Succession of Jeanette Perron Ardoin

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-43

SUCCESSION OF JEANETTE PERRON ARDOIN

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APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 04-C-1093-A
HONORABLE JAMES PAUL DOHERTY JR., DISTRICT JUDGE

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MARC T. AMY
JUDGE

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Court composed of John D. Saunders, Oswald A. Decuir, and Marc T. Amy, Judges.

REVERSED AND REMANDED.

Arthur D. Mouton
Post Office Box 52269
Lafayette, LA 70505
(337) 233-3697
COUNSEL FOR PLAINTIFF/APPELLANT:
Mary Plonsky Sailors

Leslie J. Schiff
Schiff Law Corporation
Post Office Box 10
Opelousas, LA 70571-0010
(337) 942-9771
COUNSEL FOR DEFENDANT/APPELLEE:
Wayne Ardoin

AMY, Judge.

In this succession proceeding, the trial court found that the decedent’s daughter

was not a forced heir under La.Civ.Code art. 1493. The daughter appeals, contending

that the medical evidence showed that she has an inherited, incurable condition that

may render her permanently incapable of caring for her person or administering her

estate in the future. For the following reasons, we reverse and remand.

Factual and Procedural Background

The decedent, Jeanette Perron Ardoin, died on May 4, 2004. She was survived

by her husband, Wayne Ardoin, and three adult children from a previous marriage.

Mr. Ardoin filed a petition to file and execute Ms. Ardoin’s olographic testament.

Dated May 7, 2001, the testament purports to bequeath the entirety of Ms. Ardoin’s

estate to Mr. Ardoin.1

Ms. Ardoin’s daughter, Mary Plonsky Sailors, filed a “Petition for Reduction

of Excess Legacy,” alleging that she is a forced heir as, at the time of Ms. Ardoin’s

death, an inherited, incurable disease or condition rendered her incapable of caring

for herself and administering her estate in the future. She requested that the excess

donation to Mr. Ardoin be reduced to satisfy her legitime, viz., the portion of the

decedent’s estate reserved to her by law.

1
The olographic testament provides:

I Jeanette Perron Ardoin wife of Wayne Ardoin, make this my last will and testament
hereby revoking any and all prior wills that I have made.

I give and bequeath to my husband Wayne Ardoin all properties, movable and
immovable, that I may own at my death.

I name and appoint my husband Wayne Ardoin, executor of my estate with full seizin
and without bond.

This my will was written dated and signed by me at Opelousas, Louisiana, this 7th
day of May 2001.

At the August 2006 hearing on Ms. Sailors’ petition, the trial court heard

testimony regarding Ms. Sailors’ diagnosis of bipolar disorder and the alleged

incapacity associated with the condition. In its reasons for ruling, the trial court

found that Ms. Sailors was “not permanently incapable of taking care of her person

or administering her estate as of the time of the death of the decedent nor does she

have an inherited, incurable disease or condition that may render her permanently

incapable of caring for her person or administering her estate in the future.” The trial

court’s ruling reveals not only its consideration of La.Civ.Code art. 1493, but its

reliance on Succession of Martinez, 98-962 (La.App. 5 Cir. 2/10/99), 729 So.2d 22,

wherein the fifth circuit affirmed a determination that the phrase “mentally incapable”

within the meaning of Article 1493 required the heir to be severely handicapped.

Ms. Sailors appeals the trial court’s determination that she is not a forced heir

and asserts the following assignments of error in her brief to this court:

1. The trial court failed to follow the specific law of the State of
Louisiana, in effect at the death of the decedent, specifically
Article 1493 of the Louisiana [Civil Code] as amended by Act
1207 of 2003.

2. The trial court failed to utilize the clear medical evidence
presented by the expert witnesses for both the Plaintiff and
Defendant in finding that the plaintiff, Mary Plonsky Sailors, was
[not] a forced heir of the decedent under the provisions of
[La.Civ.Code art.] 1493.

