Succession of Rosemond Alfred Arceneaux, Jr.
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2012 CA 1624 I J d SUCCESSION OF ROSEMOND ALFRED ARCENEAUX R On Appeal from the 19th udicial District Court Parish of East Baton Rouge Louisiana Probate No 93 Section 25 695 Honorable Wilson O Fields udge Presiding oseph A Prokop r Courtney King Humphrey oseph A Prokop Jr Attorneys for Appellant Celia Arceneaux Burton Associates Baton Rouge LA Felix R Weill Weill Attorneys for Appellee Patricia Kay Crossland Arceneaux C Dunn L Baton Rouge LA and David G Koch Koch Law Firm L C Baton Rouge LA BEFORE PARRO WELCH AND KLINE JJ udgment rendered MAY 3 1 2013 udge 1 William F Kline Jr retired is serving as judge ad hoc by special a ointment of the Louisiana Supreme Court d u i s C in PARRO J Appellant challenges a trial court judgment which found that the last will and testament of the decedent dated March 2 2010 was valid For the reasons that follow we a rm FACTUAL BACKGROUND AND PROCEDURAL HISTORY Rosemond Alfred Arceneaux Jr Alfred died on June 22 2011 while domiciled in East Baton Rouge Parish Alfred had been married twice in his lifetime at the time of his death he was married to Patricia Kay Crossland Arceneaux Kay Four children were born to Alfred during his first marriage namely Celia Annette Arceneaux Burton Celia John Arceneaux Brian Arceneaux and Michael Arceneaux No other children were born to Alfred nor did he adopt anyone On November 21 2000 Alfred executed a last will and testament in notarial form the 2000 testament in which he made a special bequest leaving all of his interest in the family home and all household effects situated therein to his wife Kay He further made certain special and pecuniary bequests to his children Finally he left the remainder of his estate to his children Thereafter on March 2 2010 Alfred executed a new last will and testament the 2010 testament which revoked all prior wilis and codicils he had executed In the 2010 testament Aifred granted Kay a lifetime usufruct over all his assets but only to the e necessary to provide her a monthly ent payment of 5 The testament specifically prohibited Kay from expending 500 additional sums of principal or interest The balance of the estate was lefY to his children to share equally subject to the usufruct On September 30 2011 Celia filed a petition for probate of the 2000 Z These bequests centered on a debt owed by John and Alfred forgiveness of that debt in the s 2000 testament The testament provided that the other children were to be given a sum in dollars equal in value if any to the amount of John debt that was still outstanding along with s any accrued interest at the time of Alfred sdeath 2 testament which she alleged was in notarial form and therefore self proving In this petition Celia sought to be appointed as the independent executrix in accordance with the 2000 testament She further sought to file a copy of the purported 2010 testament which Celia alleged was invalid because it did not contain a proper notarial attestation clause With regard to the 2000 testament the petition noted that pursuant to LSA art 2891 a notarial P C testament does not need to be proven However Celia acknowledged in the petition that she was aware that Kay planned to oppose the probate of the 2000 testament therefore in her petition Celia requested a contradictory hearing to address the probate of the 2000 testament See LSA art P C 2901 On November 18 2011 Kay filed a petition for probate of the 2010 testament Since that testament did not name an executor Kay sought to be appointed as the dative testamentary executrix pursuant to the provisions of P C LSA arts 3083 3097 and 3098 Kay further requested that the trial court set a contradictory hearing on the issue of the validity of the 2010 testament The trial court held a contradictory hearing on both of these issues on April 23 2012 At this hearing Kay introduced the testimony of William R Mullins III the attorney who prepared and notarized the 2010 testament Mr Mullins testified over the objection of Celia counsel concerning the events s surrounding the signing of the 2010 testament After this hearing the trial court rendered judgment declaring the 2010 testament to be valid granting s Kay petition to probate the 2010 testament and ordering that Alfred last will s and testament be executed and filed in accordance with law The judgment further denied Celia petition to probate the 2000 testament s It is from this judgment that Celia has appealed Celia was designated to serve as the executrix of her father succession in the 2000 s testament 3 DISCUSSION The sole issue before this court is whether the 2010 testament is a valid notarial testament executed in accordance with appropriate provisions of the ouisiana Civil Code the formalities of the See LSA art 1576 C Although the intention of the testator as expressed in the testament must govern the intent to make a testament although clearly stated or proven will be ineffectual unless the execution thereof complies with codal requirements See In re Hendricks 08 La App lst Cir 928 So 1057 1060 1914 09 23 3d writ not 0480 3d considered 10 La 3 29 So 1256 10 26 A material deviation from the manner of execution prescribed by the code will be fatal to the validity of the testament Id see LSA art 1573 The purpose of the C codal article in prescribing formalities for the execution of testaments is to guard against and prevent mistake imposition undue influence fraud or deception