Opinion
NUMBER 2017 CA 1133
02-21-2018
LEON V. IMPSON, JR. AS AGENT FOR EBBA BABIN IMPSON v. THE UNOPENED SUCCESSION OF BETTY JEAN IMPSON
Robert H. Harrison, Jr. Watson, LA Counsel for Plaintiff/Appellant, Leon V. Impson, Jr. Matthew H. Todd Sherman Q. Mack Albany, LA Counsel for Defendants/Appellees, Michael Impson and Jason Impson
NOT DESIGNATED FOR PUBLICATION Appealed from the Twenty-First Judicial District Court In and for the Parish of Livingston, Louisiana
Docket Number 147,132
Honorable Brenda Bedsole Ricks, Judge Presiding
Robert H. Harrison, Jr.
Watson, LA Counsel for Plaintiff/Appellant,
Leon V. Impson, Jr. Matthew H. Todd
Sherman Q. Mack
Albany, LA Counsel for Defendants/Appellees,
Michael Impson and Jason Impson BEFORE: WHIPPLE, C.J., McDONALD, AND CHUTZ, JJ. WHIPPLE, C.J.
In this appeal, plaintiff challenges the trial court's judgment, dismissing his claims seeking revocation of an inter vivos donation made by his mother prior to her death and a declaration that his mother's changes of beneficiary on two life insurance policies were null and without legal effect. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
By Act of Donation dated May 14, 2014, Ebba Babin Impson donated her home in Denham Springs, Louisiana, to her daughter, Betty Jean Impson, reserving unto herself a lifetime usufruct over the property. A few months later, on September 9, 2014, Betty Jean died.
Thereafter, on December 18, 2014, upon learning of the Act of Donation, plaintiff, Leon Impson, Jr., Ms. Ebba's son and Betty Jean's brother, instituted this suit against Betty Jean's unopened succession, seeking to revoke the May 14, 2014 Act of Donation on the bases that his mother lacked the mental capacity to comprehend generally the nature and consequences of the disposition and that the donation was procured by undue influence. Jason and Michael Impson, Betty Jean's sons, answered the petition, alleging that they had been appointed co-administrators of Betty Jean's succession and generally denying the allegations of the petition.
On March 21, 2014, Ms. Ebba had executed a Power of Attorney in favor of plaintiff, intended to survive her incapacity, granting plaintiff broad authority including the authority to initiate litigation on her behalf. Thus, plaintiff brought this suit against Betty Jean's unopened succession in his capacity as agent for Ms. Ebba.
Thereafter, on June 11, 2015, following Ms. Ebba's death, Leon filed a supplemental and amending petition, naming Jason and Michael as additional defendants, both in their individual capacities and in their capacities as co- administrators of Betty Jean's succession. In the supplemental and amending petition, Leon further sought a declaration that acts by Ebba on May 21, 2014, changing the beneficiary designation of two separate life insurance policies from her four children to Betty Jean, and on November 14, 2014, changing the beneficiary designation from Betty Jean to Jason and Michael (following Betty Jean's death), were legal nullities and without any legal force and effect due to Ebba's inability to comprehend the nature and consequences of those acts.
Ms. Ebba died on March 31, 2015. Although not set forth in the supplemental and amending petition, counsel for Leon represented at trial that Leon had been appointed the administrator of Ms. Ebba's estate and was proceeding in that capacity. See LSA-C.C.P. art. 685 ("the succession representative ... is the proper plaintiff to sue to enforce a right of the deceased or of [her] succession").
Following a bench trial in this matter, the trial court signed a judgment dated May 10, 2017, dismissing with prejudice all claims raised by Leon as administrator of Ms. Ebba's succession. From this judgment, Leon appeals, contending that the trial court erred in disregarding the expert medical testimony regarding Ms. Ebba's mental capacity and in finding that he failed to prove Ms. Ebba's lack of capacity by clear and convincing evidence.
