Succession of Patricia Lee Forman

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 09-1455

SUCCESSION OF PATRICIA LEE FORMAN

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 38,401
HONORABLE DONALD THADDEUS JOHNSON, DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of John D. Saunders, and Billy Howard Ezell, David E. Chatelain
Judges.

REVERSED AND REMANDED.

Richard E. Lee
810 Main Street
Pineville, LA 71360
(318) 448-1391
Counsel for Appellee:
Bobbie Bushnell

*Honorable David E. Chatelain participated in this decision by appointment of
the Louisiana Supreme Court as Judge Pro Tempore.

Janice Villarrubia
P. O. Box 2976
Baton Rouge, LA 70802
(225) 381-7800
Counsel for Appellants:
Phoebe Forman Vicknair
Cynthia Elaine Forman

EZELL, JUDGE.

Sisters, Phoebe Forman Vicknair and Cynthia Forman, appeal a trial court

judgment finding that they were not forced heirs of their mother. The trial court

found that neither Phoebe nor Cynthia were permanently incapable of taking care of

their person or administering their estate pursuant to La.Civ.Code art. 1493.

FACTS

Patricia Lee Forman died on August 29, 2008. She and her deceased husband,

Charles Forman, had three children: Phoebe Forman Vicknair, born on July 8, 1956;

Cynthia Forman, born on August 24, 1957; and Charles Forman, born on January 12,

1964.

On August 7, 2007, Patricia Forman executed a last will and testament.

Pursuant to the will, Patricia left the family home and all immovable property that she

possessed at the time of her death to her sister Bobbie Bushnell. The three children

filed a petition, contesting the validity of the testament. In a later petition, the

children specifically sought a reduction of an excess legacy because they claimed that

the bequest to Bobbie impinged on their portions as forced heirs. Specifically,

Phoebe and Cynthia claim that they suffer from mental illness, including bipolar

disorder, which renders them incapable of caring for themselves. Charles did not

raise any issue as to his status as a forced heir.

A bench trial was held on July 28, 2009. After taking the matter under

advisement, the trial court issued written reasons for ruling. The trial court found

that, although both Phoebe and Cynthia suffered from an incurable mental illness, the

illness did not render them incapable of taking care of themselves or administering

their estates. The trial court found that both women were capable of taking care of

daily tasks and their households. Therefore, Phoebe and Cynthia were not forced

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heirs pursuant to Article 1493. The trial court found that Bobbie was entitled to the

legacy bequeathed to her and reduction was not required since there were no forced

heirs.

FORCED HEIRSHIP

Relying on La.Civ.Code art. 1493, Phoebe and Cynthia claim the trial court

erred in failing to find that they are forced heirs. They argue that the medical

evidence clearly establishes that they have inherited, incurable diseases which, even

if not disabling now, “may” render them incapable of caring for their persons or

estates in the future.

A trial court’s consideration of the factual circumstances surrounding the

circumstances and severity of a potential forced heir’s capacity to care for herself or

administer her estate is subject to the manifest error/clearly wrong standard of review.

Stewart v. Estate of Stewart, 07-333 (La.App. 3 Cir. 10/3/07), 966 So.2d 1241.

Article 1493 (emphasis supplied) 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.

At the trial, Phoebe and Cynthia both testified about the mental difficulties they

have experienced in their lives. Phoebe testified that she has been under treatment

since 2004 with Dr. Zahid Imran for anxiety, panic disorder, and depression. She is

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taking numerous medications for her problems. In November 2006, the Social

Security Administration classified her as fully disabled, and she is now receiving

disability benefits. Phoebe had a consistent job history since 1988, with one job as

an auditor at BlueCross BlueShield of Louisiana for about fifteen years. However,

in 2003 she found out she has Hepatitis C and started sleeping on the job a lot, so she

lost her job. She has not worked since. Phoebe has been married for twenty-eight

years and testified that her husband is the one who handles her affairs for her. They

have no children.

Cynthia is not currently married and has three adult children. In 1979, she was

diagnosed with schizophrenia and had multiple admissions to different facilities due

to the disorder. She alternated admissions during this time between East Louisiana

State Hospital and Greenwell Springs Hospital.

In the 1990s, she was treated for major depression with psychosis through

Capital Area Human Services in Baton Rouge. During this time, she was also

evaluated by Louisiana Rehabilitation Services. At that time, her psychiatric history

was noted as significant for the presence of bipolar disorder as well as drug and

alcohol dependence which was in remission. It was recommended that she continue

psychiatric treatment for her bipolar disorder.

