In re Succession of Boyter

• Decision Date: 07 January 2000
• Docket Number: No. 99-C-0761.,99-C-0761.
• Citation: 756 So.2d 1122
• Parties: SUCCESSION OF Joseph Page BOYTER.
• Court: Louisiana Supreme Court

756 So.2d 1122

SUCCESSION OF Joseph Page BOYTER.

No. 99-C-0761.

Supreme Court of Louisiana.

January 7, 2000.

Rehearing Denied February 18, 2000.

James Patrick Bodenheimer, Bodenheimer, Jones & Szwak, Shreveport, Counsel for Applicant.

David Andrew Barlow, Kay Cowden Medlin, Barlow & Hardtner, Shreveport, Counsel for Respondent.

David Andrew Barlow, Kay Cowden Medlin, Shreveport, Counsel for Robert Scott Sorensen, Mary Ann DiFilippo Naylor, Cecille Thompson, Noel Taylor Sorensen, Steven Mark Sorensen, Amicus Curiae.

Alton E. Bayard, III, Baton Rouge, Gordon Neal Blackman, Jr., Pike Hall, Jr., J. Edgerton Pierson, Jr., Shreveport, Amy Michelle Perkins, Counsel for Juliet Amelia Williamson, Elisabeth Lloyd Anthony, Barry Ashton R. Naylor, Amicus Curiae.

KIMBALL, Justice.¹

We granted certiorari to determine the proper interpretation and application of La. R.S. 9:2501 (1996). After examining the clear language of the statute, the legislature's purpose in enacting the statute, and the policies underlying successions law, we hold that La. R.S. 9:2501 is a mandatory statute that applies to all successions in which a person executed a will before January 1, 1996 and died after December 31, 1995 (but before July 15, 1997). We further hold that Mr. Boyter's will does not satisfy any of the requirements set out in subsections (a), (b), and (c) of the statute inasmuch as each exception requires that there be actual verbiage in the testament indicating an intent to deprive the forced heir of his right of reduction. Finally, we find that the plaintiffs were forced heirs under the law in effect on December 31, 1995. We therefore find that the court of appeal erred in not applying La.R.S. 9:2501 (1996) to Mr. Boyter's succession, reverse its judgment, and remand this case to the trial court for further proceedings consistent with this opinion.

Legal Background

The legislature enacted the statute at issue, La. R.S. 9:2501 (1996), to aid in the transition between the time-honored concept that all children were forced heirs unless they were expressly disinherited for just cause by their parents and the new law that provided forced heirship status only to children 23 years of age or younger. Because the Louisiana successions law has been in a state of flux during the last eight years, a proper understanding of the issues faced by this Court in interpreting and applying La. R.S. 9:2501 (1996) in this case must begin with the history of the changes to forced heirship in Louisiana.

In 1989 and 1990, the legislature enacted Acts 788 and 147, respectively, in an attempt to eliminate forced heirship for children over the age of 23. In Act 147 the legislature enacted a transitional statute to provide rules by which a testator's intent could be ascertained when he died after the new law became effective, but his testament was executed before the changes. That statute read as follows:

A. The provisions of Act No. 147 of the 1990 Regular Session of the Legislature shall become effective on July 1, 1990, and shall apply to the successions of all persons who die after June 30, 1990.

B. If the person dies testate, and the testament is executed before July 1, 1990, then the testator's intent shall be ascertained according to the following rules:

1. That the testament shall be governed by the law in effect at the time of the testator's death in the following instances:

a) when the testament manifests an intent to disinherit a forced heir or to restrict a forced heir to the legitime in effect at the time of the testator's death;

b) when the testament leaves to a forced heir an amount less than the legitime in effect at the time the testament is executed; or

c) when the testament omits a forced heir and the language of the testament indicates an intent to restrict the forced heir to an amount less than the legitime in effect at the time the testament is executed.