While the matter was assigned to Judge Brenda Bedsole Rick's division, the trial herein was actually conducted by Judge Elizabeth Wolfe who, it is undisputed, was sitting ad hoc for Judge Ricks. Although a judgment signed by a judge who did not preside over the trial is fatally defective and does not constitute a final judgment over which this court can exercise appellate jurisdiction, see Employers Nat. Ins. Co. v. Workers' Comp. Second Injury Bd., 95-1756 (La. App. 1st Cir. 4/4/96), 672 So. 2d 309, 312; Herrmann v. Hernandez, 2010-2337 (La. App. 1st Cir. 6/10/11), 2011 WL 3242298, because Judge Wolfe, through written reasons for judgment, had stated an affirmative intent to sign a judgment and failed to do so, Judge Ricks was empowered to sign the judgment. See LSA-R.S. 13:4209(B)(2); Donahue v. Donahue, 2016-1853 (La. 11/18/16), 206 So. 3d 858 (per curiam).
DISCUSSION
On appeal, Leon challenges the trial court's finding that he failed to prove Ms. Ebba's lack of capacity both as to her execution of the May 14, 2014 Act of Donation of her home to her daughter Betty Jean and as to the May and November 2014 changes of beneficiary on two life insurance policies, We will address the Act of Donation separately from the changes of beneficiary on the life insurance policies.
May 14 , 2014 Act of Donation
Capacity to donate inter vivos must exist at the time the donor makes the donation. LSA-C.C. art. 1471. To have capacity to make a donation inter vivos, a person must be able to comprehend generally the nature and consequences of the disposition that she is making. LSA-C.C. art. 1477. A person who challenges the capacity of a donor must prove by clear and convincing evidence that the donor lacked capacity at the time the donor made the donation inter vivos. LSA-C.C. art. 1482(A). What constitutes clear and convincing evidence requires more proof than a preponderance of the evidence, but less stringent proof than the criminal standard of beyond a reasonable doubt. Succession of Christensen, 94-0263 (La. App. 1st Cir. 12/22/94), 649 So. 2d 23, 27, writ denied, 95-0234 (La. 4/7/95), 652 So. 2d 1346. To prove a matter by clear and convincing evidence means to demonstrate that the existence of a disputed fact is highly probable, that is, much more probable than its nonexistence. Fernandez v. Hebert, 2006-1558 (La. App. 1st Cir. 5/4/07), 961 So. 2d 404, 408, writ denied, 2007-1123 (La. 9/21/07), 964 So. 2d 333.
The issue of capacity is a question of fact. The court may consider medical evidence, other expert testimony, and lay testimony. As such, there is no "litmus-paper test" to apply to the evaluation of mental capacity. LSA-C.C. art. 1477, Revision Comments—1991, comment (f). The trial court's factual findings as to the issue of capacity will not be disturbed on appeal unless clearly wrong or manifestly erroneous. Succession of Werner v. Zarate, 2007-0829 (La. App. 1st Cir. 12/21/07), 979 So. 2d 506, 511.
The evidence at trial establishes that Ms. Ebba's cognitive ability did decline in the later years of her life. She had been diagnosed with dementia as early as 2005 and had been prescribed Aricept. At around that time, Ms. Ebba's daughter Betty Jean took responsibility for paying Ms. Ebba's bills and for all of her business. Nonetheless, Ms. Ebba continued to live on her own for several years after her diagnosis and also continued to drive and engage in her normal activities, such as going to garage sales.
Leon testified that he thought Ms. Ebba continued to drive until 2007.
Eventually, in November 2009, Ms. Ebba's daughter Betty Jean moved in with her. According to Leon, Ms. Ebba needed someone to live with her at that point because the family had noticed a "few little ... discrepancies," such as when they would visit her she would have the heater "wide open." While Ms. Ebba remained capable of performing the activities of daily living, such as walking, dressing herself, feeding herself, and going to the bathroom by herself even as of 2014, her condition continued to deteriorate, and she became more dependent on Betty Jean over time to do things for her such as preparing her food and helping her with personal hygiene.
