In re Rogers
| Decision Date | 27 September 2017 |
| Docket Number | No. 51,267–CA,51,267–CA |
| Citation | 243 So.3d 1209 |
| Parties | SUCCESSION OF Ulysses ROGERS and Lizzie Mae Crane Rogers |
| Court | Court of Appeal of Louisiana — District of US |
SENTELL LAW FIRM, L.L.C., By: Charles S. Sentell, Jr., Minden, Counsel for Appellant
STEWART & STEWART, By: Jonathan M. Stewart, Counsel for Appellees
Before BROWN, WILLIAMS, STONE, COX, and BLEICH (Pro Tempore ), JJ.
Appellant, Bobby Ray Rogers, appeals a final judgment of the trial court finding that the last will and testaments of the decedents, Ulysses Rogers ("Mr. Rogers") and Lizzie Mae Crane Rogers ("Mrs. Rogers"), were in valid form and should be filed, probated, and executed in accordance with the law. For the following reasons, we respectfully reverse the ruling of the trial court.
Mr. Rogers died on August 18, 2011, and his wife, Mrs. Rogers, died on September 7, 2015. They were survived by ten children, including the appellant, Bobby Ray Rogers ("Appellant"). Mr. and Mrs. Rogers each left a typed purported will, both signed by a notary and two witnesses, and dated December 10, 1992.
In his will, Mr. Rogers bequeathed to his wife a usufruct for life over all of his property. He bequeathed the remainder of his property to his children in equal proportions, subject to conditions. Mr. Rogers stated that the portion bequeathed to Appellant shall be subject to a usufruct for life to Joycetta Rogers Bradford and Barbaraetta Rogers Dunn, two of Appellant's sisters. The will states that the usufruct "shall be joint and successive, for the life of whoever of them shall li[v]e longest." Next, the bequest to all of his children is subject to the following:
None of my children or their descendants shall sell or lease, with the exception of sale of mineral rights or mineral leases, any of the immovable property or undivided interest in same acquired from me hereunder without first offering the same to my other children on the same terms and conditions as may be offered by a bonafide third purchaser.
Mr. Rogers' will declared that any sale or lease made in violation of this provision shall be null and void. He also stated that the provision "shall be effective for the maximum period of time allowed by Louisiana law or ten (10) years after my death, whichever period is lesser." Mrs. Rogers' will contains the same language and conditions.
Mr. and Mrs. Rogers' wills also contain the same attestation clause, with the exception of their respective names.1 The attestation clause reads as follows:
On January 12, 2016, Appellant filed a petition requesting the trial court to order Jonathan Stewart, the attorney for his nine brothers and sisters ("Appellees"), to produce and file the original wills of his parents. Appellant claimed that both wills were null and void due to the invalid attestation clause and the double disposition of the usufruct.
On January 13, 2016, the trial court ordered Jonathan Stewart to produce and file the original wills so that the court could determine their validity.
On March 28, 2016, Appellant filed a motion contesting the validity of the wills. After considering the pleadings filed, the original wills, and the memoranda and arguments of counsel, the trial court found both wills to be valid and executed according to law. On June 29, 2016, Appellant filed a motion for devolutive appeal with this Court setting forth the following assignments of error: (1) the trial court erred in finding the attestation clauses in the statutory wills substantially complied with La. R.S. 9:2442 ; (2) the trial court erred in refusing to find an impermissible double disposition of a usufruct; (3) the trial court erred in failing to find that the double usufructs constituted a prohibited substitution; and, (4) the trial court erred in failing to strike the clause prohibiting free alienation by the heirs of their inheritance.
In a will contest, an appellate court must accord great weight to the factual findings of the trial court and cannot disturb such findings in the absence of manifest error. Matter of Succession of Biscamp , 2016-673 (La. App. 3 Cir. 2/1/17), 211 So.3d 472. "However, the trial court's interpretation and application of legal principles and statutory provisions are legal findings subject to de novo review." Id.
