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In re Succession of Dale

Court of Appeals of Louisiana, First Circuit

September 24, 2018


          On Appeal from the 20th Judicial District Court In and for the Parish of East Feliciana State of Louisiana Trial Court No. 44, 463 Honorable William G. Carmichael, Judge Presiding

          Johanna R. Landreneau Kevin Paul Landreneau Baton Rouge, LA Attorneys for Plaintiff -Appellee, Succession Executrix - Felicia Baker

          Cy J. D' Aquila, Jr. C. Jerome D' Aquila New Roads, LA Kristopher R. Kahoa Port Allen, LA Attorneys for Defendant -Appellants, Christopher Roy Dale and Michael Anthony Dale


          HIGGINBOTHAM, J.

         In this succession proceeding, the defendants appeal the trial court judgment denying their request to reopen the succession of their mother and dismissing their claims.


         On December 10, 2016, Ms. Sandra Gabor Dale passed away. She was survived by her three children, Ms. Felicia Dale Baker, Mr. Christopher Roy Dale and Mr. Michael Anthony Dale. On February 6, 2017, her daughter, Ms. Baker, filed a "Petition for Probate and Appointment of Independent Executor," requesting that Ms. Dale's will prepared on January 13, 2014 (2014 will), which left the entirety of Ms. Dale's estate to Ms. Baker, be executed, and that she be appointed as independent executor of the succession. On February 21, 2017, Ms. Baker filed a "Petition for Possession," asking that she be recognized as the sole, universal legatee of Ms. Dale and put into possession of the full ownership of all property belonging to the succession of Ms. Dale. On February 22, 2017, a judgment of possession was signed, recognizing Ms. Baker as the sole heir and legatee under the terms of the 2014 will, putting Ms. Baker in possession of all property belonging to the succession, and terminating the administration of the succession.

         On March 9, 2017, Mr. Christopher Dale and Mr. Michael Dale filed a "Petition for Temporary Restraining Order, and for Preliminary Injunction to Reopen the Succession and For Related Relief." In their petition, the Dales contended that the petition for possession should be declared null, and the succession should be reopened because Ms. Dale executed a second notarial will on October 11, 2016 (2016 will), which revoked and rescinded any prior wills and bequeathed the entirety of her estate to be divided equally among Mr. Christopher Dale, Mr. Michael Dale, and Ms. Baker. The Dales' petition was heard by the trial court on June 12, 2017. On that day, the only evidence introduced into the record was the 2016 will.

          After the hearing the trial court signed a judgment on June 30, 2017, denying and dismissing all claims made by the Dales, including the request to reopen the succession. After the judgment was signed by the trial court, the Dales filed a motion for new trial asserting that the trial court erred in finding the 2016 will was an absolute nullity and, in the alternative, that even if the 2016 will was an absolute nullity for lack of form, it was still an authentic act that revoked all prior wills. Ms. Baker responded to the motion for new trial and raised the issue of Ms. Dale's testamentary capacity at the time of the 2016 will. The Dales' motion for new trial was denied by the trial court in a judgment signed on November 16, 2017. In well-considered written reasons for judgment, the trial court concluded that the 2016 will was absolutely null because the formalities prescribed for the execution of a notarial will under La. Civ. Code art. 1577 were not met. Specifically, the trial court found that although the 2016 will contained an attestation clause, it also contained a disclaimer from the notary stating that the notary did not prepare nor read the document and was attesting only to the authenticity of the signatures. The trial court concluded that the disclaimer nullified the declaration by the notary that it was the testator's will, as well as the declaration that the testator signed in the presence of the notary and two witnesses. It is from the judgment denying their motion for new trial that the Dales' appeal, assigning error to the trial court's findings that the 2016 will was not a valid notarial will and that the 2016 will was not a valid authentic act revoking all prior wills.[1]


         Louisiana Code of Civil Procedure article 3393(B) provides in pertinent part that: "[a]fter formal or informal acceptance by the heirs or legatees or rendition of a judgment of possession by a court of competent jurisdiction, if other property is discovered, or for any other proper cause, upon the petition of any interested person, the court, without notice or upon such notice as it may direct, may order that the succession be opened or reopened...." Whether a succession may be reopened is within the sound discretion of the trial court depending upon circumstances peculiar to the individual case. See Danos v. Waterford Oil Co., 225 So.2d 708, 714 (La.App. 1st Cir.), writ refused, 254 La. 856, 227 So.2d 595 (1969). Courts have found "other proper cause" under La. Code Civ. P. art. 3393, to exist under extremely limited circumstances, such as where a valid will is discovered after the administration of a succession. Succession of McLendon, 383 So.2d 55, 58 (La.App. 2d Cir. 1980). (Emphasis added.) Thus, we must consider whether the 2016 will is valid giving proper cause to reopen the succession of Ms. Dale, and if not, whether the revocation clause can be considered a valid authentic act revoking all prior wills.

         Louisiana Civil Code article 1577 addresses the requirements of form for a notarial testament and provides as follows:

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 ...

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