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Docket Number

No. 83-CA-716.

Attorney(S)

Bert K. Robinson, Wray, Robinson Kracht, Baton Rouge, for Janet Norton Baum, et al. Frank L. Dobson, Baton Rouge, for Succession of Coman Simmons Norton.

Judges

BOUTALL, Judge.

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Smart Summary

Court of Appeal of Louisiana, Fifth Circuit — Summary

Factual and Procedural Background

Coman Simmons Norton, a resident of Jefferson Parish, died on November 22, 1981. A five-page statutory will, executed November 11, 1980 in the office of attorney Drew McKinnis, was offered for probate on November 30, 1981; probate was approved and letters testamentary issued to the executrix, Caroline Christine Norton. The will left two-thirds of the estate to five children, the disposable portion to Caroline Norton, established a trust for two minors with Caroline as trustee, and appointed Caroline as executrix. A codicil on the fifth page deleted "Article III, Disposable Portion" but affirmed other provisions.

Janet Ferracci Baum (the decedent's divorced third wife), joined later by her then-husband (the adoptive father of her children), filed a timely petition to annul probate and sought reinstatement of an earlier will dated November 27, 1978. The opponents alleged facial irregularities between pages one through four and page five of the testament: that not all signatures were affixed at the same time, that page five had been typed on a different typewriter, and that the first four pages had been stapled to the fifth at a later time. The notary, Drew McKinnis, predeceased Norton in early 1981.

Trial on the merits occurred March 21, 1983. On May 4, 1983 the trial court rendered judgment upholding the validity of the will and dismissed the opponents' suit at their cost. The instant appeal challenges that judgment. The Court of Appeal affirmed.

Legal Issues Presented

Whether the proponent of the testament (the executrix) carried her burden of proof to establish the authenticity and validity of the will, sufficient to overcome evidence of alleged irregularities when she had possession of the document immediately before submitting it to probate.
Whether the execution and formalities of the will met the statutory requirements (as referenced in LSA-R.S. 9:2442 and La.C.C.P. 2932) in light of the contested differences between pages of the instrument.
Whether the evidence produced by the opponents (including a forensic document examiner) was sufficiently compelling to rebut the presumption of validity of the testament.

Arguments of the Parties

Appellants' (Opponents') Arguments

The will displayed facial and physical irregularities indicating possible alteration or substitution: differences in signatures between page five and pages one through four, differing typefaces and paper color, photocopying anomalies, and mismatched staple holes.
They suggested that the fifth page was original and notarized earlier and that the first four signed pages had been substituted for the original first four pages sometime between October 8, 1981 and November 22, 1981, after the notary's death.
The appellants relied heavily on the testimony of a forensic document examiner to show inconsistencies and to argue that the proponent's possession of the will immediately prior to probate supported an inference of tampering or substitution.

Proponent's (Executrix's) Arguments

Witness testimony (two secretaries and Caroline Norton) established that the testator, the notary, the witnesses and the testator were present and that Norton signed five pages consecutively at one sitting with no interruption.
Caroline Norton had access to and checked out the original will from Mr. McKinnis's law firm after the notary's death, documented by a receipt; the implication of substitution was disputed.
Explanation for discrepancies: Caroline Norton testified she reviewed the draft and asked Mr. McKinnis to remove an extra bequest to herself; rather than retype the whole document, the attorney substituted a new fifth page and added a codicil — an explanation that purportedly accounts for differences in typeface, paper color, and other physical variances noted by the document examiner.
The proponents emphasized that witnesses are not required to recall the exact contents of documents they witness signing, so their inability to swear the text of the four pages was immaterial.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Succession of Morgan, 257 La. 380, 242 So.2d 551 (1970)	Establishes that the proponent of a disputed testament attacked within three months of probate bears the burden of proving authenticity and compliance with formal requirements; references La.C.C.P. 2932.	The court cited Morgan to frame the proponent's burden of proof but also to note the strong presumption of validity that accompanies testaments.
Succession of Kilpatrick, 422 So.2d 464 (La.App. 2d Cir. 1982), writs denied 429 So.2d 126 (La. 1983)	Illustrates that even where there is strong testimony on both sides regarding signing, the formalities may be found satisfied and the testament upheld.	The court relied on Kilpatrick as a comparative example where appellate review affirmed that execution formalities were met despite contested testimony; the present court reached a similar conclusion.
Succession of Staggers, 254 So.2d 289 (La.App. 4th Cir. 1971)	Supports the principle that proof of non-observance of formalities must be exceptionally compelling to rebut the presumption of validity.	Cited to underscore that the opponents' proof must be exceptionally strong to overcome the presumption of a valid will; the court found the evidence presented was not sufficiently compelling.
Succession of Dauzat, 212 So.2d 523 (La.App. 3rd Cir. 1968)	Also cited for the high standard required to overcome the presumption of validity of testaments.	Used in conjunction with other cases to demonstrate the appellate courts' stance that mere irregularities or contested testimony will not normally suffice to rebut the presumption of validity.
Riedel v. Sharp, 386 So.2d 1066 (La.App. 3rd Cir. 1980)	Holds that witnesses are not required to recall the contents of the documents they sign.	The court applied Riedel to reject the appellants' argument that the secretary-witnesses' inability to swear that the four pages were exactly the ones they saw sign was fatal to the proponents' case.

