In re Brandt
| Decision Date | 29 December 2021 |
| Docket Number | 21-CA-131 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | SUCCESSION OF RAYMOND JOHN BRANDT |
SUCCESSION OF RAYMOND JOHN BRANDT
No. 21-CA-131
Court of Appeals of Louisiana, Fifth Circuit
December 29, 2021
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 801-807, DIVISION "P" HONORABLE LEE V. FAULKNER, JR., JUDGE PRESIDING
COUNSEL FOR PLAINTIFF/APPELLANT, TODD DEMPSTER Philip A. Franco Jeffrey E. Richardson Courtney C. Miller William K. Wright, IV
COUNSEL FOR PLAINTIFF/APPELLEE, MARC S. MILANO, TRUSTEE OF THE RAYMOND J. BRANDT REVOCABLE TRUST Timothy S. Madden Henry A. King J. Grant Coleman Robert J. Burvant W. Spencer King
Panel composed of Judges Jude G. Gravois, Robert A Chaisson, and Hans J. Liljeberg
HANS J. LILJEBERG JUDGE
This matter involves a Petition To Annul Probated Testament filed by appellant, Todd Dempster, in the succession proceeding for the decedent, Raymond John Brandt. Mr. Dempster is named as a successor executor in a will executed by the decedent in 2010. Mr. Dempster filed a petition to annul the probate of a subsequent will executed by the decedent in 2019. Marc S. Milano, the successor trustee of a trust named as the sole legatee in the probated will, filed an exception of no right of action arguing that Mr. Dempster has no right of action or interest to seek to annul the probated will because he is not an heir, legatee, descendant or family member of the decedent. On December 1, 2020, the trial court sustained Mr. Milano's exception of no right of action and dismissed Mr. Dempster's petition to annul the probated will with prejudice. The trial court stated in its judgment that Mr. Dempster, "who is not an heir at law nor a trustee nor a legatee named in any Last Will and Testament of Decedent, has no procedural right to file a claim seeking to invalidate Decedent's Last Will and Testament." Mr. Dempster now appeals this ruling.
After considering the applicable law and the specific factual circumstances at issue in this matter, we find that as an executor named in a prior will that would become operative, Mr. Dempster possesses a right of action to seek to annul the probated will. Accordingly, we reverse the trial court's judgment sustaining the exception of no right of action and dismissing the Petition To Annul Probated Testament filed by Mr. Dempster, and remand the matter for further proceedings.
FACTUAL AND PROCEDURAL HISTORY
Three weeks before his death, Raymond John Brandt executed a will on October 24, 2019 ("2019 Will"), revoking all prior wills and codicils and leaving his entire estate to the Raymond John Brandt Revocable Trust, an inter vivos trust established by Mr. Brandt on January 16, 2015 (the "2015 Trust"). The 2015 Trust
was established in connection with a previous testament executed by Mr. Brandt on January 16, 2015 ("2015 Will"). On October 24, 2019, Mr. Brandt also amended the 2015 Trust to name Mr. Milano as successor trustee upon Mr. Brandt's death.
Mr. Brandt died on November 14, 2019. On November 26, 2019, his surviving spouse, Jessica Brandt, filed a Petition for Probate of Notarial Testament and for Confirmation of Independent Testamentary Executrix, requesting that Mr. Brandt's 2019 Will be probated. That same day, the trial court signed an order probating the 2019 Will and appointing Ms. Brandt as the independent testamentary executrix. On July 10, 2020, Mr. Milano, in his capacity as trustee of the 2015 Trust, sought to have the trust placed into possession of the entirety of the decedent's estate, which includes, among other assets, 15 motor vehicle dealerships.
On October 23, 2020, Mr. Dempster filed the petition to annul the 2019 Will.[1] Mr. Dempster alleged that the 2019 Will was absolutely null under La. C.C. art. 1573[2] because the attestation clause did not comply with the formalities required by La. C.C. art. 1577.[3] He specifically alleged that the attestation clause was defective on the following two grounds:
The attestation clause in the probated, October 24, 2019 testament is defective because (1) it does not indicate that in the presence of the
notary and two witnesses, the testator declared that he signed the instrument at the end and on each other separate page and (2) it does not indicate that in the presence of the testator and each other, the notary and the two witnesses subscribed their names.