3. The defendant did not present any medical evidence contrary to
the testifying experts that contravened their testimon[ies] as to the
inherited, incurable disease of Mary Plonsky Sailors and her
probable future incapacity to care for her person or administer her
estate.

Discussion

Ms. Sailors argues that the trial court’s reliance on Martinez, 729 So.2d 22 in

rendering its judgment was misplaced. In particular, she points out that Article 1493

2

has been amended since the fifth circuit rendered Martinez. She asserts that the

article now provides a “more comprehensive definition of when a person is to be

considered a forced heir.” In particular, she observes that a 2003 amendment added

Paragraph E to Article 1493 and that it does not require that the person claiming

forced heir status be “severely handicapped” at the time of decedent’s death. She

contends that she satisfied her burden of proving forced heir status under the dictates

of Article 1493 as it presently exists.

Louisiana Civil Code Article 1493 provides, in pertinent part:

A. Forced heirs are descendants of the first degree who, at the
time of the death of the decedent, are twenty-three years of age or
younger or descendants of the first degree of any age who, because of
mental incapacity or physical infirmity, are permanently incapable of
taking care of their persons or administering their estates at the time of
the death of the decedent.

....

E. For purposes of this Article “permanently incapable of taking
care of their persons or administering their estates at the time of the
death of the decedent” shall include descendants who, at the time of
death of the decedent, have, according to medical documentation, an
inherited, incurable disease or condition that may render them incapable
of caring for their persons or administering their estates in the future.

(Emphasis added.)

As referenced above, the trial court interpreted Article 1493 in light of

Martinez, 729 So.2d 22, a case rendered by the fifth circuit in 1999. Central to

Martinez, and to the trial court’s reasoning in this case as well, is the concept that

Article 1493(A) requires that a purported forced heir be “severely handicapped.”

However, such a requirement is not contained within the text of Article 1493.

Furthermore, examination of Martinez reveals that this analysis can be traced to a

3

version of Article 1493, comment (c) that has been edited by direction of the

legislature and no longer appears in the commentary.

As reported by the fifth circuit, the plaintiff in Martinez, 729 So.2d at 24, was

“33 years old and mildly mentally handicapped.” The trial court in that case

determined that the plaintiff was not a forced heir under Article 1493 as he failed to

prove that he was “severely handicapped.” In doing so, it relied on a portion of

Article 1493, comment (c) indicating that the legislature “expressly manifested its

intent that the rule making disabled children of any age forced heirs should only apply

to ‘seriously handicapped’ individuals.”2 Id. at 24. According to the comment, this

intent was evident due to the use of the word “permanently” before the word

“incapable.”3 Id. The fifth circuit considered the facts presented in Martinez in light

of this commentary and affirmed the trial court’s determination that the plaintiff was

not a forced heir because he was not “severely handicapped.”

2
The comments to Article 1493 are not “part of the law and not enacted into law by virtue
of their inclusion in this Act.” See 1996 La.Acts No. 77, § 4. However, we reference the comments
insofar as they formed the basis for the ruling in Martinez and, in turn, were adopted by the trial
court in the present case.
3
Martinez, 729 So.2d at 24 sets forth the comment relied upon in that case as follows:

... Article 1493(A) clarifies the law in several respects and should help reduce
unwarranted or inappropriate claims. For one thing, the Article specifies that the
time at which the incapacity or infirmity is determined to be relevant is at the donor's
death, which was always intended but may not have been fully clear in the earlier
legislation. More important, the Legislature added the word "permanently" before
the word "incapable" for the express purpose of emphasizing that a temporary
incapacity or infirmity, even if severe, should not apply. The legislature thereby
expressly manifested its intent that the rule making disabled children of any age
forced heirs should only apply to "seriously handicapped" individuals. The
Legislature requested specifically that these Comments be written to explain that it
is the purpose of adding the word "permanently" to more effectively express the
public policy intended, namely, to protect children who are over the age of 23 as
forced heirs if, and only if, they are severely disabled.

