* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-30371

Summary Calendar

AMERICAN GENERAL LIFE INSURANCE COMPANY, INC

Plaintiff

v.

EVELYN JACKSON WILKES

Defendant-Appellee

v.

QUEEN ESTER HINKLE

Defendant-Appellant

Appeal from the United States District Court 

for the Middle District of Louisiana 

USDC 3:07-CV-222

Before STEWART, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

Queen Ester Wilkes Hinkle appeals the district court’s grant of summary

judgment in favor of Evelyn Jackson Wilkes, recognizing her as the sole

United States Court of Appeals

Fifth Circuit

F I L E D

August 19, 2008

Charles R. Fulbruge III

Clerk
No. 08-30371

1 After his marriage to Patricia Wilkes ended, John Wilkes met Evelyn Jackson in late

November 2005 and married her on March 11, 2006. He signed the form naming “Evelyn

Wilkes” as the sole beneficiary on the second policy on March 7, 2006, presumably in

anticipation of their marriage four days later. 

2

beneficiary of two American General Life Insurance Company (“AG Life”) life

insurance policies of the late John Henry Wilkes. We affirm.

I. FACTS AND PROCEEDINGS

This appeal involves a dispute over decedent John Wilkes’s life insurance

proceeds between his wife, Evelyn Wilkes, and his daughter from a former

marriage, Queen Ester Wilkes Hinkle (“Hinkle”). John Wilkes purchased two

life insurance policies, insuring his life, from AG Life. The first policy, number

X9011409 in the amount of $100,000, was issued on April 10, 2002, and named

John Wilkes’s then-wife, Patricia Ann Wilkes, as the sole beneficiary. The

second policy, number X9019202, also in the amount of $100,000, was issued on

November 17, 2003, and named the John Wilkes’s nephew, Milo G. Allen, as the

sole beneficiary.

Over the next three years, John Wilkes changed the beneficiary of both

policies multiple times. On December 20, 2005, he changed the beneficiary

designation of both policies to Hinkle. Shortly thereafter, on March 7, 2006, he

signed a Change of Beneficiary form, naming Evelyn Wilkes as the sole

irrevocable beneficiary of the second policy.1 On March 20, 2006, AG Life

notified John Wilkes that it had changed the beneficiary designation of this

policy as requested. Likewise, on March 29, 2006, John Wilkes signed a Change

of Beneficiary form, naming Evelyn Wilkes as the sole irrevocable beneficiary of

the first policy. On April 3, 2006, AG Life notified John Wilkes that it had

changed the beneficiary designation of this policy as requested. Evelyn Wilkes

witnessed John Wilkes’s signature on both ofthese Change of Beneficiary forms.

John Wilkes died on December 9, 2006.
No. 08-30371

2 Hinkle’s former counsel had the signatures on the Change of Beneficiary forms

evaluated for forgery, but they were found to be genuine. Hinkle thus abandoned that claim.

3

Under these policies, when John Wilkes died, AG Life became obligated

to pay the sum of $200,000, plus accrued interest, to the person rightfully

entitled to the death benefit. Evelyn Wilkes, as the named beneficiary, executed

a claimant statement asserting her rights to the proceeds of both policies on

December 13, 2006. Before that claim was processed, Hinkle notified AG Life

via numerous letters that she also claimed an interestin the proceeds as the last

properly named beneficiary, challenging the validity of the Change of

Beneficiary forms designating Evelyn Wilkes as the sole irrevocable beneficiary.

Specifically, Hinkle claimed that John Wilkes lacked the mental capacity to

complete those Change of Beneficiary forms and that the forms were forged.2

Hinkle submitted an adverse claim request with AG Life on December 27, 2006.

On April 4, 2007, AG Life filed an interpleader action under Federal Rule

of Civil Procedure 22 against Evelyn Wilkes and Hinkle to determine the

rightful beneficiary of the insurance proceeds. After AG Life deposited the

requisite funds into the registry of the court, the district court, pursuant to an

agreement by all parties, dismissed AG Life from this action. On August 14,

2007, Evelyn Wilkes moved for summary judgment, arguing that Hinkle had not

demonstrated any contractual incapacity as required by Louisiana Civil Code

article 1926 and that she was thus barred from attacking the validity of the

Change of Beneficiary forms. In response, Hinkle asserted that the forms could

be attacked based on lack of capacity despite the limitations of article 1926,

when fraud or undue influence was involved. On September 12, 2007, the

district court referred Evelyn Wilkes’s motion for summary judgment to a

magistrate judge. On February 28, 2008, the magistrate judge filed a report and

recommendation (“R & R”), finding that Evelyn Wilkes was the rightful

beneficiary of the insurance proceeds. On March 31, 2008, the district court
No. 08-30371

4

adopted the magistrate judge’s R & R and granted summary judgment in favor

of Evelyn Wilkes. Hinkle appeals. 

II. STANDARD OF REVIEW

We review the district court’s grant of summary judgment in favor of

Evelyn Wilkes de novo. See Richardson v. Monitronics Int’l, Inc., 434 F.3d 327,

332 (5th Cir. 2005). Summary judgment is appropriate “if the pleadings, the

discovery and disclosure materials on file, and any affidavits show that there is

no genuine issue as to any material fact and that the movant is entitled to

judgment as a matter of law.” FED. R. CIV. P. 56(c). “We consider the evidence

in a light most favorable to [Hinkle], the non-movant, but she must point to

evidence showing that there is a genuine fact issue for trial” in order to survive

summary judgment. Richardson, 434 F.3d at 332.

