Succession of Charles Ray Middlebrooks, Jr.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

23-236

SUCCESSION OF

CHARLES RAY MIDDLEBROOKS, JR.

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APPEAL FROM THE
TWELFTH JUDICIAL DISTRICT COURT
PARISH OF AVOYELLES, NO. 2021-904509-B
HONORABLE WILLIAM BENNETT, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Elizabeth A. Pickett, Shannon J. Gremillion, and Guy E.
Bradberry, Judges.

AFFIRMED.

Benjamin A. Luke
Leanne M. Broussard
Benjamin A. Luke Attorney at Law, LLC
2004 Jackson Street
Alexandria, LA 71301
(318) 487-5944
COUNSEL FOR OTHER APPELLANT:
Chance Middlebrooks, Executor

Matthew L. Nowlin
Keiser Law Firm, P.L.C.
Post Office Box 12358
Alexandria, LA 71315
(318) 443-6168
COUNSEL FOR OTHER APPELLEE:
Rosalind Middlebrooks Juneau

GREMILLION, Judge.

Appellant, Chance Middlebrooks,1 the independent executor for Charles Ray

Middlebrooks, Jr., appeals the trial court’s judgment that probated a will in the

Succession of Charles Ray Middlebrooks, Sr., through its Independent Executrix,

Rosalind Middlebrooks Juneau, the Appellee. For the following reasons, we affirm.

FACUTAL AND PROCEDURAL BACKGROUND

Charles Ray Middlebrooks, Sr. died on May 31, 2021. Appellee filed a

petition for appointment of notary public to search for last will and testament, for

order of effect of probate, and for confirmation of independent executrix on

November 15, 2021. The petition sought to probate a September 28, 2017 last will

and testament executed by Decedent that named her as the sole legatee of his estate

to the exclusion of four living siblings. The petition noted, however, that Juneau

searched Decedent’s residence and could not find an original and that counsel failed

to verify with Decedent’s attorney whether the September 2017 will sought to be

probated matched the copy of the last will and testament located in Decedent’s file

at his attorney’s office.

On December 17, 2021, an affidavit from the court appointed notary verified

that, after duly searching, the original last will and testament could not be located.

On December 30, 2021, Appellee was confirmed as an Independent Administratrix

of the succession.

On March 11, 2022, Appellant filed a petition to annul probated testament,

request for an accounting, and request for injunctive relief. On May 6, 2022,

Appellee filed a dilatory exception of improper cumulation of actions, peremptory

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Chance Middlebrooks is the grandson of the Decedent.

exception of no right of action, and peremptory exception of nonjoinder of a party.

Appellant filed an opposition on July 8, 2022. On August 30, 2022, Appellee filed

an answer to petition to annul probated testament. Identical judgments were entered

into the record on October 10, 2022, and October 13, 2022, granting the Appellee’s

exception of no right of action, dismissing Appellant’s request for an interim

accounting by Appellee, and denying the exception of nonjoinder of a party.

Stipulated testimony of Charles Ray Middlebrooks, Jr. was submitted into the

record on October 14, 2022, stating in pertinent part that he “believed that his father

had a last will and testament, but never saw the will’s contents;” “he does not know

where the decedent kept the original will but believed it was under his father’s pillow

or mattress;” and, “The Petition to Annul Probated Testament is based solely on the

legal presumption, and not on any knowledge that the decedent destroyed any will

before his death.”

Following a trial on October 14, 2022, the trial court rendered a judgment

finding that Appellee “successfully rebutted any presumption that the decedent,

Charles Middlebrooks, Sr., revoked by destruction his September 28, 2017 Last Will

and Testament, which has heretofore in these proceedings been duly proven and

ordered executed according to law[.]”

Appellant timely appealed.

ASSIGNMENTS OF ERROR

1. The Trial Court committed legal error when it improperly
interpreted and/or applied [Succession of Talbot, 530 So.2d 1132
(La.1988)] and other case law regarding the standard of rebutting
the legal presumption that the will was revoked by the testator
when the original cannot be found.

2. The Trial Court committed a manifest error in its finding that the
presumption was rebutted.

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3. The Trial Court committed legal error and/or manifest error when
it upheld probation of a copy of a Last Will and Testament when
no search of the home was performed.

DISCUSSION

Louisiana Civil Code Article 1607 provides, in pertinent part, that a testator

revokes his testament when he:

(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 statement by a writing that is
entirely written and signed by the testator in his own handwriting.

