Succession of James Jason Holbrook, Sr.

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STATE OF LOU3S ANA COiJRT OF APPEAL FIRST CIl2CUIT N0 2012 CA 1655 SUCCESSION OF JAMES JASON HOLBROOK SR i a udgment rendered April 26 2013 Appealed from the 22 Judicial District Court in and for the Parish of St Tammany Louisiana Trial Court No 2010 30525 Honorable August J Hand Judge RICHARD A TONRY II ATTORNEYS FOR SLIDELL LA APPELLANT LLEVONNEHOLBROOK P DAVID CAROLLO SLIDELL LA ATTORNEY FOR APPELLEE NNE D CARLUCQ BEFORE KUHN PETTIGREW AND McDONALD JJ PETTIGREW J Appellant Llevonne H Holbrook challenges the trial court judgment granting a s motion for summary judgment filed by appellee Dianne Carlucci and invalidating the last will and testament filed on behalf of the late James Jason Holbrook Sr For the reasons that follow we affirm FACTS AND PROCEDURAL HISTORY James Jason Holbrook Sr died testate on July 4 2010 In a last will and testament allegedly executed on April 8 2009 Mr Holbrook named his wife Llevonne H Holbrook as executrix of his estate Following Mr Holbrook sdeath Mrs Holbrook filed a petition on July 9 2010 to have the will probated be appointed executrix and be put in possession of Mr s Holbrook estate The will was probated and a judgment of possession was signed by the trial court on July 14 2010 Subsequently on November 12 2010 Mr Holbrook daughter Dianne Carlucci filed a To Set Aside s Petition Judgment Of Possession Set Aside The Will Of The Late James Jason Holbrook Sr For Violations Of The Requirements Of The Notarial Will And Undue Influence In response to said petition Mrs Holbrook filed a general denial and reconventional demand concerning bank accounts that Mrs Carlucci maintained for her father prior to his death Mrs Carlucci answered the reconventional demand generally denying the allegations therein On July 19 2011 Mrs Carlucci fied a second petition to set aside the will at issue Thereafter on February 22 2012 she filed a motion for summary judgment asserting that Mr Holbrook swill was invalid due to the fact that the attestation clause was not dated and therefore the will did not meet the statutory requirements of La Civ Code art 1577 Thus Mrs Carlucci maintained there was no genuine issue as to any material fact and she was entitled to summary judgment as a matter of law Mrs Holbrook filed an opposition to Mrs s Carlucci motion for summary judgment Mrs Holbrook acknowledged that the notary who handled Mr Holbrook will inadvertently failed to put s the day in the date section of the atEestation clause Mrs Holbrook noted however that every page of the will was dated April 8 2009 including the last page of the will that 2 included the attestation clause itself Mrs Hol ubmitted the affidavits of the notary rook and one of the witnesses who botf stated that Mr Helbrook had executed his will before them on April 8 2009 Following a March 28 12 hearin ar tne m far summary judgment the trial n to court took the matter under advisement n April 5 2012 the trial court issued written reasons for judgment as follows This matter came before the Court for hearing on May 28 2012 The Court took the matter under advisement in order to review the jurisprudence on the subject This testament was prepared in accordance with Civil Code articles 1576 et seq governing as to form This Court is of the opinion that the attestation clause must be dated as provided in Civil Code article 1577 Based upon its reading of Succession of Hol 531 So 431 way 2d S Ct 1988 and In the matter ofSuccession ofHendricks 28 So 1057 3d Court of Appeal First Circuit 2009 this Court finds that the testament is invalid as it is non with the requirements of Civil Code article compliant 1577 due to the omission of the date in the attestation clause The plaintiffs are awarded the relief requested in the Motion for Summary Judgment and additionally the Court will award in favor of the mover and against the executrix any court costs incurred by the mover The trial court signed a judgment an April 25 2012 in accordance with these findings granting summary judgment and finding Mr Holbrook will to be invalid It is from this s judgment that Mrs Holbrook has appe The soie error on appeal for our review is led whether the triai court erred in holding thaf the wil was invalid because the attestation clause was not dated LAW AND ANALYSIS A motion for summary judgment is a procedural device used to avoid a full scale trial when there is no genuine factual dispute Lewis v Morgan 2011 p 3 2182 La App 1 Cir 6 93 So 741 743 12 8 3d It shouid be granted only if the pleadings depositions answers to interrogatories and admissions on fil2 together with any affidavits show that there is no genuine issue of material fact and that mover is entitled to judgment as a matter of law La Code Civ P art 966 The summary judgment B procedure is expressly favored in the law and is designed to secure the just speedy and inexpensive determination of non civil actions domestic 3 La Code Civ P art 2 A 966 Its purpose is to pi the pfeadirogs and to assess the proof in order to see rce whether there is a aenuine need for t ial 04 25 6 876 So 764 769 per curiam 2d nes H v Garrett 2004 p 7 0806 La Summary judgments are reviewed on appeal de novo An appellate courk thus asks the