to afford means of determining their authenticity and to prevent the substitution of some other writing In re Hendricks 28 So at 1060 3d Nevertheless the validity of a will is to be maintained if possible Succession of Mor4an 257 La 380 386 242 So 551 553 1970 Courts 2d are not required to give the notarial testament a strict interpretation The legislature adopted the notarial testament from the common law in order to avoid the rigid formal requirements of the Louisiana Civil Code See Succession of GuezuraQa 512 2d So 366 368 La 1987 The minimal formal requirements of the notarial testament are only designed to provide a simplified means for a testator to express his testamentary intent and to assure through his signification and his signing in the presence of a notary and two witnesses that the instrument was intended to be his last will and testament Id Succession of Porche v Mouch 288 So 27 30 La 1973 2d In accordance with this legislative intent courts liberally construe and apply the code articles maintaining the validity of the will if at all possible as long as it is 4 in substantial compliance with the law See Succession of Guezuraaa 512 2d So at 368 In deciding what constitutes substantial compliance the courts look to the purpose of the formal requirements which is to guard against fraud Id The requirements of form for the notarial testament are set forth in LSA C art 1577 which provides The notarial testament shall be prepared in writing and shall be executed in the following manner If the testator knows how to sign his name and to read and is physically dated and 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 Article 1577 provides that a notarial testament shall be executed in a certain manner Thus to properly execute a notarial testament the following actions must be taken 1 in the presence of a notary and two competent witnesses the testator shall declare that the instrument is his testament 2 in the presence of a notary and two competent witnesses the testator shall sign his name at the end of the testament and on each other separate page of the testament and 3 in the presence of the testator and each other the notary and the witnesses shall sign the declaration set forth in Article 1577 or a 2 declaration substantially similar See LSA art 1577 C There must be an attestation clause or clause of declaration such as the one provided in LSA art 1577 however its form is not sacrosanct It C may follow the form suggested in the code article or use a form substantially similar thereto Succession of Moraan 242 So at 552 2d The attestation clause is designed to demonstrate that the facts and circumstances of the 5 confection and execution of the instrument requirements conform to the statutory In construing the attestation clause of notarial testaments the Louisiana Supreme 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 See id In construing an attestation clause the courts do not require strict technical and pedantic compliance in form or in language Rather the courts examine the clause to see whether there is substantial adherence to form and whether it shows facts and circumstances that demonstrate compliance with the formal requirements for testamentary validity See id at 553 The law recognizes 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 Hebert 12 La App 3rd Cir 10 101 So 131 135 281 12 3 3d Instead of the attestation or declaration clause specifically set forth in C LSA art 1577 the 2010 testament contained the following clause 2 Signed on each page and declared by testator above named to be his last will and testament and in his presence and in the presence of each other we have hereunto subscribed our names as witnesses on this 2nd day of March 2010 in the Parish of East Baton Rouge State of Louisiana within and for which the undersigned Notary Public is duly commissioned qualified and sworn Below this clause the 2010 testament was signed by Alfred as the testator Barbara S White and Bridget High as witnesses and William R Mullins III as the notary public Alfred also signed the two testament at the bottom of page the first page and at the end of the dispositive provisions of the testament on the second page On appeal Celia contends that the trial court erred in finding that the 2010 testament was valid Specifically she contends that the clause in the 2010 testament does not strictly adhere to the statutory requirements of LSA C art 1577 nor is it substantially similar to the attestation or declaration 6 clause required by that article because it does not state that 1 the testator declared or signified to the notary public and witnesses that the instrument was his last will and testament 2 the testator signed the testament in the presence of the notary public and two competent witnesses 3 the witnesses signed the testament in the presence of the notary public and 4 the notary public signed the testament in the presence of the testator and two competent witnesses We find these arguments to be without merit As a preliminary matter we note that Celia does not contend that Alfred actually failed to sign the 2010 testament in front of a notary and two witnesses or that he did not declare this instrument to be his last will and testament In fact Celia specifically stated at the hearing on this matter before the trial court and in her briefs to this court that she was not challenging whether the appropriate procedure for executing a notarial testament had been followed Furthermore Celia has