IN RE: SUCCESSION OF Emanuel Joseph CASTELLUCCIO Jr. (2026)

Appellant, Mrs. Diane Hof, seeks review of the 24th Judicial District Court's April 30, 2025 judgment that denied her Petition to Re-Open Succession, to Nullify Judgment of Possession, to Probate Olographic Testament, and for Appointment as Dative Testamentary Administratrix (“Petition”). For the following reasons, we affirm the district court's judgment.

FACTS AND PROCEDURAL HISTORY

Emanuel Joseph Castelluccio, Jr. (“the decedent”) died on April 2, 2024 at age 80. The next day, his estranged daughter, Appellee Tammy Castelluccio, filed a Petition for Simple Possession without Administration, asserting she was the sole heir and he died intestate. On April 4, 2024, the district court placed Ms. Castelluccio in possession of the estate, which included the home in Metairie and checking accounts at Hancock Whitney Bank and Metairie Bank.

On April 12, 2024, Appellant, Diane Hof, filed a Petition to Re-Open Succession, to Nullify Judgment of Possession, to Probate Olographic Testament, and for Appointment as Dative Testamentary Administratrix (“Petition”). On April 15, 2024, she filed the purported original Testament. The writing states: “I E J Castelluccio Will to Diane Y Hof My House and Contents Money in 2 Bank Accts Met Bank + Whitney Bank /s Ej Castelluccio.”

In response, Tammy filed a Motion for Contradictory Hearing and Objection to Ex Parte Motion. After numerous continuances, the hearing took place on April 14, 2025.

Witnesses at the hearing included handwriting expert Adele Thonn; Mrs. Hof; Christopher Rogers (Mrs. Hof's nephew and godson); Ms. Castelluccio; Elwood Bergeron (the decedent's next-door neighbor); and Melissa Martin (the daughter of her father's longtime, also late girlfriend). Key exhibits included a copy of the purported will; Mrs. Hof's entire spiral notebook that contained the will; Apex Home Health records; and Mrs. Hof's deposition.

By stipulation, Adele Thonn was qualified as an expert document examiner. She opined the decedent wrote, dated, and signed the purported will. She observed he usually formatted the date “month, hyphen, day, hyphen, year” as opposed to “05192023” (the purported date of the will). She could not determine if the text of the will was traced.

Mrs. Hof testified that she is married to the decedent's first cousin. She first met Mr. Castelluccio in 1975. She became his caregiver in 2021 or 2022, as his stays at her Madisonville home became more frequent and longer in duration. Mr. Castelluccio eventually put her name on his bank accounts to help him pay bills. She affirmed that he was able to read and write. She explained the decedent told her in June 2023 that he had written a will in her spiral notebook, though she did not see it before his death.

Cross-examination highlighted inconsistencies between her deposition and trial testimony regarding whether she knew about the will at the time of death and her handling of the spiral notebook. She identified entries in the notebook on May 19, 2023 (besides the will) and other dates. Her deposition reflected the decedent's 14-day stay at Seaside Behavioral Health and a May 29, 2023 inquiry about shock treatment. She also explained her shorthand reference to “Met Bank,” which also appears in the will. Mrs. Hof confirmed she gave her nephew Chris $6,000 in cash. She testified that she and Chris went to the bank to withdraw the funds together and he was holding the money for the succession.

Mr. Rogers testified he saw the decedent writing in a spiral notebook around May or June 2023; the decedent told him he had written a will; he was present when the will was found on the day of death; and he laminated the will that night or the next. He admitted withdrawing $75,000 from Hancock Whitney, converting the funds into a cashier's check payable to himself, and depositing the check into a Chase account in his name only. He stated he believed the funds could be used for legal fees but stopped doing so when told otherwise, and his aunt reimbursed him with her money.

Elwood Bergeron was Mr. Castelluccio's next door neighbor for over fifty years. In the last years of the decedent's life, he visited him at home once or twice a week. Mr. Castelluccio would ask him to read his mail, and Mr. Castelluccio would sign the checks Mr. Bergeron wrote out. Mr. Bergeron said that the decedent told him he never liked being at Mrs. Hof's house because he did not care for certain things they did. He testified that Mrs. Hof told him that Mr. Castelluccio could live with her if he signed over the house to her.

Melissa Martin is the daughter of Mr. Castelluccio's late girlfriend. Her mother, Brenda Martin, had been in a relationship with him for over 25 years. Ms. Martin lived with them for a year after Hurricane Katrina. Her mother took care of all the decedent's paperwork. She testified that Mr. Castelluccio could not read or write. She witnessed him being unable to read; he would ask for help reading a menu. She only ever saw the decedent sign his name and never saw him write anything. After her mother passed, she would try to see him a couple of times a month; he reminded her that he needed help because he could not read or write. She confirmed that he could sign checks, drive, and make purchases on his company's behalf.