4

The trial court in the present case discussed Martinez at length, applying the

“severely handicapped” qualification to the evidence presented.4 This reliance,

4
With regard to Martinez, 729 So.2d 22, the trial court’s extensive reasons for ruling reveal,
in part:

The major holding of the Martinez case is that the legislature intended that “the rule
making disabled children of any age forced heirs should only apply to ‘seriously
handicapped’ individuals.” Id. at 24. The Martinez court, in relying on the Revision
Comments, went on to say, “The Legislature requested specifically that these
comments be written to explain that it is the purpose of adding the word
‘permanently’ to more effectively express the public policy intended, namely, to
protect children who are over the age of 23 as forced heirs if, and only if, they are
severely disabled.” Id. at 25. In the Martinez case, a 33-year-old, mildly mentally
handicapped man was found not to qualify as a forced heir. Despite the fact that he
was found to be unemployable and was receiving Social Security disability benefits,
he was found to not qualify as a forced heir for reasons such as: his social activity,
participation in volunteer groups, ability to take care of his home, and his ability to
cook. Thus, he was not found to satisfy the “permanently incapable” language of
Article 1493.

Therefore, under Martinez, it would be required of Ms. Sailors to show that
her disorder rises to the level of a “serious handicap” or “severe disability.”
However, it should be noted that the Martinez decision occurred prior to the addition
of Section E to Article 1493. Ms. Sailors places heavy reliance upon Section E of
Article 1493, claiming that it “totally changes the coverage of the law,” and
“provides to the court a completely different standard than that suggested by the
Martinez case.” Pretrial Memorandum for Plaintiff. This interpretation of Section
E would force this Court to completely disregard the holding of Martinez, and to
instead rely solely on the language of Section E.

Section E of Article 1493

Unlike Section A, there is a complete lack of Revision Comments concerning
the addition of section E to Article 1493. There is no specification of legislative
intent concerning its language. The lack of comments is despite a request to the
Louisiana State Law Institute “to write comments to all changes made by this Act.”
2003 La. Sess. Law Serv. Act 1207. However, the text of section E itself makes clear
that its purpose is to clarify and broaden the meaning of “permanently incapable of
taking care of their persons or administering their estates at the time of the death of
the decedent.” The Article now specifically provides that this language includes
“descendants, who, at the time of death of the decedent, have, according to medical
documentation, an inherited, incurable disease or condition that may render them
incapable of caring for their persons or administering their estates in the future.”
However, it is not the opinion of this Court that the addition of Section E “totally
changes the coverage of the law,” nor does it appear to “provide to the court a
completely different standard than that suggested by the Martinez case. What
Section E does appear to do is to liberalize the “as of the time of death of the
decedent” requirement of Article 1493 (A). Thus, a claimant need not be
permanently incapable of taking care of their person or administering their estate at
the time of death, but may now still qualify as a forced heir if medical documentation
can be produced to show that as of the time of death the claimant has an inherited,
incurable disease or condition that may render them so incapable in the future. It is
the opinion of this Court that whereas the language of Section E contributes to the

5

however, was in error as the basis for the Martinez ruling has been eroded. By

Concurrent Resolution No. 1 of the 1998 First Extraordinary Session,5 the legislature

time at which a person must have a condition or incapability, Section A and the
Martinez decision contribute to the required level of severity and permanence of such
condition. There is no statement, whether in the non-existent comments of Section
E or the jurisprudence of this state, that suggests an intended overruling of Martinez.

Proof of Forced Heirship

Based upon the requirements of Article 1493, in order for Ms. Sailors to be
considered a forced heir, it must be found that:

1. Her bipolar condition existed at the time of Jeanette Ardoin’s death and is
medically documented;

2. That the bipolar condition is an inherited, incurable disease;

3. That the bipolar condition causes a “serious handicap” or “severe disability”
that does, OR will, render her

permanently incapable of taking care of her person AND/OR
permanently incapable of administering her estate.