Mr. Dempster further alleged that the decedent executed three prior wills in 2006, 2010 and 2015. He asserted that the 2015 Will was absolutely null because it contained the same attestation clause as the 2019 Will. He claimed the third will, dated March 29, 2010 ("2010 Will"), should control the succession because it is the most recent, valid notarial will signed by the decedent. The 2010 Will designates Ms. Brandt and Terry Alarcon as co-executors of the decedent's estate and provides that if they are unwilling or unable to serve, then Mr. Dempster is designated as executor:
I appoint Terry Alarcon and Jessica Brandt, as Co-Executors of my estate and grant them full seizin and dispense him (sic) from furnishing bond. Should both predecease me or should either be or become unwilling or unable to serve, I appoint Todd Dempster as Executor of my estate and grant him full seizin and dispense him from furnishing bond or other security.
The 2010 Will also names Ms. Brandt as trustee of the Raymond J. Brandt Testamentary Trust ("2010 trust") established in the same will. Mr. Dempster alleged in his petition to annul that Ms. Brandt and Mr. Alarcon were both unwilling to serve as executors of the 2010 Will, and therefore, he was the proper party to seek to annul the 2019 Will and enforce the 2010 Will.[4] He requested that the trial court declare the 2019 Will absolutely null and probate the 2010 Will.
In response to Mr. Dempster's petition to annul the 2019 Will, Mr. Milano filed several exceptions, including the exception of no right of action at issue in this appeal. Mr. Milano argued that Mr. Dempster did not have a right of action to seek to annul the 2019 Will because the validity of a will may only be contested by
an heir, legatee, descendant or family member of the decedent. Mr. Milano alleged that, as the Chief Operating Officer of Ray Brandt Auto Group, Mr. Dempster is under the direct control and supervision of Ms. Brandt, who succeeded her late husband as the Chief Executive Officer of Ray Brandt Auto Group. Mr. Milano claimed that Ms. Brandt had Mr. Dempster file the petition to annul as a part of her attempt to thwart Mr. Milano's efforts as trustee to place the entirety of the decedent's estate into the 2015 trust.
On December 1, 2020, the trial court held an evidentiary hearing and rendered a judgment sustaining Mr. Milano's exception of no right of action. The trial court found that Mr. Dempster has no procedural right to file a claim seeking to invalidate Mr. Brandt's 2019 Will because he was not an heir, legatee or trustee. The judgment also dismissed Mr. Dempster's petition to annul the 2019 Will, with prejudice.[5] On December 15, 2020, Mr. Dempster filed a motion for a suspensive appeal, which the trial court granted on December 22, 2020.
LAW AND DISCUSSION
On appeal, Mr. Dempster argues the trial court erred as a matter of law when it ruled he has no right of action to file a petition to annul the 2019 Will because he has a real and actual interest in contesting the validity of the will and would benefit from the attack based on three grounds: 1) he is the executor of the estate entitled to fees under the 2010 Will that is operative if the 2019 Will and the 2015 Will are null and void; 2) he has a personal financial interest in the success of the 15 motor vehicle dealerships that are assets of the estate; and 3) he has a nonpecuniary
interest in the success of the dealerships because he spent the last 27 years working with the decedent helping to build the business.
La. C.C.P. art. 681 states that "[e]xcept as otherwise provided by law, an action can be brought only by a person having a real and actual interest which he asserts." While the exception of no right of action tests whether the plaintiff has a "real and actual interest" in the action, it does not raise questions of the plaintiff's ability to prevail on the merits or whether the defendant may have a valid defense. Lemmon Law Firm, LLC v. Sch. Bd. of St. Charles, 13-376 (La.App. 5 Cir. 12/12/13), 131 So.3d 231, 236. The court assumes the "petition states a valid cause of action for some person and questions whether the plaintiff in the particular case is a member of the class that has a legal interest in the subject matter of the litigation." Howard v. Administrators of Tulane Educational Fund, 07-2224 (La. 7/1/08), 986 So.2d 47, 60. The introduction of evidence is permitted to support or controvert an exception of no right of action. La. C.C.P. art. 931.
The burden of proof of establishing the exception of no right of action is on the exceptor. Succession of Sylvester, 16-372 (La.App. 5 Cir. 12/14/16), 215 So.3d 368, 371, writ denied, 17-265 (La. 4/13/17), 218 So.3d 119. The determination of whether a plaintiff has a right to bring an action raises a question of law, which requires de novo review. Id. La. C.C.P. art. 5051 provides that the articles of the Louisiana Code of Civil Procedure "are to be construed liberally, and with due regard for the fact that rules of procedure implement the substantive law and are not an end in themselves."
We first consider the issue of whether Mr. Dempster has a right of action as the executor entitled to fees under the 2010 Will that is operative if the 2015 and 2019 Wills are null and void. La. C.C.P. art. 2931 governs the procedure one must follow to annul a probated will. Though this provision lists the parties that must be
joined as defendants in such a proceeding, it does not specify the parties who may file a petition to annul a probated testament...
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