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Succession of Laborde

Court of Appeals of Louisiana, First Circuit

May 31, 2018

SUCCESSION OF GLENN MICHAEL LABORDE

          On Appeal from the 21st Judicial District Court, Parish of Tangipahoa, State of Louisiana Trial Court No. 2013-0030003 The Honorable M. Douglas Hughes, Judge Presiding

          Glen R. Galbraith Julie R. Johnson Hammond, Louisiana Attorneys for Appellant, Daniel Joseph Laborde

          Walter Antin Jr. Hammond, Louisiana Attorney for Appellant, Ethel Annette Laborde

          Richard J. Brazan Jr. Baton Rouge, Louisiana Attorney for Appellee, Glynis Annette Laborde

          BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.

          CRAIN, J.

         This appeal of a judgment of possession challenges the trial court's conclusion that an heir did not forfeit legacies pursuant to a no-contest clause. We reverse and remand.

         FACTS

         Glenn Michael Laborde died on December 19, 2012, and his will was probated on January 9, 2013. Mr. Laborde's daughter, Glynis Annette Laborde, filed a motion to contest and nullify the will. About the same time, a codicil was filed containing a no-contest clause, which pertinently provided if Glynis filed a legal action contesting any provision of the will, all bequests to her were revoked, forfeited, void, null, without effect, and lapsed. The codicil was not probated or otherwise made executory until September 2016. Glynis eventually, and voluntarily, dismissed her motion before the codicil was probated, but only after the parties engaged in discovery and the executrix, Glynis' mother, filed a motion for summary judgment.

         In 2016, the executrix and Glynis filed motions to be placed in possession of property pursuant to the will. The executrix then sought to enforce the no-contest clause contained in the codicil. Glynis objected to the enforcement of the no-contest clause, arguing her actions prior to the codicil being probated had no legal effect.

         Before the trial court, the parties argued whether the codicil, once probated, was effective retroactively to the date of Mr. Laborde's death, placing emphasis on when the challenge was pending, not whether it was filed. The trial court refused to enforce the no-contest clause, reasoning Glynis filed her motion before she knew the codicil existed and withdrew the motion approximately six months after it was filed. The court found "the filing of the Motion contesting the Will, without knowledge of the Codicil, which Motion was subsequently withdrawn, fails to qualify as a legal action contesting the Will as contemplated by the language of the Codicil and intent of the testator." The trial court also determined Glynis did not violate the no-contest clause by other actions taken during the course of the succession, including filing a motion to traverse the detailed descriptive list and opposing a partial judgment of possession because certain property was improperly listed on an inventory. The trial court rendered a judgment rejecting the executrix's arguments and placing Glynis and the executrix in partial possession of property specified in the will.

         The executrix and Mr. Laborde's other heir, Daniel Joseph Laborde, appeal, contending the trial court erred by refusing to enforce the no-contest clause. They argue Glynis filed a legal action contesting the will, therefore, pursuant to the no-contest clause, the bequests to her were revoked, forfeited, null, void, without effect, and lapsed. Glynis maintains the trial court correctly held the codicil was not effective until probated and, once probated, did not apply retroactively to Mr. Laborde's death.

         DISCUSSION

         This appeal challenges the trial court's finding that Glynis did not violate the no-contest clause and the judgment placing her in possession of succession property. The parties argue the resolution of the challenge depends on whether the codicil containing the no-contest clause, once probated, applied retroactively to Mr. Laborde's death, citing Louisiana Civil Code article 1605, which provides, "A testament has no effect unless it is probated in accordance with the procedures and requisites of the Code of Civil Procedure."; The parties dispute the meaning of revision comment "(b)" to Article 1605, which provides, "When a valid testament is probated, it is effective as of the date of the testator's death. See [Louisiana Civil Code] Article 935." Article 935 is entitled "Acquisition of ownership; seizin, " and pertinently ...


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