Succession of Clarence Walker

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-447

SUCCESSION OF

CLARENCE WALKER

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 43,555
HONORABLE WILLIAM GREGORY BEARD, DISTRICT JUDGE

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D. KENT SAVOIE
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and
D. Kent Savoie, Judges.

REVERSED.

Michael Hathorn Davis
Law Office of Michael H. Davis
Post Office Drawer 12180
Alexandria, Louisiana 71315
(318) 445-3621
COUNSEL FOR OTHER/APPELLANTS:
Gary Mitchell
Sheila Mitchell Johnson

Zebulon M. Winstead
Andree Braud Leddy
Crowell & Owens, LLC
3416 North Boulevard
Alexandria, Louisiana 71301
(318) 445-1488
COUNSEL FOR OTHER/APPELLEE:
Joan Robertson

SAVOIE, Judge.

Plaintiffs-in-Rule Gary Mitchell and Sheila Mitchell Johnson appeal the

judgment of the trial court, finding they have not met the required burden of proof

to nullify the May 26, 2017 testament of decedent Clarence Walker. For the

following reasons, we reverse.

FACTS AND PROCEDURAL HISTORY

Clarence Walker died on June 14, 2017, in Torrance, California. His wife,

Virginia Walker, predeceased him, and there were no children born of the marriage.

Clarence had children prior to his marriage - a daughter, Joan Robertson, and a son,

Paul Davis. Gary Mitchell and Sheila Mitchell Johnson are the children of

Virginia Walker’s sister. They grew up in the Walker home and were raised

primarily by Clarence and Virginia.

Joan Robertson filed a Petition for Order of Effect of Probate and for

Confirmation of Independent Executrix on June 29, 2017. The Petition states that

Clarence Walker was a resident of Alexandria, Louisiana, when he died. The Last

Will and Testament of Clarence Walker dated May 26, 2017, is attached to the

petition. Joan Robertson is listed as Independent Executrix in the will, and she

executed the oath of office, attaching it to the petition. In the will, Clarence made

Joan Robertson his sole heir by stating that after funeral expenses, administrative

expenses, and taxes are paid, “I devise and bequeath the remainder of my estate to

my daughter, JOAN ROBERTSON.” If she predeceases him, his estate would be

passed to her “lawful issue,” and if she dies without lawful issue, then it would go

to his son, Paul Davis. The May 26, 2017 will was executed three weeks prior to

Clarence Walker’s death while he was hospitalized in California.

Also attached to the petition are two Affidavits of Death, Domicile and

Heirship. One was executed by Robert Robertson, Joan’s husband, and the other

by Betty Washington Walker, a family friend. They both attest that they were well

acquainted with Clarence Walker, affirm certain facts listed in the petition, and add

that Joan and Paul are over the age of twenty-three years, suffer from no mental

incapacity nor physical infirmity and are capable of taking care of their person and

administering their estates. An Order of Effect of Probate and Confirmation of

Independent Executrix was signed by the trial court on June 29, 2017.

Gary Mitchell and Sheila Mitchell Johnson filed a Rule to Show Cause to

Annul Probated Testament and Rule to Remove Independent Administratrix on

July 11, 2017. Gary and Sheila allege that they are legatees of Clarence Walker

under a will executed by Clarence on June 15, 2016, which they attached to the

rule. Gary and Sheila further allege that the probated will dated May 26, 2017, is

invalid because Clarence could not read and the will is not executed in the proper

form for a person who cannot read, specifically, “the [w]ill failed to declare that

the testament had been read aloud in the presence of the Notary and the witnesses,

and further failed to declare that the witnesses followed such reading on copies of

the testament, and that the Testator declared or signified that he heard the reading

and that the instrument is his testament.” They further allege that Clarence “lacked

the testamentary capacity to make a [w]ill on May 26, 2017[,] due to his severe

dementia and his terminal illness which rendered his mental capacity to such a

state as to not know and be aware of his execution of the [w]ill on May 27, 2017.”

