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Succession of Ivey

Court of Appeals of Louisiana, Third Circuit

February 21, 2018

SUCCESSION OF ELMOSES IVEY

         APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 42, 935 HONORABLE THOMAS YEAGER, DISTRICT JUDGE

          Terry Aubin Aubin Law Firm A Professional Corporation COUNSEL FOR DEFENDANT-APPELLANT: Lois Ivey.

          J. Graves Theus Christopher Kinnison Theus Law Offices Post Office COUNSEL FOR PLAINTIFF-APPELLEE: Mary Ivey Waters William Ivey.

          Court composed of Sylvia R. Cooks, Elizabeth A. Pickett, and Phyllis M. Keaty, Judges.

          ELIZABETH A. PICKETT JUDGE.

         Testator's widow appeals the trial court's grant of summary judgment declaring her husband's last will and testament invalid because it does not satisfy the legal requirements for a notarial testament. For the following reasons, we affirm.

         FACTS

         In 1996, Elmoses Ivey executed his last will and testament in which he bequeathed all of his property to his wife, Lois Ivey. He died in February 2016, and Lois probated the will and obtained a judgment of possession. Shortly thereafter, Mary Ivey Waters and William Ivey, Mr. Ivey's children from a prior marriage, filed suit, contesting the validity of Mr. Ivey's will. Mary and William then filed a motion for summary judgment, seeking a judgment declaring the will null.

         In their motion for summary judgment, Mary and William assert that the attestation clause in Mr. Ivey's will fails to satisfy the legal requirements of a notarial testament; therefore, it is invalid. After conducting a hearing, the trial court granted the motion for summary judgment and signed a judgment that declared Mr. Ivey's will invalid, annulled the judgment of possession, and designated the summary judgment a final judgment as provided in La.Code Civ.P. art.1915(B). Lois appealed.

         DISCUSSION

         In their motion for summary judgment, Mary and William identify the following formalities required by La.Civ.Code art. 1577 that they claim Mr. Ivey's will does not include which renders the will null:

(1) The notarial attestation clause fails to state that the testator signed the will at the end and on each other separate page in the presence of the notary and witnesses;
(2) The notarial attestation clause fails to state that the testator declared or signified in the presence of the notary and witnesses that the instrument was his last will and testament;
(3) The notarial attestation clause does not clearly state that the notary, witnesses[, ] and testator executed the testament in the presence of each other; and
(4) The declaration in the notarial attestation clause is made by the testator, not the notary or the witnesses, which essentially amounts to ...

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