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Succession of Pelfrey

Court of Appeals of Louisiana, Second Circuit

May 23, 2018

SUCCESSION OF STROUDER CALVIN PELFREY

          Appealed from the Second Judicial District Court for the Parish of Claiborne, Louisiana Trial Court No. 10798 Honorable Jimmy Cecil Teat, Judge.

          BARRY W. DOWD Counsel for Appellant.

          DEANNA D. MCCALLUM Counsel for Appellee.

          Before MOORE, GARRETT, and STONE, JJ.

          STONE, J.

         The trial court denied Steven D. Pelfrey's petition to have the last will and testament of Strouder C. Pelfrey declared invalid for failure to meet the requirements of La. C.C. art. 1577. Steven D. Pelfrey now appeals. For the following reasons, we affirm.

         FACTS AND PROCEDURAL HISTORY

         Strouder C. Pelfrey ("the decedent") died testate on August 25, 2015. On February 29, 2016, the decedent's son, Steven D. Pelfrey ("Steven"), filed a petition and rule to show cause requesting the trial court appoint him as administrator and declare the last will and testament of the decedent, dated January 14, 2014, invalid. Steven argued the will did not contain a sufficient attestation clause, and thus, did not meet the requirements of La. C.C. art. 1577 ("Article 1577"). On May 9, 2016, Theresa D. Pelfrey ("Theresa") filed a petition to probate the will and be appointed executrix as designated by the decedent in his will. On July 15, 2016, the trial court appointed Theresa executrix of the decedent's estate pending the result of Steven's petition.

         A hearing on Steven's petition was held on November 17, 2016. On January 24, 2017, the trial court issued written reasons for judgment and found the decedent's will valid because it met the requirements of Article 1577. On July 19, 2017, the trial court rendered a final judgment denying Steven's petition. Steven now appeals.

         DISCUSSION

         The formalities prescribed for the execution of a testament must be observed or the testament is absolutely null. La. C.C. art. 1573. The purpose of prescribing formalities for the execution of wills is to guard against mistake, imposition, undue influence, fraud or deception, to afford a means of determining the will's authenticity, and to prevent substitution of some other writing in its place. Succession of Roussel, 373 So.2d 155, 158 (La. 1979).

         Article 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 ...

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