Opinion
NO. 2016 CA 1115
02-17-2017
SUCCESSION OF JOSEPH JOHNSON JR.
Barry W. Bolton Bogalusa, Louisiana Attorney for Plaintiff/Appellant Joseph Johnson Sr. David P. Curlin Mandeville, Louisiana Attorney for Defendant/Appellee Vernis Keller James S. Knight Franklinton, Louisiana Administrator for Succession of Joseph Johnson Jr.
NOT DESIGNATED FOR PUBLICATION
On Appeal from The 22nd Judicial District Court, Parish of Washington, State of Louisiana
Trial Court No. 15444
The Honorable Peter J. Garcia, Judge Presiding Barry W. Bolton
Bogalusa, Louisiana Attorney for Plaintiff/Appellant
Joseph Johnson Sr. David P. Curlin
Mandeville, Louisiana Attorney for Defendant/Appellee
Vernis Keller James S. Knight
Franklinton, Louisiana Administrator for Succession of
Joseph Johnson Jr. BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ. CRAIN, J.
Joseph Johnson Sr. (Joseph Sr.) appeals a judgment of the trial court declaring a purported testament to be null. We affirm.
By order signed on April 8, 2016, after rendition of the judgment on appeal, the presiding trial court judge recused himself from this proceeding. The division to which the matter was reassigned is not clearly reflected in the record on appeal.
Joseph Johnson Jr. (Joseph Jr.) executed a document dated July 22, 2013 that is captioned "Last Will and Testament." After Joseph Jr.'s death, Joseph Sr. filed the present proceeding seeking to probate the document as Joseph Jr.'s last will and testament. The administrator of the succession, James S. Knight, later filed a petition for declaratory judgment in the probate proceeding, requesting that the trial court declare whether the instrument satisfied the requirements for a notarial testament. At a hearing on the matter, the trial court declared the purported will null, subsequently explaining in written reasons that the document does not confirm that the notary was present when the testator signed it, and there is no indication that the notary signed in the presence of the testator and witnesses. On appeal, Joseph Sr. argues that the instrument sufficiently complies with the requirements of Louisiana Civil Code article 1577.
Article 1577 governs the form of notarial testaments and mandates, in relevant part, that the notary "shall sign" a declaration stating that, in the presence of the notary and the witnesses, the testator (1) signified or declared that the instrument is his testament, and (2) signed the instrument at the end and on each other separate page. See La. Civ. Code art. 1577(2). Where a will is merely notarized, without a declaration signed by the notary, the requirements of Article 1577 are not met. See Successions of Toney, 15-1928 (La. App. 1 Cir. 6/3/16), 195 So. 3d 672, 675, writ granted, 16-1534 (La. 12/16/16), ___ So. 3d ___; In re Succession of Ballex, 12-1571, 2013WL3961203, 3 (La. App. 1 Cir. 7/31/13); In re Succession of Seal, 10-0351, 2010WL3527597, 2 (La. App. 1 Cir. 9/10/10), writ denied, 10-2294 (La. 1/28/11), 56 So. 3d 964; In re Succession of Richardson, 05-0552 (La. App. 1 Cir. 3/24/06), 934 So. 2d 749, 751, writ denied, 06-0896 (La. 6/2/06), 929 So. 2d 1265; contrast In re Succession of Holbrook, 13-1181 (La. 1/28/14), 144 So. 3d 845, 853 (holding that a will without a complete date substantially complied with Article 1577).
The present instrument contains provisions very similar to those used in wills previously declared null by this court. See Successions of Toney, 195 So. 3d at 675-76; In re Succession of Ballex, 2013WL3961203 at 4-6; In re Succession of Dunaway, 11-1747 (La. App. 1 Cir. 5/2/12), 92 So. 3d 555, 560; In re Succession of Seal, 2010WL3527597 at 3-4. In each of those cases, the respective clauses above the signatures of the testator, witnesses, and notary (1) did not confirm that the testator signed the instrument in the presence of the notary, and (2) did not confirm that the testator declared the instrument to be his last will and testament in the presence of the notary. Finding those omissions to be substantive violations of Article 1577, this court declared the wills null. See Successions of Toney, 195 So. 3d at 674-76; In re Succession of Ballex, 2013WL3961203 at 6; In re Succession of Dunaway, 92 So. 3d at 559-60; In re Succession of Seal, 2010WL3527597 at 3-5.
The present instrument likewise does not contain a declaration that it was signed by the testator in the presence of the notary, or that the testator declared it to be his last will and testament in the presence of the notary. The declaration appearing above the notary's signature merely states that the testator "acknowledged to me that he . . . executed the instrument." Based upon our review of the document, and consistent with our previous holdings, we find that it does not satisfy the requirements of Article 1577. See Successions of Toney, 195 So. 3d at 675-76; In re Succession of Ballex, 2013WL3961203 at 6; In re Succession of Dunaway, 92 So. 3d at 560; In re Succession of Seal, 2010WL3527597 at 3-5. The trial court thus did not err in declaring the will null.
We note that the supreme court, by recently granting a writ of certiorari in Successions of Toney, 16-1534 (La. 12/16/16), ___ So. 3d ___ (2016WL7638405), has indicated that it may address the sufficiency of a notarial declaration very similar to that presented in this case. However, pending any decision from the supreme court on the matter, the law of this circuit remains controlled by the jurisprudence cited herein. --------
We affirm the judgment of the trial court. Costs of this appeal are assessed to Joseph Johnson Sr. This memorandum opinion is issued in compliance with Uniform Rules—Courts of Appeal, Rule 2-16.1.B.
AFFIRMED.