Succession of Jeffrey Joseph Deshotel

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-37

SUCCESSION OF JEFFERY JOSEPH DESHOTEL

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 47,149
HONORABLE R. RICHARD BRYANT, JR., DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, Michael G. Sullivan, and Elizabeth A. Pickett,
Judges.

AFFIRMED.

Van Clifton Seneca
Attorney at Law
P. O. Box 3747
Lake Charles, LA 70602-3747
(337) 439-1233
Counsel for Appellees:
Eula Mae Deshotel
James Russell Deshotel

Ginger Vidrine
Attorney at Law
631 Kirby St.
Lake Charles, LA 70601
(337) 310-0161
Counsel for Appellants:
Vicki Neeley
Jeffrey Scott Deshotel

SAUNDERS, Judge.

This is a succession case dealing with two competing wills. After the first will

was probated, a second will was brought forth. In the first will, the decedent left no

property to one of his sons and that son’s wife. This was inconsistent with the several

wills the decedent had made over his lifetime. In the second will, executed just prior

to the interdiction proceedings of the decedent, he did leave property and assets to

that same son and wife, as he had done in every other will in the record.

The trial court found the second will valid and, as such, it revoked the first will

and invalidated the judgment of possession Jefferey Scott Deshotel and Vicki Neeley

had received based on the revoked, first will. The appellants raise four assignments

of error. We find no merit in any of the assignments of error raised, and affirm the

trial court’s findings and judgment.

FACTS AND PROCEDURAL HISTORY:

This case involves two testaments by Jeffery Joseph Deshotel (“the decedent”).

One is dated in April of 2005. The other, is dated in November of 2005.

The decedent was the father of three children, James Russell Deshotel, Vicki

Neeley, and Jeffery Scott Deshotel. James Russell Deshotel is married to Eula Mae

Deshotel, while the marital status and/or spouses of the other two children is not

relevant to these proceedings.

The decedent made his living operating commercial establishments, including

a number of bars in Calcasieu Parish. The decedent had a close relationship with Eula

Mae Deshotel, as Eula Mae helped the decedent with maintenance work and

collecting rent on the properties he owned.

The decedent made a series of wills, five of which are in the record. Each will,

with one exception, provided for James Russell and Eula Mae Deshotel to inherit

from him.

The decedent was suffering from dementia and Alzheimer’s disease in March

of 2005 when he executed a will leaving $125,000 to Jefferey Scott Deshotel,

$75,000 to Vicki Neeley, and bequeathed the remainder of his property to James

Russell Deshotel. Shortly thereafter, the decedent became angry with the James

Russell and Eula Mae Deshotal and made the April will at issue wherein he did not

leave anything to either of them. The next month, the decedent reconciled with the

appellees.

On August 8, 2005, the appellants instituted interdiction proceedings against

the decedent. Before the hearing on the interdiction, the decedent executed the

November will wherein he did allow for the appellees to inherit from him. After

executing the November will, the decedent regularly would tell people that he loved

the appellees and wanted them to inherit from him.

In May of 2006, the decedent was placed under a limited interdiction. Initially,

James Russell Deshotel and Vicki Neeley agreed to serve as co-curators, but Vicki

assumed control over the decedent’s property. When the relationship between Vicki

and James Russell became disharmonious, Vicki was appointed the sole curator over

the decedent’s property and papers.

On January 7, 2008, the decedent died at the age of eighty-six. A petition to

probate his April will was filed on January 14, 2008. A judgment of possession

recognizing Vicki Lynn Neeley and Jeffrey Scott Deshotel (collectively “the

appellants”) as the children and legatees of the decedent, and sending them into

possession of his property was issued.

James Russell and Eula Mae Deshotel (collectively “the appellees”) each filed

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a petition to nullify the April will, to set aside the judgment of possession, and to

order probate of the will dated November 16, 2005. Further, they requested injunctive

relief and an accounting. The November will submitted by them was a duplicate

original that was held by the law office that had executed the will for the decedent.

On October 27, 2008, these matters were heard by the trial court. It ruled that

the judgment of possession and order of probate previously executed and filed on

January 14, 2008, were null. The trial court further ordered and declared the

November will valid and ordered a judgment of possession and order of probate

according to its provisions. Finally, the trial court granted the injunctive relief and

accounting requested by the appellees.

