In re Biscamp

• Decision Date: 01 February 2017
• Docket Number: 16–673
• Citation: 211 So.3d 472
• Parties: In the MATTER OF the SUCCESSION OF John Robert BISCAMP
• Court: Court of Appeal of Louisiana — District of US

211 So.3d 472

In the MATTER OF the SUCCESSION OF John Robert BISCAMP

16–673

Court of Appeal of Louisiana, Third Circuit.

February 1, 2017

E. Grey Burnes Talley, Burnes, Burnes & Talley, P. O. Box 650, Alexandria, LA 71309–0650, (318) 442–5231, COUNSEL FOR APPELLANTS: Collis Wayne Lott, Winnie Fuller, Betty Biscamp, Robert Biscamp

James G. Theus, Theus Law Offices, P. O. Box 8432, Alexandria, LA 71301, (318) 769–9395, COUNSEL FOR APPELLEES: Tiffani Williams, Aleesha Kuhn

Carmen T. Hebert, Carleton, Loraso & Hebert, LLC, 445 N. Blvd., Ste. 625, Baton Rouge, LA 70802, (225) 282–0602, COUNSEL FOR APPELLEES: Tiffani Williams, Aleesha Kuhn

Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and David E. Chatelain, Judges.

DAVID E. CHATELAIN ^* JUDGE

In this succession case, the proponents of a notarial testament challenge the trial court's ruling declaring the testament an absolute nullity. Because we find the purported testament fails to contain the requisite attestation clause signed by the notary as mandated under La.Civ.Code art. 1577, we affirm.

FACTS AND PROCEDURAL HISTORY

John Robert Biscamp (Biscamp) died on April 6, 2015, survived by two daughters—Alessha Biscamp Kuhn and Tiffiani Biscamp Williams (plaintiffs). On May 28, 2015, plaintiffs filed their "Petition and Order to Be Appointed Independent Administrator," alleging their father died intestate and requesting the appointment of Alessha Kuhn as independent administrator. Letters of Independent Administration were then issued to Aleesha Kuhn.

Not long thereafter, on June 8, 2015, Collis Wayne Lott (Lott) filed his "Reconventional Demand for Filing, Execution of Will, and for Possession," attaching thereto a document entitled "Last Will and Testament of John Robert Biscamp" (testament) executed in notarial form on December 22, 2010. Therein, Biscamp left equal and undivided interests in his residuary estate to his siblings, Lott, Winnie Lee Fuller, Verna Inez Barnett, Robert Lee Biscamp, and Betty Ann Biscamp (legatees). Though acknowledging his two daughters, the provisions of the testament noted Biscamp's failure to provide for any distribution to them was "intentional." Biscamp also nominated Lott as executor. On June 18, 2015, Letters of Independent Administration were issued to Lott, confirming his independent executorship.

On February 23, 2016, plaintiffs filed their "Petition to Annul Testament," alleging the testament was absolutely null because it did not conform with the formal requirements of La.Civ.Code art. 1577 :

The alleged testament is absolutely null because it does not conform with the requirements of form prescribed under the Louisiana Civil Code article 1577. The attestation clause for the notary and two witnesses is not found in the Last Will and Testament, comprised of numbered pages 1–4, but in a separate document titled "Affidavit" comprised of numbered pages 1–2.

....

Further, the clauses in the "Affidavit" do not state that the testator signed in the presence of the witnesses and notary or that the witnesses signed in the presence of the notary.

Plaintiffs also noted the clause signed by the notary did not state that Biscamp declared the testament to be his testament to the notary in the presence of the witnesses.

In opposition, the legatees contended the nonconsecutive pagination did not give rise to an inference of two separate documents as a simple review of the margins, size, type, font, and other formatting was indicative of a single document with separate headings. Moreover, the legatees noted all the pages were executed by the signatories on the same date, December 22, 2010. The legatees further argued the affidavit was in fact an attestation, which provided that Biscamp signed in the presence of the witnesses and the notary and that the witnesses signed in the presence of the notary. To find otherwise, they cautioned, would place form over substance when it is more important that the required acts be done than that they be recited.

Trial was held on May 10, 2016. The only evidence admitted was a copy of the testament, which consists of a six-page document initialed "JRB" at the bottom of each page.¹ The first four pages set forth the dispositive portion, whereas the last two pages contain an "Affidavit" signed by Biscamp, two witnesses, and a notary. Notably, the pages of the testament are not numbered sequentially 1–6. Rather the second, third, and fourth pages are paginated "2, 3, and 4," respectively, with the sixth page numbered "2." Both the first page and fifth page lack pagination, and the certification of the witnesses on page 3 states the testament "consists of _____ pages[.]"

