Opinion
2022 CA 0403.
11-04-2022
IN RE: The SUCCESSION OF Diana Bartlett MORGAN.
Morgan Field, III , Baton Rouge, Louisiana, Counsel for Plaintiff/Appellant, Diana Lynn Ford. John David Ziober , Baton Rouge, Louisiana, Counsel for Defendant/Appellee, James William Morgan: Executor of Diana Bartlett Morgan. BEFORE: WELCH, PENZATO, AND LANIER, JJ.
Morgan Field, III , Baton Rouge, Louisiana, Counsel for Plaintiff/Appellant, Diana Lynn Ford.
John David Ziober , Baton Rouge, Louisiana, Counsel for Defendant/Appellee, James William Morgan: Executor of Diana Bartlett Morgan.
BEFORE: WELCH, PENZATO, AND LANIER, JJ.
PENZATO, J.
Appellant, Diana Lynn Ford, seeks reversal of the May 6, 2021 judgment admitting for probate the Last Will and Testament executed by her mother, Diana Bartlett Morgan, on June 22, 2016; removing Ms. Ford as the administratrix of Mrs. Morgan's succession; naming appellee, James William Morgan, as independent executor of Mrs. Morgan's succession; and ordering that letters of independent administration be issued to Mr. Morgan upon his taking the oath required by law. For the foregoing reasons, we affirm. We also recall the rule to show cause order issued by this court on May 13, 2022 and maintain this appeal.
FACTS AND PROCEDURAL HISTORY
Diana Bartlett Morgan died on March 31, 2020. Her daughter, Diana Lynn Ford, petitioned the court to open Mrs. Morgan's succession on June 15, 2020 and to be appointed succession administrator. See La. C.C.P. art. 3421, et seq, and La. C.C.P. art. 3094. According to the petition, Ms. Ford was told that Mrs. Morgan executed a Last Will and Testament; however, it could not be located and was not produced by Mrs. Morgan's husband, James William Morgan, or his attorney. Thus, Ms. Ford alleged that Mrs. Morgan died intestate. See La. C.C. arts. 880, et seq. Mrs. Morgan's succession was opened, and Ms. Ford was appointed as succession administrator by order dated June 15, 2020. Letters of administration were issued on June 23, 2020.
Mr. Morgan filed the subject "Petition with Authorities for Rule to Show Cause to File Notarial Will, the Original of Which Has Been Lost, for Appointment of Independent Executor and to Reconsider Order" (for simplicity, "petition to probate lost will") on July 9, 2020. According to the petition to probate lost will, Mr. Morgan and Mrs. Morgan were married on February 4, 2006 and lived together as husband and wife until the date of Mrs. Morgan's death. Mr. Morgan asserted that Mrs. Morgan executed a Last Will and Testament, in proper notarial form, on June 22, 2016. The original, which was never in Mrs. Morgan's possession, was lost. Mr. Morgan sought to probate the lost June 22, 2016 Last Will and Testament using an unsigned copy of the same document to prove the existence and contents of the lost original. Mr. Morgan also sought to nullify Ms. Ford's appointment and qualification as administratrix and to be confirmed as the independent executor of Mrs. Morgan's succession, without bond, and for the issuance of letters of independent administration.
Ms. Ford opposed the petition to probate lost will, primarily asserting that the unsigned copy of Mrs. Morgan's purported June 22, 2016 Last Will and Testament was not in proper notarial form and must not be admitted to probate. She maintained that, contrary to the requirements set forth in La. C.C. art. 1577, the copy that Mr. Morgan sought to probate was not signed by the testator at the bottom of any page or at the end and was not signed by two witnesses or by a notary. Additionally, Ms. Ford asserted that the unsigned copy offered by Mr. Morgan was not a copy of the executed original nor was it a duplicate original. For these reasons, Ms. Ford maintained that the unsigned copy was an absolute nullity pursuant to La. C.C. art. 1573. She further contended that the unsigned copy was actually a preliminary draft, as indicated by the missing information concerning Mrs. Morgan's prior marriage to Roger Dale Buchannan and the birth and death of her daughter, Angela Lynn Buchannan.