A disposition mortis causa may be made only in the form of a testament authorized by law. La. C. C. art. 1570. The formalities prescribed for the execution of a testament must be observed or the testament is absolutely null. La. C. C. art. 1573. "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." In re Succession of Hebert , 2012-281 (La. App. 3 Cir. 10/3/12), 101 So.3d 131.
A notarial testament is one that is executed in accordance with the formalities of Articles 1577 through 1580.1 of the Louisiana Civil Code. La. C.C. art. 1576. At the time both wills were executed, La. R.S. 9:2442 was controlling, but has since been repealed and reproduced in La. C.C. art. 1577. La. R.S. 9:2442 stated, in pertinent part, the following:
The word "shall" is mandatory. La. R.S. 1:3.
There is a presumption in favor of the validity of a testament, but proof of the nonobservance of formalities must be exceptionally compelling to rebut that presumption. In re Succession of Holbrook , 2013-1181 (La. 1/28/14), 144 So.3d 845. "Louisiana courts have held statutory and notarial wills invalid when they contain material deviations from form requirements, even in the absence of any indication of fraud." Successions of Toney , 2016-1534 (La. 5/3/17), 226 So.3d 397, 2017 WL 1709827, reh'g denied (June 29, 2017).
Regarding the attestation clause requirement, the Louisiana Supreme Court has stated:
There must be an attestation clause, or clause of declaration. However, its form is not sacrosanct: It may follow the form suggested in the statute or use a form substantially similar thereto. The attestation clause is designed to evince that the facts and circumstances of the confection and execution of the instrument conform to the statutory requirements. In construing the attestation clause of this type of will, this court has been most liberal in its determination of whether the clause complies in form and whether it evidences the requisites to supply validity to the instrument.
Succession of Morgan , 257 La. 380, 242 So.2d 551 (1970). There are three elements required for a valid attestation clause: the notary and witnesses are required to declare (1) the testator signed the will at its end and on each separate page, (2) the testator declared in the presence of the notary and witnesses that the instrument was his will, and (3) in the presence of the testator and each other, the notary and witnesses signed their names on a specified date. Succession of Brown , 458 So.2d 140 (La. App. 1 Cir. 1984).
Based on the Louisiana Supreme Court's recent decision in Successions of Toney , supra , we find both wills to be invalid. Although Appellant sets forth four assignments of error, we will only address the first assignment of error since the absolute nullity of each will renders the remaining assignments moot.
We find that the clauses contained in each will, even considered in aggregate, are not substantially similar to the sample attestation clause contained in La. R.S. 9:2442. Thus, we respectfully reverse the ruling of the trial court.
The first element of a valid attestation clause requires the notary and witnesses to declare that the testator signed the will at its end and on each separate page. Although the last page of each will states it was "Signed on each page and declared... in our presence [the two witnesses] to be his/her Last Will and Testament," it does not declare that the notary viewed the will being signed at the end and on each separate page.
The second element requires the testator to declare in the presence of the notary and two witnesses that the instrument was his/her will. This requirement appears to be met since the two witnesses and the notary declared that each party "personally came and appeared... who declared to me that the foregoing instrument is [his/her] Last Will and Testament."
The final element of La. R.S. 9:2442 requires the notary and two witnesses to sign their names on a specified date in the presence of the...
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In re Morgan
...must be afforded great weight and cannot be disturbed absent manifest error. Succession of Rogers, 51,267 (La.App. 2d Cir. 9/27/17), 243 So.3d 1209, 1212. Because these two assignments of error are intertwined, we address them together. Procedure and Burden of Proof: Lost Original Testament......
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In re Hanna
...In re Succession of Holbrook , 2013-1181 (La. 1/28/14), 144 So. 3d 845 ; Succession of Rogers , 51,267 (La. App. 2 Cir. 9/27/17), 243 So. 3d 1209. Louisiana Civil Code article 1577 addresses the requirements of form for a notarial testament and provides:The notarial testament shall be prepa......
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...WL 2608363.The case sub judice is also distinguishable from the recent case of Succession of Rogers , 51,267 (La. App. 2 Cir. 9/27/17), 243 So.3d 1209, in which this court found that the testaments were invalid because the attestation clauses were not substantially similar to the sample att......