Opinion
NUMBER 2012 CA 1571
07-31-2013
SUCCESSION OF CHETLEY MICHAEL BALLEX
Robert Angelle Metairie, LA Attorney for Appellant Linda Aranguren Ballex Craig S. Sossaman Michael W. Collins Metairie, LA Attorneys for Appellee Succession of Chetley Michael Ballex
NOT DESIGNATED FOR PUBLICATION
Appealed from the
22nd Judicial District Court
In and for the Parish of St. Tammany, Louisiana
Trial Court Number 2011-30813
Honorable Peter J. Garcia, Judge
Robert Angelle
Metairie, LA
Attorney for Appellant
Linda Aranguren Ballex
Craig S. Sossaman
Michael W. Collins
Metairie, LA
Attorneys for Appellee
Succession of Chetley
Michael Ballex
BEFORE: PARRO, WELCH, AND KLINE, JJ.
Hon. William F. Kline, Jr., retired, is serving as judge ad hoc by special appointment of the Louisiana Supreme Court.
WELCH , J.
Appellant, Linda Aranguren Ballex, appeals the denial of her petition to annul a notarial testament executed by her former husband, Chetley Michael Ballex. We reverse and render.
BACKGROUND
Chetley Ballex died on October 10, 2011. On October 20, 2011, Chetley's brother, Eugene Ballex, filed a petition to probate Chetley's notarial testament. In the will, Chetley left some moveable property to Eugene and appointed Eugene as the executor of his estate. The will left the remaining property to a trust to be administered by Eugene for the benefit of Chetley's daughter, Verna Ballex. Thereafter, the court ordered the execution of the will and confirmed Eugene as the testamentary executor in the succession proceedings.
On November 15, 2011, Linda Ballex, Verna's mother and Chetley's former spouse, filed a petition to annul the will in the succession proceeding, individually and on behalf of her daughter. Linda alleged that the will was invalid and absolutely null because it failed to meet the requirements of Louisiana Civil Code article 1577 in that the attestation clause: (1) did not contain a date, but only contained a blank; (2) failed to contain a declaration that the witnesses and notary signed in the presence of the testator and each other; (3) failed to state whether the testator declared the instrument to be his last will and testament in the presence of the witness and the notary; and (4) failed to state that the testator signed the instrument at the end and on each other separate page.
Thereafter, Eugene filed a substitute duplicate original of Chetley's last will and testament in the proceeding with a dated attestation clause. On December 9, 2011, Eugene filed a motion for a judgment of partial possession of the particular legacies left to him in the will. Linda responded to that motion by filing dilatory exceptions raising the objections of prematurity and improper use of summary proceedings.
Following a hearing, on February 16, 2012, the trial court issued written reasons for judgment in which it found that the will contained a valid attestation clause. The court concluded that the failure of the testator to declare that he signed on each page did not render the will defective because the testator in fact had signed on each page. The trial court made it clear that no extrinsic evidence had been relied on in making this determination. The court also granted Linda's exception of prematurity as to the motion for a judgment of partial possession and pretermitted ruling on the exception of improper use of summary proceedings in light of that ruling. On March 21, 2012, the trial court signed a judgment in accordance with these rulings, decreeing Chetley's will to be valid, denying Linda's petition to annul the will and pretermitting her exception of improper use of summary proceedings, and sustaining Linda's exception of prematurity. Linda appealed that portion of the judgment denying her petition to annul the will.
DISCUSSION
At oral argument, a question arose as to whether the judgment appealed from was in fact a final, appealable judgment, and a supplemental brief was filed by Linda to address that issue. Without ruling on the appealability of the judgment, and observing that the judgment appeared to lack appropriate decretal language disposing of or dismissing Linda's claims, this court ordered the parties to submit an amended judgment addressing this apparent defect. An amended judgment was signed by the trial court on April 22, 2013, dismissing the petition filed by Linda on November 15, 2011, and all of her claims stated therein, curing the apparent defect in the decretal language. The amended judgment also decreed that it shall constitute a final, appealable judgment as the court made an express determination that there is no just reason for the delay. Upon review, we conclude that the judgment appealed from is a final, appealable judgment, and we maintain the appeal. See Succession of Theriot, 2008-1233 (La. App. 1st Cir. 12/23/08), 4 So.3d 878(holding that a judgment annulling a notarial testament and vacating a judgment placing the widow in possession of the decedent's property in a succession proceeding is a final, appealable judgment); Succession of McLean, 2009-1851 (La. App. 1st Cir. 6/11/10)(unpublished)(holding that a judgment denying a rule to annul a probated testament in a succession proceeding is a final, appealable judgment).
Chetley's will is a notarial testament, which is governed by the requirements of La. C.C. art. 1577. 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 that he 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 ___, ___."