A hearing on Mr. Morgan's petition to probate lost will and rule to show cause was held on February 8, 2021. Mr. Morgan moved to introduce five exhibits into evidence, which were attached to his petition to probate lost will: (1) an unsigned copy of Mrs. Morgan's purported June 22, 2016 Last Will and Testament ("Exhibit A"), (2) Affidavit of James William Morgan, (3) Affidavit of Lawrence T. Dupre, III, (4) Affidavit of Casey Rosso, and (5) Affidavit of Clayton M. Perkins, Jr. Ms. Ford objected to the introduction of the unsigned copy of Mrs. Morgan's purported June 22, 2016 Last Will and Testament ("Exhibit A"), insofar as it was introduced as a testament offered for probate, which is "not allowed under the Code of Evidence." The trial court admitted the document into evidence, over Ms. Ford's objection.
In his affidavit, Mr. Dupre attests that he is an attorney and that, on June 22, 2016, he drafted and notarized Mrs. Morgan's notarial testament. He affirms that the notarial testament was signed by Mrs. Morgan in his presence and in the presence of the duly sworn witnesses, Casey Rosso and Clayton M. Perkins, Jr. (Mr. Dupre's law partner). Mr. Morgan, who accompanied Mrs. Morgan to Mr. Dupre's office on June 22, 2016, was also present when Mrs. Morgan signed the testament. Mr. Dupre confirms that Mrs. Morgan signed the testament after declaring to everyone present that it was her last will and testament and signed at its end and also following the attestation clause.
Mr. Dupre's affidavit sets forth that, at his client's request, he retained the original of Mrs. Morgan's June 22, 2016 Last Will and Testament and gave Mrs. Morgan an unsigned copy, in accordance with his standard practice. Also in accordance with his standard practice, Mr. Dupre placed "what he believed to be the signed original" of Mrs. Morgan's June 22, 2016 Last Will and Testament in his safe deposit box at the Bank of Zachary. Mr. Dupre is the only person allowed access to the safe deposit box. After being notified of Mrs. Morgan's death, Mr. Dupre went to his safe deposit box on May 20, 2020 to retrieve the original June 22, 2016 Last Will and Testament, but was unable to locate it. The following day, he again searched for the original in the safe deposit box, to no avail. Finally, Mr. Dupre searched his office, but was also unable to locate the original of Mrs. Morgan's June 22, 2016 Last Will and Testament. Mr. Dupre also attests that the unsigned copy attached as "Exhibit A" to Mr. Morgan's petition to probate lost will is "an exact photocopy of the original" June 22, 2016 testament signed by Mrs. Morgan and taken into his possession the same day. According to Mr. Dupre, Mrs. Morgan never took possession of the original testament, which she signed on June 22, 2016, and he did not communicate with Mrs. Morgan after June 22, 2016.
Mr. Morgan's affidavit sets forth similar facts and confirms that "Exhibit A" attached to his petition to probate lost will is "a true and correct unsigned copy" of the Last Will and Testament executed by Mrs. Morgan on June 22, 2016, given to her by Mr. Dupre. Mr. Morgan also confirms that Mrs. Morgan never expressed an intent to revoke the June 22, 2016 Last Will and Testament.
In his affidavit, Mr. Perkins attests that he witnessed the signing of the notarial testament by Mrs. Morgan. He confirms that Mrs. Morgan signed the testament in his presence; in the presence of the other duly sworn witness, Casey Rosso; and in the presence of the notary, Mr. Dupre. Mr. Perkins also confirms that Mr. Morgan was also present when Mrs. Morgan signed. Mr. Perkins affirms that Mrs. Morgan signed the June 22, 2016 Last Will and Testament after declaring to everyone present that the testament was her last will and testament. Mrs. Morgan signed the document at its end and also following the attestation clause. Mr. Perkins further attests that, in accordance with Mr. Dupre's standard practice, Mr. Dupre gave Mrs. Morgan an unsigned copy of the June 22, 2016 testament and maintained possession of the original. Mr. Perkins confirms that Mr. Dupre is the only person allowed access to the safe deposit box at Bank of Zachary, and, to his knowledge, Mrs. Morgan never took possession of the original after she signed it at Mr. Dupre's office on June 22, 2016. Mrs. Morgan did not communicate with Mr. Perkins after June 22, 2016.
The Affidavit of Casey Rosso sets forth the same facts, with the exception of stating that Mr. Perkins was the other duly sworn witness who signed the original Last Will and Testament executed by Mrs. Morgan on June 22, 2016.