In Succession of Nunley, 224 La. 251, 256-57, 69 So.2d 33, 35 (1954)

(emphasis added)(citations omitted), the supreme court 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;
however, this presumption is a rebuttable one . . .[.] 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.

In Talbot, 530 So.2d at 1134–35, the supreme court again noted “the

uniformly adhered to rule” set forth in Nunley that a will in “possession of, or readily

accessible to, the testator” that can no longer be found gives rise to the presumption

of revocation. The court then thoroughly addressed the burden of proof when a

presumption of revocation applies. The testator in Talbot, in the presence of his

attorney, physically destroyed one of the multiple original copies of his will and

declared his intent to revoke it although another of the multiple original copies of

the will was found by a legatee at his residence. The court stated:

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The legal question raised in the present case is whether a
presumption of revocation arises from the intentional destruction of
one multiple original of a will, as well as from a failure to find one
after the testator’s death. We conclude that such a presumption
should be adopted because of the probabilities of the situation and
because a failure to do so would be inconsistent with our recognition
of a similar presumption based on the failure to find a will
subsequent to the testator’s death.

A presumption shifts the burden of producing evidence and,
under the preferable view, serves to assign the burden of persuasion
as well. Therefore, the reasons for creating particular presumptions
are similar to the considerations that bear upon the initial or tentative
assignment of those burdens. McCormick, Evidence § 343 (3rd ed.
1984).

One frequently significant consideration in the fixing of the
burdens of proof is the judicial estimate of the probabilities of the
situation: the risk of failure of proof is often placed upon the party
who contends that the more unusual event has occurred. Id. § 337.
In the present case, we conclude that this consideration is
predominant and that the proponent of the will should bear the
burden of proving that a testator, who intentionally destroyed a copy
of his will under circumstances consistent with his having an aim to
revoke, either did not in fact intentionally authorize or commit the
destructive act or else did not do so with an intention to revoke. The
presumption may be weak or strong, and more or less easily
rebuttable, depending on the clarity of the evidence as to whether
the testator was the author of the will’s destruction, whether he
expressed an intention to revoke the will, whether he had access to
other originals of the will prior to his death, whether he treated any
ext[a]nt copy of the will as not having been revoked, and as to any
other issue bearing upon the testator’s intention with respect to the
destruction and revocation of the will.

If the mere absence of a multiple original of a will after the
testator’s death tends to increase the probability of its destruction by
him so as to justify a presumption of his revocation of the testament
by destruction, certainly proof that the testator in fact destroyed his
will before his death ought to give rise to a similar presumption.
Furthermore, when the testator, in the presence of a credible witness,
declares his intention to revoke his will and in fact destroys an
original thereof, as in the present case, the presumption should not
be rebuttable except upon clear proof of a contrary contention.

Id. at 1135–36.

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The court then applied the presumption of revocation and shifted the burden

to the proponent of the will to produce facts sufficient to convince the trial court that

the will had not been revoked. The supreme court concluded that the trial court did

not err in finding that the testator intended to revoke his will.

Testimony

Joanna Juneau, Appellee’s daughter, testified that she visited her grandfather

between four to six times per week until she and her mother stopped visiting in April

2021, because Roderic Middlebrooks, who lived there with his father, was very

angry. Joanna testified that she had seen a copy of the will that was probated, and

that her grandfather kept his will “under the bed, under his mattress between the box

spring and his mattress, along with his other Will, the living will it’s called.” Joanna,

who was twenty-eight years old at the time of trial, said she did not see her

grandfather from the time she was about nine until she was about twenty years old.

She further said that her mother also “wasn’t allowed” to see her father during that

time because Joanna’s father was “very controlling and very mean.” Once her

mother and father divorced, they started to regularly visit her grandfather.

When asked why Roderic was angry with them, she stated it was because

Roderic knew that Rosalind was bequeathed everything. Joanna said that her

grandfather showed her the will one time in the two to three years prior to his death,

but that he did not allow her to read it or hold it. Joanna testified that she noticed

things missing when they would visit, such as a salt and pepper shaker set, so she

started taking pictures of things. Joanna testified that her grandfather would often

say that her mother “gets it all.”

