SUCCESSION OF NANCY ELIZABETH SMITH v. << (2025)

Jonathan Smith appeals the trial court's grant of summary judgment in favor of Kevin Marinello, Independent Executor of the Succession of Nancy Elizabeth Smith. For the following reasons, we affirm the trial court's judgment.

Facts and Procedural History

Nancy Elizabeth Smith died on May 4, 2023. On August 1, 2023, her nephew, Jonathan Smith, filed a petition for appointment of dative independent executor, asserting that the decedent died intestate. On August 2, 2023, the trial court signed an order appointing Mr. Smith as Dative Independent Executor and ordering the issuance of letters of administration. The Clerk issued Letters of Dative Independent Administration on August 7, 2023.

On August 7, 2023, three cousins of the decedent, Logan Sullivan, Kevin Marinello, and Megan Milazzo, filed a petition to probate an olographic testament dated July 28, 2021. The will named Mr. Marinello as Independent Executor and left the decedent's estate to her three cousins. On August 8, 2023, the trial court admitted the testament to probate, revoked Mr. Smith's letters of administration, and appointed Mr. Marinello as Independent Executor.

On December 8, 2023, Mr. Smith filed a petition to annul the probated testament. He alleged that the decedent lacked testamentary capacity to execute the will, and that the will was the product of undue influence by her cousins.

Mr. Marinello filed a motion for summary judgment on October 28, 2024, seeking to dismiss Mr. Smith's petition to annul probated testament. Specifically, the motion argued that Mr. Smith failed to produce sufficient evidence to rebut the presumption of testamentary capacity or to support his claim of undue influence.

Mr. Smith's opposition attached certified medical records of the decedent from Chateau de Notre Dame for the period beginning July 26, 2021, which included a “Speech Therapy Plan of Care” noting that the decedent had been diagnosed with a “cognitive communication deficit.” Mr. Smith also introduced an “Individual Narcotic Record,” which shows that Ms. Smith had been given hydrocodone and Lyrica on July 28, 2021, the day the will was executed. The records also show that the patient was hospitalized from July 16 to July 23, 2021.

The trial court held a hearing on January 9, 2025 and granted the motion for summary judgment. On January 17, 2025, the trial court entered a written judgment and dismissed Mr. Smith's petition to annul probated testament with prejudice. Mr. Smith filed a timely appeal.

Trial Court's Reasons for Judgment

In written reasons issued on February 18, 2025, the trial court found that Mr. Smith failed to produce sufficient factual support to establish a genuine issue of material fact as to testamentary capacity. The court acknowledged that the medical records reflected cognitive impairment but concluded that the decedent's ability to manage her finances, live independently, and drive a vehicle supported a finding of capacity. The court emphasized that the decedent's orientation, attention, and executive function were within the average range, and that her comprehension and naming were only mildly impaired. The court further noted that the decedent was discharged home alone within about a week after the evaluation.

The trial court also found that Mr. Smith presented no evidence or argument regarding his claim of undue influence.

Law and Analysis

Standard of Review

Appellate courts review a judgment granting or denying a motion for summary judgment de novo. Succession of Maloney, 23-1447 (La. 9/4/24), 392 So.3d 302, 305. After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3). If the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. La. C.C.P. art. 966(D)(1); Deutsche Bank Nat'l Tr. Co. as Tr. for Argent Sec. Inc., Asset-Backed Pass-Through Certificates v. Reyes, 24-630 (La. App. 5 Cir. 4/9/25), 418 So.3d 923, 927. The burden then shifts to the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. Id.

Further, “[w]hen a motion for summary judgment is made and supported as provided [in La. C.C.P. art. 967(A)], an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided [in La. C.C.P. art. 967(A)], must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.” Bolden v. Tisdale, 21-224 (La. 1/28/22), 347 So.3d 697, 707 (citing La. C.C.P. art. 967(B)).

Testamentary Capacity

Under La. C.C. art. 1471, the capacity to donate mortis causa must exist at the time the testator executes the testament. In re Succession of Sirgo, 14-324 (La. App. 5 Cir. 10/29/14), 164 So.3d 832, 836, writ denied, 14-2638 (La. 3/6/15), 160 So.3d 1288. To have that capacity, a person must be able to “comprehend generally the nature and consequences of the disposition that he is making.” Id.; La. C.C. art. 1477. Testamentary capacity is presumed. Sirgo, 164 So.3d at 836. A party challenging capacity must prove by clear and convincing evidence that the testator lacked capacity at the time the donor executed the testament. La. C.C. art. 1482(A). In determining testamentary capacity, courts will consider the physical and mental condition of the testator not only at the time of execution of the will, but also prior and subsequent thereto, since the actions, conduct and physical and mental condition of the testator before and after the execution of the will are of probative value in deciding testamentary capacity. Succession of Landry, 545 So. 2d 1107, 1114 (La. App. 5 Cir. 1989).