Tammy Castelluccio testified that Mrs. Hof started caring for her father after COVID, while he was in and out of the hospital. She explained that she and her father were estranged at the time of his death and she was not comfortable visiting the Hofs’ home. She testified her father could copy/trace things, but he never wrote anything as long as the will on his own. She testified further that he could not make up the words of a will; “he could read somewhat, but he was not very clear about it,” and he avoided fast-food drive-thrus. Her father did not even write out his own invoices (he was a painter); Ms. Castelluccio wrote out his bills after his girlfriend Brenda Martin died. At that time, she asked her father to make a will, but he replied he would never get a will. Mr. Castelluccio renewed his driver's license in 2024 with no restrictions, but Ms. Castelluccio did not think literacy was required for that process.

Ms. Castelluccio stated she called her father every day from work. She testified that if Mrs. Hof would come into the room while they were talking, he would say “ ‘Gotta go,’ and hang up”. Mr. Castelluccio wanted to go home to Metairie but liked being with Mrs. Hof because she would stay up all night talking to him. When she saw him last, Ms. Castelluccio told her father she hoped that they were not “trying to make him sign anything”. He responded that he was not signing anything over, he was leaving her the house, and nothing was going to change. Ms. Castelluccio agreed that her father understood her, was “cognitively present”, and knew who she was and where he was.

Ms. Castelluccio confirmed six thousand dollars was taken out of a bank account that had nine thousand dollars in it previously. Mrs. Hof also wrote a check against the account to her attorney to open the succession. Ms. Castelluccio then put a freeze on that account.

The court then took the matter under advisement. On April 30, 2025, the district court issued its judgment in favor of Ms. Castelluccio. Mrs. Hof's Petition was denied and dismissed with prejudice. The court refused to re-open the succession, probate the olographic testament, appoint Mrs. Hof as Dative Testamentary Executrix, or nullify the Judgment of Possession in favor of Ms. Castelluccio and order her to return all property to the succession. The district court also found the Testament was invalid.

In its Reasons for Judgment, the court explained that although it was convinced that the Will was “entirely written, signed and dated in the Testator's hand,” it had serious concerns about the Testator's intent and comprehension at the time he signed the will. Further, the court found that Ms. Castelluccio proved by clear and convincing evidence that her father lacked testamentary capacity and was subject to undue influence at the time he wrote the olographic will, and the document lacked the “requisite testamentary intent.”

In response, Mrs. Hof timely filed a Motion for Suspensive Appeal, which the district court granted. She prays that this Court reverses the district court's judgment and remands the matter for further proceedings.

ASSIGNMENTS OF ERROR

1. The trial court was manifestly erroneous when it found Mr. Castelluccio's olographic will lacked testamentary intent based on the language of the document.

2. The trial court was manifestly erroneous when it found Mr. Castelluccio lacked testamentary capacity at the time he wrote the Testament.

3. The trial court committed legal error in considering undue influence after finding a lack of testamentary capacity, allowing de novo review. Alternatively, the trial court was manifestly erroneous when it found that Mr. Castelluccio was subject to undue influence.

Mrs. Hof argues on appeal that that the decedent's May 19, 2023 will, which begins “I EJ Castelluccio Will To Diane Y Hof’ ”, manifests Mr. Castelluccio's testamentary intent via the use of the word “Will” and bequeaths to her his home in Metairie and its contents and the money from two bank accounts. Further, she contends that Tammy failed to prove by clear and convincing evidence that Mr. Castelluccio lacked testamentary capacity or was subjected to undue influence at the time he executed his testament. Ms. Hof also claims the trial transcript does not contain any findings of fact regarding undue influence. She also avers that it was legal error for the district court to consider whether Mr. Castelluccio was affected by undue influence at the time the will was executed after it found that he lacked testamentary intent.

Tammy counters that Mrs. Hof was impeached several times as she testified and the record supports the court's reasonable findings that the decedent lacked testamentary capacity and was subjected to undue influence when he attempted to execute an olographic testament. Two weeks before the decedent wrote the will, medical records show Mrs. Hof reported he had “poor coping skills and poor decision-making [skills]”. She stresses that her father was admitted to a mental rehabilitation facility weeks before the purported will was executed. The decedent's daughter argues that Mrs. Hof could not reconcile her testimony at trial with her deposition testimony and the medical records. She avers that Mrs. Hof refused to admit that she had the decedent admitted to inpatient care because of his depression and suicidal ideations. Further, Ms. Castelluccio avers that the trial court did not commit any legal error that would change our standard of review from manifest error to de novo.