Margaret Middlebrooks Vidrine, Decedent’s sister, testified that she lived

across the street from her brother and visited him three times per week when Roderic

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went to his dialysis appointments. Vidrine said that her brother was bedridden but

could get up and walk a short distance until the last week or two before his death

when he was unable to get out of the bed. However, she said his limitations were

strictly physical, and he had full mental capacity right up until his death. Vidrine

said she noticed a few things missing in the last couple of weeks before her brother

died, such as pictures that had been hanging on the wall and “maybe a gun.” Vidrine

testified about a check Decedent received for the sale of cattle that was sitting on a

chest of drawers. She inquired of her brother if he would like her to deposit it for

him, but she testified that he said, “no, I want to divide that check between Roselyn

[sic] and Rodrick [sic].” The date of this exchange was established from text

messages on May 21, 2021. Vidrine further testified about a missing picture of her

brother when he was a baby that had been on the wall.

According to her testimony, Vidrine never saw her brother’s will, but he did

talk to her about it. He never mentioned to her that he amended or revoked his will.

Vidrine could not recall if Rosalind or Joanna attended her brother’s funeral,

admitting that she has “Alzheimer’s and I can remember some things but not

everything.” Vidrine stated that she had been diagnosed with Alzheimer’s for “about

four or five years.” She went on to state that her brother talked to her about his will

“probably a couple of weeks before he passed” and that “he left everything to

Roselyn [sic].” She was further questioned:

Q. He said that to you specifically?

A. I’m almost sure he did.

....

Q. Has anyone else ever told you that that he was leaving everything to
Roselyn [sic] other than your brother?

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A. I’m not sure.

Q. I think what I’m asking is it possible that someone else told you that
and not your brother?

A. I’m foggy as to if they did or not, you know.

Regarding the text messages that she sent to Rosalind about Decedent, Vidrine

stated that she started taking care of him because Rosalind was not there anymore.

She stated Roderic was never angry with her.

Rosalind testified that her brother lived in the family home with his father his

entire life. Rosalind testified that she quit her job at the casino in 2020, to take care

of her father. However, she did not live in her father’s home. She said that in April

2021, her brother Roderic went on a nine-or-ten-day vacation and, during that time,

she stayed overnight at the home with her father. Toward the end, Rosalind testified

that she was afraid of Roderic so she only visited when he was at his dialysis

appointments, before 10:00 a.m. on Monday, Wednesday, and Friday. Regarding

her father’s mobility, Rosalind testified:

Q. O.K. What was your dad’s health condition in those final months
before he passed away?

A. Final months going back how far?

A. Let’s say two months before he passed away.

A. He was barely getting out the bed and after they sold the cattle then
that’s when it really hit him hard.

Q. And to the best of your memory when did …when were the cattle
sold?

A. May-ish---May 20-ish, 21st.

Q. And your father passed away on May 31?

A. Yes, he did.

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Rosalind said sometime between January and “April-ish” or May-ish” her

father called her to come and retrieve his will from underneath his mattress, but that

they could not find it. Roderic was not there at the time. Rosalind said the fact that

the will was missing came as a surprise to her father. He also kept his living will

under the mattress. However, both were missing. Rosalind testified that her father

said, “he would take care of it,” which meant talk to Roderic. She said this was the

last time she and her father discussed the will and that he never told her he destroyed

it. She said that after this event, “she didn’t go back much after that.” However, she

talked to her father on the phone, and she said that he wished for the cattle check

proceeds to be split evenly between her and Roderic. Rosalind said she never

received her half. She testified that her father’s safe had gone missing after her

appointment as executrix and that Roderick filed a police report essentially accusing

her of stealing it.

Rosalind stated that since her father’s death, she has not searched his residence

for his will, and to her knowledge, no one else had either. She said he always kept

the will under his mattress, that the last time she saw it was in 2013, and in that will

he left “all” to her, and that when she went to look for it again at his bequest it was

no longer there. She also testified about missing salt and pepper shakers and missing

guns.

Rosalind was asked how she obtained a copy of the will, and she stated that

she removed the original from underneath the mattress in the home back in 2013 and

brought it to her son’s house to make a copy of it. She said that she had returned it

and that was the last time she saw her father’s will. She further stated that at the

time when she went to look for it between January 2021 and her father’s death in

May 2021 at her father’s request, he never discussed the will with her again.

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However, the trial court questioned her:

Q. The Will that you make a copy of, is that the copy that you’ve had
for this?

A. Yes, sir.

Q. When you said you made it in 2014 or 15 this one wasn’t made until
2017, how did that happen? The Will that you’ve attached to the copy
and your daddy allegedly signed September 28th, 2017?