We further note that, after setting forth this standard, the trial court discussed the testimony and other
evidence in the record and made numerous factual findings. Thereafter, the trial court referenced
that portion of comment (c) to Article 1493 indicating that it was “contemplated that the guidelines
that the courts would use in interpreting and enforcing the incapacity or infirmity provisions were
the jurisprudence” concerning limited interdiction. In this regard, the trial court examined
Interdiction of Cornwell v. Cornwell, 97-425 (La.App. 3 Cir. 10/15/97), 702 So.2d 938, which
discussed both full and limited interdiction. Ultimately, the trial court concluded that Ms. Sailors
was not a forced heir, stating:

In summary, this Court finds that Ms. Sailors’ condition does not rise to the
level of a “serious handicap” or cause her to be “severely disabled” as stated in the
Martinez decision. For the same reasons, this Court also finds that her condition
does not render her “permanently incapable of taking care of her person,” nor does
it cause her to be “permanently incapable of administering her estate.” This Court
further finds that, based upon the facts, it has not been sufficiently shown that her
condition may render her so incapable in the future.
5
Concurrent Resolution No. 1 provides:

WHEREAS, the Louisiana Legislature revised the laws on forced heirship but
continued the protection and status as forced heirs of those children who are
“permanently incapable of taking care of their persons or administering their estates”;
and

WHEREAS, the legislature rejected the Louisiana State Law Institute’s
recommendation to deny such children the protection and classification as forced
heirs; and

WHEREAS, the legislature in Section 4 of Act No. 77 of the First Extraordinary
Session of 1996 directed the Louisiana State Law Institute to draft comments

6

directed the reprinting of “the Revision Comments of 1996 to Civil Code Article

1493 (comment (c)) by deleting all references describing such incapable children in

terms other than used in the article, to wit: children who are “permanently incapable

of caring for their persons or administering their estates.”

We recognize that neither the trial court nor the parties were focused on the

foundation of Martinez or the correctness of its requirements. Rather, the parties’

focus below, and also before this court, was whether the addition of Paragraph E to

regarding the meaning of such permanently incapacitated children “which are
consistent with the provisions of the Act”; and

WHEREAS, the Revision Comments of 1996 to Civil Code Article 1493 (comment
(c)) published by West Publishing Company incorrectly characterize permanently
incapable children by terms not included within the article as enacted by the
legislature, such as “severely disabled” and “seriously handicapped”, and thereby
purport to limit the category of incapable children as defined by the legislature; and

WHEREAS, the language of the Civil Code Article 1493 does not require that the
child prove that he is either “severely disabled” or “seriously handicapped” but
instead provides for a protection for a child who is “permanently incapable of caring
for his person or administering his property”; and

WHEREAS, the term “permanently” as used in Civil Code Article 1493 relates to
duration of the incapacity; and

WHEREAS, the phrase “incapable of caring for his person or administering his
property” relates to the extent of his incapacity; and

WHEREAS, the terms “disabled” and “handicapped” are terms not adopted by the
legislature and not necessarily coextensive with the standard “incapable of caring for
his person or administering his property”; and

WHEREAS, as a consequence, portions of comment (c) to Civil Code Article 1493
are not consistent with the provisions of the article as enacted by the legislature; and

WHEREAS, pursuant to R.S. 24:256, West Publishing Company is authorized to
print, publish, sell, and distribute any edition or supplement of the Louisiana Revised
Statutes, including the Civil Code, prepared and certified by the Law Institute.

THEREFORE, BE IT RESOLVED that the Legislature of Louisiana hereby directs
the Louisiana State Law Institute to instruct West Publishing Company to reprint the
Revision Comments of 1996 to Civil Code Article 1493 (comment (c)) by deleting
all references describing such incapable children in terms other than those used in the
article, to wit: children who are “permanently incapable of caring for their persons
or administering their estates”.