III. ANALYSIS

A. Contractual Capacity

Hinkle argues that John Wilkes lacked contractual capacity atthe time he

signed the Change of Beneficiary forms in March 2006. In Louisiana, “[f]our

elements are required for confection of a valid contract: (1) the capacity to

contract; (2) mutual consent; (3) a certain object; and (4) a lawful cause.” In re

Succession of Flanigan, 961 So. 2d 541, 544 (La. Ct. App. 2007). Although “the

capacity to contract is presumed,” see id., Louisiana Civil Code article 1926

provides:

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 a lack of understanding, or was made within thirty days

of his death, or when application for interdiction was filed before his

death.
No. 08-30371

3 Notably, Hinkle argues in her brief that beginning in the latter part of 2005, John

Wilkes would not have understood the meaning and end result of signing the Change of

Beneficiary forms. However, John Wilkes named Hinkle as the sole beneficiary of both policies

on December 20, 2005, during the time in which Hinkle claims John Wilkes was mentally

incapacitated. Thus, Hinkle’s own argument defeats her claim.

5

Exceptions to the presumption of contractual capacity “must be shown quite

convincingly and by the great weight of evidence.” First Nat’l Bank of

Shreveport v. Williams, 346 So. 2d 257, 264 (La. Ct. App. 1977).

Hinkle fails to demonstrate that John Wilkes lacked contractual capacity

under article 1926. Three requirements are not at issue. “The changing of a

beneficiary under a life insurance policy is not a gratuity,” Martin v. Metro. Life

Ins. Co., 516 So. 2d 1227, 1229 (La. Ct. App. 1987), John Wilkes did not complete

the Change of Beneficiary forms within thirty days of his death, and an

application for interdiction was never filed before his death. Thus, to attack the

validity of the forms, Hinkle rests her argument on the basis that the contract

itself evidenced a lack of understanding. 

Hinkle, however, fails to establish this ground for attacking the validity

of the forms. Importantly, John Wilkes signed and dated the forms, which

clearly set forth a change of beneficiary from Hinkle to Evelyn Wilkes. To

counter this fact, Hinkle submitted the affidavits of Gwendolyn Starwood and

George Francis, Jr. as proof of John Wilkes’s incapacity. Even assuming

arguendo that these affidavits are admissible, they are not sufficient to prove

that the contract evidences a lack of understanding. Starwood, Wilkes’s

caretaker from June 2004 to January 2006, stated only that John Wilkes was

unable to perform routine tasks and had begun to lose his ability to think during

that time period.3 Francis, a life insurance agent who originally sold John

Wilkes the policies in 2002 and 2003, did not provide any relevant information

with respect to the signing of the Change of Beneficiary forms in March 2006.

Also, the fact that Evelyn Wilkes filled in general information on the forms does
No. 08-30371

4 Hinkle moved the district court on December 21, 2007 and January 13, 2008 for leave

to amend her answer to assertthe affirmative defenses of fraud and undue influence. However,

she filed both motions after the district court had assigned deadlines pursuant to a scheduling

order and had even amended the deadlines at her request. She also requested that leave to

amend after she had filed her initial opposition to Evelyn Wilkes’s motion for summary

judgmentin September 2007, which made no mention of fraud or undue influence. The district

court denied both motions on procedural and substantive grounds.

6

not demonstrate a lack of capacity to contract. Thus, like the district court

found, there is insufficient evidence to overcome the presumption that John

Wilkes had contractual capacity at the time he executed the Change of

Beneficiary forms.

B. Fraud and Undue Influence

Hinkle asserts that even if she does not satisfy the requirements of article

1926, she may still attack the validity of the Change of Beneficiary forms based

upon fraud and undue influence under Standard Life Insurance Co. v. Taylor,

428 So. 2d 1294, 1297 (La. Ct. App. 1983), and Butler v. Austin, 150 So. 449, 451

(La. Ct. App. 1933). In order to make that claim in this court, however, Hinkle

necessarily argues that the district court abused its discretion when it denied

her request to amend her answer to assert these affirmative defenses.4If we

assume arguendo that Hinkle is correct in both of these assertions, she still fails

to set forth any proposed factual allegations that establish fraud or undue

influence. As the district court explained, the fact that Evelyn Wilkes filled in

general information on the forms, the designation of Evelyn Wilkes as the sole

beneficiary was irrevocable, and one form was signed a few days before she and

John Wilkes married, is not evidence from which a reasonable jury could find

fraud or undue influence. Furthermore, Hinkle does not set forth any specific

facts that John Wilkes was misled or deceived by Evelyn Wilkes about the

substance or consequences of changing the beneficiary of his policies.

Accordingly, we affirm the district court’s finding that there are no allegations
No. 08-30371

7

nor any relevant summary judgment evidence sufficient to create a genuine

dispute on the issue of fraud or undue influence. 

IV. CONCLUSION

The judgment of the district court is AFFIRMED.