Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.
Help support the publication of case reports on MoreLaw
SUCCESSION OF JOHN PHILLIP BARBEE, JR.
Case Number: 2019-CA-0575
Judge: Court composed of Judge Roland L. Belsome, Judge Regina Bartholomew-Woods, Judge Dale N. Atkins
Court: COURT OF APPEAL
STATE OF LOUISIANA
Need help finding a lawyer for representation concerning appealing the trial court’s decision to deny the probate of the last will and testament in Louisiana?
Call 918-582-6422. It's Free.
On June 1, 2018, an original petition for order of probate was filed in Civil
District Court for the Parish of Orleans. Attached to the petition, was a purported
last will and testament of decedent dated February 13, 2014. After filing this
purported last will and testament, the attorney handling the succession, realized
that an earlier last will and testament had been filed, as opposed to the latest and
most recent will and testament, which was executed by decedent and dated October
20, 2016. As a result, on November 2, 2018, Appellants filed a “Petition for Order
of Probate to Correct Clerical Error.” Appellants also filed a petition to probate the
October 20, 2016 last will and testament. Appellants requested that the trial court
sign the order probating the latter testament and the judgment of possession.
However, on February 4, 2019, the trial court denied relief for both pleadings,
notwithstanding the fact that there had been no contest to decedent’s testament.
The trial court, sua sponte, believed that decedent’s signatures on the two
testaments “varied drastically.” Appellants filed affidavits executed by decedent’s
attorney and the attesting witnesses to the 2016 testament, and also filed previous
testaments1 to evince the similarity of decedent’s signatures on each of the
testaments. Despite the presentation of the various testaments, the trial court
maintained its denial.
On February 11, 2019, Appellants filed a motion and order for new trial and
to vacate denial of judgment; a hearing was held on April 1, 2019. On May 31,
2019, the trial court granted, in part, and denied, in part, Appellants’ motion for
new trial. Among other actions, the trial court ordered Appellants to deposit
$150,000 into the registry of the court, and granted a partial judgment of
possession. In its September 9, 2019 reasons for judgment,2 the trial court explains
that despite the fact that decedent’s testament is uncontested by any party, the trial
court “found that a purported signature of the decedent located on the first page of
the testament varied drastically from previous wills as well as the signature on
every other page of the same will,” and for that reason, the trial court “finds the
signature invalid” and refused to sign both the order of probate, as well as the
judgment of possession. This appeal follows.
1 Appellants attached testaments executed by decedent in the following years: 2003, 2004, 2007, 2010, 2011, 2013, 2014, and 2016. 2 The Louisiana Supreme Court explained that “[a] judgment and reasons for judgment are two separate and distinct documents. La. C.C.P. art.1918. Appeals are taken from the judgment, not the written reasons for judgment.” Greater New Orleans Expressway Comm’n v. Olivier, 20022795, p. 3 (La. 11/18/03); 860 So.2d 22, 24. This Court further explained that “[t]he written reasons for judgment are merely an explication of the trial court’s determinations. Dawson v. Gray & Gray, 2018-0380, 9 (La. App. 4 Cir. 10/24/18); --- So.3d ----.
Assignment of Error
While Appellants raise as an assignment of error whether the trial court
erred in denying, in part, the motion for a new trial and ordering Appellants to
deposit $150,000 into the registry of the court, this appeal hinges on whether the
trial court erred in challenging, sua sponte, the validity of decedent’s signature,
despite the testament being unchallenged by any party to the succession.
Standard of Review
“[I]t is well settled that a court of appeal may not set aside a trial court’s or
a jury’s finding of fact in the absence of ‘manifest error’ or unless it is ‘clearly
wrong.’” Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). However, “[w]here one
or more trial court legal errors interdict the fact-finding process, the manifest error
standard is no longer applicable, and, if the record is otherwise complete, the
appellate court should make its own independent de novo review of the record and
determine a preponderance of the evidence.” Ferrell v. Fireman’s Fund Ins.
Co., 1994-1252, p. 7 (La. 2/20/95); 650 So.2d 742, 747. The Louisiana Supreme
Court explained that “legal error occurs when a trial court applies incorrect
principles of law and such errors are prejudicial” and thereby “materially affect the
outcome and deprive a party of substantial rights.” Evans v. Lungrin, 1997-0541, p.
7 (La. 2/6/98); 708 So.2d 731, 735 (citations omitted).
At the hearing on the motion for a new trial, Appellants presented the trial
court with decedent’s 2016 notarial testament in accordance with the formalities
set forth by La. C.C. arts. 1577-1580.1. Specifically, La. C.C. art. 1577 provides
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 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 ____, __.”
See In re Succession of Holbrook, 2013-1181, pp. 3-4 (La. 1/28/14); 144 So.3d
845, 848. In the present case, decedent’s testament met the requirements as spelled
out by the aforementioned codal article. It was executed in the presence of a
notary and two (2) competent witnesses; decedent’s signature appeared on each
page of his testament, as well as, at the end of his testament; and the attestation
clause at the conclusion of the testament was typed and executed exactly as
contemplated by La. C.C. art. 1577(2).
