Succession of Loney Landry .

SUCCESSION OF LONEY * NO. 2020-CA-0398
LANDRY
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COURT OF APPEAL
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FOURTH CIRCUIT
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STATE OF LOUISIANA
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CONSOLIDATED WITH: CONSOLIDATED WITH:

SUCCESSION OF LONEY NO. 2020-CA-0399
LANDRY

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2018-01186, DIVISION “D”
Honorable Nakisha Ervin-Knott, Judge
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JUDGE SANDRA CABRINA JENKINS
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(Court composed of Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins, Judge
Tiffany G. Chase)

David Belfield, III
Attorney at Law
2513 Acacia Street
New Orleans, LA 70122

COUNSEL FOR PLAINTIFF/APPELLEE

Michael G. Bagneris
BAGNERIS PIEKSEN & ASSOCIATES, LLC
935 Gravier Street
Suite 2110
New Orleans, LA 70112

COUNSEL FOR PLAINTIFF/APPELLANT

REMANDED WITH INSTRUCTIONS

MARCH 31, 2021

SCJ
RML
TGC
This appeal arises from the trial court’s February 24, 2020 judgment

invalidating the Last Will and Testament executed by Loney Landry (“Mr.

Landry”) on September 26, 2017, on the grounds that Mr. Landry lacked the

mental capacity to execute a last will and testament. For the reasons that follow,

we remand this matter for the sole purpose of correcting the record on appeal.

PROCEDURAL AND FACTUAL BACKGROUND

On February 19, 2016, Mr. Landry executed a Last Will and Testament (the

“2016 Will”) in which he bequeathed all of his estate to his daughter, appellee

Vanessa Marie Landry (“Ms. Landry”). Mr. Landry also named Ms. Landry as the

independent executrix of his estate.

On September 26, 2017, Mr. Landry executed a second Last Will and

Testament (the “2017 Will”) in which he bequeathed to Ms. Landry ownership of

funds deposited in a bank account at Capital One. Mr. Landry bequeathed the

remainder of his estate to his nephew, appellant Sandy Williams (“Mr. Williams”),

and named Mr. Williams as the independent executor of his estate.

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On October 12, 2017, Mr. Landry passed away. On February 6, 2018, Mr.

Williams filed a Petition to open the succession of Mr. Landry, and to name Mr.

Williams as the executor. On that date, Ms. Landry filed a “Petition to Record,

File and Execute Notarial Testament, for the Possession of Succession Property

with Administration, and for Confirmation of Independent Executor.” On April

10, 2018, the trial court entered an Order probating the 2016 Will, and naming Ms.

Landry as the independent executor of Mr. Landry’s succession.

On February 26, 2019, Mr. Williams filed a “Motion in Opposition to Ex

Parte Testament and to Request a Contradictory Hearing.” Mr. Williams argued

that Mr. Landry was of sound mind when he executed the 2017 Will, which

superseded Mr. Landry’s 2016 Will. Mr. Williams requested that, after a

contradictory hearing pursuant to La. C.C.P. art. 2091, the trial court vacate its

April 10, 2018 Order probating the 2016 Will and naming Ms. Landry as the

executrix.

On January 22, 2020 and February 24, 2020, the trial court conducted a

contradictory hearing on Mr. Williams’ motion objecting to the 2016 Will. On

February 24, 2020, the trial court signed a Judgment denying Mr. Williams’

motion in opposition to the ex parte testament. The trial court also ruled that the

2016 Will was the last legally valid testament executed by Mr. Landry.

Mr. Williams timely appealed.

DISCUSSION

On appeal, Mr. Williams’ sole argument is that the trial court erred in

finding that Ms. Landry had overcome the presumption of testamentary capacity

by clear and convincing evidence.

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Capacity to make a valid donation mortis causa must exist at the time the

testator executes the testament. La. C.C. art. 1471. To have capacity to make a

donation mortis causa, the person must be able to comprehend generally the nature

and consequences of the disposition that he is making. La. C.C. art. 1477. There

is a presumption in favor of testamentary capacity, and the validity of a testament

should be upheld whenever possible. Succession of Holzenthal, 12-0211, p. 10

(La. App. 4 Cir. 9/26/12), 101 So.3d 81, 88. The party alleging incapacity has the

burden of proving the lack of capacity at the time the will was executed by clear

and convincing evidence to the contrary. Id. The “clear and convincing” standard

requires a party to prove the existence of a contested fact is highly probable, or

much more probable than its non-existence. Id. Comment (f) to La. C.C. art. 1477

provides, in part:

Cases involving challenges to capacity are fact-intensive. The
courts will look both to objective and subjective indicia. Illness, old
age, delusions, sedation, etc. may not establish lack of capacity but
may be important evidentiary factors. If illness has impaired the
donor’s mind and rendered him unable to understand, then that
evidentiary fact will establish that he does not have donative capacity.
. . . Clearly, no quick litmus paper test exists to apply to the evaluation
of mental capacity in all cases.

Many sources of evidence are to be considered when evaluating a testator’s

capacity. Succession of Holzenthal, 12-0211, p. 11, 101 So.3d at 88. In cases

involving challenges to testamentary capacity, courts will look to the medical

evidence that is available, such as medical records. Succession of Holzenthal, 12-

0211, p. 10-11, 101 So.3d at 88. Here, the record on appeal does not include Mr.

Landry’s medical records, which were introduced and admitted at the contradictory

hearing on Mr. Landry’s testamentary capacity.

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“An appeal shall not be dismissed because the trial record is missing,

incomplete or in error no matter who is responsible, and the court may remand the

case either for retrial or for correction of the record.” La. C.C.P. art. 2161. Under

La. C.C.P. art. 2132, “[a] record on appeal which . . . omits a material part of the

trial record [] may be corrected even after the record is transmitted to the appellate

court, by the parties by stipulation, by the trial court or by the order of the appellate

court.”

In order for this court to properly address the argument that Mr. Landry

lacked the testamentary capacity to execute a last will and testament, we must

review Mr. Landry’s medical records, which were introduced at trial, and relied

upon by the trial court in rendering its decision. Pursuant to La. C.C.P. arts. 2161

and 2132, therefore, we will remand this matter for the limited purpose of

correcting the record. See Thomas v. Thomas, 16-0570, p. 3 (La. App. 4 Cir.

3/15/17), 214 So.3d 97, 99; Moulton v. Stewart Enterprises, Inc., 18-0178, pp. 1-2

(La. App. 4 Cir. 11/28/18), 259 So.3d 456, 457. When the record is corrected on

remand, this appeal will be re-docketed on the next available docket upon the

lodging of the necessary supplemental record. Thomas, 16-0570, p. 4, 214 So.3d at

99.

CONCLUSION

For the foregoing reasons, we remand this matter for the limited purpose of

correcting the record.

REMANDED WITH INSTRUCTIONS

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