A. I could have my dates mixed, you know.

Q. Did he ever make more than one Will, did he have a problem with …

A. He had one Jim said he only … I just heard an altercation you know
my dad Rodrick [sic] had an altercation, him and dad got in an argument
or something and they went up there and daddy changed the Will that
went to him and Jim said he made that one.

Q. He had a Will that left everything to Rodrick [sic]?

A. Well no, I don’t know what that Will even said.

Q. Do you know if he had any other Wills?

A. Not to my knowledge. Jim didn’t have one at that time. He said he
had the last one that dad did.

Later Rosalind testified:

Rodrick [sic] complained that daddy got mad at him one day and
went and had Jim re-do it, went around the block and this is just a story
I heard from Rodrick [sic]. That daddy got upset with him one day and
he went and tore up a Will prior to that. And that this was the Will
daddy said.

Roderic testified that he lived with his father for nearly sixty years before he

moved out about six months after his father’s death. Roderic stated he had been on

dialysis for five years as of the time of trial. He said that his father was mentally

sharp up until his death. Regarding the check for the cattle, Roderic testified that his

father told him “to put it in the bank and he was going to pay me back if he didn’t

need it or he died.” By pay him back, Roderic said “for the stuff that I had done for

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him over the years and stayed with him and my brother and my mama.” Roderic

said he deposited the $60,000 cattle check into the bank, closed the account on June

29, 2021, and withdrew the money because he was the “payable on death”

beneficiary of that account. Roderic denied taking anything from the house other

than a table and a cedar robe out of his bedroom. He said that he had never seen his

father’s Will at any time. He said he never saw envelopes under his father’s mattress

and he and his father never talked about his will. Roderic said he did not take the

guns, pictures, or salt and pepper shakers. He said his father never told him he tore

up his will and he never saw him tear it up. Roderic testified that he did not know

where the will was. Roderic said his father’s estate did not owe him any money. He

said he never looked for a will and he did not know what the contents of it were.

Roderic testified that in October 2021, he filed a police report with the

Avoyelles Sherriff’s Office because, upon returning from dialysis, the house had

been broken into, stuff was scattered around, and his father’s safe was gone. The

safe is still missing and has never been recovered. He said his father told him there

was money in the safe, but he did not know the combination to open the lock. He

said only Rosalind knew the combination because on Thanksgiving Day in 2020,

they got in the safe in November of 2020 and I told them daddy is
going to find out that y’all got in there. And he asked me in January
who got in his safe. And I told him that Roselyn [sic] and Joanna
come [sic] looked in it. So he confronted her with it later and she
says she just wanted to see if he had some money in there. You
know, they did.

Roderic said his father asked Rosalind in front of Roderic if she had accessed

the safe, and she admitted it. Roderic asked how much money was in the safe and

there was $39,000 in it, none of which was missing after Rosalind and Joanna looked

through it. Roderic then testified to some land of his that he donated to Rosalind in

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July of 2018 because he nearly died; however, Rosalind donated it back to him in

March 2021.2 Roderic said he never threatened Rosalind or Joanna.

Roderic later testified:

Q. Did anybody ever tell you that your daddy left a Will leaving
everything to Roselyn [sic]?

A. I heard that.

Q. When did you hear that the first time?

A. Whew…

Q. Before or after he died?

A. Before he died I guess.

Q. He told you that?

A. um hum.

Q. Did you know why he did that?

A. Well it was his doings.

Q. That’s what he wanted?

A. That’s what he wanted.

Q. Did he ever tell you he didn’t want to do that anymore?

A. Well he did after she left and didn’t take care of him and I had about
six weeks there with him and he wasn’t pleased.

Q. The last six weeks of his life?

A. Yes, sir.

Q. She didn’t come around, why did she stop coming around?

A. I don’t know.

Q. You don’t know?

2
Roderic subsequently donated the land to Rosalind’s daughter and her husband.

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A. Unt-unt.

Q. Wasn’t because you and her got into it?

A. No.

Q. She just stopped?

A. She just stopped coming.

Q. How about your Aunt Margaret, did she keep coming?

A. She come [sic] and watch daddy while I went on dialysis days.
Monday, Wednesday, Friday she’d come stay with him while I was on
dialysis.

Q. Have you and Roselyn [sic] ever had cross words before?

A. No, the last words I had … heard her say she never did say too many
but she told daddy and Aunt Margaret was standing right there, I come
from dialysis and she said don’t worry about me and Rodrick [sic]
daddy I’m moving on and I might even move out of state. And she said
I’ve got to go see a lawyer. And that the last words I heard her say.
You know this was during those last six weeks. She would come
periodically and see him.