same questions as does the trial court in determining whether summary judgment is appropriate whether there is any genuine issue of material fact and whether the mover is entitled to judgment as a matter of law Lewis 2011 at 4 93 So at 744 2182 3d On a motion for summary judgment the burden of proof is on the mover If however the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment the mover burden on the s motion does not require that all essential elements af the adverse party claim action s or defense be negated Instead the m must point out to the court that there is an ver absence of factual support for one or more elements essential to the adverse parly s claim action or defense Thereafter the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial If the adverse party fails to meet this burden there is no genuine issue of material fact and the mover is entitled to summary judgment La Code Civ P art 2 C 966 anney v Pearce 2009 p 5 App 1 Cir 5 40 So 285 2103 La 10 7 3d 289 288 writ denied 2010 La 9 45 So 1078 1356 1Q 24 3d On appeal Mrs Fioibrook argues that Mr Hoi will substantially conforms s rook with the statutory formalities and that any ambiguity as to the omitted day is resolved by the date set forth on each page of tF will and the affidavits of the notary and the e witness She maintains that the cases reEied on by the trial court are distinguishable from this case and provide no support for the trial court ruling Citing a third circuit s decision Succession of Songne 94 La App 3 Cir 11 664 So 556 1198 95 2 2d writ denied 95 La 2 666 So 1101 Mrs Holbrook further asserts that 2877 96 2d because the date is set forth on each page of the wili the affidavits submitted in opposition to the motion for summary judgment are sufficient to resolve any ambiguity in the date We are not persuaded by Mrs Holbrook sarguments 4 A notarial testament is one that is executed in accordance with the formalities of Articles 1577 through 1580 1 La Civ Code art 1576 Louisiana Civil Code article 1577 provides The notarial testament shali be prepared in writing and dated and shall be executed in the following manner di the testator knows how to sign his name and to read an is ph able fo do both then y li ysoc 1 In the presence of a notary and kuvo 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 Article 1577 provides that a notarial testament shall be executed in a certain manner The word shall is mandatory La R 1 When a law is clear and free S 3 from all ambiguity the letter of it is not to be disregarded under the prete of pursuing its spirit La R 1 Thus in order to be valid as to form 1 the testator must S 4 declare or signify in the presence of a notary and two witnesses that the instrument is his last will and testament 2 the testator must sign his name at the end of the testament and on each separate page and 3 the notary and two witnesses must sign a declaration in the presence of each other and the testator attesting that the formalities of Article 1577 have been followed Tn re Siverd 2008 p 4 1 2383 La App 1 Cir 09 11 9 24 So 3d 228 230 The primary purpose of the statute authorizing this type of will is to afford a simplified means of making a testament whereby the authenticity of the act can be readily ascertained and fraudulent alteration of it will be most difficult In re Succession of Richardson 2005 pp 3 La 0552 4 App 1 Cir 3 934 So 749 751 writ denied 2006 La 6 929 06 24 2d 0896 06 2 2d So 1265 Moreover although the intention of the testator as expressed in the testament must govern the intent to make a testament although clearly stated or proved wilf be ineffectual unless the execution thereof complies 5 with codal requirements In re Hendricks 2008 p 5 App 1 Cir 9 28 So 1057 1060 writ not 1914 La 09 23 3d considered 2010 La 3 29 So 1256 A material deviation from the 0480 i0 26 3a manner of executio prescribed y the code vvi0 b fata to t validity of the e testament Id If the formaii prescribed fo3 he execution of a testament are not ies observed the testament is absolutely nu La Civ Code art 1573 The purpose of an attestation clause is to show the will was executed in conformity with the statute Succession of Brown 458 So 140 142 La App 2d 143 1 Cir 1984 The attestation clause set forth in Article 1577 requires the notary and witnesses to declare 1 the testator declared in the presence of the notary and witnesses that it the instrument was his will 2 the testator signed the will at its end and on each separate page and 3 in the presence of the testator and each other they the notary and witnesses signed their names on a specified date La Civ Code art 1577 2 In Succession of Holloway 531 So 431 La 1988 the Louisiana Supreme 2d Court held as follows with regard to the question of whether the day of February 1984 qualified as a date Unless and until the Legislature says otherwise we are unwilling to depart from our conclusion in Heffner dfeffner 48 La 1088 20 v Ann So 281 1896 that the month without the day is no date If the month without the day were considered to be a date then presumably the year without the month and day would also have to be considered a date and thus a will would be considered dated if nothing more than the year of execution were reciked If such w the case the statute ere s