SUCCESSION OF EDWARD ROBIN, SR. SUCCESSION OF EDWARD ROBIN, SR.
WRIT OF CERTIORARI TO THE COURT OF APPEAL, FOURTH CIRCUIT,
PARISH OF ST. BERNARD
Judge Susan M. Chehardy of the Court of Appeal, Fifth
Circuit, appointed as Justice pro tempore, sitting for the
vacancy in the First District.
Retired Judge Michael Kirby appointed Justice ad hoc, sitting
for Clark, J.
WEIMER, Justice. 
court granted the writ application of an heir to determine
the validity of an undated act signed by a testator in the
presence of two witnesses and a notary public in which the
testator declared that all of his prior testaments were
revoked. Although lacking a date, this court finds that the
act of revocation is valid as an authentic act. Because
extrinsic evidence regarding the date on which the act of
revocation was executed did not "negate or vary"
the content of the act of revocation, the lower courts
improperly applied La. C.C. art. 1848 to preclude the
admission of such evidence. The extrinsic evidence
establishes that the act of revocation was executed after the
testament at issue in this case. Because the testament was
revoked by the testator, the trial court's judgment is
reversed, and this matter is remanded to the trial court for
further proceedings consistent with this opinion.
BACKGROUND AND PROCEDURAL HISTORY
Robin (Testator) had ten children: five from his first
marriage to Doris G. Robin-Chris, Don, Brad, Edward, Jr., and
Donna Robin; three from his second marriage to Thaslia C.
Robin-Marcela R. Dardar, Elizabeth R. Locicero, and Lee
Robin; and two other children-Chantel R. Viada and Chad
Robin. On November 4, 2004, Testator executed a notarial
testament before Notary Public Todd Villarrubia and two
witnesses. In that testament, Testator bequeathed his gun
collection and hunting equipment to Lee and the remainder of
his estate to Brad and Don. His other seven children were not
included in the testament. Brad and Don were named in the
testament as co-executors of the estate.
also executed a "REVOCATION OF ANY AND ALL PRIOR WILLS
AND CODICILS" before Notary Villarrubia (who notarized
his 2004 testament) and two witnesses-Ralph Litolff, Jr. and
Monique Hardy. That document (the act of revocation) was not
dated and consisted of one sentence, which states: "I,
EDWARD JOHN ROBIN, SR., revoke any and all prior Wills and
Codicils that I may have made as pursuant to La. Civ. Code
Ann. Art. 1607."
died on August 22, 2017. Pursuant to a petition for appointment
of administratrix premised on an allegation that Testator
died intestate, Testator's daughter, Chantel R. Viada
(Heir), was appointed as the administratrix on January 4,
2018. On January 10, 2018, Brad Robin (Legatee) filed a
petition for injunction and for removal of the administratrix
based on the fact that Testator did not die intestate. In his
petition, Legatee alleged that Testator left a testament in
notarial form dated November 4, 2004,  recognized that
an act of revocation had been executed by Testator, and urged
that the act of revocation, which had not been dated by
Notary, was ineffective because it did not satisfy the
authentic act requirement of La. C.C. art. 1607.
of the undated act of revocation was attached as an exhibit
to Legatee's petition. Also attached to that petition was
an affidavit of a witness to the act of revocation, Mr.
Litolff,  which confirms that Testator's act of
revocation did not contain a date and that a date was added
to the document on a later day.
also filed a petition to probate Testator's 2004
testament and to confirm him as the independent executor. On
January 16, 2018, the trial court probated the testament and
appointed Legatee as an independent executor. Subsequently,
Legatee filed a supplemental memorandum in support of his
petition for injunction, arguing that the undated act of
revocation was not authentic because it was not self-proving
(that is, it was not full proof of the agreement as required
by La. C.C. art. 1835), as extrinsic evidence is needed to
show when the act of revocation was signed in order to
establish if the 2004 testament was revoked. Legatee further
stated that "[t]hird parties cannot rely on the
Revocation because they do not know by the four corners of
the document when it was executed."
opposed both of Legatee's petitions, alleging that
Legatee admitted "that on January 14, 2016, the Decedent
executed before a notary Todd M. Villarrubia and two
witnesses a sworn revocation of all prior wills pursuant to
La. C.C. Art. 1607." In her opposition, Heir challenged
Legatee's attack on the validity of the undated act of
revocation, urging that La. C.C. art. 1833 does not require
an authentic act to be dated to be valid. She averred that
nothing in the law precludes the date from being added to an
authentic act after everyone has signed or from being proved
by extrinsic evidence. Heir also alleged that "it is
unrefuted that in 2016, the Decedent swore before a notary
and two witnesses that he was revoking his prior wills and he
duly signed his name before the notary and two
February 8, 2018 hearing on the motion to remove Heir as
administratrix, Legatee introduced into evidence the undated
act of revocation and Notary's affidavit, which confirmed
that the date was added to the act of revocation the day
after its execution. In the absence of an execution date or
specific reference to the 2004 testament, Legatee argued that
Testator's act of revocation is not self-proving as to
what testament is being revoked as required by La. C.C. art.