Article 1577 provides that a notarial testament "shall" be executed in a certain manner. The word "shall" is mandatory. La. R.S. 1:3; Succession of Hendricks, 2008-1914 (La. App. 1st Cir. 9/23/09), 28 So.3d 1057, 1060. To properly execute this form of a testament, the following actions must be taken: (1) in the presence of a notary and two competent witnesses, the testator shall declare or signify that the instrument is his testament; (2) in the presence of a notary and two competent witnesses, the testator shall sign his name at the end of the testament and on each other separate page of the testament; and (3) in the presence of the testator and each other, the notary and the witnesses shall sign the declaration set forth in Article 1577(2), or one substantially similar. Succession of Hendricks, Id.; Succession of Siverd, 2008-2383 (La. App. 1st Cir. 9/11/09), 24 So.3d 228, 230.
The primary purpose of the codal provision authorizing a notarial will is to afford a simplified means of making a testament whereby the authenticity of the act can be readily ascertained and fraudulent alteration of it will be most difficult. Succession of Richardson, 2005-0552 (La. App. 1st Cir. 3/24/06), 934 So.2d 749, 751, writ denied, 2006-0896 (La. 6/2/06), 929 So.2d 1265. The purpose of the attestation clause is to show the will was executed in conformity with the codal provision. Succession of Holbrook, 2012-1655 (La. App. 1st Cir. 4/26/13), ___ So.3d ___, ___. The attestation clause set forth in Article 1577 requires the notary and witnesses to declare: (1) the testator declared in the presence of the notary and witnesses that the instrument was his will; (2) the testator signed the will at the end and on each other separate page and (3) in the presence of the testator and each other, they (the notary and the witnesses) signed their names on a specified date. La. C.C. art. 1577(2); Succession of Holbrook, Id.
Although the intention of the testator as expressed in a will must govern, the intent to make a testament, although clearly stated or proven, will be ineffectual unless the execution thereof complies with codal requirements. A material deviation from the manner of execution prescribed by the Civil Code will be fatal to the validity of the testament. Succession of Dunaway, 2011-1747 (La. App. 1st Cir. 5/2/12), 92 So.3d 555, 557-58; Succession of Hendricks, 28 So.3d at 1060. The formalities prescribed for the execution of a testament must be observed or the testament is absolutely null. La. C.C. art. 1573. Although its form is not sacrosanct, there must be an attestation clause, or clause of declaration, signed by the witnesses and notary. Succession of Richardson, 934 So.2d at 751.
Chetley's will was executed on September 24, 2010, and contains four pages. On the third page, immediately following the substantive provisions of the will, appears the following language: "[i]n witness whereof I have signed this my last Will and Testament, in the presence of the undersigned witnesses." Chetley's signature and the signatures of the two witnesses appear directly below that language. Below the witnesses' signatures, the will states: "[s]worn To and Subscribed before me, Notary, this 24th day of September, 2010." The notary signed the will directly under this language. Page four of the will contains the attestation clause, which states as follows:
Signed and declared by Chetley Michael Ballex, Testator above named, to be his Last Will and Testament, and in his presence and in the presence of each other, we have hereunto subscribed our names as witnesses this 24th day of September 2010, in the Parish of Jefferson, State of Louisiana, within and for which the undersigned Notary Public is duly commissioned, qualified, and sworn.Directly below this language appears the signatures of the witnesses and the testator, a statement "Sworn To and Subscribed before me, Notary, this 24th day of September, 2010," and the notary's signature.
Linda contends that the attestation clause in Chetley's will differs significantly from the attestation clause contained in Article 1577. The first defect asserted is that the attestation clause fails to contain a declaration by the witnesses and the notary that they signed in the presence of the testator and each other. She points out that the attestation clause in the will states that the witnesses declared that they signed the instrument in the presence of each other and the testator. However, there is no declaration by the notary that he also signed the document in the presence of the testator and the witnesses. She submits that the fact that the attestation clause does not contain a declaration that the witnesses and the notary signed in the presence of the testator and each other renders the will absolutely null. She asserts that under the jurisprudence, it is not sufficient for the notary to simply notarize the will, as is evidenced by the fact that the notary signed directly under language stating "Sworn To and Subscribed before me, Notary...." The second defect Linda asserts is that the will fails to state that the testator declared in the presence of both the notary and the two witnesses that this document was his last will and testament. She submits that while the purported attestation clause states that the will has been signed and declared by Chetley, neither the notary nor the witnesses attested to the fact that he had declared in their presence that it was his last will and testament. Lastly, Linda claims that the attestation clause is defective because there is no declaration of the notary that the testator signed the will at the end and on each other separate page.
At issue in this appeal is whether Chetley's will contains a valid attestation clause that is substantially similar to the attestation clause set forth in La. C.C. art. 1577. For the reasons which follow, we conclude it does not.
