SUCCESSION OF STEVE ANTHONY PILET v. << (2025)

This is a succession matter. Appellants, Kathi Pilet McDonald and Dennis Pilet, Sr.,  ¹ appeal the trial court's November 17, 2024 judgment which denied Appellants’ request to reopen the succession of their sibling, Steve Anthony Pilet (“Decedent”) after a copy of a 2004 will was found approximately two years after the succession had been probated as intestate. The trial court determined that Appellants failed to rebut the legal presumption that Decedent revoked the 2004 will because the original will was not located. For the reasons that follow, we affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

Decedent died on June 1, 2014. He was survived by his wife, Cheryl Cosse Pilet (“Decedent's wife”), with whom he had no children, and four siblings, Kathi Pilet McDonald (“Kathi”), Dennis Pilet, Sr., (“Dennis’), Theodore Pilet (“Teddy”), and Randy Pilet (“Randy”) (collectively, the “Siblings.”).

On February 20, 2019, Kathi filed a Petition for Appointment of Administratrix. She represented that Decedent had died intestate. However, she attached a document purporting to be Decedent's testament and stated her belief that the document was not a valid testament as it bore no signatures. Kathi was appointed as Administratrix of the succession. Thereafter, Kathi and Decedent's wife filed a Petition for Possession and Discharge of Administratrix on September 13, 2021. The Petition for Possession stated that the only remaining asset of the succession was the community home between Decedent and Decedent's wife. The court granted Kathi's request to be discharged as Administratrix and rendered a Judgment of Possession which recognized Decedent's wife as his surviving spouse and heir and placed her in possession of his undivided interest in the community home (hereinafter, “the Property”).

Sometime in late 2022, Tracy Petruccelli (“Attorney Petruccelli”), the attorney who drafted the unsigned 2004 will, found a signed and notarized copy in her attic. In the will, Decedent bequeathed his interest in his business, Pilet Distributing, to his godchild, Shane Raimer (“Mr. Raimer”), and his interest in the Property to the Siblings. Thereafter, Attorney Petruccelli notified Kathi that she had discovered a signed copy of Decedent's will. On or about the same time—January 2023—Decedent's wife donated the Property to Appellee Tara Fezekas King (“Ms. King”), her niece.²

On March 14, 2023, Kathi, Teddy, and Randy filed a Petition to Reopen the Succession and execute the copy of the 2004 will.³ They sought to annul the September 2021 Judgment of Possession, asserted claims against the Property, and requested a partition by licitation. In response, Ms. King filed an exception of no right of action and/or alternatively, requested reimbursement for improvements made to the property.

The trial took place on October 9, 2024. The trial court heard testimony from Kathi, Attorney Petruccelli, Dennis, Teddy, Ms. King, and Mr. Raimer.⁴ After the trial on the merits, the trial court denied Ms. King's exception of no cause of action; denied the Siblings’ petition to reopen the succession, and denied Ms. King's request for reimbursement as moot.

This appeal followed by Appellants.

ASSIGNMENT OF ERROR

Appellants’ sole assignment of error contends the trial court committed manifest error when it denied their request to reopen Decedent's succession based on its finding that Appellants failed to rebut the strong presumption that Decedent revoked his will.

STANDARD OF REVIEW

“A trial court's determination as to whether the presumption of revocation has been rebutted is reviewed under the manifest error-clearly erroneous standard of review.” Id. In Rossell v. ESCO, the Supreme Court long established the criteria for the manifest error standard of review as follows:

It is well settled that a court of appeal may not set aside a trial court's or a jury's finding of fact in the absence of “manifest error” or unless it is “clearly wrong,” and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.

․

The appellate review of fact is not completed by reading only so much of the record as will reveal a reasonable factual basis for the finding in the trial court, but if the trial court or jury findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. Arceneaux, supra at 1333, Watson v. State Farm Fire & Casualty Ins. Co., 469 So.2d 967 (La.1985). In applying the manifestly erroneous—clearly wrong standard to the findings below, appellate courts must constantly have in mind that their initial review function is not to decide factual issues de novo.

