In re Succession Dopp

331 So.3d 949

The SUCCESSION OF Ernest E. DOPP

NUMBER 2021 CA 0193

Court of Appeal of Louisiana, First Circuit.

Judgment Rendered: OCTOBER 18, 2021

Anthony V. Ligi, Jr., Metairie, LA, Counsel for Appellant, Nora Friscia

Christie L. Tournet, Mandeville, LA, Counsel for Appellee, Jolene Dopp Garcia, daughter of Decedent, Ernest E. Dopp

BEFORE: WHIPPLE, C.J., PENZATO, AND HESTER, JJ.

WHIPPLE, C.J.

This succession matter is before us on appeal by Nora Friscia, the ex-wife of the decedent, challenging the trial court's judgment removing her as Executrix of the decedent's estate, vacating the order of probate of a purported olographic will, nullifying a purported donation inter vivos, and naming the decedent's daughter, Jolene Dopp Garcia, as Administratrix. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Mr. Ernest E. Dopp died on November 22, 2019. Although he was not married at the time of his death, Mr. Dopp was previously married to Nora Friscia, from whom he was divorced in 1997. Mr. Dopp and Nora had four children: Ernest Dopp, Jr., who predeceased him; Jolene Dopp Garcia; Colinda Dopp Burke; and Addie Dopp Evans. It is undisputed that Nora and Mr. Dopp did not stay in contact with each other after their divorce.

Mr. Dopp lived with his daughter, Addie, from March 2017 until August 10, 2018, when he was asked to leave her house to go and stay with a different daughter, Colinda. However, when Colinda appeared to pick up her father from Addie's home, Nora was with her. Three days later, on August 13, 2018, Mr. Dopp executed a purported olographic will and Act of Donation and Lease, leaving the entirety of his estate to Nora, to the exclusion of his daughters.

By order of the court on December 3, 2019, the purported olographic will was probated and Nora was appointed as the Executrix of Mr. Dopp's estate. Thereafter, Jolene filed a petition to oppose the probate of the will, to vacate Nora's appointment as Executrix of the estate, to nullify the purported donation to Nora, and to request that she be appointed Administratrix of the estate.¹ The matter proceeded to trial on March 12, 2020. At the trial, various documents were admitted into evidence, including the purported olographic will and Act of Donation, as well as some of Mr. Dopp's medical records. The trial court also heard testimony from several witnesses.

At the conclusion of the trial, the trial court took the matter under advisement, and invited the parties to submit post-trial memoranda on the issues. Thereafter, the trial court issued reasons for judgment on May 21, 2020, concluding that the olographic will was invalid, due to both issues of form and a lack of capacity based on Mr. Dopp's dementia and lack of medication. The trial court similarly found that the Act of Donation was also invalid, due to lack of capacity, undue influence, and lack of gratitude by Nora. On June 18, 2020, the trial court signed a judgment in accordance with its reasons, declaring the Act of Donation and olographic will null; vacating the Letters of Administration issued to Nora, the Order of Probate of Olographic Will, and Nora's appointment as Executrix; and appointing Jolene as Administratrix of Mr. Dopp's estate.

From this judgment, Nora appeals, contending that the trial court committed manifest error by:

(1) finding that she failed to prove the olographic will was entirely written, dated, and signed by Mr. Dopp;

(2) finding that the appellee met her burden of proof and showed that Mr. Dopp lacked capacity to comprehend generally the nature and consequences of the dispositions in the olographic will;

(3) finding that the appellee met her burden of proof and showed that Mr. Dopp lacked capacity to comprehend generally the nature and consequences of the dispositions in the Act of Donation; and

(4) finding that the Act of Donation was null and void due to undue influence and/or lack of gratitude by Nora.

DISCUSSION

Form of Olographic Will

(Assignment of Error No. 1)

On appeal, Nora first contends that the trial court committed manifest error when it found that she failed to prove the olographic will was entirely written, dated, and signed by Mr. Dopp.