After taking the matter under advisement, the trial court rendered judgment declaring the testament "an absolute nullity for materially deviating from the form requirements of Louisiana Civil Code article 1577." In its written reasons, the trial court found:

In comparing the will with the provisions of La. C.C. art. 1577, the purported attestation clause by the notary fails to state that the testator (1) declared the will to be his Last Will and Testament to the notary, (2) in the presence of the witnesses.

Moreover, with respect to the statements by the witnesses set forth in the paragraph preceding the notary's statement, while this paragraph indicates that the witnesses were "sworn," that the "the Testator signs it willingly in our presence," and that the witnesses sign "in the presence and hearing of the Testator ... and in the presence of each other, ... as witness to the Testator's signing," this clause likewise does not clearly state that the will and necessary signatures were signed in the presence of all persons, including the notary. Thus, this paragraph likewise is defective.

Therefore, the will in question does not contain the required attestation clause which creates the issue: is the defective attestation clause in the Last Will and Testament a material deviation from the manner of execution prescribed by La. C.C. art. 1577 and therefore fatal to the validity of the will?

....

The jurisprudence has consistently held that where a will is merely notarized, but there is no declaration signed by the notary, such a clause is not in compliance with LSA–C.C. art. 1577. Further, such defects constitute a substantive defect fatal to the validity of the will and cannot be cured through the subsequent testimony of the witnesses and the notary....

Mr. Biscamp's will appears to be computer generated and prepared by a lay person. Regardless, the requisites of law still apply. Even though the result will be harsh, the Court is bound to follow the law applicable to and governing such instruments. The Court is a court of law and not of equity.

Accordingly, the trial court "regrettably" declared the testament an absolute nullity; recalled and set aside the order appointing Lott independent executor; recalled the letters of independent administration issued to Lott; recognized Aleesha Kuhn as the independent administrator of the succession; and declared the succession intestate. The legatees timely appealed the trial court's judgment.²

DISCUSSION

The legatees assign two errors to the trial court's judgment. First, they contend the trial court erred in finding the "attestation clause by the notary fails to state that the testator (1) declared the will to be his Last Will and Testament to the notary, (2) in the presence of the witnesses." Second, they assert the trial court erred in finding the testament contains a material deviation from the manner of execution prescribed by La.Civ.Code art. 1577.

An appellate court must accord the factual findings of a trial court great weight in a will contest and cannot disturb such findings in the absence of manifest error. In re Succession of Hebert , 12–281 (La.App. 3 Cir. 10/3/12), 101 So.3d 131. However, the trial court's interpretation and application of legal principles and statutory provisions are legal findings subject to de novo review, " 'without the great deference ... we attach to credibility determinations.' " Kevin Assocs., L.L.C. v. Crawford , 03–211, p. 15 (La. 1/30/04), 865 So.2d 34, 43 (quoting State v. Payne , 01–3196, p. 6 (La. 12/4/02), 833 So.2d 927, 933 ). As evident in its reasoning and the trial transcript, the trial court's judgment herein rests upon its interpretation and application of the form requirements set forth in La.Civ.Code art. 1577 to the four corners of the testament. Moreover, given that the facts are not in dispute, the issues presented for our review are clearly legal ones. Accordingly, our review begins with the law itself—our Civil Code articles governing the testamentary formalities for donations mortis causa .

Our Civil Code defines such a donation as "an act to take effect at the death of the donor by which he disposes of the whole or a part of his property." La.Civ.Code art. 1469. Prescribed therein, a person may only dispose of his property in this manner upon the proper execution of a last will or testament in a form "authorized by law": "A disposition mortis causa may be made only in the form of a testament authorized by law." La.Civ.Code art. 1570. The "[t]estamentary formalities serve as evidence of the requisite intent necessary to confect" a proper donation mortis causa . Kathryn Venturatos Lorio, 10 La.Civ.Law Treatise , Successions and Donations , § 12.1 (2d ed. 2016). These formal requirements were "designed to provide a simplified means for a testator to express his testamentary intent and to assure ... that the instrument was intended to be his last will." Succession of Porche , 288 So.2d 27, 30 (La.1973).

"The purpose of prescribing formalities for the execution of wills is to guard against mistake, imposition, undue influence, fraud or deception, to afford a means of determining the will's authenticity, and to prevent substitution of some other writing in its place." Succession of Hebert , 101 So.3d at 135. Nevertheless, the "formalities prescribed for...