Court's Reasoning and Analysis

The court began by stating the controlling procedural rule: when a testament is attacked within three months of probate, the proponent bears the burden of proving authenticity and formal compliance (citing La.C.C.P. 2932 and Succession of Morgan). However, the court emphasized the well-established presumption of validity of testaments and the high threshold required to rebut that presumption.

The appellants presented a forensic document examiner who identified multiple physical inconsistencies between page five and pages one through four: extra staple holes on the fifth page, variations in the formation of some signature letters, differences in margins, typeface, paper color, and photocopying characteristics. The examiner suggested the four pages might have been taken from an older will.

The court evaluated the testimonial evidence supporting the will's validity. Two secretaries and Caroline Norton testified that they, Mr. Norton and Mr. McKinnis were present when Norton signed the five pages consecutively at one sitting without interruption. The court treated the witnesses' inability to swear to the precise text of the four pages as immaterial in light of Riedel v. Sharp, noting witnesses need not recall document contents.

The court found the proponents' explanation for the physical disparities credible: Caroline Norton had reviewed the draft and requested removal of an extra bequest to herself; rather than retype the entire instrument, the attorney substituted a new fifth page and added a codicil. That explanation accounted for the differing typeface and paper color identified by the document examiner.

Applying the law that the presumption of validity is strong and that proof of nonobservance of formalities must be exceptionally compelling, the court concluded that the opponents had not produced sufficient evidence to overcome the presumption that the document submitted at probate was the same testament signed by Norton on November 11, 1980. The court also noted there was no plausible theory presented showing the alleged substitution would have benefited Caroline Norton to the detriment of Mrs. Baum; in fact the codicil had removed an extra portion from Caroline Norton.

Holding and Implications

Holding: The Court of Appeal affirmed the trial court's judgment upholding the validity of the will. AFFIRMED.

Implications:

The probate of the November 11, 1980 five-page statutory will (with the fifth-page codicil) remains valid and effective as probated; the executrix's letters testamentary stand.
The appellants' action to annul probate was dismissed, and the appellants were ordered to bear the costs (the judgment was affirmed at appellants' cost).
The opinion applies established principles—proponent's burden under La.C.C.P. 2932, the presumption of testamentary validity, and the high evidentiary threshold required to rebut that presumption—but does not announce a new rule of law or broader precedent beyond affirming application of these precedents to the facts of this case.

Case Caption and Citation Information (from the opinion): The Succession of Coman Simmons Norton, No. 83-CA-716, Court of Appeal of Louisiana, Fifth Circuit, May 30, 1984. Appeal from Twenty-Fourth Judicial District Court, Parish of Jefferson, Judge Frank V. Zaccaria.

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THE SUCCESSION OF COMAN SIMMONS NORTON.

BOUTALL, Judge.

This appeal arises from a succession proceeding in which a divorced wife of the decedent seeks to annul a statutory will and set aside probate of the will.

Coman Simmons Norton, a resident of Jefferson Parish, died at Ochsner Foundation Hospital on November 22, 1981. A will was offered for probate on November 30, 1981, approved, and letters testamentary issued to the executrix. At the time of his death Mr. Norton was single and divorced from his third wife, Janet Ferracci Baum, who had remarried. Three daughters, born of his first marriage, and a son and daughter, minors at the time of his death, born during his marriage to Janet Baum, were his only descendants.

Mr. Norton owned interests in real estate and various businesses, the largest of which was a Ford agency in Baton Rouge. Sometime during the latter part of 1980 a conflict occurred between Mrs. Baum and Mr. Norton, during which Mrs. Baum sought to unseat her ex-husband as president of the corporation that owned the Ford agency. In order to prevent his exwife from gaining control of the corporation either as a legatee herself or indirectly through the inheritances of her two minor children, Mr. Norton undertook to make new testamentary dispositions.

On November 11, 1980, Mr. Norton executed a five-page statutory will in the office of Drew McKinnis, his long time attorney, in Baton Rouge. In it he left two-thirds of his estate to his five children and the disposable portion to a daughter, Caroline Christine Norton, born of his first marriage. He established a trust to receive the two minors' shares, of which Caroline Norton would be trustee. He also appointed Caroline Norton executrix of the will. On the fifth page, below the attestation clause, is a codicil that deletes "Article III, Disposable Portion" but affirms all other provisions of the will, followed by a second attestation clause, all duly signed.