The appellants filed this appeal. In their appeal they raised the following four

assignments of error:

ASSIGNMENTS OF ERROR:

1. The trial court erred as a matter of law by annulling the judgment of possession
without finding that the will that had been probated was invalid.

2. The trial court erred as a matter of law by annulling the judgment of possession
and recognizing the will urged by the appellees when a copy of the will was
presented and the original could not be found and a presumption exists that the
will urged was destroyed with the intent to revoke which arises when the
original will cannot be found.

3. The trial court erred as a matter of law by annulling the judgment of possession
and recognizing the will urged by the appellees when that will was executed
at a time when an interdiction proceeding had been filed against the testator
and when the proposed interdict/testator lacked testamentary capacity.

4. The trial court erred as a matter of law by annulling the judgment of possession
and recognizing the will urged by the appellees when that will was executed
at a time when the testator was subject to undue influence and skillful
manipulation by the movers.

ASSIGNMENT OF ERROR NUMBER ONE:

The appellants allege in their first assignment of error that the trial court erred

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as a matter of law by annulling the judgment of possession obtained from probating

the April will without first finding that the April will that had been probated was

invalid. This allegation is without merit.

Louisiana Civil Code Article 1607 provides as follows:

Revocation of an entire testament occurs when the testator does
any of the following:

(1) Physically destroys the testament, or has it destroyed at his direction.

(2) So declares in one of the forms prescribed for testaments or in
an authentic act.

(3) Identifies and clearly revokes the testament by a writing that
is entirely written and signed by the testator in his own handwriting.

The appellants contend that the trial court’s statement that it did not find the

April will invalid necessarily means that the appellees failed to carry their burden of

proof required of them under La.Code Civ.P. art. 2932.1 The appellants claim that in

order to annul the judgment of possession obtained pursuant to the April will, the trial

court must find that the April will was invalid.

To bolster their position, the appellants cite Succession of Lirette, 5 So.2d 197

(La.App. 1 Cir. 1941). In brief, the appellants assert that the Lirette case stands for

the proposition that “where a will has been probated as required by law, the probating

of the will makes ‘prima facie proof’ of the will’s genuineness[,] and if the will is

1 Louisiana Code of Civil Procedure Article 2932 states:

A. The plaintiff in an action to annul a probated testament has the burden of
proving the invalidity thereof, unless the action was instituted within three months
of the date the testament was probated. In the latter event, the defendants have the
burden of proving the authenticity of the testament, and its compliance with all of the
formal requirements of the law.

B. In an action to annul a notarial testament, a nuncupative testament by public
act, or a statutory testament, however, the plaintiff always has the burden of proving
the invalidity of the testament.

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thereafter attacked, the burden of proof rest [sic] on the opponent to prove its

invalidity.” While this proposition may be true, it is also true that the appellees do not

need to prove that the April will was invalid to nullify the judgment of possession

obtained via the April will if they are able to show that the November will was also

valid, and in it, the decedent revoked his April will under La.Civ. Code art. 1607(2).

The November will put forth by the appellees reads, in pertinent part, as

follows:

BE IT KNOWN, that I, JEFFERY JOSEPH DESHOTEL[,]
being of sound and disposing mind and a resident of Calcasieu Parish,
State of Louisiana, do make and declare this to be my Last Will and
Testament, hereby revoking all former wills and codicils that have been
made by me, to wit.

It is clear from our reading of the November will that the decedent revoked all

prior wills, including the April will that had been probated. The trial court merely had

to find the November will valid, which it did, and that, by function of the November

will, revoked the April will. After finding the November will valid, it was not

incumbent upon the trial court to determine whether the April will was valid, as the

validation of the November will revoked the April will and annulled any judgment

of possession based upon the probate of that April will. La.Civ. Code art. 1607(2).

Accordingly, we find that this assignment of error raised by the appellants is

without merit. In the remaining assignments of error, the appellants contest the trial

court’s finding regarding the validity of the November will. Thus, whether the trial

court’s determination that the November will was valid was proper will be addressed

in the following assignments.