LAW AND DISCUSSION

The decedent died in April 2024. A valid olographic will must be written, signed and dated in the handwriting of the testator.¹ Succession of Ally, 22-16, p. 10 (La. App. 5 Cir. 12/31/22), 354 So.3d 1248, 1255. The intent of the testator controls the interpretation of the testament. La. C.C. art. 1611(A).

The Decedent's Lack of Testamentary Capacity

Capacity to donate mortis causa must exist at the time the testator executes the testament. La. C.C. art. 1471. With respect to the issue of capacity to execute a will, the jurisprudence is clear that “testamentary capacity is always presumed and the burden is on the party attacking the validity of the will to prove a lack of capacity at the time the will was executed.” Succession of Pedescleaux, 21-611, p. 15 (La. App. 5 Cir. 5/11/22), 341 So.3d 1224, 1235.

To have testamentary capacity, a person must be able “to comprehend generally the nature and consequences of the disposition that he is making.” La. C.C. art. 1477; Succession of Gendron, 17-216, p. 7 (La. App. 5 Cir. 12/27/17), 236 So.3d 802, 807–08. Considering Article 1477, to state a cause of action for testamentary incapacity, the petition should include allegations that the decedent was unable to understand the nature and consequences of his actions on the day he made the will. Id.

“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 Barattini, 11-752 (La. App. 5 Cir. 3/27/12), 91 So.3d 1091, 1095. To prove a matter by clear and convincing evidence, the party must demonstrate that the existence of a disputed fact is highly probable, that is, much more probable than its nonexistence. Id. The issue of capacity is factual in nature. Id. The court may consider medical evidence, other expert testimony and lay witness testimony. Id. As such, there is no “litmus paper” test to apply in the evaluation of mental capacity. Id.

A testator's ability to read is an element of testamentary capacity. In re Succession of Lanasa, 06-561, p. 11 (La. App. 5 Cir. 12/27/06), 948 So.2d 288, 295, writ not considered 07-182 (La. 3/16/07), 952 So.2d 686, and writ denied, 07-182 (La. 5/18/07), 957 So.2d 152, citing Succession of Graham, 01-676, p. 5 (La. App. 5 Cir. 11/27/01), 803 So.2d 195, 197. Whether a testator can read is a question of fact. Id.

This court has announced a two-part test for the reversal of a factfinder's determinations:

1) The appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and

2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous).

Succession of Bradley, 20-168, p. 6 (La. App. 5 Cir. 12/2/20), 309 So.3d 397, 403, citing Mart v. Hill, 505 So.2d 1120, 1127 (La. 1987). Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder's, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989).

Here, Mrs. Hof's deposition testimony regarding Mr. Castelluccio's condition and his execution of the purported olographic will is inconsistent with her testimony at trial and the medical records. Further, Mrs. Hof's and Mr. Rogers's accounts of how the will was written and later discovered are not consistent. There are discrepancies regarding when the will was written, whether Mrs. Hof was present when the will was written, and whether she knew the decedent had written a will. Mr. Rogers testified that the will was discovered the day Mr. Castelluccio died. Mrs. Hof testified during her deposition that she found the will “I don't know, two, three, four days, five days” after he passed. She stated during her deposition and on the stand that she had been advised to remove the money from his accounts. Furthermore, she testified at her deposition that she did not remember the name of the bank she and her nephew deposited the cashier's check for over $75,000 and opened a joint account. Mrs. Hof and Mr. Rogers’ combined testimony does not present a clear story regarding Mr. Castelluccio's testamentary intent or his capacity during the weeks leading up to the time he wrote the will. We cannot say that the trial court erred when it did not credit their testimony. See Succ. of Bradley, supra.

Further, the decedent's daughter's and neighbor's testimony provided competent evidence for the district court to reasonably conclude that the decedent's testamentary intent was not to leave his house and over $80,000 to Mrs. Hof. Ms. Castelluccio testified that her father told her that she would get the house when he died. Mr. Bergeron testified that Mrs. Hof told him Mr. Castelluccio could live with her if he signed over his house in Metairie to her. Their testimony also provided a reasonable basis for the district court to find that the decedent could not read or write or at least was not literate enough to write the will as it appears without assistance. Therefore, we find that the trial court did not err when it found Ms. Castelluccio proved by clear and convincing evidence that the decedent lacked testamentary capacity.