alleged no fraud in the execution of the 2010 testament Rather her argument is merely that the purported attestation clause in this testament does not contain the appropriate language to indicate that the proper procedure was followed In making her arguments Celia interprets the attestation clause of the 2010 testament in a piecemeal fashion First she contends that the clause does not state that Alfred declared to the notary public and witnesses in their presence that the instrument was his last will and testament However a review of the clause indicates that it states that the 2010 testament was igned s testament on each page and declared by testator to be his last will and The testator witnesses and the notary all signed immediately after this clause acknowledging and confirming this statement Celia next argues that the clause does not state that the testator signed the testament in the presence of the notary public and the two witnesses It is In addition to this declaration at the beginning of the testament itself Alfred declared the instrument to be his will and stated I revoke all of my prior wills and codicils 7 true that the clause does not contain the more traditional language suggested in Article 1577 which would clearly indicate that the testator had signed in 2 the presence of the notary public and the witnesses However a common sense reading of the clause demonstrates that it adequately establishes that Alfred signed the 2010 testament in the presence of the notary public and the two witnesses testament was Specifically the attestation clause states that the 2010 igned s on each page and in his presence and in the presence of each other we have hereunto subscribed our names as witnesses As noted previously immediately following this clause Alfred as the testator the two witnesses and Mr Mullins as the notary public subscribed their names on the appropriate signature lines Therefore the witnesses and the notary public signed after the clause clearly acknowledging and conflrming that they had witnessed Alfred sign the 2010 testament Accordingly the attestation clause in the 2010 testament adequately establishes that the testator signed the testament in the presence of the notary public and two competent witnesses In her third and fourth challenges to the attestation clause Celia contends that the clause does not state that the witnesses signed the testament in the presence of the notary public or that the notary public signed in the presence of the testator or the two competent witnesses Celia appears to be basing this argument on the fact that the clause provides that all of the signatories except the testator acted as witnesses According to Celia the term witnesses cannot be used to mean the notary and two witnesses required by Article 1577 A review of the attestation clause in the 2010 testament indicates that the clause was signed by Alfred the two witnesses and the notary public in his s Alfred presence and in the presence of each other Article 1577 requires the notary and two witnesses to sign a declaration attesting to the fact 8 that 1 they witnessed the testator carry out the requirements of Article 1 e 1577 ideclare to them that the instrument is his testament and sign his name at the end of the testament and on each other separate page and 2 they are signing this declaration in the presence of the testator and each other There is no requirement in this code article that the language of the declaration or attestation clause make reference to the term witnesses or notary public The code article merely states that the witnesses and the notary public must sign in the presence of each other and the testator It is clear from the attestation clause of the 2010 testament that this requirement has been followed Moreover it is clear that although the language in the attestation clause is not the same exact language as that set forth in Article 1577 the 2 language is substantially similar within the meaning of that code article As stated previously in construing an attestation clause the courts do not require strict technicai and pedantic compliance in form or in language Rather the courts examine the clause to see whether there is substantial adherence to form and whether it shows facts and demonstrate compliance with the formal validity circumstances that requirements for testamentary See Succession of MorQan 242 So at 553 2d In addition the law recognizes 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 Hebert 101 So at 135 3d After a thorough review of the record we find that Celia has failed to produce exceptionally compelling proof sufficient to rebut the presumption in favor of the validity of the testament in question Accordingly we find no manifest error and no error of law in the trial court judgment which found s 9 I that the 2010 testament was valid CONCLUSION For the foregoing reasons we affirm the judgment of the trial court All costs in this matter are assessed to appellant Celia Arceneaux Burton AFFIRMED 5 Celia has also challenged the trial court decision to allow the notary public to testify s concerning the circumstances surrounding the execution of the 2010 testament However because we have determined that the attestation clause was substantially similar to the language provided in Article 1577 and that the 2010 testament was therefore valid we 2 pretermit the issue of the propriety of allowing the testimony of the notary public 10
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