144 So.3d 845 (La. 2014), 2013-C-1181, In re Succession of Holbrook

Docket Nº:2013-C-1181
Citation:144 So.3d 845, 2013-1181 La. 01/28/14
Opinion Judge:GUIDRY, Justice.
Party Name:SUCCESSION OF JAMES JASON HOLBROOK, SR
Attorney:For Applicant: Richard A. Tonry, II, TONRY, BRINSON & GLORIOSO, LLC. For Respondent: Peter David Carollo. Sam Joseph Collett, Jr., Amicus Curiae.
Case Date:January 28, 2014
Court:Supreme Court of Louisiana

Page 845

144 So.3d 845 (La. 2014)

2013-1181 La. 01/28/14

SUCCESSION OF JAMES JASON HOLBROOK, SR

No. 2013-C-1181

Supreme Court of Louisiana

January 28, 2014

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL FIRST CIRCUIT, PARISH OF ST. TAMMANY.

For Applicant: Richard A. Tonry, II, TONRY, BRINSON & GLORIOSO, LLC.

For Respondent: Peter David Carollo.

Sam Joseph Collett, Jr., Amicus Curiae.

OPINION

Page 846

[2013-1181 La. 1] GUIDRY, Justice.

The issue in this case is whether an incomplete date in an attestation clause invalidates a testament when the full date appears in the first paragraph of the testament and on every page of the testament, including the page of the attestation clause. The district court granted the testator's daughter's motion for summary judgment seeking to set aside the will as invalid because the attestation clause was not fully dated and, thus, failed to meet the requirements of La. Civ. Code art. 1577. The court of appeal affirmed that judgment. Because we conclude the attestation clause in the notarial testament substantially complies with the requirements of Art. 1577, we reverse the district court's judgment and remand the matter for further proceedings.

Page 847

FACT AND PROCEDURAL HISTORY

The facts in this case are not disputed. James Jason Holbrook, Sr., died testate on July 4, 2010. In his last will and testament, allegedly executed on April 8, 2009, Mr. Holbrook named his wife, Llevonne H. Holbrook, as executrix of his estate. Following Mr. Holbrook's death, Mrs. Holbrook filed a petition on July 10, 2010, to have the will probated, to be appointed executrix, and to be put in possession of Mr. Holbrook's estate. The will was probated, and a judgment of possession was signed by the district court on July 14, 2010. Subsequently, on in [2013-1181 La. 2] November 2010, Mr. Holbrook's daughter, Dianne Carlucci, filed a petition seeking to set aside the judgment of possession and the will, for violations of the the requirements for a notarial will and for undue influence. In response to this petition, Mrs. Holbrook filed a general denial and reconventional demand. Mrs. Carlucci answered the reconventional demand, generally denying the allegations therein. In July 2011, Mrs. Carlucci filed a second petition seeking to set aside her father's will.

Thereafter, in February 2012, Mrs. Carlucci filed a motion for summary judgment, asserting the will was invalid due to the fact that the attestation clause was not dated, and, therefore, the will did not meet the statutory requirements of La. Civ. Code art. 1577. Mrs. Carlucci maintained there was no genuine issue as to any material fact and that she was entitled to summary judgment as a matter of law. In her opposition, Mrs. Holbrook acknowledged that the notary who handled her husband's will had inadvertently failed to put the day in the date section of the attestation clause. Mrs. Holbrook noted, however, that every page of the will was dated April 8, 2009, including the last page of the will that included the attestation clause itself. Mrs. Holbrook submitted the affidavits of the notary and one of the witnesses who both stated that Mr. Holbrook had executed his will before them on April 8, 2009.

Following a hearing, the district court granted Mrs. Carlucci's motion for summary judgment. Finding that the testament was prepared in accordance with Civil Code articles 1576 et seq. governing as to form, the district court held that the attestation clause must be dated as provided in La. Civ. Code art. 1577 and that this testament was invalid due to the omission of the date in the attestation clause.

Mrs. Holbrook appealed, asserting the district court erred in holding the will was invalid because the attestation clause was not dated. The court of appeal [2013-1181 La. 3] affirmed. Succession of Holbrook, 2012-1655 (La.App. 1 Cir. 4/26/13), 115 So.3d 1184. We granted Mrs. Holbrook's writ application to determine the correctness of the lower courts' rulings. Succession of Holbrook, 2013-1181 (La. 9/13/13), 120 So.3d 275.

