In re Pesnell
| Decision Date | 26 June 2019 |
| Docket Number | No. 52,740-CA,52,740-CA |
| Parties | SUCCESSION OF Thomas Edroe PESNELL |
| Court | Court of Appeal of Louisiana — District of US |
277 So.3d 842
SUCCESSION OF Thomas Edroe PESNELL
No. 52,740-CA
Court of Appeal of Louisiana, Second Circuit.
Judgment rendered June 26, 2019
AYRES, SHELTON, WILLIAMS, BENSON & PAINE, LLC, By: Lee H. Ayres, Jacob C. White, R. Chaz Coleman, Shreveport, Counsel for Appellants, Aubry Matt Pesnell & Robin Marie Pesnell
HAYES, HARKEY, SMITH & CASCIO, L.L.P., By: C. Joseph Roberts, III, Monroe, Counsel for Appellee, Shirley Ann Pesnell, Ind. Adm.-Executrix
LAW OFFICE OF MICHAEL S. COYLE, By: Michael S. Coyle, Ruston, Amy J. Miller, Merrillville, Counsel for Appellee, Shirley Ann Pesnell, Individual Legatee
Before PITMAN, GARRETT, and STONE, JJ.
PITMAN, J.
Aubry Matt Pesnell ("Matt") and Robin Marie Pesnell ("Robin") appeal the trial court's judgment denying their petition to annul the probated testament of Thomas Edroe Pesnell ("the Testator"). For the following reasons, we affirm.
FACTS
The Testator died on February 11, 2018, and left a will and testament dated November 19, 2014 (the "Will"). On February 14, 2018, his widow, Shirley Ann Pesnell ("Shirley"), filed a petition to probate the Will and to be appointed as executrix. On that same date, the trial court signed an order that the Will be admitted to probate and executed and that Shirley be appointed executrix.
On April 4, 2018, Matt and Robin, the adult children of the Testator and legatees of the Will, filed a petition to annul the probated testament and, alternatively, to remove Shirley as executrix. They named Shirley as defendant in her capacities as executrix and as a legatee of the Will. They argued that the Will is null and void because it was not executed in accordance with the formalities required by La. C.C. art. 1577 for a notarial testament. They contended that the attestation clause is not the same or substantially similar to the declaration provided by
La. C.C. art. 1577(2) in that it fails to attest that the Testator signed the Will in the presence of the notary and witnesses and does not attest that the Testator signed "on each other separate page."
On June 22, 2018, Shirley filed answers, both in her capacity as executrix and as a legatee, and denied that the Will and/or the attestation clause are in any way legally deficient.
A hearing on the validity of the Will was held on September 20, 2018. The trial court found that the only deviation from La. C.C. art. 1577 in the Will was the absence of the words "on each other separate page" in the attestation clause. It stated that the question before it was whether this deviation is a material deviation or if the Will substantially complied with the formalities required of a notarial testament. It noted that the Testator did sign on each separate page of the Will and signed below the attestation clause. It found the Will to be in substantial compliance with the requirements of a notarial testament and decreed the Will to be valid.1
On October 17, 2017, the trial court filed a judgment, which denied and dismissed with prejudice Matt and Robin's petition to annul. It further reserved all other claims and demands in the petition to annul and any defenses by Shirley. It designated the judgment as a final judgment.
Matt and Robin appeal.
DISCUSSION
Matt and Robin argue that the Will contained an invalid attestation clause pursuant to La. C.C. art. 1577 and, therefore, that the trial court erred in failing to annul it. They contend that the attestation clause is not the same or substantially similar to the declaration provided in La. C.C. art. 1577 because (1) it only attests that the Testator signed the Will "at the end thereof" and does not attest that he signed "on each other separate page" and (2) it fails to attest that the Testator signed the Will in the presence of the notary and witnesses. Therefore, they contend that pursuant to La. C.C. art. 1573, the Will is absolutely null because it does not observe the formalities required by La. C.C. art. 1577.
In her capacity as executrix, Shirley argues that the Will is valid and the trial court's ruling should be affirmed. She states that the Will contains all substantive elements required by La. C.C. art. 1577 in that the Testator signed each page of the Will, did so in the presence of the notary and two witnesses and declared that the instrument he signed was his last will and testament. She agrees that the language of the attestation clause deviates from the suggested statutory form, but argues that the deviation was nonmaterial, that any ambiguity could be cured by parol evidence and that the form used was substantially compliant with the statute.
In her capacity as a legatee, Shirley argues that the ruling of the trial court should be affirmed. She states that the trial court properly found that the Will was signed on each page and with the notary and witnesses and, therefore, was substantially similar to the language suggested in La....
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