Due to the presumption of capacity to execute a testament, after Mr. Marinello's motion pointed to the absence of factual support for Mr. Smith's claim that the decedent lacked testamentary capacity at the time the will was executed, the burden shifted to Mr. Smith to produce factual support to establish a genuine issue of material fact as to the testamentary capacity of the decedent or that Mr. Marinello was not entitled to judgment as a matter of law.

Mr. Smith, in response, submitted certified medical records as discussed above, which reflected that the decedent exhibited severe memory impairment and had been prescribed hydrocodone and Lyrica on the day the will was executed. Mr. Smith, however, failed to provide testimony from Ms. Smith's treating physician or any expert through affidavit or deposition to show how this medical evidence could have affected Ms. Smith's capacity at the time that she drafted and signed the olographic will at issue. Mr. Smith also failed to offer any lay witness testimony through affidavit or deposition about what they observed at or near the time that Ms. Smith executed her will.

Even if the medical records provided showed that Ms. Smith was in cognitive decline at or around the time that the will was executed, it is still insufficient to prove a lack of testamentary capacity at the time the will was executed.¹

Under these circumstances, we find that the trial court correctly found that Mr. Smith failed to show at the hearing on the motion for summary judgment that he would be able bear his burden at trial by clear and convincing evidence that Ms. Smith lacked capacity at the time that she executed the olographic will on July 28, 2021.

Undue Influence

Although Mr. Smith alleged undue influence in his petition, he did not pursue the claim in opposition to summary judgment or on appeal. The trial court correctly dismissed this claim as well.

Conclusion

For the foregoing reasons, we affirm the trial court's grant of summary judgment of January 17, 2025, which dismissed Mr. Smith's petition to annul the probated testament with prejudice.

AFFIRMED

FIFTH CIRCUIT

101 DERBIGNY STREET (70053)

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GRETNA, LOUISIANA 70054

www.fifthcircuit.org

SUSAN M. CHEHARDY CHIEF JUDGE

FREDERICKA H. WICKER

JUDE G. GRAVOIS

MARC E. JOHNSON

STEPHEN J. WINDHORST

JOHN J. MOLAISON, JR.

SCOTT U. SCHLEGEL

TIMOTHY S. MARCEL

JUDGES

CURTIS B. PURSELL CLERK OF COURT

SUSAN S. BUCHHOLZ CHIEF DEPUTY CLERK

LINDA M. TRAN FIRST DEPUTY CLERK

MELISSA C. LEDET DIRECTOR OF CENTRAL STAFF

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NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY

I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY NOVEMBER 26, 2025 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

CURTIS B. PURSELL CLERK OF COURT

25-CA-213

E-NOTIFIED

24TH JUDICIAL DISTRICT COURT (CLERK)

HONORABLE NANCY A. MILLER (DISTRICT JUDGE)

KEVIN C. SCHOENBERGER (APPELLANT)

HAROLD E. MOLAISON (APPELLEE)

JUSTIN E. MOLAISON (APPELLEE)

MAILED

LOUIS J. LEO (APPELLEE)

ATTORNEY AT LAW

115 WEST WILLIAM DAVID PARKWAY

METAIRIE, LA 70005

FOOTNOTES

1.   Proof, by clear and convincing evidence, of the presence of a mentally-debilitating condition at the approximate time that the will was executed is not sufficient to prove lack of testamentary capacity at the time the will was executed, especially in light of conflicting evidence of the decedent's capacity at the actual time the will was executed. In re Succession of Culotta, 04-1298 (La. App. 5 Cir. 3/1/05), 900 So.2d 137, 143, writ denied, 05-817 (La. 5/13/05), 902 So.2d 1024; Succession of Westerchil, 20-192 (La. App. 3 Cir. 12/9/20), 309 So.3d 790, 796. In Culotta, there was conflicting evidence of the decedent's capacity at the time the will was executed, consisting of the testimony of witnesses who were present at the time the decedent executed the will and testimony from medical experts as to the decedent's medical condition. We concluded that the fact that the decedent suffered from dementia did not prove that he lacked the mental capacity to understand his actions.

SCOTT U. SCHLEGEL JUDGE