Rosalind testified that things with Roderic got tense after Thanksgiving that

she and her daughter opened the safe. She said she just wanted to see what was in

there, but she did not take anything. She said there was money in envelopes, but

they did not count it. She said Roderic was upset that they invaded the safe, but she

apologized for it. She said she and Roderic had never had cross words until she and

Joanna opened the safe.

Trial Court’s Reasoning for Ruling

Well first of all Talbott [sic] does not say that she has to prove
that it was not revoked. What Talbott [sic] says is that the presumption
can be weak or strong and more or less easily rebuttable depending on
the clarity of the evidence as to whether the testator was the author of
the Will destruction. There’s absolutely not one shred of evidence to
indicate that Mr. Charles Middlebrooks, Sr. destroyed his Will,
nothing. Whether he expressed an intention to revoke the Will. We
have absolutely no evidence that he had an intention to revoke the Will.
Whether he had access to other originals of the Will prior to his death.

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There’s no evidence as to whether he had a copy, didn’t have a copy,
no generally he a [sic] copy, didn’t have a copy, no evidence as to that.
And no evidence as to any extent a copy of the Will as not having been
revoked either. And I’m reading from Talbott [sic]. It’s not saying that
Ms. Juneau has to prove it was not revoked. There is a presumption,
but that presumption can be overcome. In this case we have a will that
was valid, there’s proof of the substance in the Will. And the evidence
indicated in this case which is similar [INAUDIBLE] charity in some
parts I must say. I don’t think we have the complete picture and I don’t
think everybody was completely honest.

But when we – other than Ms. Margaret yeah we’ve got to
remember this lady is a sister of Charles, Sr., she’s an aunt to Roselyn
and an aunt to Charles, an aunt to Rodrick [sic]. And she testified so
credible as to events that she witnessed herself. For example, that sixty
some thousand dollar check. She said without question that her brother
wanted it to be split between Roselyn [sic] and Rodrick [sic]. Mr.
Rodrick [sic] says otherwise. There are even text messages about the
check and this of that nature about it.

And we go further everybody who has testified and accordingly
everybody in the family knew there was a rift. And then Ms. Juneau
for some reason, we don’t know why, still … I still don’t know why.
Mr. Middlebrooks wanted to leave everything to her. Nobody said he
never wanted to leave everything to her. Everybody said that writes a
Will leaving everything to her, why, don’t know. But it was there. All
knew where it was. Who would benefit from the disappearance? I
mean there is an allegation made that she stole the safe. If she stole
the safe why didn’t she take the Will, it benefits her. Everybody knew
where it was, it somehow disappeared. Guns disappeared, it
disappeared, pictures disappeared, nobody knows who did it.

The only evidence to indicate at all that Mr. Charles, Sr.
wanted. . . it’s not even saying he wanted to change his Will, he said
he got upset that Rosalyn [sic] stopped going the last six weeks of his
life. And she said she stopped going because of threats of Rodrick [sic]
and she was afraid because she claims that he threatened to kill her.
And Ms. Margaret verified that things weren’t always so kosher.

Certainly Mr. Midlebrooks, Sr. wasn’t in a position to crawl
under that mattress and do anything with the Will, well there’s
certainly no evidence of it. And under the law the presumption can be
overcome by sufficient evidence. And certainly here there is sufficient
evidence to overcome the presumption that there… first there’s none
to say he intended to revoke, which all of the cases that I’ve read
indicate there should be something. There’s one that clearly the
testator had destroyed the Will. There’s nothing to indicate again, I
don’t think everybody is telling the whole story, there’s more to this
story than I know here today.

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But based on the evidence today, the presumption is clearly
overcome that he did not, he did not revoke his Will. I mean it’s – I
wish we had the original, we don’t, that’s the rule of the court is that
the presumption has been overcome, the Will for whatever purpose he
left it all to Roselyn [sic], it’s valid, objection to the ruling of the court
is noted and error is assigned.

Assignments of Error One and Two

Assignments of error one and two are addressed together. Appellant argues the

trial court legally erred when it misapplied the Talbot standard. He argues that

instead of shifting the burden to Juneau to prove the validity of the will, the burden

remained on him to prove that the Decedent revoked it. Talbot makes clear that the

burden is on the proponent of the will to prove that it has not been revoked when a

will that the testator had access to is missing.

Juneau argues, however, that the Talbot presumption of revocation does not

even apply because there was no evidence that the will was “in the possession of, or

readily accessible to, the testator.” In Succession of Deshotel, 09-37, p. 6 (La.App.

