In re Successions Toney

• Decision Date: 03 May 2017
• Docket Number: No. 2016-C-1534.,2016-C-1534.
• Citation: 226 So.3d 397
• Parties: SUCCESSIONS OF Jeanette Rena TONEY, wife of/and Ronnie Robert Toney
• Court: Louisiana Supreme Court

226 So.3d 397

SUCCESSIONS OF Jeanette Rena TONEY, wife of/and Ronnie Robert Toney

No. 2016-C-1534.

Supreme Court of Louisiana.

May 3, 2017

Rehearing Denied June 29, 2017

Gary James Williams ; SESSIONS, FISHMAN, NATHAN & ISRAEL, LLC, Jack Marks Allmont, Max Nathan, Jr., April Lee Watson ; for Applicant.

ROY K. BURNS JR., LLC, Roy K. Burns, Jr. ; for Respondent.

GENOVESE, JUSTICE

We granted writs in this succession case to determine whether the testament at issue is valid under Louisiana law, where the first two pages of the testament were initialed rather than signed and where the testament contains no attestation clause which meets all of the requirements of La. Civ.Code art. 1577, nor any attestation by the notary beyond the general notarization. For the following reasons, we find the propounded testament materially deviated from the form requirements of La. Civ.Code art. 1577 and is thus absolutely null pursuant to La. Civ.Code art. 1573.

FACTUAL AND PROCEDURAL HISTORY

Ronnie Robert Toney, the decedent in this case, passed away on January 19, 2015 (hereinafter referred to as "Mr. Toney"). He was predeceased by his second wife, Jeannette Rena Toney, who died on October 18, 1999. Mrs. Toney had no children. In her will, which was executed on September 23, 1993, she bequeathed her entire estate to her husband, or, if he did not survive her, to Richie Glenn Gerding (hereinafter referred to as "Gerding" or "applicant).¹ Mrs. Toney's succession was not opened immediately upon her death.

On April 13, 2015, Gerding filed a "Petition for Filing and Execution of Testaments and for Confirmation of Independent Executor," with Mrs. Toney's September 23, 1993 will attached, along with a document entitled "Last Will and Testament of Ronnie R. Toney," dated August 2, 2014. Gerding sought to file and execute both testaments and to have the court appoint him as independent executor of the couple's successions. Both testaments were probated. However, on May 6, 2015, John Huey Pierce Jenkins (hereinafter referred to as "Jenkins" or "plaintiff"), the uncle of Mr. Toney, filed a petition for annulment of the August 2, 2014 testament, alleging that "the purported notarial testament of the decedent is an absolute nullity for lack of form." Specifically, the plaintiff alleged that the testament was not in compliance with the requirements of La. Civ.Code art. 1577, because the testament was not signed on each separate page, the attestation clause was not in proper form, and the notary, witnesses, and testator were not in the presence of each other at the execution of the testament.

The August 2, 2014 testament, as submitted by Gerding, consists of three numbered pages along with an attached, though unnumbered, affidavit. Instead of a full signature, only the printed initials "RT" are found on the bottom left corner of the first two pages of the testament, which contain all but the end of the last sentence of the dispositive provisions of the will. The third page of the testament begins with the conclusion of this sentence and appears as follows:

[...] shall be determined by such beneficiaries if they can agree, and if not, by my Executor.

IN WITNESS WHEREOF, I have subscribed my name below, this 2 day of August, 2014.

Testator Signature: Ronnie R Toney [signed]

Ronnie R. Toney

We, the undersigned, hereby certify that the above instrument, which consists of 3^[2] pages, including the page(s) which contain the witness signatures, was signed in our sight and presence by Ronnie R. Toney (the "testator), who declared this instrument to be his/her Last Will and Testament and we, at the Testator's request and in the Testator's sight and presence, and in the sight and presence of each other, do hereby subscribe our names as witnesses on the date shown above.

[This clause is followed by signatures of Angela Dutel, Robert A. Davis, and William J. Orazio, Jr.]

An additional, unnumbered page entitled "Affidavit" is attached to the three-paged testament and appears as follows:

I, Ronnie R. Toney, the Testator, sign my name to this instrument this 2 day of August, 2014, and being first duly sworn, do hereby declare to the undersigned authority that I sign and execute this instrument as my Will and that I sign it willingly, in the presence of the undersigned witnesses, that I execute it as my free and voluntary act for the purposes expressed in the Will, and that I am eighteen years of age or older, of sound mind, and under no constraint or undue influence.