Finally, "Exhibit A" is a one-page document that contains only markings that appear to be typed or computer-generated. No handwritten signatures, initials, dates, or other notations appear on the document. The top of the page states:
The sole exception is the "A" on the exhibit sticker, which appears to be handwritten.
LAST WILL AND TESTAMENT OF DIANA LYNN BARTLETT MICHELON CONNER GOLDING MORGAN PARISH OF EAST BATON ROUGE ZACHARY, LOUISIANA THIS 22ND DAY OF JUNE, 2016.
I Diana Lynn Bartlett Michelon Conner Golding Morgan, born June 4, 1955, in Corpus Christi, Texas, being of sound mind, do hereby declare this writing to be my last will and testament.
* * * *
The document states the testator's intent to revoke all other wills and/or codicils, then sets forth Mrs. Morgan's marital history and current marital status, states whether children were born of each marriage, and identifies her children, Robert Giovanni Michelon, II and Ms. Ford. Dispositions are made, leaving Mrs. Morgan's entire estate to Mr. Morgan and, if Mr. Morgan predeceases Mrs. Morgan, then to Mr. Michelon and Ms. Ford. Mr. Morgan is named as executor of the estate, to serve without bond, with Mr. Michelon to serve if Mr. Morgan is unable or unwilling. Following these pronouncements, a blank line appears with the name "DIANA LYNN BARTLETT MICHELON CONNER GOLDING MORGAN." Below this, the following attestation is set forth:
BE IT KNOWN that before me the undersigned notary public in and for the parish of East Baton Rouge, personally came and appeared Casey Rosso and Clayton M. Perkins, Jr., who after being duly sworn, deposed and said that they are residents of the full age of majority of Livingston Parish and East Baton Rouge Parish, Louisiana, respectively. In their presence the testatrix has declared that this instrument is her last will and testament and that she has signed it in their presence and at its end, and in the presence of the testatrix and each other we have hereunto subscribed our names on this 22nd day of June 2016 at Zachary, Louisiana.
Thereafter, signature lines and the names of Mrs. Morgan, Ms. Rosso and Mr. Perkins ("WITNESSES"), and Mr. Dupre ("NOTARY PUBLIC") appear in typed print. The following also appears in two places on the unsigned copy, including one through the testator's signature line:
COPY
Original on file in the safety deposit box of Attorney Lawrence T. Dupre at the Bank of Zachary, LA
After taking the matter under advisement, the trial court issued a ruling on April 7, 2021, decreeing that the Last Will and Testament of Mrs. Morgan, dated June 22, 2016, `"executed in notarial form in accordance with La. C.C. art. 1577, be admitted and filed in accordance with law." The trial court articulated the facts, cited above, established by the evidence offered by Mr. Morgan, then noted that, when a will cannot be found after a testator's death, a presumption arises that the testator destroyed the will with the intent of revoking it. Succession of Talbot, 530 So.2d 1132, 1134-35 (La. 1988). As in this case, when the testament was not in the possession of, or readily accessible to, the decedent prior to her death, the presumption of revocation adopted in Talbot does not arise. The trial court cited In Re Succession of Hatchell, 2003-0163 (La. App. 1st Cir. 11/7/03), 868 So.2d 36 for this principle. The trial court removed Ms. Ford as administratrix of Mrs. Morgan's succession and confirmed Mr. Morgan as independent executor. A judgment in conformity with this ruling, admitting Mrs. Morgan's June 22, 2016 Last Will and Testament for probate, was signed on May 6, 2021. This appeal by Ms. Ford followed.
RULE TO SHOW CAUSE
On May 13, 2022, this court issued a rule to show cause order, instructing the parties to show cause by briefs why the appeal should not be dismissed or remanded to cure a potential deficiency in the May 6, 2021 judgment. Specifically, the judgment includes the following reference to an extraneous document:
IT IS ORDERED, ADJUDGED, AND DECREED that the Last Will and Testament of the Deceased, Diana Bartlett Morgan, dated June 22, 2016, executed in notarial form in accordance with LA CC article 1577, attached as Exhibit A to the Petition, be admitted, filed and executed in accordance of law, having the effect of probate, in accordance with law. (Emphasis added.)
