementia, and
at times he was
very lucid while at other times he was totally confused.
Following
presentation of the evidence, the case was taken under
advisement, and
subsequently, the trial court granted judgment in favor of Judy
Culotta Sudo and
the other appellees, granting the Rule to Annul Probate of
Testament, Vacate
Appointment of Executor and Probate Previous Will. The court
also appointed Judy
Sudo as executrix of Salvadore’s succession. No reasons for
judgment were
given.
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On appeal, Anthony
urges that the court failed to apply the proper legal
presumption in
favor of capacity, and failed to apply the correct standard of proof
to the claims of
lack of capacity and undue influence.
The following Civil
Code articles control our disposition in this case.
Capacity to donate
mortis causa must exist at the time the testator executes the
testament.
mortis causa, a
person must also be able to comprehend generally the nature and
consequences of the
disposition that he is making. C.C. art. 1477. 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. C.C. art.
1479. 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 made the
donation inter vivos or executed the testament. C.C. art. 1482.
A person who
challenges a donation because of fraud, duress, or undue influence,
must prove it by
clear and convincing evidence. However, if, at the time the
donation was made
or the testament executed, a relationship of confidence existed
between the donor
and the wrongdoer and the wrongdoer was not then related to
the donor by
affinity, consanguinity or adoption, the person who challenges the
donation need only
prove the fraud, duress, or undue influence by a preponderance
of the evidence.
C.C. art. 1483.
The intent of the
testator controls the interpretation of his testament. If the
language of the
testament is clear, its letter is not to be disregarded under the
pretext of pursuing
its spirit. C.C. art. 1611. Revocation of a legacy or other
testamentary
provision occurs when the testator makes a subsequent incompatible
testamentary
disposition or provision. C.C. art. 1608.
-10-
Because the trial
court did not give reasons for judgment, we do not know
the basis of its
apparent determination that the 2001 will was invalid. Here, the
testament executed
by Salvadore on February 16, 2001, is proper in form under
C.C. art. 1579.
Although Salvadore’s declaration that he had been married only
once and had only
two children of that marriage is incorrect, we do not find that
clause invalidates
the will. The applicable codal articles require the courts to
ascertain the
intent of the testator and give it effect.
The …code articles direct us to
interpret a testament in a way that
furthers, rather than frustrates,
the testator's lawful intent…. The
cardinal principle of the
interpretation of acts of last will is to
ascertain and honor the intent of
the testator ascribing meaning to a
disposition so that it can have
effect…
… In interpreting these articles,
the courts endeavor to ascertain
the testator's intention, and all
other rules of construction are only
means to that end. The Supreme Court
has indicated that the
function of the courts is to carry
out the intention of the testator
and effect should be given to all
language contained in the will if
possible. 1
By the time the
will was written in 2001, forced heirship had been abolished
for some years, and
thus Salvadore could lawfully leave his entire estate to
Anthony if he chose
to do so. The language in Salvadore’s will leaves no doubt
that such was his
intention. Therefore, we find that his failure to include Frances’
name in the will as
his legal child is of no effect in these circumstances and does
not operate to
invalidate this testament.
Regarding the issue
of Salvadore’s capacity, there is a presumption in favor
of testamentary
capacity. 2 This presumption can only be
overcome by clear and
convincing
evidence. 3 The clear and convincing
standard requires a party to prove
1 Derouen v. Derouen, 2003-623 (La.App. 3 Cir.
1/28/04), 865 So.2d 940, writ denied 2004-0506 (La. 4/8/04) 870
So.2d 276,
citations omitted.
2 In re Succession of Linder 02-106 (La.App. 5 Cir.
7/30/02), 824 So.2d 523; Succession of Young, 96-1206
(La.App. 3 Cir.
3/5/97), 692 So.2d 1149; In re Succession of Chauffepied, 2000-00472
(La.App. 3 Cir. 11/8/00), 775
So.2d 555.
3 In re Succession of Linder, supra.
-11-
the existence of a
contested fact is highly probable, or much more probable than its
non-existence. 4
In the present
case, the experienced attorney who prepared the will testified
that although
Salvadore seemed a little confused and a little disoriented as older
people often are,
Maguire believed Salvadore knew why he was there and what he
wanted to do, and
there was no question but that Salvadore understood the nature
of what he was
doing. Johnnie Williams, who frequently saw Salvadore both when
he was confused and
when he was not, testified that on February 16, Salvadore was
not in a confused
state and specifically told him what he was going to do.
