Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Succession of Robin

Supreme Court of Louisiana

October 22, 2019

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

          ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FOURTH CIRCUIT, PARISH OF ST. BERNARD

          Chief 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. [1]

         This 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 Because the testament was revoked by the testator, the trial court's judgment is reversed, and this matter is remanded to the trial court for further proceedings consistent with this opinion.

         FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         Edward 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.

         Testator 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."

         Testator died on August 22, 2017.[2] 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, [3] 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.

         A copy 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, [4] 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.

         Legatee 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."

         Heir 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 witnesses."

         At the 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.

         Mr. 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.

         On 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.

         In 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, [5] the 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.

         On 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."[6] 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 __.

         The 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, "[7] 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 testament. Id.

         This 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__ .

         DISCUSSION

         We begin with a consideration of the relevant codal provisions. Concerning the revocation of an entire ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.