The record also reveals that another reason that Betty Jean moved in with Ms. Ebba was that Betty Jean had lost her job.
Betty Jean continued to live with Ms. Ebba until Betty Jean's death on September 9, 2014. Shortly thereafter, Ms. Ebba was moved into a nursing home where she remained until her death on March 31, 2015.
Regarding Ms. Ebba's mental capacity to execute the documents at issue herein, Leon offered the deposition testimony of Dr. Durwin Walker. Dr. Walker is board certified in family medicine and has a practice focusing on family medicine and geriatrics. He saw Ms. Ebba for the first time on February 20, 2014, as a new patient. He noted that Ms. Ebba was ninety years old; could still perform all the basic activities of daily living including ambulating independently with a walker, feeding herself and going to the bathroom by herself; was able to hold a conversation; and was very pleasant.
Although he held a board certification in geriatrics in the past, Dr. Walker allowed that certification to lapse.
However, he noted that, according to the patient information form completed by Ms. Ebba's daughter Betty Jean, Ms. Ebba had been prescribed Aricept and Namenda, which led him to believe that she had been previously diagnosed with Alzheimer's dementia, a progressive deteriorating condition of the central nervous system that results in loss of cognitive function. From discussions with Betty Jean, Dr. Walker learned that Ms. Ebba was stable on her medication, but that her mental status was slowly deteriorating. Dr. Walker testified in deposition that when he next saw Ms. Ebba on June 4, 2014, for completion of paperwork for her admission to a nursing home, his opinion was that her condition was slowly but steadily worsening. According to Dr. Walker, he saw Ms. Ebba on only these two office visits.
Contrary to Dr. Walker's testimony, Ms. Ebba's medical records attached to Dr. Walker's deposition indicate that he also saw her for office visits in August and September of 2014 and that at the September 15, 2014 visit, which was following Betty Jean's death, the plan for Ms. Ebba was admission to a nursing home.
Regarding Dr. Walker's assessment of Ms. Ebba's cognitive abilities, he testified that while Ms. Ebba was able to hold a conversation, he did not believe the information she relayed would be reliable. Additionally, based on his conversation with Ms. Ebba and on his observing her, Dr. Walker opined that as of the February 20, 2014 office visit, Ms. Ebba was not in a position to make important business decisions for herself. When asked more specifically whether he believed she had the ability to understand both what she was doing and the effect of any decision she made about the disposition of her property, Dr. Walker responded, "I don't think so."
Dr. Walker explained that Alzheimer's dementia patients will "confabulate" during a conversation, meaning that when they are asked something that they cannot recall, such as what they had for breakfast, they will give a response that sounds reasonable, but may be inaccurate.
Leon's wife, Bobbye Impson, also testified at the trial. According to Bobbye, she had been involved "to some extent" with Ms. Ebba's care over the past ten to fifteen years, and following the dementia diagnosis in 2005, Ms. Ebba's condition would decline and then stay stationary for a while, but by 2010, it started getting worse. Bobbye related that Ms. Ebba slept a lot and would get up, drink coffee, talk a little bit, and go back to sleep. She also indicated that Ms. Ebba talked about the past. Bobbye also testified that after she began handling Ms. Ebba's bills and her business in March 2014, Ms. Ebba never asked about her money or whether the bills were being paid.
One particular incident about which Bobbye testified was Ms. Ebba's brother's funeral in March 2014. According to Bobbye, she took Ms. Ebba to the funeral service, and although she had explained to Ms. Ebba that her brother had died, Ms. Ebba did not seem to comprehend that he was deceased. Rather, when she went to view his body, Ms. Ebba shook her brother's arm and said that the least he could do was get up and talk to her. Once they were seated before the mass, Ms. Ebba kept saying that she could not believe that her brother did not get up and talk to her. Also, Ms. Ebba talked out loud the entire time the priest performed the service. In Bobbye's opinion, as of March 2014, Ms. Ebba was not a competent person.