As far as the
medical evidence is concerned, Dr. Pernenkil agreed that
although Salvadore
had dementia and took numerous medications, at times, he was
very lucid. Dr.
Serrant testified that Salvadore’s mental status changed frequently,
but that in his
best state, he was cooperative and able to communicate, and there
were times when he
was a lot more aware then others. Dr. Ahmed opined that
Salvadore was of
sound mind; however, this report was not obtained on the date in
question, and under
C.C. Art. 1482, the essential question before this court is
Salvadore’s state
of mind at the time the will was confected. The appellees failed
to introduce any
evidence that Salvadore was incapable of understanding the nature
and consequences of
his actions on the day he made the will.
The case law is
clear that proof, by clear and convincing evidence, of the
presence of a
mentally-debilitating condition at the approximate time that the will
was executed is
insufficient to prove lack of testamentary capacity at the time the
will was executed,
especially in light of conflicting evidence of the decedent's
capacity at the
actual time the will was executed.5
4Talbot v. Talbot 2003-0814 (La. 12/12/03),
864 So.2d 590.
5 In Re Succession of Linder,
supra.
-12-
Our courts have
determined that given the presumption in favor of capacity,
opponents to a will
failed to meet the clear and convincing standard, where a
testator suffered
from moderate Alzheimer's disease and there was conflicting
testimony about her
capacity. In that case, the witnesses who had contact with the
testator on the day
she wrote her will indicated that she understood and appreciated
the consequences of
what she was doing.6
Similarly,
testimony that a testator had
been released from
a geriatric psychiatric ward just days before she revoked her
will was
insufficient to establish incapacity where numerous witnesses testified
that the testator
understood the nature and consequences of her actions upon her
release from the
hospital and particularly on the day she executed the revocation. 7
In another
instance, hospital records showing that a testator had been
diagnosed as
suffering from anxiety, depression, dementia, organic brain
involvement, brain
atrophy, and metastatic brain disease, and was taking
antidepressants,
anti-anxiety drugs, tranquilizers, hypnotic drugs, and pain
medication did not
overcome the presumption of testamentary capacity. 8
In order to overcome this evidence
of testamentary capacity,
coupled with the legal presumption
in favor of testamentary
capacity, Ms. Vavrick was required
to present clear and convincing
proof that Ms. Braud did not have
testamentary capacity at the time
she executed the will.
…under the applicable legal principles, Ms.
Vavrick’s evidence is
insufficient to meet her burden of
proving lack of testamentary
capacity with clear and convincing
evidence, principally because it
“does not contain anything to establish
mental incompetency when
the decedent executed her will.”
Mack, 535 So.2d at 463. The
only witnesses present when the will
was actually executed all
testified unequivocally that Ms.
Braud did have the necessary
mental capacity to execute the will
on the day the will was actually
prepared. None of Ms. Vavrick’s
evidence rebuts this testimony. 9
6 See Succession of
Christensen, 94-263 (La.App. 1 Cir. 12/22/94), 649 So.2d 23, writ denied
sub nom. Succession
of McGhee, 95-234 (La.4/7/95); 652
So.2d 1346
7 See In re Succession of
Chauffepied, ,supra .See also Succession of Deshotels, 98-1467,
(La.App. 3 Cir. 5/12/99);
735 So.2d 826, 831.
8 Succession of Braud 94-0668 La.App. 4 Cir.
11/17/94, 646 So.2d 1168, writ denied 95-0383 (La. 3/30/95) 651
So.2d 841.
9 Id. at 1171.
-13-
As in the above
cases, appellees’ evidence is insufficient to meet their
burden of proving
lack of testamentary capacity at the time the will was created.
The fact that
Salvadore suffered from dementia does not prove that he lacked the
mental capacity to
understand his actions, especially in light of the testimony of the
only witnesses
present with Salvadore on February 16th.
The issue of undue
influence presents a more complicated question, one that
often involves
nuances that are difficult for the courts to interpret.