The rule also requests that Joan Roberson be removed as executrix because her

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appointment was based on an invalid testament, and she is not a resident or

domiciliary of the State of Louisiana.1

In addition to the rule, Gary and Sheila filed a Petition for Probate of

Statutory Will and for Appointment of Independent Executrix, wherein they ask

the trial court to probate the will dated June 15, 2016, and to appoint Sheila

Mitchell Johnson as Independent Executrix. In the June 15, 2016 testament,

Clarence leaves his estate to Gary, Sheila, Joan and Paul to share equally. This

will was executed in Alexandria, Louisiana, one year, almost to the day, prior to

Clarence’s death.

The trial court signed an Order on July 13, 2017, ordering Joan Robertson to

show cause why the May 26, 2017 testament should not be annulled and why Joan

should not be removed as Independent Executrix. The matter was heard on

October 16 and 17, 2017. The trial court took the matter under advisement and

issued Written Reasons on November 30, 2017. Judgment was signed on

December 20, 2017, with the trial court denying Gary and Sheila’s rule to annul

the probated May 26, 2017 will and the removal of the executrix. Gary and Sheila

now appeal.

ASSIGNMENTS OF ERROR

1. The trial judge erred as a matter of law by imposing the burden of
proof beyond a reasonable doubt as opposed to proof by clear and
convincing evidence.

2. The trial judge erred in finding that the revocation clause contained
in the will of May 26, 2017, was a valid, authentic act.

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Joan Robertson is domiciled in Los Angeles County, California.

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LAW AND DISCUSSION

The law regarding the nullity of a testament based on lack of testamentary

capacity is set forth in In Re Succession of Brackins, 12-1311, pp. 2-3 (La.App. 3

Cir. 4/3/13), 112 So.3d 963, 965-66, as follows:

“Capacity to donate mortis causa must exist at the time the
testator executes the testament.” La.Civ.Code art. 1471. “To have
capacity to make a donation ... mortis causa, a person must also be
capable to comprehend generally the nature and consequences of the
disposition that he is making.” La.Civ.Code art. 1477. “In an action to
annul a notarial testament ... the plaintiff always has the burden of
proving the invalidity of the testament.” La.Code Civ.P. art. 2932(B).
“ ‘A party is presumed to have testamentary capacity, and the
opponent bears the burden of defeating this presumption by putting
forth clear and convincing evidence to the contrary.’ ” In re
Succession of Sandifer, 05–860, p. 3 (La.App. 3 Cir. 3/1/06), 923
So.2d 862, 865 (quoting Succession of Fletcher, 94–1426, p. 4
(La.App. 3 Cir. 4/5/95), 653 So.2d 119, 121, writ denied, 95–1105
(La.6/16/95), 655 So.2d 338).

Louisiana Civil Code Article 1577 states:

The notarial testament shall be prepared in writing
and dated and shall be executed in the following manner.
If the testator knows how to sign his name and to read
and is physically able to do both, then:

(1) In the presence of a notary and two
competent witnesses, the testator shall declare or signify
to them that the instrument is his testament and shall sign
his name at the end of the testament and on each other
separate page.

(2) In the presence of the testator and each other,
the notary and the witnesses shall sign the following
declaration, or one substantially similar: “In our presence
the testator has declared or signified that this instrument
is his testament and has signed it at the end and on each
other separate page, and in the presence of the testator
and each other we have hereunto subscribed our names
this ___ day of _____, ___.”

At the trial of this matter, Gary and Sheila focused on Clarence’s inability to

read as the reason to nullify the 2017 testament, not his alleged dementia. As such,

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there are no medical records introduced into the record, and the trial court did not

mention Clarence Walker’s terminal illness in its Written Reasons. Therefore, we

will direct our opinion to the issue of Clarence’s ability or inability to read.

The May 26, 2017 testament was in the proper form for a testator who

knows how and is physically able to read. However, it is Gary and Sheila’s

contention that Clarence Walker could not read. The law regarding the required

form for a testator who does not know how to read is found in La.Civ.Code art.