A valid judgment must be "precise, definite, and certain." D'Luca v. Kirkland, 2020-0713, 2020-0714 (La. App. 1st Cir. 2/19/21), 321 So.3d 411, 413. These determinations should be evident from the language of the judgment without references to other documents in the record. D'Luca, 321 So.3d at 414. The parties responded by filing briefs, and the rule to show cause was referred to the merits panel handling this appeal. We conclude that the judgment contains appropriate decretal language and is a valid, final judgment. Notwithstanding the reference to "Exhibit A" attached to the petition, it is evident from the face of the judgment in whose favor the relief is awarded, the party against whom relief is awarded, and the relief awarded, without reference to an extrinsic source. La. C.C.P. art. 1918; see D'Luca, 321 So.3d at 414. The reference to "Exhibit A" does not affect the validity of the judgment. Thus, the show cause order is recalled, and the appeal is maintained.
DISCUSSION
In her first assignment of error, Ms. Ford maintains that the trial court erred in admitting the unsigned copy of Mrs. Morgan's will ("Exhibit A") into evidence for the purpose of probating "an unsigned draft as a duplicate of a purported lost notarial testament." The trial court's evidentiary ruling is reviewed for an abuse of discretion. Landry v. City of Mandeville, 2021-1362 (La. App. 1st Cir. 4/27/22), 342 So.3d 337, 346, writ denied, 2022-00828 (La. 9/27/22), 347 So.3d 155.
Next, Ms. Ford asserts, in her second assignment of error, that the trial court erred as a matter of law in probating "an unsigned draft while solely relying on extrinsic evidence to establish that it complied with La. C.C. art. 1577." The trial court's interpretation and application of legal principles and statutory provisions are legal findings subject to de novo review. However, any factual findings made by the trial court must be afforded great weight and cannot be disturbed absent manifest error. Succession of Rogers, 51,267 (La. App. 2d Cir. 9/27/17), 243 So.3d 1209, 1212. Because these two assignments of error are intertwined, we address them together.
Procedure and Burden of Proof: Lost Original Testament
Ms. Ford asserts that the unsigned copy fails to meet the requirements of La. C.C. art. 1577 and, therefore, is absolutely null pursuant to La. C.C. art. 1573. Louisiana Civil Code article 1577 provides:
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 is physically able to do both, then:
(1) In the presence of a notary and two competent witnesses, the testator shall declare or signify to them that the instrument is his testament and shall sign his name at the end of the testament and on each other separate page.
(2) In the presence of the testator and each other, the notary and the witnesses shall sign the following declaration, or one substantially similar: "In our presence the testator has declared or signified that this instrument is his testament and has signed it at the end and on each other separate page, and in the presence of the testator and each other we have hereunto subscribed our names this ___ day of _____, ___."
Louisiana Civil Code article 1573 states, "The formalities prescribed for the execution of a testament must be observed or the testament is absolutely null." Ms. Ford further asserts that the unsigned copy is not a duplicate of the purported lost notarial testament executed by Mrs. Morgan on June 22, 2016 and, therefore, should not have been admitted into evidence as a duplicate. La. C.E. arts. 1001, and 1002.
This article was amended by Acts 1997, No. 1421 § 1, eff. July 1, 1999; however, the Official Revision Comments — 1997 to Article 1573 state, "This article is based on the provisions of Article 1595 of the Louisiana Civil Code of 1870. It does not change the law." The same is true regarding current La. C.C. arts. 1575 and 1576. Therefore, we may rely on jurisprudence decided prior to the effective date of the revision.
We do not agree with Ms. Ford that the unsigned copy was admitted as a duplicate. Louisiana Code of Evidence art. 1001(3) defines "original" as the writing itself or any counterpart intended to have the same effect by a person executing or issuing it. Article 1001(5) defines "duplicate" as "a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic re-recording, or electronic imaging, or by chemical reproduction, or by an optical disk imaging system, or by other equivalent techniques, which accurately reproduces the original."
The unsigned copy introduced by Mr. Morgan does not purport to be a duplicate original. It does not accurately reproduce the original, because it does not bear the signatures required by La. C.C. art. 1577, which, according to the affidavits offered by Mr. Morgan, appear on the original. Contrary to Ms. Ford's assertion, Mr. Morgan does not seek to cure deficiencies in the unsigned copy by relying on extrinsic evidence. Instead, Mr. Morgan seeks to prove the existence and contents of the lost original, including its compliance with all legal form requirements, by relying on the unsigned copy of the same document, in addition to the affidavits of Mr. Dupre, Mr. Perkins, and Ms. Rosso.