On the other hand, a significant amount of testimony supports the opposite conclusion. Pamela Bailey, a family friend, testified that when she visited Ms. Ebba in May 2014, Ms. Ebba was functional and did not seem impaired. Pamela had known Ms. Ebba since Pamela was nine years old and considered Ms. Ebba to be her "second mother." Although Pamela moved to Texas in 1990, she testified that she continued to visit Ms. Ebba two to three times a year. According to Pamela, whenever she visited Ms. Ebba, Ms. Ebba would say "my long lost daughter" when Pamela walked in the house. On this particular visit in May 2014, Ms. Ebba knew who Pamela was, and during the visit, they talked about the past as well as current events. Ms. Ebba was able to tell her who the president was, what she wanted to eat, and what Betty Jean was doing. She was also able to get up, get coffee, and go to the bathroom.
Pamela also testified that when Betty Jean got up and went to the back of the house during that visit, Ms. Ebba told Pamela that she was giving Betty Jean her house because she wanted Betty Jean to have a place to live. Ms. Ebba volunteered this information and was specific about it. According to Pamela, there was nothing about her visit with Ms. Ebba in May 2014 that led her to believe that Ms. Ebba could not make cognitive decisions.
Additionally, Glenn Westmoreland, the attorney who prepared the act of donation and before whom it was executed, testified at trial as to his encounter with Ms. Ebba on the day she executed the donation. He did not recall having ever met Ms. Ebba or Betty Jean prior to that date or of having performed any other legal work for them. However, Westmoreland did recall Ms. Ebba coming into his office with Betty Jean, introducing Betty Jean as her daughter, and stating that she wanted to donate her property to Betty Jean, but maintain use of the property for the remainder of her life. He related that Ms. Ebba "talked normal" to him and "knew what she was doing." According to Westmoreland, Ms. Ebba "told [him] in no uncertain terms that this is what she wanted to do," and he understood her clearly,
As to his practice in the execution of a notarial instrument, Westmoreland explained that his practice was to call his staff into the room, review the entire document with the parties, and have the parties acknowledge that they understand the document. According to Westmoreland, that is absolutely what he did in this case. Westmoreland further testified that he had notarized probably thousands of donations and notarial instruments in his thirty-one years of practice and that there have been occasions where he has had concerns about an individual's ability to understand a document, causing him to refuse to notarize the instrument. Similarly, he would not have notarized this instrument if he had thought that Ms. Ebba did not understand.
Moreover, as to Dr. Walker's opinion regarding Ms. Ebba's cognitive abilities, while Dr. Walker testified that there are various assessment tools used to determine the loss of cognitive function in an Alzheimer's dementia patient, with the Mini-Mental Status Exam being the most common, he acknowledged that he did not did not perform that assessment on Ms. Ebba. Also, regarding his opinion that information Ms. Ebba would relay in a conversation was not reliable, he acknowledged that this opinion was based primarily on her diagnosis, as well as on the presumption that Betty Jean was "telling him straight."
Furthermore, while Dr. Walker testified that as of the June 4, 2014 office visit (approximately three weeks after the Act of Donation at issue), Ms. Ebba's condition was slowly but steadily worsening, he appeared to be confusing that visit with the September 15, 2014 office visit. Specifically, Dr. Walker testified that he saw Ms. Ebba on June 4, 2014 for completion of the nursing home admission paperwork, and he further surmised in his testimony that some of the worsening on the June visit may have been due to the death of her daughter Betty Jean, her primary caretaker, noting that Alzheimer's patients do not handle change very well and thus concluding that it was a bit hard to assess how much worse she truly was. However, Betty Jean did not die until September 9, 2014. Dr. Walker's office notes indicate that he saw Ms. Ebba shortly thereafter for completion of the nursing home admission paperwork. Moreover, the June 4, 2014 office note indicates that when Ms. Ebba was seen for a follow-up visit, she was "oriented to person, place, and time"; and, with regard to her Alzheimer's dementia diagnosis, she was "stable on [her] current regiment." Thus, in light of his apparent confusion, the accuracy and reliability of Dr. Walker's testimony regarding Ms. Ebba's cognitive abilities at the time of the June 4, 2014 office visit are called into question.
