Succession of Anthony "Tony" Neil Serio

SUCCESSION OF ANTHONY "TONY" NEIL NO. 23-CA-539
SERIO
FIFTH CIRCUIT

COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 844-186, DIVISION "P"
HONORABLE LEE V. FAULKNER, JR., JUDGE PRESIDING

October 09, 2024

TIMOTHY S. MARCEL
JUDGE

Panel composed of Judges Fredericka Homberg Wicker,
Stephen J. Windhorst, and Timothy S. Marcel

AFFIRMED
TSM
FHW
SJW

COUNSEL FOR PLAINTIFF/APPELLANT,
SALVADORE "SAL" JOHN SERIO, JR.
Frank J. D'Amico, Jr.
Charles P. Ciaccio

COUNSEL FOR INTERVENOR/APPELLEE,
JANE MARIE BRUN AND ELIZABETH HARTE
M. Elizabeth Bowman
Christy M. Howley
JordanT. Giles

MARCEL, J.

In this case arising from the succession of decedent Anthony “Tony” Neil

Serio, petitioner Salvadore “Sal” John Serio, Jr., his brother, appeals the judgment

of the trial court denying his petition to file, probate, and execute an olographic

testament and for possession and denying his motion for a new trial. For the

following reasons, we affirm the judgments of the trial court.

FACTS AND PROCEDURAL HISTORY

On August 9, 2023, Sal Serio filed a petition to probate and execute an

olographic testament executed by his brother, Tony Serio, who died January 31,

2023. At the time of his death, Tony was divorced with no children and his estate

consisted entirely of his separate property. According to the sworn detailed

descriptive list, Tony’s estate consisted of only his retirement benefits ($5,500), the

inheritance he was to receive as part of his father’s succession ($101,782), and

some legal fees owed in connection with the succession (-$5500). Sal attached a

copy of the purported olographic testament to his petition: the handwritten note

states in its entirety, “Note: Make Sal my Beneficiary to get my stuff. 11-9-22 -

Tony Serio”. There is also a signature of Sal Serio dated 11-22-22. Sal included

with this petition an affidavit of proof of olographic testament wherein Sal Serio

and his mother Cassandra Gail Serio attested that the olographic testament was

entirely written, dated, and signed in the handwriting of Tony Serio.

On August 11, 2023, the trial court issued judgment declaring the purported

olographic testament invalid and absolutely null, denying further relief requested,

and ordering Sal Serio to amend his pleadings and proceed via intestacy. In his

written reasons for judgment, the trial court stated that the document fails to

establish the necessary testamentary intent because it was captioned as a “note”

and uses the words “stuff” and “beneficiary”. The court found no clear intent that

decedent was disposing of his assets upon his death.

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Sal Serio filed a motion for a new trial from this ruling. Shortly thereafter, a

“Petition to Intervene, To Open Succession under Regular Administration, To Be

Appointed Executor, To Compel Return of All Succession Assets, and

Memorandum in Opposition to Motion for New Trial” was filed by Tony Serio’s

half-siblings, Jane Marie Brun and Elizabeth Harte, as intestate heirs of decedent.

Jane Brun represented that she was also administering the estate of their deceased

father, Salvadore J. Serio, Sr., who died on May 23, 2021.

A hearing on the motion for new trial was conducted on September 7, 2023,

at which time the court heard testimony from decedent’s mother, Cassandra Serio.

No other new evidence was introduced. The court took the matter under

advisement, and on September 26, 2023, issued a judgment denying the motion for

a new trial. Sal Serio’s timely appeal followed.

On appeal, Sal Serio argues that the trial court erred in both its denial of his

initial petition to probate the olographic testament and in its denial of the motion

for a new trial on the basis that the olographic will lacked testamentary intent.

Specifically, appellant claims that the use of the word “beneficiary” indicates an

intent to bequeath all of decedent’s assets. We consider this argument in our

discussion below.

DISCUSSION

An olographic testament is one entirely written, dated, and signed in the

handwriting of the testator. La. C.C. art. 1575. The document itself must establish

testamentary intent. Succession of Carroll, 08-89 (La. App. 5 Cir. 6/19/08), 988

So.2d 778, 781. Extrinsic or parole evidence cannot be used to establish

testamentary intent. Id. In the absence of testamentary intent, there is no will. In re

Succession of Boada, 13-234 (La. App. 5 Cir. 11/19/13), 130 So.3d 350, 352. The

olographic testament must be proved by the testimony of two credible witnesses

that the testament was entirely written, dated, and signed in the testator’s

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handwriting. La. C.C.P. art. 2883. In will contest cases, absent a finding of

manifest error, the factual findings of the trial court are accorded great weight and

will not be disturbed on appeal. Succession of Olsen, 19-348 (La. App. 5 Cir.

1/29/20), 290 So.3d 727, 734, writ denied, 20-00362 (La. 6/3/20), 296 So.3d 1067.