ASSIGNMENT OF ERROR NUMBER TWO:

In their second assignment of error the appellants contend that the trial court

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erred as a matter of law by recognizing the November will urged by the appellees

when a copy of that will was presented and the original could not be found. We do

not agree with this contention.

The appellants argue that the trial court erred when it did not recognize that the

appellees failed to rebut the presumption that the decedent destroyed the November

will with the intent to revoke it. The appellants contend that this presumption arises

under Succession of Talbot, 530 So.2d 1132 (La.1988) and Succession of Nunley, 69

So.2d 33 (La.1953), when the proponent of a will cannot produce the original of that

will. The appellants contend that because the trial court did not hold the appellees to

the appropriate standard, any validation of the November will was in error.

The appellants’ recitation of the law is not complete. In Succession of Nunley,

our supreme stated, “The fact that an olographic will, shown to have been in the

possession of or accessible to the deceased, cannot be found at his death, gives rise

to a legal presumption of revocation by destruction.” Id. 69 So.2d at 35 (emphasis

added). Likewise, in Succession of Talbot, our supreme court stated, “this court has

adopted the uniformly adhered to rule that the failure to find a will which 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.2d

at 1134-35 (emphasis added).

Thus, it is clear under both cases that in order to have this presumption apply,

the record must indicate that the decedent had the November will in his possession

or that it was readily accessible to him prior to his death. Here, there is only evidence

that appellant, Vicki Neeley, was in possession of all the decedent’s papers prior to

his death as his curator, not that the decedent kept the original of the November will

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in his possession. Moreover, there is no evidence that any of the decedent’s papers,

inclusive of the November will, were readily accessible to him once Vicki Neeley

took possession of them.

Furthermore, even should the appellants be able to show that the decedent had

the November will in his possession or that it was readily available to him, the

presumption is rebuttable, and the evidence in the record is such that this presumption

is rebutted.

The onus of rebutting this presumption is cast upon those seeking to
establish the will, by clear proof (1) that the testator made a valid will,
(2) proof of the contents or substance of the will, and (3) of the fact that
the will, though it could not be found at the testator’s death after diligent
search, was never revoked by him.

Succession of Nunley, 69 So.2d at 35.

In the case before us, the trial court found that the November will was valid.

The appellants raise questions regarding the testamentary capacity of the decedent

that we address in assignments of error numbers three and four. In those we find no

error in the trial court’s finding that the decedent did have testamentary capacity when

he executed the November will drawn up by attorney Benjamin Mount. Thus, the

appellees have satisfied the first requirement to rebut the presumption.

The November will produced by the appellees is a duplicate original kept by

the law firm that had done this will for the decedent. The duplicate original is clear

in its contents as well as its substance. Thus, the second requirement to rebut the

presumption is also met.

Finally, there is no evidence in the record that the November will was ever

revoked. To the contrary, there is an abundance of evidence that the decedent wanted

the appellees to inherit from him. Attorney Steve Streete, a personal friend of the

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decedent for thirty-two years, testified that the decedent was close to the appellees,

especially Eula, and that, after the November will, the decedent had never been

estranged from the appellees, nor had he ever voiced any interest in disinheriting

either of them. These sentiments were echoed by Mr. Melvin Bourque, a close friend

of the decedent who had known him from 1957 to the time of his death. Mr. Bourque

testified that the decedent wanted the appellees to inherit from him.

Moreover, appellant, Jeffrey Scott Deshotel, testified to the following:

Q And you have no evidence to indicate that your daddy ever
wanted to revoke his November 2005 will, do you?

A No.

Further, Grace Manuel, the decedent’s sitter, testified to the following:

Q Did [the decedent] tell you that - - did he talk to you about Ula
[sic] or Russell inheriting from him?

A Yes, sir.

Q And what did he say?

A He said that he would like for them to have the property and
everything.

Q He said he’d like for them to have his house?

A Yeah.

Q And his commercial bars?

A Uh-huh (yes), everything.

Q And - - and during those times [when he was lucid], did he - - was
he familiar with where he was and who he was and who his
family members were?

Q Yes, sir.