requirement that the will must be dated would not be attributed its plain and ordinary meaning We are unwilling to disregard an express stacutory requirement in this fashion and instead adhere to the sound rEasoning of the h decision effne Succession of Holloway 531 So at 433 2d Much like the date in question in both the Succession of Holloway and Heffner cases the date in the attestation clause in Mr Fiolbrook will contained the s 1 In Heffner the Louisiana Supreme Court considered a case involving an olographic testament wherein the month and year of the execution were given but not the day of the month Ti court concluded that the e inclusion of the day of the month was essential and tha the will was invalid noting The mandate of the x Code is positive without and purposely without any qualification or exception The will must be dated and the month without the day is no date Heffner 48 La at 1090 20 So at 282 Ann 6 month and the year but not the day of the month The attestation clause provided as follows IN OUR PRESENCE THE TESTATOR has declared or signified that this instrument is his testament and F signed it at the end and on a each other separate page and in the presence of the TESTATOR and each other we have hereunto subscrebed ur es c nar nn this day of April 2009 in Covington Lquisiana WITN ESSES jsiQned fsianed PEGGY G VALLEJO Bar No 26539 Vicki M Wilson NOTARY PUBLIC 428 West 21st Avenue Covington LA 70433 sianed Carolyn Garlick My Commission Expires at Death Although Mrs Holbrook attempted to remedy this defect in the attestation clause by submitting affidavits stating that Mr Holbrook executed his will before the notary and two witnesses on April 8 2009 and that the 8 in the date of the attestation clause was inadvertently omitted additional evidence on this issue is precluded See In re Succession of Richardson 2005 at 4 934 So at 751 failure of will 0552 5 2d 752 to satisfy requirement for valid notarial will of containing attestation clause or clause of declaration signed by the witnesses and the notary could not be cured by having the witnesses and the notary appear before the c and testify that they witnessed the urt signing that the decedent had signed without fraud or duress and that they signed the document in the presence of ach other Succession of English 508 So 631 633 2d La App 2 Cir 1987 affidavit whieh accompanied petition for probate of statutory will could not cure total lack of attestation clause even though affidavit stated compliance with requirements for attestation clause Such an interpretation would render meaningless the mandatory requirements of the statute and do violence to the jurisprudentially recognized purpose of the attestation clause Moreover we find Succession of Songne the case cited by Mrs Holbrook in support of her position on this issue distinguishable from the facts in the instant case In Succession of Songne the will had a date on each page However on one page the year was 1991 and on another page it was dated 1992 7 The third circuit noted The Louisiana Supreme Caurt has held that if the wi bears two different dates it is I not stricken with invalidity Rather extrinsic eyidence may be introduced to prove which is the correct date Successio of Songne 94 2 664 So at 558 8at 11 2d citations omitted Thus the wilf i Succession of Songne is an Mr Holbrook ike s will in which the attestation clause was nQi ated at afl vVithout a date in the attestation clause the will fails to comply with the requirements of Article 1577 We have thoroughly reviewed the evidence in the record and agree with the trial s court conclusion that summary judgment was warranted in this case Mrs Holbrook s arguments on appeal are without merit Mrs Holbrook failed to bear her burden of producing evidence that there were genuine issues of material fact remaining as to any of the issues relative to the validity of Mr Holbrook will s Accordingly summary judgment was appropriate As the trial court correctly observed the attestation clause must be dated as provided in Article 1577 The trial court continued fnding that the will was invalid as it was non with the requirements of Articie 1577 In light of the omission of compliant the date in the attestation clause and the non with the formalities of Article complianee 1577 we are unable to find legal error in the trial court determination that s Mr Holbrook will is invalid s Although we recognize that the result mandated herein may seem harsh we are bound to follow the law applicable to and governing such instruments As previously recognized by this court if there is any area of our civil law in which the goal of certainty of resu has particular significance it is that of t succession In re Hendricks 1914 20Q8 at 5 28 3d So at 1060 citing J Gaidry concurrence in In re Succession of Richardson 2005 at 1 934 s OS52 2d So at 752 Accordingly we affirm the Aaril 25 2012 jutlgment of the triaf cQU t granting summary judgment in favor of Mrs Carlucci and invaGdating the iast will and testament of ames Jason Holbrook Sr 8 DECREE For the above and foregoing reasons we affirm the trial court April 25 2012 s judgment and assess all coszs associated with thAS appeal against appellant Llevonne H Holbrook AFFIRMED 9

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