We also note that while Leon claimed his mother lacked capacity to understand the May 14, 2014 Act of Donation, he admitted that she executed powers of attorney in his favor and in his sister Flo's favor on March 21, 2014, less than eight weeks prior to her executing the Act of Donation in question. When questioned about how she had the mental capacity to execute a power of attorney in his favor, Leon testified that Ms. Ebba said that something needed to be done, that she wanted to give him the power of attorney, and that she made the decision.
When pressed then as to why he believed she could not make the decision to donate her property shortly thereafter, Leon responded that "she did totally opposite what she said she was going to do all of her life." However, when questioned at trial, Leon admitted Ms. Ebba was capable of keeping secrets and that she had kept secret from him the fact that she smoked.
The trial court heard the competing medical and lay testimony regarding Ms. Ebba's mental capacity and, as such, was called upon to weigh the credibility of the witnesses. Considering the foregoing and the record as a whole and in light of Leon's heightened burden, even if we may have decided differently had we been the trier of fact, we cannot conclude that the trial court was manifestly erroneous in finding that Leon failed to prove by clear and convincing evidence that Ms. Ebba lacked the cognitive capacity to generally comprehend the nature and consequences of the May 14, 2014 Act of Donation she executed in favor of her daughter Betty Jean. See generally Cupples v. Pruitt, 32,786 (La. App. 2nd Cir. 3/1/00), 754 So. 2d 328, 333-334, writ denied, 2000-0945 (La. 5/26/00), 762 So. 2d 1108, and Robertson v. Cubine, 31,743 (La. App. 2nd Cir. 3/31/99), 731 So. 2d 931, 932-936; see also Succession of Christensen, 649 So. 2d at 24-28 (where, in reversing the trial court's determination that the decedent lacked testamentary capacity, this court stated that "the trial court's primary reliance on the testimony of only two witnesses out of an array of witnesses called by both sides is inconsistent with the principle that the [plaintiffs] had to prove lack of testamentary capacity by clear and convincing evidence and not by a mere preponderance").
May and November 2014 Changes to Life Insurance Beneficiaries
Leon also complains on appeal that the trial court erred in finding that he failed to establish that Ms. Ebba lacked the requisite capacity to execute changes of beneficiaries on two life insurance policies in May 2014 and then again in November 2014. Ms. Ebba was the owner of two life insurance policies, one issued by Allianz Life Insurance Company (Allianz) and one issued by ReliaStar Life Insurance Company (ReliaStar). The record before us demonstrates that on May 14, 2014, Ms. Ebba completed a "Request to Transfer Ownership and/or Change Beneficiaries" form for the Allianz policy and a "Beneficiary Designation" form for the ReliaStar policy (collectively referred to as the "change of beneficiary forms"), naming Betty Jean as the sole beneficiary of each of the respective policies. Allianz confirmed the change of beneficiary by letter dated May 21, 2014, and ReliaStar confirmed the change of beneficiary on the policy it issued to Ms. Ebba by letter dated May 28, 2014. The record also contains a November 14, 2014 letter to Ms. Ebba from Allianz, following Betty Jean's death, confirming a change of beneficiary on the Allianz policy to name Jason Impson and Michael Paul Impson as primary beneficiaries.
We note that the associated Beneficiary Designation form for that change of beneficiaries in not part of this record. Moreover, while Leon contends also that following Betty Jean's death on September 9, 2014, Ms. Ebba changed the beneficiary designation on the ReliaStar policy to Jason and Michael Impson, the record actually contains no evidence of such.
While Leon relies on principles governing donations inter vivos in arguing that the changes of beneficiaries executed by Ms. Ebba in 2014 were without legal effect, we note that a life insurance policy is a legal contract between the policy owner e insurance company and that the naming of beneficiaries of life insurance proceeds is not subject to Civil Code articles relating to donations inter vivos. LSA-R.S. 22:915(A); Fowler v. Fowler, 2003-0590 (La. 12/12/03), 861 So. 2d 181, 183-185.