Accordingly, given the lack of evidence in the record that the decedent had the

November will in his possession and the lack of evidence that the November will was

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accessible to him, we find the trial court correctly chose not to apply the presumption

that the decedent destroyed the November will with the intent to revoke it. Moreover,

it is clear that whether the trial court applied the presumption is not determinative, as

the evidence in the record establishes that such a presumption would have been

rebutted by the appellees.

ASSIGNMENT OF ERROR NUMBER THREE:

The appellants assert that the trial court erred as a matter of law by annulling

the judgment of possession and recognizing the November will urged by the appellees

when that will was executed at a time when an interdiction proceeding had been filed

against the decedent and when the proposed interdict/decedent lacked testamentary

capacity. This assertion is remiss.

“An appellate court may not set aside a trial court’s finding of fact absent

manifest error or unless it is clearly wrong.” Succession of Moss, 00-62, p. 3 (La.App.

3 Cir. 6/21/00), 769 So.2d 614, 617, writ denied, 00-2834 (La. 12/8/00), 776 So.2d

462 (citing Rosell v. ESCO, 549 So.2d 840 (La.1989). “[T]he question of

testamentary capacity is a question of fact.” Succession of Ellis, 486 So.2d 260, 262

(La.App. 3 Cir. 1986).

Louisiana Civil Code Article 396 states, “[a] judgment of interdiction has effect

retroactive to the date of the filing of the petition for interdiction.” Louisiana Civil

Code Article 1482(C) states the following:

A limited interdict, with respect to property under the authority of
the curator, lacks capacity to make or revoke a donation inter vivos and
is presumed to lack capacity to make or revoke a disposition mortis
causa. With respect to his other property, the limited interdict is
presumed to have capacity to make or revoke a donation inter vivos or
disposition mortis causa. These presumptions may be rebutted by a
preponderance of the evidence.

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In the case before us, a petition for interdiction was filed on August 8, 2005.

During the pendency of the petition, the decedent executed the November will. The

decedent then stipulated to a limited interdiction. His interdiction was limited to his

finances and medical decisions, but not as to his person. Thus, under La.Civ.Code

arts. 396 and1482(C), the decedent was presumed to lack testamentary capacity in

financial and medical decisions, but that presumption was rebuttable by a

preponderance of the evidence.

The trial court found that the evidence was such that the decedent did have

testamentary capacity when he executed the November will. Given the standard of

review, the appellants must show that the trial court’s finding that the decedent had

testamentary capacity was manifestly erroneous or clearly wrong.

After reviewing the record, we find ample evidence to support the trial court’s

finding that the decedent had testamentary capacity to make the November will.

Benjamin Mount, the attorney who prepared the November will, testified to the

following (emphasis added):

Q [O]n the day that you signed his will, you have no doubt that if
[the decedent] was suffering from dementia that he was lucid at
that time?

A I’ve done hundreds of wills, and I would not have executed a will
with a person if he was not of sound mind and I did not have an
opinion that he knew what he was doing, and I would not have
executed a will, and I have no doubt in my mind that Jeff Deshotel
on this occasion knew what he was doing. He gave me specific
ideas of what he wanted to do with his property, and I carried it
out.

Dr. Garrett B. Ryder, a board certified adult and geriatric psychiatrist, saw the

decedent in February of 2006, after the November will was executed. He testified to

the following:

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Q When you saw [the decedent], he was able to understand his
relationships with his children. Is that fair enough?

A Yes. Clearly he understood it.

Q And the reason you say clearly understood is because he
discussed those relationships with you; is that correct?

A Yes. And was consistent in those discussions.

Q And why don’t you expound a little bit on that and tell us why
you are saying that.

A Well, he was able to talk with me and give names and dates and
amount - - not dates[,] but locations and specifics, without the
kinds of errors that oftentimes you see with people who don’t
typically meet the definition of competency. So he was able to
keep all that straight in his head even in discussing it with me - -

Q Okay.

A - - during the period of time we were talking. So I like - - when I
see [sic] evaluate somebody for that, I like to keep bringing them
back around and testing their consistency of responses, so that is
what I mean by the consistency.

Q So when you saw him he was lucid. Is that a fair statement?

A Yes.