549 So.2d 840, 844 (La. 1989).

PRESUMPTION OF REVOCATION

Established Louisiana jurisprudence “has adopted the uniformly adhered to rule 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 1132, 1134-35 (La. 1988). This presumption also applies in cases where a copy exists, but the original will cannot be located. Id., 530 So.2d at 1135 (citation omitted). The presumption shifts the burden of producing evidence to rebut the presumption to the proponent of the will. Id. Generally, the presumption of revocation may be rebutted by clear proof (1) that the testator made a valid will; (2) of the contents or substantiality of the will; and (3) that the will was not revoked by the testator. Succession of Foster, 2019-0209, p. 4 (La. App. 4 Cir. 7/31/19), 363 So.3d 505, 509.

DISCUSSION

The trial court found that Appellants met the first two requirements to rebut the presumption of revocation as provided in Foster, 2019-2009, p. 4, 363 So.3d at 509. In particular, the court found that the testimony and evidence supported that the copy of the 2004 offered into evidence was a valid testament. However, the court found that Appellants failed to meet the third requirement—“that the will was not revoked by the testator.” Appellants counter that the trial court erred in finding that the third requirement was not met. Appellants cite Kathi's testimony that Decedent showed her the 2004 will; she read the will; and Decedent told her he was leaving the Property to the Siblings. Appellants also reference Teddy's and Dennis’ testimony that Decedent showed Teddy the 2004 will and told Dennis that he was leaving the Property to his Siblings. Appellants maintain the evidence shows that all the Siblings had a good relationship with Decedent. Additionally, Appellants refer to Attorney Petruccelli's testimony that Decedent desired to leave the Property to his Siblings and her opinion that he would have consulted with her if he had intended to revoke his will. Therefore, Appellants contend they rebutted the presumption of revocation because there was a lack of objective evidence in the record to show Decedent intended to revoke his will. In support this contention, Appellants rely, in part, on Succession of Middlebrooks, where the Third Circuit noted that “[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.” 2023-236, p. 15 (La. App. 3 Cir. 2/27/24), 381 So.3d 298, 307.

We find the instant matter is distinguishable from Middlebrooks in two significant aspects. First, in Middlebrooks, the appellate court applied the manifest error standard of review and found that the trial court was not clearly wrong when it found the daughter presented sufficient evidence to rebut the presumption that her father's will had been revoked. 2023-236, p. 16, 381 So.3d at 308. Contrariwise, the trial court herein found the presumption of revocation was strong. The trial court emphasized testimony from Mr. Raimer and Ms. King that Decedent was a smart, organized, well-established businessman who kept milk crates of important documents in his home, yet no original or signed copy of the 2004 will was found at his home. The trial court noted that Appellants suggested that Decedent's will had been destroyed by Hurricane Katrina. However, Ms. King, who evacuated with Decedent during Hurricane Katrina, testified that she saw Decedent had brought milk crates of important papers with him. The trial court reasoned that a smart businessman would have evacuated with his will, pointing out that the milk crates of Decedent's important documents he evacuated with were later observed in Decedent's home.

Notably, the trial court found that Decedent maintained a close relationship with Attorney Petruccelli. The trial court reasoned that Decedent could have easily contacted her to replace or obtain a signed copy of his will, if indeed it had been destroyed by Hurricane Katrina as suggested by Appellants. The trial court opined that his failure to do so was further evidence that Decedent had revoked the will.

Next, in contrast to Middlebrooks, supra, the trial court also questioned the credibility of certain witnesses. With reference to Appellant Kathi Pilet McDonald, the trial court made the following observations:

She attested under oath in a legal document filed with the Court in 2019 that she believed it [the 2004 will] was not a valid testament, but merely a draft of a legal document which is in direct contravention to her testimony in Court in 2024 wherein she stated that she saw and read the original executed will in 2004. Therefore, she was aware that there was an executed will and she was aware of its contents. Further, in the Petition to Reopen Succession filed in 2023, the Pilet Heirs allege that no will was found after a diligent search and it was believed that Decedent died intestate; however, Kathi Pilet McDonald testified that she did not search for the will. She simply called Ms. Petruccelli for a copy and that was the extent of her actual search for Decedent's will. This raises a credibility issue for Kathi Pilet McDonald with this Court.