Our review of Louisiana jurisprudence reveals a distinction between probating an original testament that is invalid on its face, which is prohibited, and probating a lost original testament by relying on extrinsic evidence to prove that a valid testament existed and its contents. Specifically, Louisiana law provides that a lost or accidentally destroyed testament may be probated if it can be established that (1) a valid will was executed, (2) its contents and substance, (3) it could not be found after diligent search, and (4) it was not revoked. Succession of Bagwell, 415 So.2d 238, 239-40 (La. App. 2d Cir. 1982); § 14:6. Lost wills, 10 La. Civ. L. Treatise, Successions and Donations (2d ed.); Succession of Boyd, 306 So.2d 687, 692 (La. 1975) ("We have arrived at this point in Louisiana: if the will is lost, the entire will can be proved by extrinsic evidence....") Louisiana courts have allowed proponents of a lost will to satisfy this burden of proof by relying on extrinsic evidence, which itself does not satisfy the codal form requirements applicable to the original testament. It is the lost original testament that must satisfy the codal form requirements. See La. C.C. arts. 1575 (olographic testament) and 1576 (notarial testament).
Because the issue before us is not whether the original will, invalid as to form, may be probated, we find the cases and legal authorities relied on by Ms. Ford are inapplicable. For instance, see Successions of Toney, 2016-1534 (La. 5/3/17), 226 So.3d 397, overruled by Succession of Liner, 2019-02011 (La. 6/30/21), 320 So.3d 1133, discussing whether the original testament's attestation clause substantially complied with Article 1577. Further, there is no assertion that the attestation clause included in Mrs. Morgan's June 22, 2016 notarial testament, as reflected in the unsigned copy, did not substantially comply with Article 1577.
For example, In re Succession of Nunley, 224 La. 251, 69 So.2d 33 (La. 1953) concerned the probate of a lost olographic will. There, the testator's attorney dictated to his secretary a form of will in accordance with the testator's wishes, gave the typewritten transcription to the testator, and instructed her to copy it verbatim and return it to him for inspection. A duplicate of the transcription was retained in the attorney's files. As instructed, the testator brought back a will written in long hand, identical in its terms as to words and figures, including the signature, to the form prepared for her. In re Succession of Nunley, 224 La. at 254, 69 So.2d at 34. The will was examined by the attorney, approved, then returned to the testator. The original olographic will was lost prior to the testator's death; however, the attorney retained a copy of the transcribed dictation. The Louisiana Supreme Court affirmed the judgment admitting to probate the last will and testament, upon concluding that the proponents of the lost olographic will proved that the testator confected a valid olographic will identical in content in all respects with the copy — the typewritten transcription — retained in the attorney's files, as attested to by the attorney. In re Succession of Nunley, 224 La. at 257, 69 So.2d at 35.
In re Succession of Franks, 170 So.2d 178 (La. App. 4th Cir. 1964), writ refused, 247 La. 361, 171 So.2d 478 (1965) concerned a similar situation. There, Ruby Franks executed an olographic will by copying a typed form provided to her by her attorney, Austin Anderson. Ms. Franks retained the original olographic will, and Mr. Anderson preserved the typed form for his files. Following Ms. Franks's death, Mr. Anderson, who was named in the will as testamentary executor of her estate, petitioned the court for probate of the will as a lost or misplaced document, and produced the typewritten copy of the form from his files, which Ms. Franks used to draft her olographic will. "After hearing evidence from many witnesses," the trial court probated the will. In re Succession of Franks, 170 So.2d at 179. The Public Administrator for the Parish of Orleans then filed a petition to annul the probate, alleging "that the `piece of paper *** admitted to probate is *** a nullity under the laws of Louisiana' because it is not entirely written, dated and signed by the testator and does not comply with the requirements of any form of will authorized by law." In re Succession of Franks, 170 So.2d at 179. The Fourth Circuit rejected this argument and affirmed the trial court's judgment, relying on Mr. Anderson's testimony and his typewritten copy of Ms. Franks's olographic will.
In Succession of Bagwell, 415 So.2d at 238, the plaintiff, the proponent of the decedent's lost or destroyed statutory testament, sought to probate an unsigned copy of the will. The court of appeal found that the evidence presented, which included the unsigned will attached to the plaintiffs petition and witness testimony, established that the decedent made a valid will and proved the contents of the will. However, the proponent failed to rebut the presumption that the decedent destroyed the will prior to his death, and the judgment rejecting the Plaintiff's petition to probate was affirmed. Succession of Bagwell, 415 So.2d at 240.
