Opinion
2022 CA 1370
06-02-2023
SUCCESSION OF STACY JEAN MARTIN
Richard A. Richardson Covington, Louisiana Counsel for Plaintiff/Appellant, Gary A. Martin Jose L. Barro Mandeville, Louisiana Jason M. Freas New Orleans, Louisiana Counsel for Defendants/Appellees, Derrick Bailey and Jill Champagne Tom W. Thornhill Slidell, Louisiana Counsel for Defendant/Appellee, Stranco, LLC f/k/a Stranco, Inc.
Appealed from the 22nd Judicial District Court In and for the Parish of St. Tammany State of Louisiana Docket No. 2021- 30127 The Honorable Raymond S. Childress, Judge Presiding
Richard A. Richardson Covington, Louisiana Counsel for Plaintiff/Appellant, Gary A. Martin
Jose L. Barro Mandeville, Louisiana Jason M. Freas New Orleans, Louisiana Counsel for Defendants/Appellees, Derrick Bailey and Jill Champagne
Tom W. Thornhill Slidell, Louisiana Counsel for Defendant/Appellee, Stranco, LLC f/k/a Stranco, Inc.
BEFORE: GLTDRY, C.J., WOLFE, AND MILLER, JJ.
MILLER, J.
In this succession matter, Gary A. Martin, appeals from a judgment of the trial court probating an olographic testament and removing him as administrator of the Estate of Stacy Jean Martin. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
Stacy Jean Martin died on January 20, 2021, at the age of 43. On February 8, 2021, her father, Gary A. Martin, filed a petition alleging that she died intestate, was never married, had no children, and thus requested to be appointed as the independent administrator of her estate. The trial court signed an order granting the appointment. Thereafter, while packing the decedent's things at her grandmother's home where she resided, the decedent's maternal aunt, Jill Champagne, located an olographic will executed by the decedent on July 27, 2005. The will was located in a metal lock box along with a life insurance policy and empty jewelry boxes.
Ms. Martin's age at the time of her death was provided by the parties in their appellate briefs.
On July 7, 2021, Ms. Champagne and Derrick Bailey, with whom the decedent had a long-standing relationship, filed a petition to probate the olographic will, remove the administrator, and appoint an executor. The petitioners attached a copy of the two-page document they sought to probate, entitled, "LAST WILL AND TESTAMENT," which contained printed text as well as handwritten text. The petitioners contend that the will was written, signed, and dated by the decedent. They also attached affidavits of death, domicile, and heirship from the decedent's maternal grandmother, Betty Strain, with whom the decedent resided, and her uncle, William Strain, who attested that the handwriting in the document was that of the decedent. As attested in the affidavits, the petitioners alleged that the decedent was the child of the late Lisa Strain from whom Mr. Martin was divorced. They further alleged that Mr. Martin was estranged from the decedent and that, in contravention of court orders, he generally failed to provide child support for the decedent when she was a minor and further failed to assist in supporting her while she attended college. The petitioners contended that the Strains provided housing and education for the decedent, and that Betty Strain paid the decedent's college, health, and rehabilitation expenses.
When probating an olographic testament, La. C.C.P. art. 2883 provides that:
A. The olographic testament must be proved by the testimony of two credible witnesses that the testament was entirely written, dated, and signed in the testator's handwriting. The court must satisfy itself, through interrogation or from the written affidavits or the depositions of the witnesses, that the handwriting and signature are those of the testator, and except as provided in Article 2890, must mention these facts in its process verbal.
B. A person's testimony for the purpose of this Article may be given in the form of an affidavit executed after the death of the testator stating that the olographic will was entirely written, dated, and signed in the testator's handwriting, unless the court in its discretion requires the person to appear and testify orally. All affidavits accepted by the court in lieu of oral testimony shall be filed in the probate proceedings. This Paragraph does not apply to testimony with respect to the genuineness of a will that is judicially attacked.
The petition to probate the olographic testament was set for hearing on April 21, 2022. The parties stipulated to the authenticity of the will and that the signature and handwriting was, in fact, that of the decedent. After conferring with counsel in chambers, and reviewing the will and accompanying affidavits, the trial court probated the olographic will. The will was offered, filed, and introduced without objection.
On May 13, 2022, the trial court signed a judgment ordering that: (1) the will met the form requirements and contained proper testamentary intent; (2) the testate succession of the decedent be opened and the olographic testament probated; and (3) that Mr. Martin be removed as administrator of the Estate of Stacy Jean Martin, relieving him of an accounting, and that Jill Champagne and Betty Strain be appointed as co-executrixes of the Estate of Stacy Jean Martin.
Following the denial of a motion for new trial, Mr. Martin filed the instant appeal, On appeal, Mr. Martin contends that the trial court erred in probating the will where the olographic testament lacks sufficient conveyance language and/or testamentary intent, and thus, is not a valid testament.