LAW AND ANALYSIS

This testamentary matter comes to us on a grant of a motion for summary judgment filed by testator's daughter; thus, the primary legal issue is whether the lower courts correctly found that summary judgment in favor of Mrs. Carlucci was warranted. Appellate review of the granting of a motion for summary judgment is de novo, using the identical criteria that govern the trial court's consideration of whether summary judgment is appropriate. Smitko v. Gulf South Shrimp, Inc., 11-2566, p. 7 (La. 7/2/12), 94 So.3d 750, 755; Bonin v. Westport Ins. Corp., 05-0886, p. 4 (La. 5/17/06), 930 So.2d 906, 910; Schroeder v. Bd. of Supervisors of La. State Univ., 591 So.2d 342, 345 (La. 1991). A motion for summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue

Page 848

of material fact, and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966; Duncan v. USAA Ins. Co., 06-0363, p. 4 (La. 11/29/06), 950 So.2d 544, 546-547. A fact is material if it potentially insures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. Hines v. Garrett, 04-0806, p. 1 (La. 6/25/04), 876 So.2d 764, 765 (per curiam)(citing Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751). A genuine issue of material fact is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Hines, 876 So.2d at 765-66.

[2013-1181 La. 4] Currently, there are two forms of testaments in Louisiana. La. Civ. Code art. 1574. The olographic testament is handwritten, dated, and signed by the testator. La. Civ. Code art. 1575. The notarial testament must be executed in accordance with the formalities of La. Civ. Code arts. 1577 - 1580.1. La. Civ. Code art. 1576. This matter concerns a notarial testament, which must be written and notarized. La. Civ. Code art. 1577 provides:

The notarial testament shall be prepared in writing and dated and shall be executed in the following manner. If the testator knows how to sign his name and to read and is physically able to do both, then:

(1) In the presence of a notary and two competent witnesses, the testator shall declare or signify to them that the instrument is his testament and shall sign his name at the end of the testament and on each other separate page. (2) In the presence of the testator and each other, the notary and the witnesses shall sign the following declaration, or one substantially similar: " In our presence the testator has declared or signified that this instrument is his testament and has signed it at the end and on each other separate page, and in the presence of the testator and each other we have hereunto subscribed our names this day of, ."

The attestation clause in Mr. Holbrook's will omitted the " day" in the date:

IN OUR PRESENCE THE TESTATOR has declared or signified that the instrument is his testament and has signed it at the end and on each other separate page, and in the presence of the TESTATOR and each other we have hereunto subscribed our names on this day of April, 2009, in Covington, Louisiana.

WITNESSES:

Vicki M. Wilson

Carolyn Garlick

Peggy G. Vallejo, Bar No. 26539

Notary Public

428 West 21st Avenue

Covington, LA 70433

My Commission Expires at Death

The executrix, Mrs. Holbrook, asserts the testament substantially conforms to the statutory formalities and that any ambiguity as to the omitted " day" may be resolved by the date set forth on each page of the will and the affidavits of the [2013-1181 La. 5] notary and the witness. Citing Succession of Songne, 94-1198 (La.App. 3 Cir. 11/2/95), 664 So.2d 556, writ denied, 95-2877 (La.2/2/96), 666 So.2d 1101, Mrs. Holbrook further asserts that, because the date is set forth on each page of the

Page 849

will, the affidavits submitted in opposition to the motion for summary judgment are sufficient to resolve any ambiguity in the date.1

As the court of appeal noted, La. Civ. Code art. 1577 provides that a notarial testament " shall" be executed in a certain manner. The word " shall" is mandatory. La. Rev. Stat. 1:3. When a law is clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit. La. Rev. Stat. 1:4. La. Civ. Code art. 1577 states that the notarial testament shall be prepared in writing and be dated.

In Succession of Holloway, the court reiterated that " the month, without the day, is no date." 531 So.2d 431, 433 (La. 1988) (quoting Heffner v. Heffner, 48 La. Ann. 1089, 20 So. 281 (1896)). In that case, the question was whether " the day of February, 1984" was a sufficient date within the meaning of former La. Rev. Stat. 9:2442 (as amended in 1974 by Act No. 246), the predecessor to Art. 1577, enacted in 1997 by Act No. 1421, § 1, eff. July 1, 1999.2 La. Rev. Stat. [2013-1181 La. 6] 9:2442, similar to what Art. 1577 does today, provided that " [t]he statutory will shall be in writing . . . shall be dated, and shall be made in the following manner: ...." La. Rev. Stat. 9:2442 then set forth an attestation clause that included the verbiage " this day of, 19 ." This court explained that La. Rev. Stat. 9:2442 as amended in 1974 thus required the will to be dated, explaining that the previous version of the statute did not so require. The court then went on to invalidate the will because it contained no complete date anywhere within the testament.

Page 850

Although Art. 1577, like former La. Rev. Stat. 9:2442, mandates the will be dated, it does not specify the location in the testament where the date must appear. Indeed, Comment (g) to La. Civ. Code...