Additionally, the trial court found that Appellants’ sibling, Teddy, was not a credible witness. Specifically, the trial court noted that Teddy contradicted the testimony of Mr. Raimer, who the court regarded as the most credible witness. These contradictions included Teddy's testimony questioning the closeness between Decedent and Mr. Raimer; the frequency with which Mr. Raimer took Decedent to his hospital appointments; Teddy's disagreement that Decedent loved his wife during the entirety of their marriage; and Teddy's denial that he received his portion of Decedent's separate property.

In contrast, the trial court found Mr. Raimer's testimony was sincere and truthful. The trial court specifically found Mr. Raimer was very close to Decedent up to his death. The court highlighted Mr. Raimer's testimony that he brought Decedent for cancer treatments and was with Decedent until he died. Notwithstanding their closeness, Decedent never told Mr. Raimer that he had a will wherein Mr. Raimer had been named the executor or discussed the contents of will. Mr. Raimer also testified that Decedent's wife was the most important person in Decedent's life. The trial court described Mr. Raimer's testimony as “independent and not self-serving.” The trial court also noted there was no reliable testimony that anyone had discussed Decedent's will with him in nearly ten years.

“Clear and convincing proof that a person other than the testator destroyed the will without the direction, consent or permission of the testator would be sufficient to overcome the presumption that the testator revoked the will by destroying it.” In re Succession of Doucet, 42,963, p. 7 (La. App. 2 Cir. 2/6/08), 975 So.2d 738, 741. Upon reviewing all the testimony herein, the trial court concluded there was no evidence or testimony to support that Decedent did not destroy the 2004 will other than the “self-serving testimony regarding alleged conversations Decedent had with his siblings about his wishes upon his death.”

Under the manifest error standard of review, it is not within the purview of an appellate court to disturb a trial court's credibility determinations and reasonable inferences even though the appellate court may feel its own evaluation and inferences are as reasonable and it may have weighed the evidence differently. See Rossell v. ESCO, 549 So.2d at 844. Rossell discusses the deference accorded a trial court's credibility determinations as follows:

When findings are based on determinations regarding the credibility of witnesses, the manifest error—clearly wrong standard demands great deference to the trier of fact's findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said.

Id. (citations omitted). Rossell also reiterates the established precept that where there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly wrong. Id. (citations omitted). Rossell stressed that appellate courts must constantly have in mind that their initial review function is not to conduct a de novo review of the factual issues. Id. (citations omitted).

In Doucette, the Second Circuit court could not detect any manifest error and proceeded to confirm the trial court's finding that the evidence did not show one way or the other what happened to the decedent's original will. 42,963, p. 6, 975 So.2d at 742. In a related matter, Succession of Messina, 22-172, pp. 3-4 (La. App. 5 Cir. 11/30/22), 353 So.3d 1009, 1012, the daughter of the testator argued that she had rebutted the presumption of revocation where there was no direct evidence that the testator intended to revoke his olographic will; a copy of the will was found in his office after he suffered a stroke; three witnesses testified that the testator verbally expressed his intent to leave everything to the daughter; and there was no evidence of any other testament. Nevertheless, the Messina Court noted that the trial court had made credibility determinations and held that it could not say that the trial court was manifestly erroneous in finding that the daughter failed to show by “clear proof” that the testator did not revoke his will. 22-172, pp. 9-10, 353 So.3d at 10155-16. Likewise, we reach a similar result as found in Doucette, supra and Messina, supra. Although Appellants argue that a reasonable view of the evidence compels a different outcome, this Court cannot say that the trial court's finding was clearly wrong in determining that Appellants did not offer clear and convincing proof to rebut the presumption of revocation. Consequently, Appellants’ assignment of error is not meritorious.

CONCLUSION

Based on the foregoing reasons, we affirm the judgment.

AFFIRMED

I respectfully dissent from the majority opinion. In my view, the presumption of revocation in this case is weak. The testimony introduced at trial demonstrates that Decedent was a loving, family man. He cared for his wife Cheryl Cosse Pilet who suffered several medical and physical deficits, provided for her financially after his death, and enjoyed a close relationship with his siblings. He also had a special relationship with his godson, Shane Raimer and his family. There was no evidence introduced at trial that Decedent intended to favor any of his family members to the exclusion of the others. Instead, the evidence illustrates that the Decedent intended to provide for each of them upon his death.