Mr. Martin filed a motion to appeal from the trial court's September 29, 2022 judgment denying his motion for new trial. The established rule of this circuit is that the denial of a motion for new trial is a non-appealable, interlocutory judgment. See Bourg v. Safeway Insurance Company of Louisiana, 2019-0270 (La.App. 1st Cir. 3/5/20), 300 So.3d 881, 887. The Louisiana Supreme Court, however, has directed us to consider an appeal of the denial of a motion for new trial as an appeal of the judgment on the merits as well, when it is clear from the appellant's brief that he intended to appeal the merits of the case. Carpenter v. Hannan, 2001-0467 (La.App. 1st Cir. 3/28/02), 818 So.2d 226, 228-229, writ denied. 2002-1707 (La. 10/25/02), 827 So.2d 1153. Accordingly, we will consider Mr. Martin's appeal as an appeal on the merits of the underlying judgment.
DISCUSSION
Louisiana Civil Code article 1575 sets forth the requirements of an olographic testament, as follows:
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.
For an olographic will to be valid, the testament must be written, signed, and dated in the handwriting of the testator. In re Succession of Aycock, 2002-0701 (La. 5/24/02), 819 So.2d 290 (per curiam). The fact that there is other writing or printing, not in the hand of the testator, such as printed portions, will not necessarily invalidate the testament. The printed words will simply be considered as not written. Succession of Burke, 365 So.2d 858, 860 (La.App. 4th Cir. 1978). Otherwise stated, an instrument written on a printed form with the blanks filled in by the testator in his own handwriting is valid when the will contains, exclusive of the printed matter, all of the essential formalities of an olographic will. Burke. 365 So.2d at 860.
A valid olographic will must also evidence testamentary intent. Succession of Ally, 2022-16 (La.App. 5th Cir. 12/31/22), 354 So.3d 1248, 1255. The intent of the testator controls the interpretation of his testament. La. C.C. art. 1611(A). In addition to the form requirements, an olographic testament must contain testamentary intent, which is to say, it must, by its own language, show on its face that it purports to dispose of the property of the testator on his death. Succession of Achee, 2016-0716 (La.App. 1st Cir. 8/16/17), 229 So.3d 5, 7-8. A disposition should be interpreted in a sense in which it can have effect, rather than in one in which it can have none. La. C.C. art. 1612. Because Louisiana law favors maintaining the validity of testaments, courts liberally construe the requirements, maintaining the validity of the will if at all possible, as long as it is in substantial compliance with the statute. In re Succession of Holbrook, 2013-1181 (La. 1/28/14), 144 So.3d 845, 851.
Moreover, when a person has written a testament in olographic form without the aid of counsel, the testator's intention is of paramount importance. Succession of Enos, 2020-329 (La.App. 3rd Cir. 12/16/20), 310 So.3d 236, 238. "The law is indulgent in such cases. It exempts language from technical restraint and obeys the clear intention however informally conveyed ... and of two interpretations, it selects that which favors testacy." Carter v. Succession of Carter, 332 So.2d 439, 442 (La. 1976); see also In re Succession of White. 2006-1002 (La.App. 1st Cir. 5/4/07), 961 So.2d 439, 441. "[T]he first and natural impression conveyed to the mind on reading the will as a whole is entitled to great weight. The testator is not supposed to be propounding riddles, but rather to be conveying his ideas to the best of his ability so as to be correctly understood at first view." Carter, 332 So.2d at 442. If two possibilities present themselves, the document must be read to carry out the "wishes" of the testator, not defeat them; to support testacy, not intestacy. White, 961 So.2d at 441, citing Succession of Reeves, 393 So.2d 166, 171 (La.App. 1st Cir. 1980), application denied, 398 So.2d 529 (La. 1981); Carter, 332 So.2d at 442.
In the instant case, on a form with the printed caption, "LAST WILL AND TESTAMENT," after removing the printed text contained therein, the handwritten portions of the will provide as follows:
Stacy Jean Martin
425 N. Tyler
Covington, Louisiana
Jill Champagne 1030 Mentre Dr. Covington
Betty Strain Abita Springs
1. Derrick Bailey have my personal bank account at Whitney Bank. Including my savings and checking account.
2. Jill Champagne have all my mom's estate that I received when she passed. That includes property, businesses and everything else I got in her estate.
3. Gary Martin although my father, I don't want to have any of my possessions except my grandmother, Shirley Martin, saphire [sic] ring.
4. Everything else of mine, Jill Champagne can give at her discretion.
SM [initialed]
1 2
27th July 2005
Stacy Martin [signed]
2 2
Mr. Martin contends that the handwritten portions alone do not establish that the decedent intended for the document to serve as her last will and testament or that the document was created in contemplation of her death. Mr. Martin further contends that although the document specifies that certain persons were to "have" specific items of her property, it does not state that they were to have these items upon her death.