For the past several years, Cynthia has been treated for depression by Dr. Neha

Shah through the Ochsner Clinic Foundation. During all of Cynthia’s treatments at

the various facilities, it was observed that her psychotic condition was controlled with

medication. Cynthia testified that, although she had been gainfully employed for the

past five years, she had been asked to resign from several of her jobs. She explained

that she distrusts people.

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Dr. Catherine McDonald, an expert in the field of psychiatry, testified on behalf

of both Phoebe and Cynthia. She reviewed both ladies’ medical records and

evaluated each one on April 20, 2009. Dr. McDonald concluded that both ladies are

incapable or may become incapable of caring for their own affairs without assistance.

She diagnosed both with bipolar disorder, a condition they had when their mother

died. Dr. McDonald based her diagnosis on the ladies’ medical records. Dr.

McDonald explained that bipolar disorder is an illness that includes manic episodes

and depressive episodes at different points in time. She further testified that bipolar

disorder does interfere with life and employment functions. Although people with

bipolar disorders can sometimes function, they can get worse. Dr. McDonald

explained that mood psychiatric disorders run in families and they are not curable,

only treatable.

In Succession of Ardoin, 07-43 (La.App. 3 Cir. 5/30/07), 957 So.2d 937, writ

denied, 07-1332 (La. 9/28/07), 964 So.2d 360, this court performed a de novo review

of the trial court’s decision that a daughter who suffered from bipolar disorder was

not a forced heir. We found that the trial court had applied the wrong standard in

evaluating the case because La.Civ.Code art. 1493 does not require the heir to be

severely handicapped. This court concluded that the daughter suffered from a

permanent incapacity but the extent of that incapacity varied. However, her inability

to care for herself or her estate was absolute during times of acute illness. After

reviewing the evidence, this court found that the daughter was a forced heir.

In Stewart, 966 So.2d 1241, this court was once again faced with the issue of

whether a child who suffered with bipolar disorder was a forced heir of her mother.

Affirming the decision of the trial court that the daughter was a forced heir, this court

found that the evidence demonstrated that at times the daughter becomes absolutely

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incapable of taking care of herself or is dependent on her partner. This court found

that this was a case of permanent incapacity which varies at different times and that

the daughter will be incapable of administering her estate in the future.

In both Ardoin and Stewart, the evidence indicated that there were times that

the daughters were unable to care for themselves due to their bipolar disorder. No

evidence was introduced to dispute that fact. In the present case, both daughters have

suffered with mental disorders for years. At the time of trial, both had been

continually treated for such problems. The evidence indicated that, while the

daughters had held jobs, their employability had declined with the increase in their

problems.

Phoebe was declared disabled by the Social Security Administration in 2006.

While this finding was based on the fact that she had Hepatitis C and Chronic

Obstructive Pulmonary Disease, it was also based on the fact that she suffered from

depression and anxiety disorder. Phoebe testified that shopping makes her nervous

and her husband has to manage the household bills.

Cynthia has had numerous jobs and issues with those jobs, which Dr.

McDonald classified as a classic symptom of bipolar disorder. For the past thirty

years, Cynthia has been in treatment, both inpatient and outpatient, for mental issues.

Dr. McDonald did agree that people with bipolar disorder can control it

through medication. However, Dr. McDonald was very clear in her testimony that

the sisters’ past history indicates that they have psychiatric disorders, which she

classified as bipolar disorder. She stated that this disorder renders them incapable of

caring for their person or estate in the future. No evidence in the record disputes this

fact. The evidence is overwhelming that they have suffered with mental illness for

many years. Clearly, these women’s inherited, incurable diseases have only worsened

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with time. Although they can now manage to care for themselves and their

households, it is apparent that this capability is decreasing with time and that they

may not be able to care for themselves in the future. Therefore, we find that the trial

court committed manifest error in finding that Phoebe Vicknair and Cynthia Forman

were not forced heirs pursuant to Article 1493.

The judgment of the trial court is reversed. Judgment is entered finding that

Phoebe Forman Vicknair and Cynthia Forman are forced heirs of the decedent

Patricia Lee Forman. This matter is remanded for further proceedings consistent with

this opinion. All costs of this proceeding are assessed to the Succession of Patricia

Lee Forman.

REVERSED AND REMANDED.

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