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Succession of Pesnell

Court of Appeals of Louisiana, Second Circuit

June 26, 2019

SUCCESSION OF THOMAS EDROE PESNELL

          Appealed from the Third Judicial District Court for the Parish of Lincoln, Louisiana Trial Court No. 13, 129. Honorable James H. Boddie, Jr. (Pro Tempore), Judge

          AYRES, SHELTON, WILLIAMS, BENSON & PAINE, LLC By: Lee H. Ayres Jacob C. White R. Chaz Coleman Counsel for Appellants, Aubry Matt Pesnell & Robin Marie Pesnell

          HAYES, HARKEY, SMITH & CASCIO, L.L.P. By: C. Joseph Roberts, III Counsel for Appellee, Shirley Ann Pesnell, Ind. Adm.-Executrix

          LAW OFFICE OF MICHAEL S. COYLE By: Michael S. Coyle Amy J. Miller Counsel for Appellee, Shirley Ann Pesnell, Individual Legatee

          Before PITMAN, GARRETT, and STONE, JJ.

          PITMAN, J.

         Aubry Matt Pesnell ("Matt") and Robin Marie Pesnell ("Robin") appeal the trial court's judgment denying their petition to annul the probated testament of Thomas Edroe Pesnell ("the Testator"). For the following reasons, we affirm.

         FACTS

         The Testator died on February 11, 2018, and left a will and testament dated November 19, 2014 (the "Will"). On February 14, 2018, his widow, Shirley Ann Pesnell ("Shirley"), filed a petition to probate the Will and to be appointed as executrix. On that same date, the trial court signed an order that the Will be admitted to probate and executed and that Shirley be appointed executrix.

         On April 4, 2018, Matt and Robin, the adult children of the Testator and legatees of the Will, filed a petition to annul the probated testament and, alternatively, to remove Shirley as executrix. They named Shirley as defendant in her capacities as executrix and as a legatee of the Will. They argued that the Will is null and void because it was not executed in accordance with the formalities required by La. C.C. art. 1577 for a notarial testament. They contended that the attestation clause is not the same or substantially similar to the declaration provided by La. C.C. art. 1577(2) in that it fails to attest that the Testator signed the Will in the presence of the notary and witnesses and does not attest that the Testator signed "on each other separate page."

         On June 22, 2018, Shirley filed answers, both in her capacity as executrix and as a legatee, and denied that the Will and/or the attestation clause are in any way legally deficient.

         A hearing on the validity of the Will was held on September 20, 2018. The trial court found that the only deviation from La. C.C. art. 1577 in the Will was the absence of the words "on each other separate page" in the attestation clause. It stated that the question before it was whether this deviation is a material deviation or if the Will substantially complied with the formalities required of a notarial testament. It noted that the Testator did sign on each separate page of the Will and signed below the attestation clause. It found the Will to be in substantial compliance with the requirements of a notarial testament and decreed the Will to be valid.[1]

         On October 17, 2017, the trial court filed a judgment, which denied and dismissed with prejudice Matt and Robin's petition to annul. It further reserved all other claims and demands in the petition to annul and any ...


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