All persons have capacity to contract, except unemancipated minors, interdicts, and persons deprived of reason at the time of contracting. LSA-C.C. art. 1918. Moreover, the capacity to contract is presumed, and exceptions to the presumption of capacity must be shown quite convincingly and by the great weight of the evidence. Martin v. Metropolitan Life Insurance Co., 516 So. 2d 1227, 1229 (La. App. 2nd Cir. 1987).
A contract generally may be rescinded for lack of capacity, a relative nullity, only at the request of the legally incapable person or her legal representative. LSA-C.C. art. 1919; see also LSA-C.C. 2031. However, because Leon asserts this claim after his mother's death, it is governed by LSA-C.C. art. 1926, which provides the vehicle to challenge a contract based on lack of capacity after the death of the alleged incapacitated person and limits the bases upon which such contracts can be challenged as follows:
A contract made by a noninterdicted person deprived of reason at the time of contracting may be attacked after his death, on the ground of incapacity, only when the contract is gratuitous, or it evidences lack of understanding, or was made within thirty days of his death, or when application for interdiction was filed before his death.(Emphasis added). In order to attack the contract, the challenger must show that at least one of the four circumstances listed in LSA-C.C. art. 1926 exists. Noel v. Noel, 2015-37 (La. App. 3rd Cir. 5/27/15), 165 So. 3d 401, 409, writ denied 2015-1121 (La. 9/18/15), 178 So. 3d 147.
As stated above, Leon contended in the supplemental and amending petition that Ms. Ebba was unable to generally comprehend the nature and consequences of the contracts, i.e., the changes in beneficiaries. However, because the changing of a beneficiary under a life insurance policy is not a "gratuity" under Louisiana law, the Beneficiary Designation forms at issue herein were not executed within thirty days of Ms. Ebba's death, and there is no evidence that an application for her interdiction was filed before her death, Leon had to allege (and prove) that the contracts themselves (i.e., the Beneficiary Designation forms) evidenced a lack of understanding in order to establish the existence of one of the four circumstances listed in LSA-C.C. art. 1926 as a basis for challenging those changes of beneficiaries. See Martin, 516 So. 2d at 1229 (wherein appellants urged that the contract itself, a change of life insurance beneficiary, evidenced a lack of understanding by reason of there being four changes of beneficiaries on the policy within a twenty-month span and because the decedent's signature on the change of beneficiary forms was written with an unsteady hand), and American General Life Insurance Company, Inc. v. Wilkes, 619 F. Supp. 2d 252, 256 (M.D. La.), aff'd, 290 Fed. Appx. 688 (5th Cir. 2008) (wherein the court found that the requirements of LSA-C.C. art. 1926 were not met where the contracts, i.e., changes of beneficiaries, were not gratuitous under Louisiana law and were not made within thirty days of the decedent's death, the decedent was not interdicted nor had an application for his interdiction been filed before his death, and the change of beneficiary forms themselves did not evidence any lack of understanding by him).
We note that while Leon named Jason and Michael Impson, the alleged beneficiaries under both policies, as additional defendants in his supplemental and amending petition, he did not name either Allianz or ReliaStar, the life insurance companies that issued the policies. Pursuant to LSA-C.C.P. art. 1880, when declaratory relief is sought, "all persons shall be made parties who have or claim any interest which would be affected by the declaration." While it would thus seem that Leon should have also named Allianz and ReliaStar as defendants herein, we note that at the trial of this matter, counsel for Leon represented, without objection or dispute by opposing counsel, that one of the insurers had already paid its policy proceeds to Jason and Michael Impson and that the other insurer had instituted a concursus proceeding as to the proceeds of the policy it issued.
