IN THE MATTER OF THE SUCCESSION OF JOHN ROBERT BISCAMP
FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO.
42, 343 HONORABLE THOMAS M. YEAGER, DISTRICT JUDGE
Grey Burnes Talley Burnes, Burnes & Talley COUNSEL FOR
APPELLANTS: Collis Wayne Lott Winnie Fuller Betty Biscamp
G. Theus Theus Law Offices COUNSEL FOR APPELLEES: Tiffani
Williams Aleesha Kuhn
T. Hebert Carleton, Loraso & Hebert, LLC COUNSEL FOR
APPELLEES: Tiffani Williams Aleesha Kuhn
composed of Ulysses Gene Thibodeaux, Chief Judge, John D.
Saunders, and David E. Chatelain, Judges.
E. CHATELAIN [*] JUDGE
succession case, the proponents of a notarial testament
challenge the trial court's ruling declaring the
testament an absolute nullity. Because we find the purported
testament fails to contain the requisite attestation clause
signed by the notary as mandated under La.Civ.Code art. 1577,
AND PROCEDURAL HISTORY
Robert Biscamp (Biscamp) died on April 6, 2015, survived by
two daughters-Alessha Biscamp Kuhn and Tiffiani Biscamp
Williams (plaintiffs). On May 28, 2015, plaintiffs filed
their "Petition and Order to Be Appointed Independent
Administrator, " alleging their father died intestate
and requesting the appointment of Alessha Kuhn as independent
administrator. Letters of Independent Administration were
then issued to Aleesha Kuhn.
long thereafter, on June 8, 2015, Collis Wayne Lott (Lott)
filed his "Reconventional Demand for Filing, Execution
of Will, and for Possession, " attaching thereto a
document entitled "Last Will and Testament of John
Robert Biscamp" (testament) executed in notarial form on
December 22, 2010. Therein, Biscamp left equal and undivided
interests in his residuary estate to his siblings, Lott,
Winnie Lee Fuller, Verna Inez Barnett, Robert Lee Biscamp,
and Betty Ann Biscamp (legatees). Though acknowledging his
two daughters, the provisions of the testament noted
Biscamp's failure to provide for any distribution to them
was "intentional." Biscamp also nominated Lott as
executor. On June 18, 2015, Letters of Independent
Administration were issued to Lott, confirming his
February 23, 2016, plaintiffs filed their "Petition to
Annul Testament, " alleging the testament was absolutely
null because it did not conform with the formal requirements
of La.Civ.Code art. 1577:
The alleged testament is absolutely null because it does not
conform with the requirements of form prescribed under the
Louisiana Civil Code article 1577. The attestation clause for
the notary and two witnesses is not found in the Last Will
and Testament, comprised of numbered pages 1-4, but in a
separate document titled "Affidavit" comprised of
numbered pages 1-2.
Further, the clauses in the "Affidavit" do not
state that the testator signed in the presence of the
witnesses and notary or that the witnesses signed in the
presence of the notary.
also noted the clause signed by the notary did not state that
Biscamp declared the testament to be his testament to the
notary in the presence of the witnesses.
opposition, the legatees contended the nonconsecutive
pagination did not give rise to an inference of two separate
documents as a simple review of the margins, size, type,
font, and other formatting was indicative of a single
document with separate headings. Moreover, the legatees noted
all the pages were executed by the signatories on the same
date, December 22, 2010. The legatees further argued the
affidavit was in fact an attestation, which provided that
Biscamp signed in the presence of the witnesses and the
notary and that the witnesses signed in the presence of the
notary. To find otherwise, they cautioned, would place form
over substance when it is more important that the required
acts be done than that they be recited.
was held on May 10, 2016. The only evidence admitted was a
copy of the testament, which consists of a six-page document
initialed "JRB" at the bottom of each
page. The first four pages set forth the
dispositive portion, whereas the last two pages contain an
"Affidavit" signed by Biscamp, two witnesses, and a
notary. Notably, the pages of the testament are not numbered
sequentially 1-6. Rather the second, third, and fourth pages
are paginated "2, 3, and 4, " respectively, with
the sixth page numbered "2." Both the first page
and fifth page lack pagination, and the certification of the
witnesses on page 3 states the testament "consists of
taking the matter under advisement, the trial court rendered
judgment declaring the testament "an absolute nullity
for materially deviating from the form requirements of
Louisiana Civil Code article 1577." In its written
reasons, the trial court found:
In comparing the will with the provisions of La. C.C. art.
1577, the purported attestation clause by the notary fails to
state that the testator (1) declared the will to be his Last
Will and Testament to the notary, (2) in the presence of the
Moreover, with respect to the statements by the witnesses set
forth in the paragraph preceding the notary's statement,
while this paragraph indicates that the witnesses were
"sworn, " that the "the Testator signs it
willingly in our presence, " and that the witnesses sign
"in the presence and hearing of the Testator …
and in the presence of each other, … as witness to the
Testator's signing, " this clause likewise does not
clearly state that the will and necessary signatures were
signed in the presence of all persons, including the notary.
Thus, this paragraph likewise is defective.
Therefore, the will in question does not contain the required
attestation clause which creates the issue: is the defective
attestation clause in the Last Will and Testament a material
deviation from the manner of execution prescribed by La. C.C.
art. 1577 and therefore fatal to the validity of the will?
The jurisprudence has consistently held that where a will is
merely notarized, but there is no declaration signed by the
notary, such a clause is not in compliance with LSA-C.C. art.
1577. Further, such defects constitute a substantive defect
fatal to the validity of the will and cannot be cured through
the subsequent testimony of the witnesses and the
Mr. Biscamp's will appears to be computer generated and
prepared by a lay person. Regardless, the requisites of law
still apply. Even though the result will be harsh, the Court
is bound to follow the law applicable to and governing such
instruments. The Court is a court of law and not of equity.
the trial court "regrettably" declared the
testament an absolute nullity; recalled and set aside the
order appointing Lott independent executor; recalled the
letters of independent administration issued to Lott;
recognized Aleesha Kuhn as the independent administrator of
the succession; and declared the ...