1835; therefore, it is not authentic.
Litolff, who was a witness to the act of revocation, was
called by Legatee to testify at the 2018 hearing. Mr. Litolff
testified that he had known Testator "for probably about
seven or eight years," after being "introduced to
[Testator] shortly after the BP oil spill," which was in
2010, as Testator was a spill claimant. About being asked
"[a]t some point in time … to go to
[Notary's] office with [Testator] present," Mr.
Litolff confirmed that the request occurred "in
2016." Immediately afterwards, Mr. Litolff was
questioned about the execution of Testator's act of
revocation before him, another witness, and Notary. Mr.
Litolff identified the undated act of revocation as the
document he had witnessed. In the exchange that followed, Mr.
Litolff confirmed that he received a copy of the undated act
of revocation from Notary by email "two years"
earlier, that is, in 2016.
cross-examination of Mr. Litolff, when Heir's counsel
offered a copy of the act of revocation dated "January
14, 2016," into evidence, Legatee's counsel objected
on the ground of fraud/forgery based on "uncontested
proof that someone went in after the fact and added something
to the document." When the trial court ruled that the
dated act of revocation was inadmissible, Heir's counsel
proffered the document into evidence.
determining the validity of Testator's act of revocation,
the trial court observed that "the revision comments to
La. C.C. art. 1607 indicate that while a date is not required
in an authentic act as per La. C.C. art. 1833, when its
purpose is to revoke a testament, there must be a clear
identification of the testament to be revoked in the
authentic act." Since the act of revocation initially
did not include a date, the trial court found that clear
identification of the testament to be revoked was necessary
for the revocation to be valid. Absent identification in the
undated act of revocation of the "specific
testament" (by date) that Testator sought to revoke,
trial court held "there is no way to identify the
testament the decedent intended to revoke." Therefore,
"the revocation of the testament [was held to be]
invalid." Accordingly, Heir was removed as
administratrix and ordered to provide an accounting of all
assets of the succession since her appointment and to return
all succession property to Legatee, and Legatee's
appointment as the independent executor was confirmed.
appeal, after observing that La. C.C. art. 1607 authorizes
the revocation of a testament by a declaration of revocation
in an authentic act, a majority of the appellate court
acknowledged that the validity of an authentic act does not
depend on the inclusion of the execution date. Succession
of Robin, 18-0538, 18-0315, p. 5 (La.App. 4 Cir.
1/30/19), __ So.3d __(citing La. C.C. art. 1833).
Nonetheless, "[t]estimonial or other evidence may not be
admitted to negate or vary the contents of an authentic
act." Id. (quoting La. C.C. art. 1848).
According to the appellate court majority, the undated act of
revocation was not "self-proving," which is
required of an authentic act. Id. (citing Acurio
v. Acurio, 16-1395, pp. 6-7 (La. 5/3/17), 224 So.3d 935,
938-39). From the face of the undated act, the majority was
unable to determine when the act of revocation was executed.
Id. Resort to extrinsic or testimonial evidence to
prove when the act of revocation was executed and to which
testament the revocation applied was found by the appellate
court to directly conflict with La. C.C. art. 1848.
Id. Accordingly, the appellate court majority found
that the undated act "cannot be self-proving when it is
not known when [the undated act of revocation] was executed
or what testament was revoked." Id., 18-0538,
18-0315 at 5-6, __ So.3d at__ . According to the appellate
court majority, because the undated act failed to revoke the
2004 testament, "the trial court was correct in removing
[Heir] from office as administratrix and confirming …
the appointment of [Legatee] as independent executor."
Id., 18-0538, 18-0315 at 7, __ So.3d at __.
dissenting appellate court judge found that the act of
revocation was a valid authentic act since it was a writing,
signed by Testator, two witnesses, and Notary. Succession
of Robin, 18-0538, 18-0315 at 1, __ So.3d at
__(Bartholomew-Woods, J, dissenting) (citing La. C.C. arts.
1607, 1833). Furthermore, the dissenting judge noted that
parol evidence was admissible to prove when the act of
revocation was executed so as "to 'give effect'
to the authentic act, " as such information did "not
'negate' or 'vary' the contents of the
revocation." Id. (citing La. C.C. art. 1848).
Instead, the extrinsic evidence sought to be introduced
"simply provide[s] context as to when it was
executed." Id. According to the dissenter, the
phrase "clear identification of the testament to be
revoked" referenced in the revision comments to La. C.C.
art. 1607 does not require the testament to be
"specifically named/mentioned." Id.,
18-0538, 18-0315 at 2, So.3d at (Bartholomew-Woods, J,
dissenting). Therefore, the act of revocation, "which
revoked 'any and all prior wills and codicils'
clearly-though not specifically," identified the 2004
court granted Heir's writ application to consider whether
Testator effectuated a revocation of his 2004 testament in
light of the absence of the execution date on the act of
revocation. Succession of Robin, 19-0405 (La.
5/28/19), __ So.3d__ .
begin with a consideration of the relevant codal provisions.
Concerning the revocation of an entire ...