In Wilkes, the federal district court, in an interpleader action brought by a life insurance company, dismissed on summary judgment the claim of the defendant in interpleader who challenged the capacity of a decedent to complete change of beneficiary forms, finding that the requirements of LSA-C.C. art. 1926 necessary to challenge the decedent's capacity were not established where "the change of beneficiary forms themselves [did not] evidence any lack of understanding" by the decedent. Wilkes, 619 F. Supp. 2d at 252, 256. In affirming that decision, the United States Fifth Circuit Court of Appeals noted that the decedent had signed and dated the change of beneficiary forms, which clearly set forth a change of beneficiary from defendant to another. American General Life Insurance Company, Inc. v. Wilkes, 290 Fed. Appx. 688, 690-691 (5th Cir. 2008). The court further reasoned that, even assuming arguendo that affidavits of a prior caretaker and a life insurance agent regarding the decedent's incapacity were admissible, those affidavits were not sufficient to prove that the contracts evidenced a lack of understanding. Finally, the court held that the fact that the newly named beneficiary on the policies at issue filled in general information on the forms did not demonstrate a lack of capacity to contract. Thus, on de novo review, the federal appellate court found insufficient evidence to overcome the presumption that the decedent had contractual capacity at the time he executed the change of beneficiary forms. Wilkes, 290 Fed. Appx. at 691.
Similarly, in the instant case, Ms. Ebba signed the May 14, 2014 Allianz and ReliaStar change of beneficiary forms, both of which clearly state that she selected Betty Jean as the primary beneficiary of 100% of the policy proceeds. Moreover, even assuming that the medical and lay testimony offered at trial was somehow relevant to Leon's challenge to Ms, Ebba's changes of beneficiary governed by LSA-C.C. art. 1926, we cannot conclude that this testimony was sufficient to prove that the beneficiary designation forms themselves evidenced a lack of understanding by Ms. Ebba. Also, the fact that some of the information on one or both of these forms may have been completed by someone other than Ms. Ebba or that Ms. Ebba's signature is somewhat shaky on one of the forms is likewise insufficient to mandate the conclusion that the beneficiary designation forms themselves evidenced a lack of understanding or to overcome the presumption that Ms. Ebba had contractual capacity at the time she executed these change of beneficiary forms. See Wilkes, 290 Fed. Appx. at 691.
Additionally, because Leon did not introduce as evidence either change of beneficiary form allegedly executed by Ms. Ebba in November 2014 to name Jason and Michael Impson as beneficiaries of the policies, he clearly failed to establish that those subsequent change of beneficiary forms evidenced a lack of understanding by Ms. Ebba, so as to entitle him to challenge those contracts after her death, pursuant to LSA-C.C. art. 1926, based on her alleged incapacity.
Accordingly, on the record before us, we cannot conclude that the trial court erred in finding that Leon failed to carry his burden of establishing Ms. Ebba's incapacity at the time she changed life insurance beneficiaries in May of 2014 to Betty Jean and, thereafter in November 2014, following Betty Jean's death, to Jason and Michael Impson.
CONCLUSION
For the above and foregoing reasons, the trial court's May 10, 2017 judgment, dismissing Leon Impson, Jr.'s claims with prejudice, is hereby affirmed. Costs of this appeal are assessed against Leon Impson, Jr.
AFFIRMED.
Also, although the record on appeal does not contain a Petition for Concursus, it does contain an Answer to Petition for Concursus filed by Jason and Michael Impson, apparently in response to the Petition for Concursus filed on behalf of Allianz Life Insurance Company. Despite the Answer to Petition for Concursus of record bearing the same district court suit number as the matter before us, there are no other pleadings or documentation in this record establishing that Allianz intervened in these proceedings to invoke concursus, rather than filing a separate concursus proceeding. Cf. In re Succession of Pepe, 2006-0861 (La. App. 1st Cir. 2/9/07), 2007 WL 438793, *2 (unpublished), writ denied, 2007-0850 (La. 6/15/07), 958 So. 2d 1194, Nonetheless, to the extent that Allianz may have invoked a separate concursas proceeding, there is no indication in this record that it took advantage of its right pursuant to LSA-C.C.P. art. 4660 to enjoin the parties herein from proceeding on this claim in these proceedings.