Mrs. Baum filed timely a petition to annul probate, in which she sought to reinstate a will dated November 27, 1978, that left the disposable portion to herself and a special bequest to her son, Coman Simmons Norton, Jr. An amended petition joined her husband, the adoptive father of her children, as plaintiff. The attack is based on certain facial differences between the first four pages and the fifth page of the testament. The opponents allege that not all signatures were affixed at the same time; that the fifth page was prepared on a different typewriter from the one used for the first four; that the first four pages and the fifth page were not part of one act, the first four having been stapled to the fifth page at some time after the execution of the fifth page. The notary, Drew McKinnis, predeceased Mr. Norton early in 1981.

An allegation that the notary's bond was not in force was dropped later.

Trial of the merits was heard on March 21, 1983, and on May 4, 1983 the trial judge rendered judgment upholding the validity of the will and dismissing the suit of its opponents at their cost.

The five issues raised by the appellant may be summarized as follows: did the proponent carry her burden of proof of the authenticity and validity of the will, sufficient to overcome the evidence of irregularities produced by the opponent, when she had the document in her possession immediately before submitting it to probate? In his reasons for judgment the trial judge said that "there has not been sufficient proof [of invalidity] shown to the Court to overcome the positive evidence presented as to the validity of the will." We agree.

Caroline Norton, the executrix, is an attorney and was well acquainted with Mr. McKinnis, discussed her father's affairs with him, and used his library for research on occasion. After McKinnis's death, in October, 1981, she checked out the original of her father's will from Mr. McKinnis's law firm, as evidenced by a receipt. The opponents' implication is that during the period October 8, 1981 to November 22, 1981 four signed pages were substituted for the original four, and then reattached to the original notarized page five.

The appellant's entire case relies on the testimony of a forensic document examiner, who studied the will thoroughly. He noted a number of inconsistencies between page five and pages one through four: Ten staple holes on the first four pages coincided with holes on the fifth page, but there were six extra holes on that page. Although Mr. Foley was certain that the same person signed all five pages, he found consistency in Norton's signature from page one through page four, but the signatures on page five showed deviations in the formation of some letters. He testified that a time interval between the signatures as alleged by the appellants could account for the differences, but admitted that a mere change in writing position could have caused the variation in signatures. Mr. Foley further noted differences in the margins and type face, the paper color, and photocopying differences on the final page as compared with the first four, and suggested that the first four pages had been taken from an older will.

The law is clear that the proponent of a disputed testament attacked within three months of probate bears the burden of proving its authenticity and compliance with all the formal requirements. La.C.C.P. 2932. Succession of Morgan, 257 La. 380, 242 So.2d 551 (1970). At the same time there is a strong presumption of validity of testaments and the validity of a will is to be upheld wherever possible. Succession of Morgan, supra, and cases cited therein. The court said in Succession of Kilpatrick, 422 So.2d 464 (La.App. 2d Cir. 1982), writs denied 429 So.2d 126 (La. 1983), at 475:

". . . even though the burden rests upon the proponents, validity of the testament is still presumed until the contrary is established. Proof of non-observance of formalities must be exceptionally compelling in order to rebut the presumption of validity of testaments. Succession of Staggers, 254 So.2d 289 (La.App. 4th Cir. 1971); Succession of Dauzat, 212 So.2d 523 (La.App. 3rd Cir. 1968)."

In Kilpatrick, in the face of strong testimony for both sides on the signing of a will by a terminally ill man, the court held that the formalities had been met and the court of appeal affirmed.

There is no question that the form of the will meets the requirements of LSA-R.S. 9:2442. As to its execution, the two secretaries and Ms. Norton all testified that they, Mr. Norton and Mr. McKinnis were all present during the signing and that the testator signed five pages consecutively at one sitting, with no interruption. The appellants make much of the secretary-witnesses' inability to swear that the four pages in question were the very ones they saw Mr. Norton sign. This argument is without merit, as witnesses are not required to recall the contents of the documents they sign. Riedel v. Sharp, 386 So.2d 1066 (La.App. 3rd Cir. 1980).

The dissimilarities in typing and paper color are plain to the untrained eye, and are freely acknowledged by the proponents of the will. Ms. Norton testified that she had reviewed the prepared will before her father saw it and suggested to Mr. McKinnis that the extra bequest to herself was unnecessary and that it be removed. Rather than rewrite the entire document, the attorney chose to substitute a new fifth page and delete the bequest by adding a codicil. This explanation fully accounts for the differences in type face and page color noted by the expert document examiner.

There is no requirement in law that each page of a testament must be identical and typed at the same time, only that the document be complete at the time it is signed. The opponents of the will before us have produced no evidence to prove that the document submitted for probate in 1981 is different in any way from the document signed by the testator on November 11, 1980 and witnessed by the three persons who testified. We note further that the opponents made no speculation as to why the alleged substitution of pages would have benefited Ms. Norton to the detriment of Ms. Baum, the ex-wife, who clearly would not have been named in any post-separation will. To the contrary, the codicil denied an extra portion to Ms. Norton to the benefit of Ms. Baum's children.

Accordingly, the judgment appealed from is affirmed at appellants' cost.

AFFIRMED.

SUCCESSION OF NORTON