Undue Influence

To assert an undue influence claim, petitioners should assert facts indicating that a person exercised psychological domination over the decedent to the extent that the decedent could not help but do what the dominating person wanted. Succession of Gendron, 17-216, p. 8 (La. App. 5 Cir. 12/27/17), 236 So.3d 802, 808. For a will to be declared null based on undue influence, there must be “proof that it is the product of influence by the donee or another person that so impaired the volition of the donor as to substitute the volition of the donee or other person for the volition of the donor.” La. C.C. art. 1479; Id.

A person who challenges a donation because of fraud, duress, or undue influence, must prove it by clear and convincing evidence. La. C.C. art. 1483; Succession of Gendron, 19-206, p. 12 (La. App. 5 Cir. 4/28/21), 347 So.3d 988, 997–98, citing Succession of Bradley, 309 So.3d at 406. Undue influence has a subjective standard, which is difficult to define, and thus prove. In re Succession of Culotta, 04-1298 (La. App. 5 Cir. 3/1/05), 900 So.2d 137, 144, writ denied, 05-817 (La. 5/13/05), 902 So.2d 1024. Courts have interpreted undue influence to mean the exercise of psychological domination over a person to the extent that the person cannot help but do what the dominating party wishes. Id. When seeking to annul a donation on the basis of undue influence, it is not sufficient to merely show that the donee exercised some degree of influence over the donor; instead, the challenger must show that the donee's influence was so substantial that the donee substituted his or her volition for that of the donor. Succession of Bradley, supra.

“The trial court's finding of, or failure to find, undue influence is fact intensive, and such a finding cannot be disturbed on appeal in the absence of manifest error.” Succession of Braswell, 56,133, p. 16 (La. App. 2 Cir. 4/9/25), 409 So.3d 522, 532, writ denied, 25-584 (La. 9/16/25), 416 So.3d 476, citing In re Succession of Gilbert, 37,047 (La. App. 2 Cir. 6/5/03), 850 So. 2d 733, writ denied, 03-1887 (La. 11/7/03), 857 So. 2d 493. “Reversal is warranted only if the appellate court finds that no reasonable factual basis for the trial court's finding exists in the record and that the finding is clearly wrong.” Id. “To annul a testamentary disposition on the basis of undue influence, the influence must be operative at the time the testament is executed.” Id. When the evidence shows that the execution of a testament was well within the discretion of the testator, the court should find that the testator's volition has not been substituted by the volition of any donee. Id.

In this case, Ms. Castelluccio provided evidence that Mrs. Hof controlled Mr. Castelluccio's finances and coordinated his medical care. Mrs. Hof also knew he was depressed and suicidal at times, and he hated being alone. Ms. Castelluccio also testified that she called her father every day, but he would stop speaking if Mrs. Hof entered the room. Although Mrs. Hof said that she encouraged Mr. Castelluccio to contact his daughter, Ms. Castelluccio testified she did not feel comfortable visiting her father at the Hofs’ home. Ms. Castelluccio also said that Mrs. Hof's husband did not make her father feel welcome in their home. Mrs. Hof also told Mr. Bergeron that the decedent's ability to stay with her family was dependent on him signing over his home on Green Street in Metairie to her.

Further, Mr. Castelluccio's late girlfriend's daughter testified that the decedent himself told her he could not read and write, and she only saw him write his signature. Ms. Castelluccio explained that her father would get flustered trying to write out a check by himself and it would take him 45 minutes to do so; she stated that he could trace and copy, but there was no way he would be able to “complete [the] verbiage [of the will].” Ms. Castelluccio also testified that her father was adamant that he did not want to execute a will after Brenda Martin died. Considering the foregoing, we find that the district court did not err when it found that Ms. Castelluccio proved by clear and convincing evidence that her father was under undue influence when he wrote the purported will.

We also find that the district court did not commit legal error in considering whether the decedent was the subject of undue influence once it determined that he did not have the capacity to execute a valid olographic will. Ms. Castelluccio's Objection alleged both a lack of capacity and undue influence and we find no authority to suggest the district court erred in considering all her claims. In finding no legal error on the district court's part, we decline to perform a de novo review and find these assignments of error have no merit.

DECREE

The district court's April 30, 2025 judgment is affirmed.

AFFIRMED

FOOTNOTES

1.   The decedent died April 2, 2024. We observe the Editors’ Notes advise the provisions of La. C.C. art. 1575 outlining the requirements of form for an olographic will “shall apply both prospectively and retroactively and shall be applied to all claims existing and pending on [August 1, 2025, the effective date of Acts 2025, No. 30, § 1]. However, the form of the purported olographic will is not at issue in this case.

JOHNSON, J.