Finally, see In re Succession of Jones, 356 So.2d 80, 81 (La. App. 1st Cir. 1978), writ denied, 357 So.2d 1168 (La. 1978), where a "photo or xerox" copy of an olographic will was admitted for probate. Testimony established that, following the testator's death, the opponent of the will provided it to the testator's attorney, who made a copy of it. The opponent then destroyed the original olographic will, upon realizing it was adverse to his interest. In re Succession of Jones, 356 So.2d at 82. The attorney testified that the date was cut off on his copy of the original olographic will, so he handwrote the date on the copy of the olographic will. The opponent of the will contended that the will (the attorney's copy) was invalid because it was not dated by the testator. This court relied on witness testimony that established that the original olographic will was dated by the testator and concluded, "The copy was properly admitted to probate." In re Succession of Jones, 356 So.2d at 83.
The Jones court noted that our jurisprudence is to the effect that, when an original will has been destroyed, a copy may be admitted to probate, provided the copy is shown to be "an exact copy of a testament valid as to form." 356 So.2d at 83, citing Succession of O'Brien, 168 La. 303, 121 So. 874 (1929) (which involved a typewritten copy of an olographic will shown to have been valid as to form and executed by decedent), and Jones v. Mason, 234 La. 116, 99 So.2d 46 (1958) (which concerned a carbon copy of a will valid as to form. The original could not be found. The court held there was only one will, of which duplicate originals existed.) However, the copy of the original olographic will at issue in Jones was not "an exact copy" of the original, since it was missing the date written by the testator. It is evident from this, as well the cases we have discussed, that "exact copy" does not mean that a duplicate original, with no deviations from the lost original will, is required in all instances.
At the time these cases were decided, La. C.C. art. 1588 set forth the form requirements for an olographic will. Like current La. C.C. art. 1575, Article 1588 provided that the olographic testament is that which is written by the testator himself. To be valid, it must be entirely written, dated, and signed by the hand of the testator. Succession of Muntz, 222 La. 689, 695, 63 So.2d 426, 428 (1953); Succession of Raiford, 404 So.2d 251, 253 (La. 1981). Although the typewritten forms retained by the attorneys in Nunley and Franks did not satisfy these form requirements, the judgments admitting for probate the testator's last will and testament were affirmed. Similarly, the copy of the olographic will produced by the attorney in Jones did not contain a date written by the testator, as required for a valid form, but was probated, nevertheless.
Former La. C.C. art. 1588 read:
Olographic Wills. The olographic testament is that which is written by the testator himself.
In order to be valid, it must be entirely written, dated and signed by the hand of the testator. It is subject to no other form, and may be made anywhere, even out of the State.
Chapter 6, "Of Donations Mortis Causa (In Prospect of Death)", consisting of C.C. arts. 1570 to 1723 of Title II, "Donations", of Book III of the Louisiana Civil Code of 1870, was revised by Acts 1997, No. 1421, § 1, eff. July 1, 1999, as Chapter 6, "Dispositions Mortis Causa", containing C.C. arts. 1570 to 1616. Current La. C.C. art. 1575 provides:
A. An olographic testament is one entirely written, dated, and signed in the handwriting of the testator. Although the date may appear anywhere in the testament, the testator must sign the testament at the end of the testament. If anything is written by the testator after his signature, the testament shall not be invalid and such writing may be considered by the court, in its discretion, as part of the testament. The olographic testament is subject to no other requirement as to form. The date is sufficiently indicated if the day, month, and year are reasonably ascertainable from information in the testament, as clarified by extrinsic evidence, if necessary.
B. Additions and deletions on the testament may be given effect only if made by the hand of the testator.
The court in Nunley 224 La. at 254, 69 So.2d at 34, noted that the olographic will drafted by the testator was "identical in its terms as to words and figures, including the signature, of the form prepared" by the testator's attorney. Although the facts do not indicate that the testator signed the typed form, this comment may be interpreted to suggest that she did. Similarly, the court in Franks, 170 So.2d at 180, stated, "There is no doubt in our minds that decedent actually made a valid olographic will, and that the copy produced from Mr. Anderson's files corresponds to the will in every particular as to date, signature and contents." Again, based on the facts presented, it does not appear that Ms. Franks signed the typewritten copy of the olographic will produced by Mr. Anderson. There is no indication in Nunley or Franks that the copy of the lost will sought to be probated was a duplicate original of the lost olographic will, and the typed forms at issue in both cases do not satisfy the requirements for a valid olographic will, regardless of whether the forms were signed by the testators.