3 Cir. 5/6/09), 10 So.3d 873, 878, a panel of this court stated: “[I]n 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.” Thus, a threshold question that was not addressed at trial is whether the

Talbot rebuttable presumption even applies. It is a well-recognized precept of the

law 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; however, this presumption is a rebuttable one and so may be

overcome by sufficient evidence.” Succession of Talbot, 530 So.2d at 1134-35. If

the will is not shown to be readily accessible, no presumption of revocation would

apply.

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The testimony was that the will was kept under Charles’s mattress, but it went

missing at some point. Juneau testified that she and her father searched for the will

but could not find it. Thus, reasonable people could find that the will was not readily

accessible to Charles, and the rebuttable presumption of revocation would not even

apply.

As in Deshotel, we find the issue of whether the presumption even applies is

not determinative because Juneau successfully rebutted the presumption of

revocation. Even if Charles’s testament was readily accessible to him, Juneau could

still overcome the presumption of revocation.

Additionally, we do not find the trial court erred in assigning the requisite

burdens. While it is true that the trial court stated, “Well first of all Talbott [sic]

does not say that she has to prove that it was not revoked,” it went on to elucidate

the Talbot factors. Appellant argues that there was “no clear proof that the will was

not revoked by the testator.” In the same vein, there was no clear proof that he

revoked it, such as by tearing it up in front of his attorney as in Talbot. A lack of

evidence in the record that the Decedent intended to revoke his will is evidence that

he did not intend to revoke it. Unlike the clear evidence of a testator tearing up his

will and stating he wishes it revoked, it is unlikely that a testator who has no intention

of revoking his will is going to randomly pronounce to anyone who will listen that

he has no intention to revoke it. We noted that a lack of evidence of an intention to

revoke is evidence in Deshotel when we stated in regard to the third prong that the

will was never revoked: “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.” Id. at 879.

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The remaining issue is whether the trial court erred in finding that Juneau

overcame the presumption of revocation. A trial court’s finding that presumption of

revocation has been rebutted is subject to manifest error review. Succession of

Foster, 19-209 (La.App. 4 Cir. 7/31/19), 363 So.3d 505, writ denied, 19-1401 (La.

11/5/19), 281 So.3d 672; Succession of Doucet, 42,963 (La.App. 2 Cir. 2/6/08), 975

So.2d 738. The Talbot standard has been described as “a sliding scale of proof

sufficient to rebut the presumption depending on the weakness or strength of the

evidence surrounding the lost original.” Succession of Altazan, 96-409, pp. 4-5

(La.App. 1 Cir. 11/8/96), 682 So.2d 1320, 1322. Thus, if reasonable people could

find that Juneau met her burden of proving that her father’s missing will was not

revoked by clear proof, the trial court cannot have committed manifest error.

Rosalind offered testimonial evidence from her daughter, brother, and aunt

that her father wished that everything be left to her. Her brother’s testimony that

Charles was displeased with Rosalind toward the end of his life is not sufficient

evidence that he intended to revoke his will. The trial court’s credibility

determinations were reasonable. While the trial court did find there were definite

inconsistencies in the testimony, it particularly found the aunt’s testimony credible.

Based on our review of the record and the trial court’s reasoning, we find that the

trial court did not manifestly err in finding there was sufficient evidence of a lack of

intent to revoke, and that the Decedent wished to leave his estate to Rosalind. The

trial court found that Rosalind successfully rebutted the presumption of revocation,

and we find it did not manifestly err in doing so. These assignments of error are

without merit.

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Assignment of Error Three

In this assignment of error, Appellant argues that no one, including the

executrix or the court appointed notary, searched for Decedent’s will after he passed.

Based on all of the testimony at trial, this search would have been futile because the

will was nowhere to be found; other items including the Decedent’s safe went

missing; and Roderic, who lived with his father and at the home for six months

subsequent to his death, found no will either before or after he moved out of the

home. We agree with the appellee that there was no evidence to suggest that the lost

will would have “suddenly and mysteriously reappeared” after Charles’s death, and

the trial court did not manifestly err in upholding the probated copy of his will. This

assignment of error is without merit.

CONCLUSION

The judgment of the trial court probating the copy of the will produced by

Rosalind Middlebrooks Juneau is affirmed. Costs of this appeal are assessed to the

Succession of Charles Ray Middlebrooks, Sr.

AFFIRMED.

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