I first take issue with the trial court's credibility determination as to Appellant, Kathi McDonald. She petitioned the Court to open Decedent's succession in order to gain ownership of the property she and her siblings had inherited from their parents. According to Tara Fezekas King, Cheryl Pilet “had no desire or need to do a succession because we weren't trying to figure out who was going to get Cheryl's house and when.”¹ Upon the advice of counsel and pursuant to La. C.C.P. art 2853, she attached a copy of the unsigned will to her petition. La. C.C.P. art. 2853 provides:

A. If a person has possession of a document purporting to be the testament of a deceased person, even though the person believes that the document is not the valid testament of the deceased or has doubts concerning the validity of the testament, the person shall present the document to the court with a petition praying that the document be filed in the record of the succession proceeding.

B. A person presenting a purported testament to the court shall not be deemed to vouch for its authenticity or validity, nor be precluded from asserting its invalidity. (emphasis added).

Part B, of the article is particularly relevant here. The law affords Appellant McDonald the right to present the unsigned will to the court without taking a position as to its veracity. Her belief as to validity or invalidity of the document is immaterial. It was the province of the trial court to examine it and make the ultimate determination. In the instant matter, Mrs. McDonald's credibility should not have been challenged for simply complying with the above-cited code article.

She also testified that she did not search Decedent's home for the will, but contacted Decedent's longstanding legal counsel, Ms. Petruccelli for a copy. Tara Fezekas King and Shane Raimer both testified that shortly after Decedent's death, they searched the home and were fully transparent with the Pilet family upon discovering the unsigned copy of Decedent's will. It is unclear what further action Appellant McDonald should have taken vis-à-vis locating Decedent's will.

The trial court also reasoned that Appellants did not offer affirmative evidence that Decedent's will was destroyed during Hurricane Katrina. While the majority is correct that there is no objective evidence that Decedent's will was destroyed in Hurricane Katrina, there is also no objective evidence that he himself destroyed it, or directed someone to destroy it on his behalf. Furthermore, the onus is not on the Appellants to prove that Decedent's will was destroyed by a catastrophic storm, but to establish that the “testator did not intend to and/or did not revoke the will by destroying it.” See Succession of Talbot, 530 So.2d 1132, 1135 (La. 1998).

In a previous succession matter, this court affirmed that the presumption of revocation was weak because there was no evidence in the record that the testator destroyed her testament, that she ever expressed an intention to revoke her will, or that she ever treated any copy of the will as being revoked. Succession of Foster, 19-0209, p. 6, (La. App. 4 Cir. 7/31/19), 363 So.3d 505, 510. In Foster, the evidence established that in addition to the original will Decedent had in her possession, the attorney that drafted her will retained a copy in her possession. Id., 19-0209, p. 7, 363 So.3d at 510. Similar circumstances occurred in the case at bar. As the court reasoned in Foster, it is also possible from Hurricane Katrina to his death, Decedent could have reasonably believed that his attorney still retained a copy of his will if his had been inadvertently destroyed in the storm or somehow misplaced. Id.

The trial court's reliance on the fact that Decedent had not spoken to anyone about the will in ten years somehow indicates that he revoked his will is also problematic. The majority cannot and does not cite to any case law that stands for the proposition that a testator's silence as to his will and its contents for a specified period of time demonstrates an intention to revoke it. Instead, the law requires affirmative conduct on the part of the testator to prove revocation. La. C.C. art. 1607 provides the following:

Revocation of an entire testament occurs when the testator does any of the following:

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

No such conduct on the part of the Decedent is evident from the trial record. Every single witness who testified at trial had something substantial to lose or to gain depending on whether the trial court determined if the signed and notarized copy of Decedent's will was valid, except his attorney, Tracy Petruccelli.

