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Succession of Robin

Court of Appeals of Louisiana, Fourth Circuit

January 30, 2019

SUCCESSION OF EDWARD ROBIN, SR. SUCCESSION OF EDWARD ROBIN, SR.

          APPEAL FROM ST. BERNARD 34TH JUDICIAL DISTRICT COURT NO. 18-0030, DIVISION "B" Honorable Jeanne Nunez Juneau, Judge

          JACK M. ALLTMONT SESSIONS, FISHMAN, NATHAN & ISRAEL, L.L.C. COUNSEL FOR APPELLANT

          GREGORY S. LACOUR BLUE WILLIAMS, LLP COUNSEL FOR APPELLEE

          Court composed of Chief Judge James F. McKay III, Judge Daniel L. Dysart, Judge Regina Bartholomew-Woods

          JAMES F. MCKAY III CHIEF JUDGE

         On November 4, 2004, Edward Robin, Sr. executed a notarial will before notary public, Todd M. Villarrubia, and witnesses, Jan Gould and Russell S. Gehring. In the November 4, 2004 will, Mr. Robin left his gun collection to his son, Lee Nicholas Robin, and the remainder of his estate to two other sons, Brad Lee Robin and Don J. Robin. Mr. Robin left nothing to his other six surviving adult children. Mr. Robin also named Brad Lee Robin and Don J. Robin as co-executors of his estate.

         Mr. Robin, allegedly, appeared before Mr. Villarrubia again on or about January 14, 2016. During this alleged visit, Mr. Robin allegedly executed a document entitled as "Revocation of Any and All Prior Wills and Codicils," which was notarized by Mr. Villarrubia and witnessed by Ralph A. Litolff, Jr. and Monique D. Hardy. This document was not dated and it did not identify any will or codicil to be revoked by date.

         Edward Robin, Sr. died in St. Bernard Parish, Louisiana on August 22, 2017.

         On January 4, 2018, Mr. Robin's daughter, Chantel Robin Viada, filed a petition for appointment of administratrix and she was appointed as the administratrix that same day. On January 10, 2018, Brad Robin filed a petition for injunction and removal of succession representative. Concurrently, he filed a petition to file and execute notarial will and to confirm independent executor. That same day, the trial court both probated the 2004 testament and appointed Brad Robin as the independent executor per the terms of the 2004 testament. The trial court also issued a restraining order against Ms. Viada, preventing her from acting in any capacity as a representative of the succession of the decedent.

         A hearing to formally remove Ms. Viada as succession representative took place on February 8, 2018. Ralph Litolff, Jr. was the only witness to testify live at this hearing. He testified that the attempted revocation was not dated at the time when everyone signed the document. Mr. Litolff discovered this defect when a copy of the attempted revocation was emailed to him later on the same day it was executed. Mr. Litolff then informed Mr. Villarrubia of the deficiency. Mr. Villarrubia testified via his affidavit which was admitted into evidence. In his affidavit, Mr. Villarrubia testified that Mr. Litolff informed him the day after the attempted revocation was executed that the document lacked a date. Mr. Villarrubia further testified that after Mr. Litolff notified him that the attempted revocation was undated, he (Mr. Villarrubia) instructed his paralegal to insert a date onto the attempted revocation. The trial court refused to admit into evidence the altered revocation document.

          On March 12, 2018, the trial court issued a judgment which: ruled that the attempted revocation was not a valid authentic act, and therefore it did not revoke the 2004 testament; removed Ms. Viada as administratrix of the succession; ordered Ms. Viada to provide both an accounting of all assets of the succession since her appointment on January 4, 2018, and to return all succession property to Brad Robin; and confirmed the trial court's January 16, 2018 order, which probated the 2004 testament and appointed Brad Robin as the independent executor of the succession. Ms. Viada now appeals from this judgment.

         On appeal, Ms. Viada raises the following assignments of error: 1) the trial court erred in invalidating the January 14, 2016 "Revocation of Any and All Prior Wills and Codicils"; 2) the trial court erred in holding that said revocation was invalid because it was not dated immediately at the time it was signed by Mr. Robin, the notary public and two witnesses; 3) the trial court erred in refusing to admit into evidence the revocation as dated by the notary's paralegal upon the notary's instruction correctly showing the date executed; 4) the trial court erred in relying on the rationale of Succession of Melancon, 330 So.2d 679 (La.App. 3 Cir. 1976) which case has been expressly overruled (La. C.C. art. 1607, Revision Comments); 5) the trial court erred in filing and ordering execution of the revoked will dated November 4, 2004, in removing Ms. Viada as duly-appointed succession administratrix and in appointing Brad Robin as independent executor; and 6) the court further erred in ordering Ms. Viada to provide an accounting to Brad Robin and to return all succession property to Brad Robin.

         We will address Ms. Viada's first two assignments of error together. These assignments deal with the revocation of the 2004 testament and the validity of the revocation document. According to Ms. Viada's argument, her father's 2004 testament was revoked by the attempted revocation, which she alleges happened on January 14, 2016. In an action to annul a notarial testament, the party seeking to annul the will bears the burden of proving the invalidity of the testament. Succession of Dalier, 2009-0393, (La.App. 4 Cir. 8/12/09), 19 So.3d 8, 10.

         In the instant case, Edward Robin, Sr. executed a valid notarial will on November 4, 2004. According to Louisiana Civil Code Article 1607, the revocation of an earlier testament can occur in one of three ways. The first is that the testator physically destroys the testament, or has it destroyed at his direction. La. C.C. art. 1607. The second is that the testator declares it revoked in one of the forms prescribed for testaments or in an authentic act. Id. The third is that the testator identifies and clearly revokes the testament by a writing that is entirely written and signed by the testator in his own handwriting. Id. Based on the facts of the instant case, the first and third options ...


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