1579 which states:

When a testator does not know how to read, or is physically
impaired to the extent that he cannot read, whether or not he is able to
sign his name, the procedure for execution of a notarial testament is as
follows:

(1) The written testament must be read aloud in the presence of
the testator, the notary, and two competent witnesses. The witnesses,
and the notary if he is not the person who reads the testament aloud,
must follow the reading on copies of the testament. After the reading,
the testator must declare or signify to them that he heard the reading,
and that the instrument is his testament. If he knows how, and is able
to do so, the testator must sign his name at the end of the testament
and on each other separate page of the instrument.

(2) In the presence of the testator and each other, the notary and
witnesses must sign the following declaration, or one substantially
similar: “This testament has been read aloud in our presence and in
the presence of the testator, such reading having been followed on
copies of the testament by the witnesses [, and the notary if he is not
the person who reads it aloud,] and in our presence the testator
declared or signified that he heard the reading, and that the instrument
is his testament, and that he signed his name at the end of the
testament and on each other separate page; and in the presence of the
testator and each other, we have subscribed our names this ____day of
____, ______.”

(3) If the testator does not know how to sign his name or is
unable to sign because of a physical infirmity, he must so declare or
signify and then affix his mark, or cause it to be affixed, where his
signature would otherwise be required; and if he is unable to affix his
mark he may direct another person to assist him in affixing a mark or
to sign his name in his place. The other person may be one of the
witnesses or the notary. In this instance, the required declaration must

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be modified to recite in addition that the testator declared or signified
that he did not know how to sign his name or was unable to do so
because of a physical infirmity; and that he affixed, or caused to be
affixed, his mark or name at the end of the testament and on each
other separate page.

(4) A person who may execute a testament authorized by either
Article 1577 or 1578 may also execute a testament authorized by this
Article.

Numerous witnesses testified at the hearing regarding Clarence’s ability to

read. In Written Reasons, the trial court summarized Gary and Sheila’s testimony

as such:

Gary and Sheila testified that while they were not blood relatives to
Clarence, they were raised in Clarence and Virginia’s home as if they
were one of their own. Gary testified that he began living with them
at the age of two in 1956 and stayed until he graduated from Peabody
High School in 1973. Gary testified that throughout his upbringing,
Virginia, who was an educator, and not Clarence, was the main person
who would help him with his homework. He testified that Clarence
routinely looked at the newspaper and the internal ads and would
particularly make note of when “JC Penny [sic] has a sale going on”
and note what other sales were occurring. After high school, Gary
attended Grambling University with the assistance of Clarence and
Virginia. As to the June 15, 2016 Document, Gary testified that he,
the other witnesses, the attorney, and Clarence were present
throughout the process. He further stated that the attorney read the
testament to Clarence, Clarence acknowledged that he could not read
or write, Clarence understood everything, and that all the people
present signed it. He further stated that Clarence’s standard signature
was that of “Clarence W.”

Likewise, Sheila testified that she began living with Clarence
and Virginia at the age of five in 1963, and continued to live with
them until she graduated from Peabody High School and left for
college at Southern University in 1976. Like Gary, she testified she
attended college with the assistance of Clarence and Virginia. Sheila
testified that she observed Clarence’s behavior throughout the years
and that when she asked him to read to her, he would avoid her. She
stated that he did not like to have the newspaper read to him, and that
he liked to review the advertisements to know which sales were
occurring. Sheila testified that throughout her upbringing, Virginia
was the one to take care of the house finances and bills, and that prior
to Virginia’s passing, she never saw Clarence write a check. She
testified that Clarence in reviewing his mail, he did note which bills
were which by stating “hey, we got the light bill in” or “hey, we got

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the cable bill in”. Further, she stated that after Virginia’s passing, she
was the one to write the obituary and took on the role of maintaining
the house finances. She testified that if she was not available, she was
unsure if he would writ a check but that he mainly used cash for
purchases. Sheila testified that she attended Southern University for
one year, moved back with Clarence and Virginia for a year, and then
joined the military. Throughout her service in the military, her
daughter resided with Clarence and Virginia. After her retirement in
2002, she moved to and continues to reside in Houston, Texas. She
testified that Virginia became seriously ill and passed away in 2014,
wherein Sheila began coming home more frequently and that she and
Gary would alternate weekends and “share duty”. As to the June 15,
2016 Document, Sheila testified that she, Gary, Gary’s wife, the
notary/attorney, and Clarence were all present throughout the process.
Like Gary, she testified that Clarence acknowledged he could not read,
that there was a different format for the will, that the will was read
aloud to Clarence, and that afterward they all signed.