BE IT FURTHER RESOLVED that copies of this Resolution shall be transmitted to
the Successions Committee of the Louisiana State Law Institute and to West
Publishing Company.

7

Article 1493 legislatively overruled Martinez. Analysis of Martinez and its basis

reveal that it was error to rely on the case as authority. Recall that the text of Article

1493 makes no reference to the “severely disabled” or “seriously handicapped”

criteria. Instead, this criteria was utilized in Martinez due to a previous version of

comment (c).7 Although we recognize the complexities raised by the changing

commentary, we conclude that the trial court erred in applying Martinez and the

standard expressed therein. As this reversible error of law pervades the trial court’s

ruling, it is necessary for this court to perform a de novo review of the record and

render a judgment on the merits. See Thompson v. State, 97-0293, 97-0302 (La.

10/31/97), 701 So.2d 952. We turn to consideration of the evidence presented in light

of the requirements of Article 1493.

Ms. Sailors seeks forced heir status as a descendant of the first degree who,

because of mental incapacity or physical infirmity, is permanently incapable of taking

care of her person or administering her estate at the time of the death of the decedent.

La.Civ.Code art. 1493(A). Paragraph E of Article 1493 indicates that the

“permanently incapable” requirement of Paragraph A includes “descendants who, at

the time of death of the decedent, have, according to medical documentation, an

inherited, incurable disease or condition that may render them incapable of caring for

7
The Editor’s Note to La.Civ.Code art. 1493 (West, 2007 edition), provides, in part:

Editor’s note. Article 1493 was amended by Acts 1996, 1st Ex.Sess., No. 77,
§ 1 with revision comments. The original revision comments, however, were
modified by the Louisiana State Law Institute after the amendment of Article 1493
and the publication of Act No. 77 in the Session Law Service. For the original
comments, see West’s Louisiana Session Law Service 1996, No. 2, p. 153.

Revision Comment (c) under Article 1493 has been and reprinted in
accordance with Concurrent Resolution No. 1 (1988 1st Ex.Sess.). The legislature
directed the Louisiana State Law Institute to edit the 1996 Revision Comment (c)
under Article 1493 by deleting all references describing incapable children in terms
other than those used in that article, to-wit: children who are “permanently incapable
of caring for their persons or administering their estates” and instructed West
Publishing Company to reprint the Comment (c), as edited.

8

their persons or administering their estates in the future.” Having examined this

record, we conclude that Ms. Sailors has proven the criteria of Article 1493.

By the time of Ms. Ardoin’s 2004 death, Ms. Sailors had been diagnosed with

bipolar disorder and hospitalized several times for behaviors associated with her

condition. Dr. Catherine McDonald, Ms. Sailors’ treating psychiatrist, explained that

she began treating Ms. Sailors in 2001 while Ms. Sailors was hospitalized on one

such occasion. The records detailing the hospitalizations indicate that Ms. Sailors has

suffered from auditory hallucinations, delusional thoughts, and, at times,

demonstrated a complete inability to care for her person. Both Dr. McDonald and Dr.

Philip Arnold Landry, a psychiatrist who conducted a psychiatric examination of Ms.

Sailors prior to trial, opined that Ms. Sailors’ disorder is likely an inherited, genetic

disorder.

While Dr. McDonald testified that bipolar disorder is incurable, she explained

that prescribed medications can help patients lead healthy and productive lives in that

the frequency and severity of episodes may be reduced. Dr. McDonald noted that Ms.

Sailors was hospitalized for two months “because she had refused to take

medication.” According to Dr. McDonald, the refusal to take medication is “part of

any psychotic disorder. . . . [T]he patient becomes paranoid that what you’re doing

is trying to hurt them, poison them or somehow or another alter the way they feel and

they don’t want you to do that.” Dr. McDonald also explained that the efficacy of the

medications may be affected by the use of alcohol and drugs. According to her

estimate, “sixty to seventy percent of our bipolar patients self-medicate.” The record

contains evidence of Ms. Sailors’ past use of marijuana and alcohol. Although Dr.