No party to the succession challenged the validity of decedent’s testament.
However, the trial court, sua sponte, challenged the validity of decedent’s
signature because it opined that decedent’s signature varied; and for that reason,
the trial court refused to grant Appellants’ order to probate and judgment of
possession. Appellants assert that the trial court committed legal error in reaching
this conclusion. In support of this argument, Appellants rely on Succession of
Squires, 640 So.2d 813, 815 (La. App. 3rd Cir. 1994), which references Succession
of Guezuraga, 512 So.2d 366 (La.1987), and provides “there were no allegations
of fraud. Here the testimony of the notary and one of the witnesses is that they saw
the testator initial the first page and sign his name to the last two pages. There is no
evidence to the contrary. Clearly the decedent intended this to be his Last Will and
Testament.” Similarly, in the present case, in addition to the affidavits of
decedent’s attorney and the two (2) attesting witnesses, decedent’s wife testified
that the signature on the testament was, in fact, that of decedent and that he “had a
variety of ways that he would write, and it would depend on how tired or irritated
he was about who was asking for the signature.” She further testified that she had
“seen his signature look like this in the past” and that there was no reason for
decedent’s signature to have been forged.
Further in line with the jurisprudential presumption in favor of validity of
testaments, La. C.C.P. art 2891 provides that “[a] notarial testament, a nuncupative
testament by public act, and a statutory testament do not need to be proved. Upon
production of the testament, the court shall order it filed and executed and this
order shall have the effect of probate” (emphasis supplied). Based on the
aforementioned alone, once presented with the notarial testament, the trial court,
hearing no contest from the parties to the succession, was under a mandatory
obligation to probate it, and enter a judgment of possession in accordance with the
mandates set forth in the testament.
Moreover, decedent’s uncontested notarial testament was an authentic act as
contemplated by La. C.C. art. 1833,3 and “the very goal envisioned by authentic
acts…is ‘to prevent contestations concerning the proof or evidence’ that the
signatures are indeed those of the parties” was satisfied in this case. Succession of
Robin, 2019-0405, p.8 (La. 10/22/19) (quoting Acurio v. Acurio, 2016-1395, p. 6
(La. 5/3/17), 224 So.3d 935, 939).
Appellants argue that there had been no contest to the validity or probate of
decedent’s testament other than that raised by the trial court, sua sponte, which was
inappropriate; to that end, Appellant rely on Succession of Flynn, 161 La. 707, 709;
109 So. 395, 396 (1926), in which the Louisiana Supreme Court reasons
‘an action can only be brought by one having a real and actual interest.’ No one is permitted to question the right of another in respect to a certain subject-matter unless he has a legal interest therein himself. The province of the
3 La. C.C. art. 1833 provides:
A. An authentic act is a writing executed before a notary public or other officer authorized to perform that function, in the presence of two witnesses, and signed by each party who executed it, by each witness, and by each notary public before whom it was executed. The typed or hand-printed name of each person shall be placed in a legible form immediately beneath the signature of each person signing the act.
B. To be an authentic act, the writing need not be executed at one time or place, or before the same notary public or in the presence of the same witnesses, provided that each party who executes it does so before a notary public or other officer authorized to perform that function, and in the presence of two witnesses and each party, each witness, and each notary public signs it. The failure to include the typed or hand-printed name of each person signing the act shall not affect the validity or authenticity of the act.
C. If a party is unable or does not know how to sign his name, the notary public must cause him to affix his mark to the writing.
judiciary is to interpret the law and determine the controversy only where there is a real and actual issue in contest between the litigants.
Similarly, this Court, in In re Succession of Duskin explained “La. C.C.P. art. 681
states ‘[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.’ Thus, one must have a
justiciable interest in the succession proceeding in order to have standing to
maintain an action to annul the testator’s testament.” 2014-0236, pp. 4-5 (La. App.
4 Cir. 11/19/14); 153 So.3d 567, 571-72; In re Succession of Vickers, 2004-0887,
p. 12 (La. App. 4 Cir. 12/22/04), 891 So.2d 98, 106 (Love, J., concurring). Based
on the aforementioned, the trial court lacked standing to challenge the validity or
veracity of decedent’s signature when there was no such challenge raised by any
party. The trial court exceeded its role as a gatekeeper and an impartial referee to
the proceeding when it inserted itself as an active participant by challenging the
validity of decedent’s signature despite no challenge from the parties to the
Accordingly, we find Appellants’ assignment of error meritorious and
reverse the trial court.
Outcome: For the aforementioned reasons, we find that the trial court committed legal
error, and reverse the trial court’s denial of Appellants’ order to probate and
judgment of possession. Further, we order that the testament of decedent dated
October 20, 2016, be probated, the $150,000 deposited into the registry of the court
be returned to Appellants, and a judgment of possession be entered in accordance
with the terms of decedent’s testament dated October 20, 2016.