Louisiana Civil Code article 1577(2) requires that the notary and witnesses, in the presence of the testator and each other, sign a declaration basically stating that the formalities required by Article 1577 have been complied with. The attestation clause set forth in Article 1577 requires that the notary and the witnesses make the following declarations: (1) that the testator declared or signified in their presence that the instrument was his will; (2) that the testator signed the will at its end and on each other separate page; and (3) in the presence of the testator and each other, they (the notary and the witnesses) signed their names on a specified date. In the attestation clause in Chetley's will, there is no declaration by the notary that these formalities had been observed. Instead, the attestation clause states: "signed and declared by Chetley Michael Ballex, Testator above named, to be his Last Will and Testament, and in his presence and in the presence of each other, we have hereto subscribed our names as witnesses...in the Parish of Jefferson, within and for which the undersigned Notary Public is duly commissioned, qualified and sworn." The attestation clause states that the witnesses declare that they have signed the instrument in the presence of each other and the testator. It is clear from the wording of the attestation clause that the witnesses are making the required declaration that Article 1577's formalities had been complied with rather than the notary. There is no declaration by the notary that he also signed the document in the presence of the testator and the witnesses in the attestation clause. Nor did the notary make a separate declaration that the formalities had been complied with. Instead, the notary's signature appears under the language "Sworn to and Subscribed before me, Notary."
In similar circumstances, this court has held that an attestation clause failed to meet the requirements for a valid attestation clause as set forth in Article 1577, thus rendering the wills under review null and void. In Succession of Seal, 2010-0351 (La. App. 1st Cir. 9/10/10)(unpublished), the will at issue contained an attestation clause in which only the witnesses declared that some of Article 1577's formalities had been complied with, and the notary signed at the end of the will after a general "sworn and subscribed clause." This court held the attestation clause was insufficient to comply with the mandates of Article 1577. In so doing, this court observed that the instrument did not contain the requisite notary's declaration that the testator declared the will to be his last will in the presence of the witnesses as required by Article 1577. This court further noted that the jurisprudence has consistently held that where a will is merely notarized, but there is no declaration signed by the notary, such a clause is not in compliance with Article 1577. Id. This court concluded that the trial court erred in upholding the will on the basis of the subscribing notary's testimony that it was "more than likely" that he, the witnesses, and testator signed the will in the presence of one another, as substantive defects fatal to the validity of the will cannot be cured through the subsequent testimony of the witnesses and the notary. Id.; see Succession of Richardson, 934 So.2d at 751.
In Succession of Dunaway, 92 So.3d at 558-560, this court reviewed challenges to wills executed by a husband and wife containing identical attestation clauses. Like the clause at issue, one of the attestation clauses contained declarations that Article 1577's formalities had been observed by witnesses. Specifically, the attestation clauses stated that the witnesses each declared that the testator signed the will, declared in their presence that the instrument was his/her last will and testament, and in the presence of the testator and each other and the notary, each witness subscribed his or her name to the will as witnesses to the testator signing his name. The attestation clauses were followed by the signatures of the witnesses. Thereafter, there appeared another clause stating: "Subscribed, sworn and acknowledged before me by the Testator...and...the witnesses...." This court found the attestation clauses to be invalid because they did not state that the testator signed the will in the presence of the notary, nor did they state that the testator specifically declared the instrument to be his/her last will and testament to the notary or to the notary in the presence of two witnesses. This court also observed that the "Subscribed, sworn, and acknowledged" clause appeared to be simply a general notarization of the will, rather than an attestation clause of the notary because it did not clearly state that the testator declared that the testament was his/her last will and testament in the presence of the notary or that the necessary signatures were signed in the presence of all persons, including the notary. This court concluded that neither of these clauses was in compliance with Article 1577, and because of these deficiencies and the failure of another attestation clause in the wills to state that the wills were signed by the testator in the presence of a notary or that the witnesses signed in the presence of a notary, the wills were null and void.
Like the wills in Seal and Dunaway, the attestation clause at issue does not contain a declaration by the notary that the formalities required by Article 1577 had been followed. The clause does not state that the testator signed the will in the presence of the notary or that the testator declared or signified the testament to be his last will and testament to the notary or to the notary in the presence of the witnesses. Furthermore, the clause signed by the notary is simply a general notarization of the will, rather than an attestation clause. Therefore, we conclude that the will does not comply with the requirements of Article 1577 and is null and void. Accordingly, we must reverse the trial court's judgment upholding the validity of the will.
CONCLUSION
For the forgoing reasons, the judgment of the trial court is reversed. Judgment is hereby entered declaring the last will and testament of Chetley Michael Ballex to be null and void. All costs of this appeal are assessed to appellee, the Succession of Chetley Michael Ballex.
REVERSED AND RENDERED. SUCCESSION OF CHETLEY MICHAEL BALLEX
NUMBER 2012 CA 1571
KLINE, J., concurring:
I am constrained to concur. This is a challenge to the validity of a testament because of the failure of the notary to follow the prescribed legislative language in the attestation clause. It is not about capacity, mischief, duress, fraud, undue influence, intent or ill practices. Jurisprudentially, we are without means to evaluate the circumstances by extrinsic evidence and are bound by the recitation in the attestation. A cherished right has been denied.
Thus, I respectfully concur.