McDonald discourages these behaviors, she explained that “if [her patients] drink, I

9

would just as soon they go ahead and take their medication also because a psychotic

person who’s drinking is even worse than a non-pyschotic person who’s drinking.”

Ms. Sailors’ work history indicates that she has held various positions,

including one requiring bookkeeping skills. However, both Dr. McDonald and Dr.

Landry were of the opinion that Ms. Sailors’ bipolar disorder will prevent her from

being consistently employed. In fact, Ms. Sailors has not been regularly employed

since 2003 and was determined by the Social Security Administration to be eligible

for monthly disability benefits beginning May 2004.8 Ms. Sailors also denied at trial

that she is able to work.

It is clear that Ms. Sailors typically has the ability to care for many facets of her

everyday life, as Dr. McDonald opined that she can buy groceries, drive, apply for a

loan, and balance a bank account. Ms. Sailors maintains a residence where she

explained that she lives “alone with assistance.” She stated that she also performs her

shopping with assistance. However, this level of functioning is possible only when

Ms. Sailors is not acutely ill. Dr. McDonald testified that, despite the appearance that

Ms. Sailors can appear “okay,” and able to care for her affairs, “the next day it may

be totally different.” Dr. McDonald explained that, during periods of illness, Ms.

Sailors is “completely” incapable of taking care of her affairs. Dr. McDonald

testified that during her hospitalization, “it’s so severe she can’t even function. At

times she wasn’t eating. You know, just taking a bath, she couldn’t do that.” Ms.

Sailors’ sister-in-law testified that she has assisted Ms. Sailors over the years with

various issues, including obtaining health insurance coverage.

8
A letter from the Social Security Administration, dated April 19, 2005, is contained in the
record and indicates that Ms. Sailors was determined to have become disabled on November 9, 2003
and entitled to begin receiving benefits in May 2004.

10

In short, this case presents a situation in which a person suffers from a

permanent incapacity, but the extent of that incapacity varies.9 Notwithstanding her

inability to maintain employment, Ms. Sailors may function well much of the time.

However, as reference to her past history indicates, Ms. Sailors’ inability to care for

either her person or her estate has been absolute during times of acute illness.10 Dr.

McDonald testified as to the fluctuating nature of Ms. Sailors’ condition, labeling it

as unpredictable and recurrent, and opined that “the future could be the same as the

past.” Given these considerations, we find that Ms. Sailors’ condition satisfies the

criteria of La.Civ.Code art. 1493 and that she has proven herself to be a forced heir

of Ms. Ardoin. We enter judgment reflecting this determination and remand for

further proceedings.

DECREE

For the foregoing reasons, the judgment of the trial court is reversed. Judgment

is entered finding the appellant, Mary Plonsky Sailors, to be a forced heir of the

decedent Jeannette P. Ardoin. This matter is remanded for further proceedings

consistent with this opinion. All costs of this proceeding are assigned to the

Succession of Jeanette P. Ardoin.

REVERSED AND REMANDED.

9
We note that Article 1493, comment (c) appears to anticipate a situation in which a
descendent may suffer from a permanent incapacity, but may experience periods in which the extent
of that incapacity fluctuates. It provides, in part:

The Legislature also requested that these Comments note that as a factual
matter a person can be permanently incapable or infirm but on occasion have a
temporary remission. It is not intended to be the policy of the Article that a mere
temporary remission at the time of the decedent's death would disqualify an heir from
being classified as "permanently" incapable or infirm within the new definition,
provided that the condition is otherwise permanent.
10
Portions of the testimony presented at the hearing relate to the standards of limited
interdiction due to that portion of Article 1493, comment (c) which suggests that the incapacity
provisions of the Article may be made in reference to the guidelines of limited interdiction. See
La.Civ.Code art. 390. However, this reference is of little guidance in the present case as Ms. Sailors’
capacity to function with the permanent condition of bipolar disorder varies.

11