Ms. Petruccelli testified that although Decedent did not speak with her about the will after 2004, if he intended to revoke his testament, he would consult her, just has he had on various legal matters that she continued to assist him with prior to his death. She stated:

He thought he was set. That's right. He thought he had done what he needed to do. He didn't keep changing it. He wasn't a person who kept coming back to change it over and over again. He knew what he wanted, and he wrote it the way he wanted.

The legal relationship between Decedent and Ms. Petruccelli, as well as his relationship with her mother, Mary Petruccelli, spanned thirty years and is well-established in the record. Mary Petrucelli also performed legal work for Decedent and his family. Until his death, he still sought advice from Tracy Petruccelli on various legal matters. It is incongruous that he would consult her as to minor matters, yet not seek her advice on such a drastic legal decision.

Moreover, none of the testimony offered at trial contravenes Ms. Petruccelli's account, not even the testimony of Shane Raimer. While the record is replete with evidence that Shane Raimer, his godson, shared a special relationship with Decedent, Shane was unaware that Decedent made a will. Also, there is no dispute, as Shane testified, that Cheryl Pilet was the most important person in Decedent's life. Decedent's commitment to his wife for over thirty years, as well as his making substantial financial provisions for her after his death, is well documented. Cheryl Pilet was the beneficiary of his life insurance policy, the recipient of the money left in his bank accounts, and she received a substantial amount of cash which he directed Shane to deliver to her upon his death. Further, the legacy in Decedent's will, giving Cheryl Pilet usufruct over the home, guaranteed her housing for the remainder of her life.

Also, his legacy to Shane ensured that his wife would not be burdened with his business, considering her physical and mental ailments. All of these acts by the Decedent support Shane Raimer's contention that Cheryl was the most important person in Decedent's life. These acts also support the testimony that Decedent was a savvy business man, and he was careful and deliberate in crafting his last wishes.

The love Decedent had for his wife does not negate the love he had for his siblings. The two are not mutually exclusive. Most importantly, neither the trial court nor the majority can point to any objective evidence in the trial record that demonstrates that Decedent at the end of his life decided to favor his wife to the exclusion of his siblings, and as a result revoked his will.

Instead, the evidence demonstrates that Decedent clearly communicated his last wishes to his loved ones, while trusting that his legal representative would enforce them. He informed his siblings that he had written a will. Decedent repeatedly told Shane Raimer that he would inherit his share of the business, and made his siblings, other family members and business associates aware of that fact. If Decedent had revoked his will prior to his death to favor his wife over his siblings, his legacy to Shane Raimer, would also have been revoked. There is no evidence entered into the record that would support this outcome. In contrast, the evidence establishes that he had a loving and close relationship with his siblings, his wife, Cheryl Pilet, his godson Shane Raimer, and made provisions for them all.

Most importantly, the record is devoid of any evidence that Decedent expressed an intention to revoke his testament, or that he treated any bequest in his testament as revoked.

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. Succession of Middlebrooks, 23-236, p. 15 (La. App. 3 Cir. 2/27/24), 381 So.3d 298, 307.

For the foregoing reasons, I would reverse the ruling of the trial court and remand to trial court to probate the signed and notarized copy of the Decedent's notarial testament.

FOOTNOTES

1.   In the trial proceedings, Kathi Pilet McDonald, Teddy Pilet, and Randy Pilet petitioned to reopen Decedent's succession. In the present appeal, only Kathi and Dennis appeal the trial court's judgment.

2.   Decedent's wife is now deceased.

3.   In the Petition to Reopen Succession, Dennis was initially named as a defendant. The petition asked the court to compel Dennis to accept or renounce the succession and his purported legacy. As previously referenced, Dennis has since joined in the Petition to Reopen Succession and appears as an appellant in the present matter.

4.   Randy did not testify.

1.   Ms. King opined that the Pilet siblings wanted to take the house from Cheryl Pilet after realizing that Appellant McDonald opened succession. Yet, Cheryl Pilet was the beneficiary of that process, receiving full ownership of the home as a result. Moreover, Appellants did not file the Petition to Reopen Succession until after Cheryl Pilet's death.

Judge Sandra Cabrina Jenkins

MORIAL, J., DISSENTS AND ASSIGNS REASONS HERMAN, J., DISSENTS FOR THE REASONS ASSIGNED BY JUDGE MORIAL