2. That in all other instances, the testament shall be governed by the law in effect on June 30, 1990.

3. That the term forced heir, as used above, shall mean a forced heir at the time the testament is executed.

In 1993, the First Circuit Court of Appeal was called upon to interpret and apply this statute, La. R.S. 9:2501 (1990), in Succession of Lawrence, 623 So.2d 96 (La. App.1 Cir.1993). In that case, the testator executed a statutory testament on April 2, 1990, in which he said that he "had no children whatsoever," and left the estate to a friend. After the testament was written, the legislature amended La. C.C. art. 1493 by Act 147 of 1990 (effective July 1, 1990) to reflect its decision to abolish forced heirship law in Louisiana. The testator died on February 23, 1991. In order to resolve this issue, the court turned to La. R.S. 9:2501(1990) and held that the question presented was whether the new law, which abolished forced heirship for children over the age of 23, could be applied in this situation. It noted that under La. R.S. 9:2501(B)(1), the new forced heirship law applied if a testament possessed the characteristics set out in subsections (a), (b), or (c). It found that neither (a) nor (b) were implicated by the facts. It also found that (c) required more than the simple omission of a forced heir. It held that in order for the new law relative to forced heirship to apply, the testament must include language that indicates an intent to restrict the forced heir to an amount less than the legitime in effect at the time the testament was executed. The Lawrence court noted that courts have strictly construed the provisions regarding disinherison and have only allowed for such where the decedent formally, expressly, and for just cause disinherited an heir by name. It stated the absence of a forced heir's name in a testamentary disposition was not viewed as the disinherison of a forced heir, nor did it negate the fact that the plaintiff was the decedent's son and forced heir.² Thus, because (a), (b), and (c) were not applicable, the first circuit held that the law as it applied before the attempted changes to forced heirship controlled and recognized the testator's adult son as a forced heir.

After the First Circuit Court of Appeal's decision in Succession of Lawrence, the Louisiana Supreme Court declared all of Act 147 of 1990 unconstitutional in Succession of Lauga, 624 So.2d 1156 (La.1993), and Succession of Terry, 624 So.2d 1201 (La.1993). In response to these decisions, the legislature proposed an amendment in 1995 to Article XII, Sect. 5 of the Louisiana Constitution that would abolish forced heirship with exceptions for children who were age 23 or younger or permanently disabled when the testator died. The legislature then adopted Act 1180 during the 1995 legislative session, which would be used to implement the constitutional amendment if the voting citizens of Louisiana approved it. Act 1180 of 1995 used virtually the same language as Act 147 of 1990, including the 1990 version of La. R.S. 9:2501. The people of Louisiana approved the constitutional amendment on October 21, 1995. By law the amendment became effective on November 23, 1995. Act 1180 of 1995 became effective on January 1, 1996 by its own terms.

The legislature amended and re-enacted Act 1180 of 1995 during the First Extraordinary Session of 1996 with no substantive changes to La. R.S. 9:2501. Subsequently, Act 1180 was replaced by Act 77 of the 1996 First Extraordinary Session. Effective June 18, 1996, Act 77 added "under the law" after the word "legitime" to La. R.S. 9:2501.³

Thus, at all times relevant to the instant case, La. R.S. 9:2501 (1996) read:

A. The provisions of Act. No. 1180 of the 1995 Regular Session as provided therein became effective on January 1, 1996, and shall apply to the successions of all persons who die after December 31, 1995.

B. If the person dies testate, and the testament is executed before January 1, 1996, then the testator's intent shall be ascertained according to the following rules:

(1) That the testament shall be governed by the law in effect at the time of the testator's death in any of the following instances:

(a) When the testament manifests an intent to disinherit a forced heir or to restrict a forced heir to the legitime under the law in effect at the time of the testator's death.

(b) When the testament leaves to the forced heir an amount less than the legitime under the law in effect at the time the testament is executed.

(c) When the testament omits a forced heir and the language of the testament indicates an intent to restrict the forced heir to an amount less than the legitime under the law in effect at the time the testament is executed.

(2) That in all other instances the testament shall be governed by the law in effect on December 31, 1995.

(3) That the term forced heirs, as used above, shall mean a forced heir at the time the testament is executed.

Facts

With this background in mind, we turn to the facts underlying the present case. Four children were born to Joseph Page Boyter during his second marriage: Frances Darlene Boyter Wells (Frances); Michael Page Boyter (Michael); Jerry Wayne Boyter (Jerry); and James Leslie Boyter (James). Each of his four children survived Mr. Boyter. Mr. Boyter executed his last will and testament on December 30, 1991, and died on January 28, 1997. His testament contained specific bequests of his automobile, family home, and the land on which the home was situated to James. He bequeathed the remainder of his property, constituting his residuary estate, to James and Jerry (defendants). Frances and Michael (plaintiffs) received nothing from the estate and were not mentioned in the testament.

After Mr. Boyter's death, the plaintiffs filed a Petition to Reduce Donation Mortis Causa to Disposable Portion, to Collate Donations Inter Vivos and Donations Mortis Causa, and to be Recognized as Owners of a One-Fourth Interest Each of the Real and Fictitious Mass of the Estate of Joseph Page Boyter. They prayed for a...