Barry Nelson testified that Clarence was his uncle on his mother’s side and

that he lived in the same house as Clarence for ten years. He stated that while

Clarence never told him he could not read, Barry did not believe he could because

once when he asked him to read a specific part of the newspaper to him, Clarence

would not do it.

Andre Gistorb testified that she assisted Clarence with chores and errands

during his and Virginia’s declining health. Andre had known Clarence from a

young age until he passed away. Andre testified that she never saw him read or

write anything. Clarence always had cash on him, and Andre never saw him write

a check. Rebbie Jones knew Clarence Walker for the two years before he passed

away. She assisted him with errands. She testified that she recalled one time when

Clarence asked for her help in reading a letter regarding a doctor’s appointment.

She said that he told her he needed her to read it to him because he could not read.

Sebastian Gauthier lived next door to Clarence and Virginia and was

Clarence’s godchild. His testimony corroborated much of Gary and Sheila’s own

testimony. He said that Clarence pushed him to go to school because Clarence did

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not have an education. Sebastien testified that Clarence told him that he could not

read or write, and Clarence felt it was very important to have an education because

he did not. Sebastien Gauthier testified that Clarence often asked him to read

things to him and that he observed Virginia reading to Clarence “very frequently.”

Constance Crishon is a licensed social worker employed by Heart of

Hospice. She has known Clarence since 1979. She testified that Clarence could

not read, and she related a story explaining how she knew that he could not read.

She said that, when Sebastien Gauthier was in school, he got into some trouble.

She remembered Clarence telling Sebastien that he should not be like him and to

focus on school because Clarence could not read nor write and he had to try twice

as hard because of it. She also testified that she conducted the assessment for

Virginia’s hospice care. She handed Clarence some documents to review, and

Clarence told her, “Girl, you know I can’t read nor write.” Constance testified that

she had to explain the medical documents to Clarence.

David Campo testified that he used to own Lucille’s Red Kettle Restaurant,

where Clarence was a frequent guest. He testified that Clarence never used a menu,

rather he would walk into the restaurant kitchen and select the items that he wanted

to eat.

Betty Washington Walker assisted Clarence after his wife died. She testified

that she and Clarence would make the shopping list together, but he would take the

shopping list to the store by himself and do the shopping. She further recalled that

Clarence would look at the advertisements in the newspaper and tell her what was

on sale so that she could add it to the grocery list. Chad Bailey is Betty

Washington Walker’s son. He knew Clarence as a friend of his grandparents. He

testified that while out to dinner with Clarence, Clarence never asked for help in

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reading the menu. He further testified that he would bring Clarence to hardware

stores and that Clarence always had a written list with him. Finally, he

remembered that in Clarence’s career as a “tile man,” Chad recalled that he would

take measurements and write them down.

Robert Robertson, Joan’s husband, testified regarding the execution of the

May 26, 2017 testament. He was a witness to the document. He stated that

Clarence was in California in the hospital at the time of the execution and that he

appeared to know what he was doing. He testified that no one forced Clarence

Walker to sign the will.

The court in the Succession of Young, 96-1206, pp. 2-3 (La.App. 3 Cir.

3/5/97), 692 So.2d 1149, 1150-51, tells us:

The capacity to make a will is tested at the time the will is made.
La.Civ.Code art. 1471; Succession of Caprito v. Mayhew, 478 So.2d
243 (La.App. 3 Cir.1985), writ denied, 481 So.2d 1331 (La.1986).
One of the requirements for a statutory will established in La.R.S.
9:2442 is that the testator must be physically able to read at the time
the testament is executed. Naquin v. Hile, 536 So.2d 676 (La.App. 3
Cir.1988). A testator’s ability to read is an element of testamentary
capacity. Succession of Fletcher, 94–1426 (La.App. 3 Cir. 4/5/95);
653 So.2d 119, writ denied, 95–1105 (La.6/16/95); 655 So.2d 338. A
party is presumed to have testamentary capacity, and the opponent
must put forth clear and convincing evidence of incapacity in order to
defeat this presumption. Succession of Lyons, 452 So.2d 1161
(La.1984); Fletcher, 653 So.2d 119; Succession of Duboin, 94–446
(La.App. 3 Cir. 11/2/94); 649 So.2d 617; Naquin, 536 So.2d 676;
Succession of Ellis, 486 So.2d 260 (La.App. 3 Cir.1986); Caprito, 478
So.2d 243.

The court goes on to state:

Generally, the clear and convincing evidence standard requires
more than a “preponderance of the evidence” but less than “beyond a
reasonable doubt.” Lyons, 452 So.2d 1161. The existence of the
disputed fact must be highly probable, that is much more probable
than its non-existence. Id. This standard of proof is usually reserved
for cases where strong policy considerations mitigate against the use
of the preponderance of the evidence standard. Id.

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It is Gary and Sheila’s burden to prove that Clarence could not read. In their

first assignment of error they argue that the trial court used a higher standard, proof

beyond a reasonable doubt, rather than the clear and convincing standard when

deciding this case. In its Written Reasons for Judgment, the trial court stated that it:

[D]enies Gary and Sheila’s rule to annul the probated testament and
remove independent administratrix finding that they did not satisfy
their burden of proving by clear and convincing evidence that
Clarence did not have the testamentary capacity to execute the May
26, 2017 Document that was necessary in order to invalidate and
nullify it.

The standard used was the clear and convincing standard as evidenced by

the language used in the trial court’s Written Reasons. This assignment has no

merit.

Next, Gary and Sheila argue that the trial judge erred in finding that the

revocation clause contained in the will of May 26, 2017, was a valid, authentic

act. “An appellate court must accord the factual findings of a trial court great

weight in a will contest and cannot disturb such findings in the absence of manifest

error.” Matter of Succession of Biscamp, 16-673, p. 4 (La.App. 3 Cir. 2/1/17), 211

So.2d 472, 476, writ denied, 17-408 (La. 4/27/18), 241 So.3d 305 (citing In re

Succession of Hebert, 12–281 (La.App. 3 Cir. 10/3/12), 101 So.3d 131).

Multiple witnesses who knew Clarence for over thirty years testified during

the trial. The majority of these witnesses believed that Clarence could not read or

write. More importantly, Rebbie Jones, Sebastien Gauthier and Constance Crishon

all testified that Clarence Walker told them that he could not read. No one testified

that Clarence told them that he could read. Betty Washington Walker and her son

Chad Bailey only testified that they believed he could read. Interestingly, neither

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Joan nor Paul testified during the proceedings about whether their father could read

or write.

We also find it notable that Clarence Walker executed the June 15, 2016 will

in the form required for persons who cannot read under La.Civ.Code art. 1579.

Clarence signed his name on each separate page of the document and at the end of

the instrument. The following paragraph is included in the testament:

THIS TESTAMENT has been read aloud in our presence and in the
presence of the Testator, such reading having been followed on copies
of the testament by the witnesses and the notary, and in our presence
the Testator declared that he heard the reading and that the instrument
is his testament, and that he signed his name at the end of the
testament and on each other separate page; and in the presence of the
Testator and each other we have subscribed our names on this the 15th
day of June 2016, Alexandria, Rapides Parish, Louisiana.

Clarence Walker, two witnesses, and a notary public, then signed the

document. If Clarence was able to read, this specific form would have been

unnecessary. The fact that Clarence executed his will in this form is strongly

persuasive evidence that he could not read. This coupled with the testimony of the

witnesses, those who knew Clarence best, lead us to conclude that Gary and Sheila

proved their case by clear and convincing evidence. We find that the trial court

manifestly erred in finding that The Last Will and Testament of Clarence Walker

dated May 26, 2017, should not be nullified.

CONCLUSION

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

costs for this appeal are assessed to Joan Robertson and Paul Davis.

REVERSED.

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