There are two forms of testaments: olographic and notarial. LSA-C.C. art. 1574. An olographic testament is one entirely written, dated, and signed in the handwriting of the testator. LSA-C.C. art. 1575. In addition to the form requirements, an olographic testament must contain testamentary intent, which is to say, "it must, by its own language, show on its face that it purports to dispose of the property of the testator on his death." In re Succession of White, 2006-1002 (La. App. 1st Cir. 5/4/07), 961 So. 2d 439, 441, quoting Succession of Shows, 158 So. 2d 293, 295 (La. App. 1st Cir. 1963), affirmed, 246 La. 652, 166 So. 2d 261 (1964). A valid olographic testament must do more than express or explain the wishes or desires of a decedent; the document must show intent to convey the decedent's property by the instrument itself. In re Succession of Cannon, 2014-0059 (La. App. 1st Cir. 3/25/15), 166 So. 3d 1097, 1102, writ denied, 2015-0816 (La. 6/5/15), 171 So. 3d 948. The olographic testament must be proved by the testimony of two credible witnesses, and the court must satisfy itself, through interrogation or from the written affidavits or the depositions of the witnesses, that the handwriting and signature are those of the testator. LSA-C.C.P. art 2883(A).

The proponent of an olographic will has the burden of proving its authenticity and its compliance with all of the formal requirements of law. LSA-C.C.P. art. 2903. In will contest cases, absent a finding of manifest error, the factual findings of the trial court are accorded great weight and will not be disturbed on appeal. In re Succession of Caillouet, 2005-0957 (La. App. 4th Cir. 6/14/06), 935 So. 2d 713, 715, writ denied, 2006-1732 (La. 10/6/06), 938 So. 2d 85.

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. LSA-C.C.P. art. 2932. In the instant case, because Jolene filed her petition to annul the probated olographic testament within three months of the date that the testament was probated, Nora bore the burden of establishing the authenticity of the testament and its compliance with all of the formal requirements of law. See Succession of Achee, 2016-0716 (La. App. 1 Cir. 8/16/17), 229 So. 3d 5, 8. In reviewing a trial court's factual findings when ruling on a petition to annul a testament, an appellate court applies the manifest error standard of review. Id.

In the instant case, the trial court stated in its written reasons for judgment that the will was invalid, in part, because "[t]wo daughters testified that they did not recognize their father's signature, and there is no consistent testimony regarding the presence of the witnesses to the signing of the document." After careful review of the record, we find no manifest error in the trial court's conclusion that the will was invalid and that Nora, as the proponent of the olographic will, failed to meet her burden of proving its authenticity.

Nora argues on appeal that the fact that Mr. Dopp "hand wrote out the detailed dispositions" of his alleged will was not challenged, nor was the dating of the will. Instead, only the signature was challenged. She maintains that where it is undisputed that the dispositions were clearly in Mr. Dopp's handwriting, a witness actually saw him sign the will, and three other witnesses attested to the fact that it was his signature at the bottom of the will, the evidence presented at trial "clearly reflects" that she met her burden of proving the validity of the will under LSA-C.C.P. art. 2883. Thus, she contends the trial court's conclusion that the will was invalid was manifestly erroneous and clearly wrong.

However, at trial, both Jolene and Addie adamantly testified that the signature was not their father's signature. Jolene testified that while the body of the will was in his handwriting, the signature was not. She testified that she was very familiar with his signature because she would forge it on report cards as a child and that his signature was very difficult to write because "it just flowed really, really well." She testified that the signature on the will, however, looked like a "drawn signature where each letter seems to be drawn and not written." Addie testified that she also knew "right away" that the signature on the will was not her father's signature. She pointed out that: Mr. Dopp wrote with a "slant," which was missing from the signature; the P's in his last name were written incorrectly; and the "double line in the E, R, and N" should not have been there. Addie further noted that when comparing the signature on the will to Mr. Dopp's signature on the title to his car, the signature on the will looks different than his signature on the title.

Conversely, Nora, Colinda, and Colinda's husband, Ryan Burke, maintained that the signature was Mr. Dopp's signature. Ryan testified that Mr. Dopp wrote the will at his home in Slidell and that he saw Mr. Dopp actually sign and date the will in his presence. He stated that Mr. Dopp started to sign the will in pencil, but Ryan thought he should sign it in pen, so he gave Mr. Dopp a pen instead. Colinda testified that she saw her father writing the will, but did not actually see him sign it. She further stated that her father's handwriting was "very creative," and that it was his signature on the page.

Nora testified that she "would recognize" Mr. Dopp's handwriting and that, in fact, the signature on the will was Mr. Dopp's. When she presented the will for probate, Nora filed an affidavit initially stating that...