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48 practice notes
  • 168 So.3d 698 (La.App. 1 Cir. 2014), 2013 CA 0529, Carter v. Hi Nabor Super Market, LLC
    • United States
    • Louisiana Court of Appeals of Louisiana
    • 30 de Dezembro de 2014
    ...govern the trial court's consideration of whether summary judgment is appropriate. In re Succession of Holbrook, 13-1181 (La. 1/28/14), 144 So.3d 845, 847. A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, and admissions, togethe......
  • Will Formalities in Louisiana: Yesterday, Today, and Tomorrow
    • United States
    • Louisiana Law Review Nbr. 80-4, July 2020
    • 1 de Julho de 2020
    ...invalid. The Toney case provoked two persuasive dissents by Chief Justice Johnson and Justice 108. Id. 109. In re Succession of Holbrook, 144 So. 3d 845 (La. 2014). 110. Id. at 851. 111. Successions of Toney, 226 So. 3d 397 (La. 2017) (specifically, the attestation clause did not state that......
  • 211 So.3d 472 (La.App. 3 Cir. 2017), 16-673, In re Succession of Biscamp
    • United States
    • Louisiana Court of Appeals of Louisiana
    • 1 de Fevereiro de 2017
    ...clause but not in the will itself was nevertheless valid). In re Succession of Holbrook, 13-1181, pp. 9-10 (La. 1/28/14), 144 So.3d 845, 851-52. Though clearly the wording of the codal attestation clause is not sacrosanct, the provisions of La.Civ.Code art. 1577, al......
  • Succession of Dean, 032918 LACA1, 2017 CA 0155
    • United States
    • Louisiana Court of Appeals of Louisiana
    • 29 de Março de 2018
    ...will is presumed valid, and the testator is presumed competent. See In re Succession of Holbrook, 13-1181 (La. 1/28/14), 144 So.3d 845, 853; In re Succession of Bellande, 13-0578, 2013WL7122700 p. 2 (La.App. 1 Cir. 12/27/13), writ denied, 14-0615 (La. 4/25/14), 138&......
  • Free signup to view additional results
46 cases
  • 168 So.3d 698 (La.App. 1 Cir. 2014), 2013 CA 0529, Carter v. Hi Nabor Super Market, LLC
    • United States
    • Louisiana Court of Appeals of Louisiana
    • 30 de Dezembro de 2014
    ...govern the trial court's consideration of whether summary judgment is appropriate. In re Succession of Holbrook, 13-1181 (La. 1/28/14), 144 So.3d 845, 847. A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, and admissions, togethe......
  • 211 So.3d 472 (La.App. 3 Cir. 2017), 16-673, In re Succession of Biscamp
    • United States
    • Louisiana Court of Appeals of Louisiana
    • 1 de Fevereiro de 2017
    ...clause but not in the will itself was nevertheless valid). In re Succession of Holbrook, 13-1181, pp. 9-10 (La. 1/28/14), 144 So.3d 845, 851-52. Though clearly the wording of the codal attestation clause is not sacrosanct, the provisions of La.Civ.Code art. 1577, al......
  • Succession of Dean, 032918 LACA1, 2017 CA 0155
    • United States
    • Louisiana Court of Appeals of Louisiana
    • 29 de Março de 2018
    ...will is presumed valid, and the testator is presumed competent. See In re Succession of Holbrook, 13-1181 (La. 1/28/14), 144 So.3d 845, 853; In re Succession of Bellande, 13-0578, 2013WL7122700 p. 2 (La.App. 1 Cir. 12/27/13), writ denied, 14-0615 (La. 4/25/14), 138&......
  • 153 So.3d 567 (La.App. 4 Cir. 2014), 2014-CA-0236, Succession of Duskin v. The Mahalia Jackson Residual Family Corp.
    • United States
    • Louisiana Court of Appeals of Louisiana
    • 19 de Novembro de 2014
    ...validity of the testament, the form of the attestation clause is not absolute. In re Succession of Holbrook, 13-1181, p. 9 (La. 1/28/14), 144 So.3d 845, 851 (quoting Succession of Morgan, 257 LA. 380, 242 So.2d 551, 552 (1970)). Thus, as long as the testament contains a clause signed by the......
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2 books & journal articles
  • Will Formalities in Louisiana: Yesterday, Today, and Tomorrow
    • United States
    • Louisiana Law Review Nbr. 80-4, July 2020
    • 1 de Julho de 2020
    ...invalid. The Toney case provoked two persuasive dissents by Chief Justice Johnson and Justice 108. Id. 109. In re Succession of Holbrook, 144 So. 3d 845 (La. 2014). 110. Id. at 851. 111. Successions of Toney, 226 So. 3d 397 (La. 2017) (specifically, the attestation clause did not state that......
  • Testamentary Formalism in Louisiana: Curing Notarial Will Defects Through a Likelihood-of-Fraud Analysis
    • United States
    • Louisiana Law Review Nbr. 75-2, January 2015
    • 1 de Janeiro de 2015
    ...requirements. Much like the circuit court that decided Mr. Copyright 2014, by GEORGE HOLMES. 1. See In re Succession of Holbrook, 144 So. 3d 845, 848 (La. 2014). 2. See LA. CIV. CODE art. 1577 The notarial testament shall be prepared in writing and dated and shall be executed in the followi......