We have thoroughly reviewed the document herein. The parties stipulated that the instrument was written, signed, and dated in the decedent's handwriting. The decedent wrote her full name and address, and below that, the name and address of her maternal aunt and grandmother. She further specifically itemized and enumerated her assets and specifically named those persons that she wanted to have the assets. In the final enumerated paragraph, she disposed of "[everything else of mine."
In Burke, the court was faced with a printed will, similar to the one herein, with handwritten portions completed by the decedent. Therein the decedent wrote the date and his name followed by:
... to my sister Delia (Mrs. M.J. Derbes); my interest in property at 6315 West End Blvd[.] Also whatever Bank Balance I have in the Whitney National Bank, City Branch Bank and Insurance as covered by Policy of F.F. Hansell & Bro. Ltd. To be shared equally with my other sister Mrs. C.A. Schreiner[.]Burke, 365 So.2d at 859.
The appellate court affirmed a judgment of the trial court finding that the handwritten portion demonstrated sufficient testamentary intent. Burke. 365 So.2d at 860. In so holding, the court noted that the text written "seem[ed] inexplicable other than as a testament." Burke, 365 So.2d at 860.
Although La. C.C. art. 1575 was amended since Burke, the revision comments provide that in so amending, there was no intent to change the rationale of Burke. See La. Acts 1997, No. 1421, § 1, effective July 1, 1999, Official Revision Comments - 1997, Comment (b).
Also, in Succession of Achee, 229 So.3d at 8, this court interpreted a handwritten document, which provided:
Sept/4/13
to whom it may concern about the estates of Lawrence David Achee, Sr. & Vergie ola Martin Achee
I want to leave whatever is passed on to Lawrence David Achee Jr. to truitt Dain Miller
I want to leave all of my firearms to truitt Dain Miller
I want to leave all of my knife collection to truitt Dain Miller
I want to leave all Chevrolet, ford, and international trucks to truitt Dain Miller
I want to leave all tools, welders, torches, grinders, weedeaters, chain saws, circular saws
Lawrence D Achee Jr.(Larry D. Achee)
On review, this court found that a plain and unstrained reading of the handwritten document demonstrated that the decedent's use of the phrase "I want to leave" indicated his intent to dispose of his assets and property upon his death. Succession of Achee, 229 So.3d at 10.
In the instant case, although the handwritten portion of the document did not use legal terms such as "bequests" or "bequeathed," the language of the document, when read as a whole, exemplifies more than mere hopes or an inventory of assets. See White, 961 So.2d at 442; Succession of Achee. 229 So.3d at 9. Furthermore, as in Succession of Achee, 229 So.3d at 9-10, there is no indication in the language of the handwritten document that the decedent intended it to be a mere listing of assets or notes to be used by an attorney in drafting a will, see e.g. In re Succession of Rhodes, 39,364 (La.App. 2nd Cir. 3/23/05), 899 So.2d 658, 660-662, writs denied, 2005-0936, 2005-1044 (La. 6/3/05), 903 So.2d 459, 460 and Hendry v. Succession of Helms, 557 So.2d 427, 429 (La.App. 3rd Cir. 1990), writ denied, 560 So.2d 8 (La. 1990); that it was a direction or request to a third party with discretion, see e.g. In re Succession of Plummer, 37,243 (La.App. 2nd Cir. 5/14/03), 847 So.2d 185, 190-191, writ denied, 2003-1751 (La. 10/10/03), 855 So.2d 323 and Succession of Diaz, 617 So.2d 34, 35 (La.App. 4th Cir. 1993); or that it contained vague instructions, see e.g. In re Succession of Bernstine, 2004-739 (La.App. 3rd Cir. 12/22/04), 890 So.2d 776, 780.
Moreover, we find the definitive nature of the distribution of the decedent's assets establishes a clear intention, however informally conveyed, that the law indulges. See Carter, 332 So.2d at 442; see also In re Succession of Cannon, 2014-0059 (La.App. 1st Cir. 3/25/15), 166 So.3d 1097, 1106-1107, writ denied, 2015-0816 (La. 6/5/15), 171 So.3d 948 (where this court, relying on La. C.C. art. 1612 and Carter, 332 So.2d at 442, recognized that when confronted with an estate that will be subject to intestacy if the codicil is not probated, every endeavor should be made to give effect to the disposition and that the law is indulgent if the testament is written without aid of legal counsel).
The trial court determined that after removing the printed title of the document and other printed text and headings, the document naming her closest of kin and disposing of all of the decedent's worldly assets possessed sufficient testamentary intent to constitute a valid olographic will. Applying the above precepts, and mindful that when a document is subject to multiple interpretations a court must opt for the interpretation that favors testacy, not intestacy, we find no error in the trial court's finding that the decedent's writing possessed sufficient testamentary intent and recognition of same as a valid will and testament. See White, 961 So.2d at 443.
CONCLUSION
For the above and foregoing reasons, the May 13, 2022 judgment of the trial court is affirmed. Costs of this appeal are assessed against appellant, Gary A. Martin.
AFFIRMED.