While Dr. Ryder’s testimony does not necessarily prove that the decedent was

lucid on the date he executed the November will, it does prove that the decedent did

have moments of lucidity several months after he executed the will. Given the nature

of the decedent’s afflictions, dementia and Alzheimer’s disease, as they progressively

get worse, it is reasonable to conclude from Dr. Ryder’s testimony that the decedent

was capable of having moments of lucidity when he executed the November will.

This conclusion is corroborated by the following testimony of Grace Manuel:

Q And there were times during even the last six months of his life
when he was lucid and able to communicate and talk about his
family and his properties?

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A Sometimes.

Additionally, the finding that the decedent was capable of moments of lucidity

in November of 2005 is supported by the testimony of the appellants. Appellant,

Jeffery Scott Deshotel, testified to the following:

Q Now, you recall telling me in your deposition that sometimes your
daddy would be confused and sometimes he would be clear in his
thinking?

A Yes.

Q And you certainly were not with him whenever he met with Ben
Mount, were you?

A No, sir.

Q And so you’re certainly not in a position to sit here today and say
that your daddy wasn’t clear in his thinking when he met with
Ben Mount, was he?

A No, I couldn’t say that.

Appellant, Vicki Neeley, even admitted that in November of 2005 the decedent

had some days where he was lucid in the following excerpt of her testimony:

Q All right. Now, let’s jump ahead over a year to his state of mind
around November 2005 when he executed one of the wills in
question here today. What was his state of mind like around
November of 2005?

A Very forgetful.

Q All right.

A He had some days where he was fine and some days he wasn’t
fine.

Given the testimony of Dr. Ryder, Grace Manuel, and the appellants, that the

decedent had moments of lucidity, coupled with the testimony of Mr. Mount that the

decedent was lucid on the day he executed the November will, we find no error in the

trial court’s conclusion that the decedent was lucid on the date he executed the

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November will. As such, we find this assignment of error raised by the appellants is

without merit.

ASSIGNMENT OF ERROR NUMBER FOUR:

In their final assignment, the appellants contend that the trial court erred as a

matter of law by annulling the judgment of possession and recognizing the November

will urged by the appellees when that will was executed at a time when the decedent

was subject to undue influence and skillful manipulation by the appellees. This

contention is deficient.

Whether a testator is subject to undue influence is a finding of fact and subject

to the manifest error standard of review. Succession of Lounsberry, 01-1664 (La.App.

3 Cir. 5/8/02), 824 So.2d 409, writ denied, 02-2000 (La. 10/25/02), 827 So.2d 1163.

Louisiana Civil Code Article 1479 states:

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.

Louisiana Civil Code Article 1483 establishes what burden of proof the

appellants must have shown at the trial level in order to prevail in establishing undue

influence; it reads:

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.

Thus, in order for the appellants to succeed on this issue before us, they must

show that it was unreasonable for the trial court to have found that they did not

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produce clear and convincing evidence that the decedent was unduly influenced by

the appellees. After a thorough review of the record, we find no evidence that either

appellee skillfully manipulated the decedent.

The overwhelming evidence is that the decedent always had a closer

relationship with the appellees than he did with the appellants. Moreover, the

decedent had a penchant for making wills, and the only will in which he left nothing

to the appellees was the April will previously probated by the appellants. In every

other will in the record, the decedent left his assets in the same manner as he did in

the November will, with the appellees inheriting from him.

The appellants only argue that Eula Mae unduly influenced the decedent, not

James Russell; however, in undisputed testimony in the record, Eula Mae Deshotel

testified that she did not meet with Benjamin Mount when he executed the November

will. She did not ride with the decedent to Mr. Mount’s office that day. The decedent

did not tell Eula Mae why he was going to Mr. Mount’s office, and she did not know

that the decedent had executed the November will.

Accordingly, we find that there is no basis for this assignment of error. The

trial court’s decision is supported by the record, and, thus, is not manifestly erroneous

or clearly wrong.

CONCLUSION:

The appellants raised four assignments of error. The first dealt with whether

the trial court, by law, must have determined the April will was invalid prior to

annulling the judgment of possession the appellant had obtained based upon that

April will. The final three dealt with whether the trial court properly found the

November will to be valid. We found no merit in any of the assignments. Therefore,

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we affirm the trial court’s judgment. All costs of this proceeding are assessed to the

appellants.

AFFIRMED.

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