Testator Signature: Ronnie R. Toney [signed]

Ronnie R. Toney

We, Angela Dutel and Robert A. Davis and William Orazio, the witnesses, sign our names to this instrument, being first duly sworn, and do hereby declare to the undersigned authority that the Testator signs and executes this instrument as the Testator's will and that the Testator signs it willingly, and that the Testator executes it as the Testator's free and voluntary act for the purposes expressed in the well, and that each of us, in the presence and hearing of the Testator, at the Testator's request, and in the presence of each other, hereby signs this will, on the date of the instrument, as witnesses to the Testator's signing, and that to the best of our knowledge the Testator is eighteen years of age or older, of sound mind and memory, and under no constraint or undue influence, and the witnesses are of adult age and otherwise competent to be witnesses.

Three witnesses' signatures are found under this provision, with the third witness's signature falling on the following page. The affidavit then concludes:

STATE OF LOUISIANA

COUNTY OF (NOT COUNTY) [sic] PARISH OF ST. TAMMANY

Subscribed, sworn to and acknowledged by Ronnie R. Toney, the Testator; and subscribed and sworn to before me by Angela Dutel and Robert A. Davis and William Orazio, witnesses, this 2 day of August 2014.

Louis G. Dutel III, 66415 [signed]

Notary public, or other officer authorized to take and certify acknowledgments and administer oaths.

[Louis Dutel's notarial stamp and Ronnie R. Toney's full signature are also found on the concluding page of the affidavit.]

After a hearing in which the parties stipulated that Jenkins was the nearest heir of Toney, the trial court judge found that the testament in question was absolutely null for lack of form, stating in oral reasons that, in his opinion, although the initials instead of a signature by itself would have been sufficient to meet the requirements of the notarial will, the attestation clause was also deficient, as it did not address whether the witnesses attested to viewing the testator sign each page, which is a requirement.

The Court of Appeal affirmed, finding the will did not substantially comply with the requirements of La. Civ.Code art. 1577, because it failed "to state that the testator declared, in the presence of the notary, that the testament was his last will and testament or that all persons signed in the presence of each other, including the notary." Successions of Toney,2015-1928, p. 5 (La.App. 1 Cir. 6/3/16), 195 So.3d 672, 675, writ granted 16-1534 (La. 12/16/16), 212 So.3d 1168. Judge Higginbotham dissented, noting that no fraud was indicated or pled and finding that the clause signed by the notary substantially complies with the requirements of La. Civ.Code art. 1577 in light of this court's holding in In re Succession of Holbrook,13-1181 (La. 1/28/14), 144 So.3d 845. Jenkins subsequently appealed the First Circuit's holding, and this court granted writs.

LAW AND ANALYSIS

This case tests the limits of what constitutes compliance with the formal requirements of La. Civ.Code. art. 1577 for the purpose of confecting a valid notarial testament under Louisiana law. The notarial testament is one of only two forms of testaments currently permissible under Louisiana law—the other being the olographic, or handwritten, testament. There is a presumption in favor of the validity of testaments in general, and proof of the nonobservance of formalities must be exceptionally compelling to rebut that presumption. In re Succession of Holbrook, p.11, 144 So.3d at 853. However, the Civil Code also provides in no uncertain terms that "[t]he formalities prescribed for the execution of a testament mustbe observed or the testament is absolutely null." La. Civ.Code art. 1573 (emphasis added). Nevertheless, the codal article which provides the form requirements for the notarial testament does contain an allowance that the mandated attestation clause need only be "substantially similar" to the sample declaration provided in statute:

Louisiana Civil Code Art. 1577. Requirements of Form.

The notarial testament shall be prepared in writing and dated and shall be executed in the following manner. If the testator knows how to sign his name and to read and is physically able to do both, then:

(1) In the presence of a notary and two competent witnesses, the testator shall declare or signify to them that the instrument is his testament and shall sign his name of at the end of the testament and on each other separate page.

(2) In the presence of the testator and each other, the notary and the witnesses shall sign the following declaration, or one substantially similar: "In our presence the testator has declared or signified that this instrument is his testament and has signed it at the end and on each other separate page, and in the presence of the testator and each other we have hereunto subscribed our names this ––– day of ––––, ––––."

The notarial testament was added to the Civil Code in the 1997 revision. Comment (a) to La. Civ.Code art. 1577 provides "[t]his article reproduces the substance of R.S. 9:2442. It does not change the law." Thus, case law regarding both La. Civ.Code art. 1557 and its predecessor, La.R.S. 9:2442, is instructive.

The applicant argues that the lower courts' holdings, finding no substantial compliance with La. Civ.Code art. 1577 in this case, are in direct conflict with In re Succession of Holbrook, 144 So.3d 845. In Holbrook, the...