The concept of undue influence in
our case law has been inexact.
As a subjective standard, it is
difficult to define, and thus prove.
Article 1479 states that undue
influence requires a showing that the
"volition" or free will of
the donor was replaced by the will of
someone else. 10
The Official
Comments to C. C. art. 1479 read in part as follows:
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.
In attempting to
interpret the term, the courts have noted that aside from the
statutory
definition, undue influence is generally understood to mean "the exercise
of psychological
domination over a person to the extent that the person cannot help
but do what the
dominating party wishes." 11
In a case arising
out of the Third Circuit, two sons filed suit to invalidate
their father’s
will, alleging undue influence by the third son, Michael, who became
10In re: Succession of Cooper, 36,490 La.App. 2 Cir.
10/23/02, 830 So.2d 1087.
11 Cupples v. Pruitt, 32,786 (La.App. 2 Cir.
3/1/00), (754 So.2d 328), writ denied , 2000-0945 (La. 5/26/00), 762
So.2d 1108, quoting
Laurie D. Clark, Comment, Louisiana's New Law on Capacity to Make and Receive
Donations:
"Unduly
Influenced" by the Common Law?, 67 TUL. L.REV. 183, 221 (1992), and
authorities therein.
-14-
sole beneficiary.12 In finding that undue
influence existed, the trial court had given
extensive oral
reasons, citing certain incidents which it found to have “served no
useful purpose,
other than exacerbating and creating resentment in that regard.”
The court could not
accept these actions as in any way facilitating an improvement
in the father’s
emotional condition. There was medical testimony that Michael
reinforced his
father’s delusions about his brothers:
Although the trial court's reasons
do not specifically refer to Dr.
Ware or his testimony, the reasons
for ruling reflect acceptance of
the evidence presented by the
plaintiffs insofar as they describe
Sidney's "delicate emotional
state" and facilitation of resentment
existing toward Ronald and Errol.
Only in the context of this
background, can the actions at issue
then be considered.
Here, although
Anthony did take his father to the Police Department on
February 4th and alleged abuse,
Salvadore’s comments quoted by Mr. Williams
indicate that
Salvadore had already determined to leave Judy’s home. Further,
when Salvadore
would complain about Judy, Anthony would not encourage him.
Salvadore told
Williams more than once that he did not want his daughters and
granddaughters to
get anything. The only rebuttal offered by Judy was what she
and Michelle
believed to be her Salvadore’s desires. When the evidence shows that
the execution of a
testament was well within the discretion of the testator, the court
should find that
the testator's volition has not been substituted by the volition of
any donee.13 The evidence here falls far
short of the necessary proof that
Salvadore did not
act of his own volition.
The trial court's
finding of, or failure to find, undue influence is fact
intensive, and such
a finding cannot be disturbed on appeal in the absence of
manifest error.14 Reversal is warranted only
if the appellate court finds that no
12 In re: Succession of
Lounsberry, 2001-1664
(La.App. 3 Cir. 5/8/02), 824 So.2d 409, writ denied 2002-2000 (La.
10/25/02), 827
So.2d 1163.
13 In re: Succession of Gilbert
37,047
(La.App. 2 Cir. 6/5/03), 850 So.2d 733, writ denied 2003-1887 (La.
11/7/03)
857 So.2d 493.
14 In Re: Succession of
Gilbert, supra.
-15-
reasonable factual
basis for the trial court's finding exists in the record, and that the
finding is clearly
wrong.15
Without the benefit
of reasons for judgment in the present matter, we cannot
determine the
evidence upon which the trial court relied. Nevertheless, our review
of the record
compels us to conclude that the trial court was manifestly erroneous,
as there are no
facts evidencing physical or emotional coercion on the part of
Anthony within the
meaning of C. C. art. 1479. Judy Sudo failed to carry her
burden of proving,
by clear and convincing evidence, that Salvadore lacked the
necessary
testamentary capacity or that the will was null because of undue
influence.
For the foregoing
reasons, the judgment of the trial court is reversed. The
Order of Probate
dated August 6, 2001 is reinstated. Appellees are taxed with all
costs of this appeal.
REVERSED AND
RENDERED
15