The appellate standard of review of the ruling on a motion for a new trial is

whether the trial court abused its discretion. Giglio v. ANPAC Louisiana Ins. Co.,

20-209 (La. App. 5 Cir. 12/23/20), 309 So.3d 416, 422. A new trial should be

granted, upon contradictory motion, where: 1) the verdict or judgment is contrary

to the law and evidence; 2) important evidence is obtained after the trial; or, 3) the

jury was either bribed or behaved improperly. Id. Under La. C.C.P. art. 1973, a

new trial may be granted if there is good ground therefore, except as otherwise

provided by law.

We turn now to the question of testamentary intent. In his written reasons

for judgment, the trial court stated the following regarding testamentary intent:

Reading the document as a whole, the Court finds that the document
fails to establish the necessary testamentary intent. The handwritten
note is captioned as a note. The writing fails to convey that it is a last
will and testament in any way. There is no clear intent that Decedent
was disposing of his assets when he dies. The document uses the
word “beneficiary.” There is no clear intent that Decedent was
disposing of his assets when he dies. The document uses the word
“stuff.”

Contrary to the trial court’s finding, appellant argues that the purported

testament clearly evidences decedent’s intent in at least four ways. We address

these arguments in turn.

Appellant claims the first indication of testamentary intent is decedent’s use

of the word “beneficiary,” where he writes, “make Sal my beneficiary to get my

stuff.” Appellant cites the definitions of “beneficiary” from Black’s Law

Dictionary, (“[o]ne for whose benefit a trust is created,”) and Webster’s dictionary,

(“a person or thing that receives help or advantage from something: one that

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benefits from something” or “the person designated to receive the income of an

estate that is subject to a trust” or “the person named (as in an insurance policy) to

receive proceeds or benefits.”) We do not believe these definitions support

appellants claim that decedent’s use of the word “beneficiary” indicates a clear

intent for his brother to be the one to benefit from his stuff after death. None of the

definitions provided mention death; instead, they provide examples of the many

ways the word “beneficiary” can be used in situations besides testaments. The use

of the word “beneficiary” in this instance provides no indication that decedent

intended his brother to be the beneficiary of all of his “stuff” (or property) at his

death.

Next, appellant argues that the fact that decedent signed and dated the

document is an indication of testamentary intent. According to appellant, the very

act of signing and dating a document indicates an intent for the document to have

some legal effect, as this is not something a person does when making a note to

himself. Appellant cites no case law in support of this claim. While the date and

signature are evidence that certain mandatory requirements of form for an

olographic testament may have been met, we do not find that the date and signature

are evidence of testamentary intent. People sign and date many documents that are

not intended to have legal effect (e.g. letters, birthday cards.) What decedent

intended by signing and dating this “note” is not clear on its face.

Appellant claims next that the third indication of testamentary intent is the

decedent’s desire to dispose of all of his “stuff” and not just some of it. Appellant

argues that a reasonable person rarely attempts to give away all of his “stuff” prior

to his death, and that a reasonable person generally understands that all of his

possessions must go to someone after he passes away. Appellant’s argument

makes use of language that is not in the testament, which states only “my stuff” not

“all of my stuff”. The word “stuff” itself is unclear. According to the sworn

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descriptive list provided by appellant, decedent’s “stuff” consisted only of a

Domino’s pizza retirement benefit and the inheritance he was to receive from his

father’s estate. It is unclear from the record whether decedent was in possession of

his inheritance at the time this note was drafted or whether he meant to include that

inheritance with his use of the phrase “my stuff.”

Finally, appellant claims the fourth indication of decedent’s clear

testamentary intent is the lack of any precatory expressions or words requesting or

praying that a thing be done. We agree that the purported testament lacks

precatory expressions, but we do not find this to be positive evidence showing

testamentary intent.

We find appellant’s arguments unpersuasive and insufficient to show that

the trial court manifestly erred in determining there was no testamentary intent.

Testamentary intent must exist when the instrument is executed and must apply to

the particular instrument produced as a will. In re Succession of Rhodes, 39,364

(La. App. 2 Cir. 3/23/05), 899 So.2d 658, 660. A paper is not established as a

person’s will merely by proving that he intended to make a disposition of his

property similar to or even identically the same as that contained in the paper; it

must satisfactorily appear that he intended the very paper to be his will. Id. (citing

Succession of Patterson, 188 La. 635, 177 So. 692 (La. 1937)). We agree with the

trial court that there is not clear intent by the testator that he intended this “note” to

be his will, and we find the trial court’s ruling denying the petition to probate the

purported olographic testament to be correct. We further find that the trial court

did not abuse its discretion in denying the motion for a new trial.

AFFIRMED

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SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
STEPHEN J. WINDHORST LINDA M. WISEMAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL FIFTH CIRCUIT
MELISSA C. LEDET
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NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
OCTOBER 9, 2024 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

23-CA-539
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HON. LEE V. FAULKNER, JR. (DISTRICT JUDGE)
CHARLES P. CIACCIO (APPELLANT) FRANK J. D'AMICO, JR. (APPELLANT) CHRISTY M. HOWLEY (APPELLEE)
JORDANT. GILES (APPELLEE) M. ELIZABETH BOWMAN (APPELLEE)

MAILED