Opinion
24-C-598
12-30-2024
IN RE: SUCCESSION OF SHIRLEY GILBERT BURTON
COUNSEL FOR PLAINTIFF/RELATOR, DEAN GILBERT M. Elizabeth Bowman Christy M. Howley Jordan T. Giles COUNSEL FOR DEFENDANT/RESPONDENT, ALANA GILBERT, CURATOR FOR THE FULLY INTERDICTED ARTHUR BURTON Carolyn Gill-Jefferson
ON APPLICATION FOR SUPERVISORY REVIEW FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 827-383, DIVISION "J" HONORABLE STEPHEN C. GREFER, JUDGE PRESIDING
COUNSEL FOR PLAINTIFF/RELATOR, DEAN GILBERT M. Elizabeth Bowman Christy M. Howley Jordan T. Giles
COUNSEL FOR DEFENDANT/RESPONDENT, ALANA GILBERT, CURATOR FOR THE FULLY INTERDICTED ARTHUR BURTON Carolyn Gill-Jefferson
Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Jude G. Gravois
CHEHARDY, C.J.
In this writ application, relator, Dean Gilbert, independent executor for the Succession of Shirley Gilbert Burton, seeks review of the trial court's October 30, 2024 judgment sustaining the dilatory exception of prematurity filed by Alana Belton, and staying relator's motion to enforce a no-contest clause pending a ruling on the validity of decedent's last will and testament. Finding no error in the trial court's ruling, this writ application is denied.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Decedent, Shirley Gilbert Burton, died on April 1, 2022. Decedent was survived by her spouse of many years, Arthur Burton. There were no children of born of this marriage, nor were any children ever born to or adopted by decedent. Subsequent to her death, on May 10, 2023, Mr. Burton was fully interdicted in the matter of Interdiction of Arthur Burton, case no. 827-939, Division "D," in the Twenty-Fourth Judicial District Court, Parish of Jefferson. Alana Belton, decedent's niece, was appointed as curator for Mr. Burton, and relator, decedent's nephew, was appointed undercurator.
On April 20, 2022, relator filed a petition for probate of notarial testament, independent administration, and appointment of testamentary independent executor, attaching a last will and testament of decedent dated February 15, 2021, and further requested that he be appointed independent executor "in accordance with decedent's testament." On April 26, 2022, an order probating the testament of decedent was signed, establishing an independent administration and confirming relator as the testamentary independent executor. According to relator, decedent's February 15, 2021 will created a testamentary trust placing decedent's share of three immovable properties located in Kenner, Louisiana and Okeechobee, Florida, into trust, and named Mr. Burton as the income beneficiary, and relator as the principal beneficiary and trustee. Additionally, the will contains a "no contest" or in terrorem clause, which provides:
3.4 Challenge of Bequest. If any heir or legatee shall challenge his or her bequest under this will or the validity of this will, such heir or legatee shall forfeit his or her share of my estate.
On May 16, 2023, Alana Belton, in her capacity as the curator for Mr. Burton, filed a petition to annul the February 15, 2021 probated testament, based on allegations of mental incapacity and undue influence at the time of the execution of the testament, which gave relator "ownership of all of [decedent's] real estate and the improvements." In response, relator filed a motion to enforce the no-contest clause, requesting the trial court to enforce section 3.4 of decedent's last will and testament based on Ms. Belton's alleged violation of that clause. According to relator, Ms. Burton's filing of the petition to annul triggered the nocontest clause as the action "challenges the validity of the will, an action which was specifically provided in the testament as grounds for forfeiture of the legatee's entire share of the decedent's estate." Ms. Belton filed a dilatory exception of prematurity in response to relator's motion to enforce on the basis that the validity of the testament must be decided prior to enforcement of the no-contest provision contained therein.
A hearing on Ms. Belton's exception was held on October 28, 2024. At the close of the hearing, the trial court orally sustained Ms. Belton's exception and stayed relator's motion to enforce the no-contest provision pending a determination of the validity of decedent's testament. A written judgment to this effect was entered on October 30, 2024, along with written reasons for judgment.
This writ application followed.
DISCUSSION
The dilatory exception of prematurity questions whether the cause of action has matured to the point where it is ripe for judicial determination. La. C.C.P. art. 926; Bayou Orthotic and Prosthetics Center, L.L.C. v. Morris Bart, L.L.C., 17-557 (La.App. 5 Cir. 3/28/18), 243 So.3d 1276, 1279. The functions of the dilatory exception, such as prematurity, permit raising the issue that a judicial cause of action has not come into existence because some prerequisite condition has not been fulfilled. Id. An action is premature when it is brought before the right to enforce it has accrued. Williamson v. Hosp. Serv. Dist. No. 1, 04-451 (La. 12/1/04), 888 So.2d 782, 785, citing La. C.C.P. art. 423. The dilatory exception of prematurity questions whether a cause of action has matured to the point where it is ripe for judicial determination. LaCoste v. Pendleton Methodist Hosp., L.L.C., 07-0008 (La. 9/5/07), 966 So.2d 519, 523. Prematurity is determined by the facts existing at the time a suit is filed. Sevier v. U.S. Fidelity &Guar. Co., 497 So.2d 1380, 1382 (La. 1986). The burden of proving prematurity is on the mover. Matherne v. Jefferson Parish Hospital Dist. No. 1, 11-1147 (La.App. 5 Cir. 5/8/12), 90 So.3d 534, 536, writ denied, 12-1545 (La. 10/12/12), 98 So.3d 873. Appellate review of a judgment sustaining an exception of prematurity is usually manifest error; however, when resolution of an exception of prematurity involves a question of law, the appellate court undertakes a de novo review. Bayou Orthotics and Prosthetics Center, L.L.C., 243 So.3d at 1281.
Relator argues the trial court erred in granting Ms. Belton's exception of prematurity and staying his motion to enforce the no-contest provision of decedent's will pending a determination of the validity of the will when Ms. Belton clearly violated the no-contest provision by filing her petition to annul decedent's probated testament. According to relator, there are "no current codal, statutory, or binding jurisprudential authority concerning the enforcement of no contest clauses when an attack on the validity of the underlying testament is pending."
We agree with relator that the issue of whether the validity of a decedent's will must first be adjudicated prior to enforcing a no-contest clause contained in that same will is res novo in Louisiana, as the Supreme Court recently noted as much in Succession of Bonny Babin Maloney, 23-1447 (La. 9/6/24), 392 So.3d 302, 307. However, we find that enforcing a no-contest clause contained in a will whose validity has been challenged prior to determining the validity of the will could potentially have a chilling effect against one ever bringing an action to contest a will based on testamentary incapacity or undue influence, as no one can ascertain for sure whether a decedent, indeed, lacks mental capacity or was under undue influence at the time a will was written until a court has first decided the point. We find the more prudent, even logical, approach is to first adjudicate the validity of a will, as "a successful challenge will invalidate the will, making the nocontest clause of no consequence . . ." Id. (citing Succession of Laborde, 17-1334 (La. App 1 Cir. 5/31/18), 251 So.3d 461, 464 n. 1 (citing Smithsonian Institution v. Meech, 169 U.S. 398, 415, 18 S.Ct. 396, 402-03, 42 L.Ed. 793 (1898)). The contrary is also true, such that, if a challenge to the validity of a will is unsuccessful, depending upon the applicable language of the no-contest clause contained therein, the challenger could face potential forfeiture of his or her share of a decedent's estate.
For the foregoing reasons, we find the trial court did not manifestly err in sustaining Ms. Belton's exception of prematurity. Accordingly, this writ application is denied.
WRIT DENIED
SMC
FHW
JGG