Thus, we find the trial court did not abuse its discretion in admitting the unsigned copy into evidence, nor did it err in relying on extrinsic evidence to establish the existence and contents of Mrs. Morgan's lost notarial testament.
Mr. Morgan satisfied his burden of proof
As the proponent of Mrs. Morgan's lost June 22, 2016 notarial testament, Mr. Morgan bore the burden of proving that Mrs. Morgan executed a valid notarial testament, its contents and substance, that it could not be found after diligent search, and the will was not revoked. Succession of Bagwell, 415 So.2d at 239-40.
In further support of her assertion that Mrs. Morgan's June 22, 2016 Last Will and Testament is invalid, Ms. Ford contends that the unsigned copy is an incomplete draft, evidenced by the absence of information regarding Mrs. Morgan's marriage to Mr. Buchannan and her deceased child, Angela Lynn. During the hearing on the petition to probate lost will, Ms. Ford introduced a marriage certificate from Mrs. Morgan's prior marriage to Mr. Buchannan and Angel Lynn's birth certificate. Although these exhibits were admitted into evidence, without objection from Mr. Morgan, neither was provided to this court. However, even if we accept Ms. Ford's assertion that Mrs. Morgan was previously married to Mr. Buchannan and that she was predeceased by Angela Lynn, Ms. Ford's argument concerning the significance of these purported omissions is nothing more than speculation. We find this insufficient to refute the evidence offered by Mr. Morgan, which establishes that Mrs. Morgan executed a valid notarial testament in accordance with La. C.C. art. 1577 on June 22, 2016.
It appears these exhibits were also attached to Ms. Ford's opposition to Mr. Morgan's petition to probate lost will, filed with the clerk of court for the trial court. However, these documents are not in the record provided to this court. Ms. Ford also introduced an unexecuted small succession affidavit concerning Mrs. Morgan's succession, offered only to support her assertion that Mr. Morgan initially believed Mrs. Morgan died intestate.
Mr. Morgan also satisfied the remaining elements of his burden of proof. The unsigned copy, introduced as "Exhibit A," establishes the contents and substance of Mrs. Morgan's lost original will. Mr. Dupre's affidavit establishes that he retained possession of Mrs. Morgan's original June 22, 2016 Last Will and Testament, but was unable to find it after conducting two searches of his safe deposit box, where he believed it was stored, and searching his office. Finally, Mr. Morgan confirms that Mrs. Morgan did not express an intent to revoke the June 22, 2016 Last Will and Testament, and the remaining affiants confirm they did not communicate with Mrs. Morgan after June 22, 2016. Notably, too, Ms. Ford does not contend that Mrs. Morgan revoked the original June 22, 2016 Last Will and Testament. Furthermore, as the trial court correctly noted, the presumption articulated in Talbot, 530 So.2d at 1134-35, that arises when a will is lost, i.e., that the testator intended to revoke the will by destroying it, does not apply here. It is undisputed that Mrs. Morgan never had possession of the original, and she did not destroy the unsigned copy in her possession. See La. C.C. art. 1607; In re Succession of Deshotel, 2009-37 (La. App. 3d Cir. 5/6/09), 10 So.3d 873, 878.
Thus, we find no error in the trial court's conclusion that Mrs. Morgan executed a notarial will, valid as to form, on June 22, 2016, and further find no error in the judgment admitting Mrs. Morgan's June 22, 2016 Last Will and Testament for probate.
CONCLUSION
For the above and foregoing reasons, the appeal filed by Diana Lynn Ford is maintained as to the May 6, 2021 judgment, and the show cause order is recalled. We affirm the May 6, 2021 judgment admitting for probate the Last Will and Testament executed by Diana Bartlett Morgan on June 22, 2016; removing Diana Lynn Ford as the administratrix of Mrs. Morgan's succession; naming James William Morgan as independent executor of Mrs. Morgan's succession; and ordering that letters of independent administration be issued to Mr. Morgan upon his taking the oath required by law. All costs of this appeal are assessed against Diana Lynn Ford.