Opinion
NO. 2012 CA 0808
12-21-2012
In re: SUCCESSION OF JOHNNY WADE
Ebony Cavalier Baton Rouge, LA Attorney for Plaintiffs-Appellees, Carolyn Wade Cavalier, Donald Ray Wade, Ledell Wade, Brenda Wade, Michael A. Wade, Rubin N. Wade and Johnny Lee Wade Felix "Andy" DeJean, IV Sherry C. Cannon Baton Rouge, LA Attorneys for Defendant-Appellant, Dianne M. Wade
NOT DESIGNATED FOR PUBLICATION
On Appeal from the
19th Judicial District Court,
In and for the Parish of East Baton Rouge,
State of Louisiana
Trial Court No. 91,521
Honorable Todd Hernandez, Judge Presiding
Ebony Cavalier
Baton Rouge, LA
Attorney for Plaintiffs-Appellees,
Carolyn Wade Cavalier, Donald Ray Wade,
Ledell Wade, Brenda Wade, Michael A.
Wade, Rubin N. Wade and Johnny Lee
Wade
Felix "Andy" DeJean, IV
Sherry C. Cannon
Baton Rouge, LA
Attorneys for Defendant-Appellant,
Dianne M. Wade
BEFORE: WHIPPLE, McCLENDON, AND HIGGINBOTHAM, JJ.
HIGGINBOTHAM , J.
Defendant appeals from a trial court judgment dismissing her motion for nullification of last will and testament and judgment of possession. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
On September 20, 1995, Mr. Johnny Wade executed a last will and testament dividing his property among his eight children. On December 30, 2008, Mr. Wade executed another last will and testament, revoking all prior wills and leaving all of his property to his daughter, Dianne Marie Wade. On July 22, 2009, Mr. Wade died. In May 2010, Carolyn Wade Cavalier, filed on behalf of all of Mr. Wade's children a joint "Petition to File Notarial Will and for Possession." Attached to the petition was the September 20, 1995 will. On August 2, 2010, a judgment of possession was signed placing into possession all of the property of Mr. Wade to the legatees in accordance with his September 20, 1995 will.
On February 16, 2011, defendant, Dianne Wade filed a "Motion for Nullification of Last Will and Testament and Judgment of Possession" requesting that the September 20, 1995 will and the August 2, 2010 judgment of possession be nullified. Further, the motion requested that Ms. Wade be placed in possession of all of Mr. Wade's right, title, and interest in the described property. Ms. Wade attached the December 30, 2008 will to her motion. Mr. Wade's children, excluding Ms. Dianne Wade, filed an opposition to the motion. The matter came before the court on December 12, 2011, after which judgment was signed on January 17, 2012, denying Ms. Wade's motion. It is from this judgment that Ms. Wade appeals, contending that the December 30, 2008 will is valid and her motion should have been granted.
DISCUSSION
A notarial testament is one that is executed in accordance with the formalities of Articles 1577 through 1580.1. La. Civ. Code art. 1576. 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:Louisiana Civil Code article 1578 states:
(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 __, __." [Emphasis added.]
When a testator knows how to sign his name and to read, and is physically able to read but unable to sign his name because of a physical infirmity, the procedure for execution of a notarial testament is as follows:
(1) In the presence of the notary and two competent witnesses, the testator shall declare or signify to them that the instrument is his testament, that he is able to see and read but unable to sign because of a physical infirmity, and shall affix his mark where his signature would otherwise be required; and if he is unable to affix his mark he may direct another person to assist him in affixing a mark, or to sign his name in his place. The other person may be one of the witnesses or the notary.
(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 is his testament, and that he is able to see and read and knows how to sign his name but is unable to do so because of a physical infirmity; and in our presence he has affixed, or caused to be affixed, his mark or name at the end of the testament and on each other separate page, and in the presence of the testator and each other, we have subscribed our names this __ day of __, __." [Emphasis added.]
The intention of the testator as expressed in the testament must govern. However, the intent to make a testament, although clearly stated or proved, will be ineffectual unless the execution thereof complies with codal requirements. Succession of Hendricks, 2008-1914 (La. App. 1st Cir. 9/23/09), 28 So.3d 1057, 1060, writ not considered, 2010-0480 (La. 3/26/10), 29 So.3d 1256. A material deviation from the manner of execution prescribed by the code will be fatal to the validity of the testament. Id.; see La. Civ. Code art. 1573. The fact that there is no fraud, or even suggestion or intimation of it, will not justify the courts in departing from the codal requirements, even to bring about justice in the particular instance, since any material relaxation of the codal rule will open up a fruitful field for fraud, substitution, and imposition. Succession of Hendricks, 28 So.3d at 1060. The purpose of the codal article in prescribing formalities for the execution of testaments is to guard against and prevent mistake, imposition, undue influence, fraud, or deception, to afford means of determining their authenticity, and to prevent the substitution of some other writing. Id. Under the rules of statutory construction, "[t]he word "shall" is mandatory and the word "may" is permissive." La. R.S. 1:3; see Arabie v. CITGO Petroleum Corp., 2010-2605 (La. 3/13/12), 89 So.3d 307, 312, Oubre v. Louisiana Citizens Fair Plan, 2011-0097 (La. 12/16/11); 79 So.3d 987, 997. If the formalities prescribed for the execution of a testament are not observed, the testament is absolutely null. See La. Civ. Code art. 1573.
The December 30, 2008 Last Will and Testament of Johnny Wade is a two-page document. On the first page Mr. Wade affixed an X in place of his initials and underneath the X "his mark" is written by his attorney. The first page contained all of the dispositive provisions of the will. The second page contains a marking made by Mr. Wade resembling an X or a J on the signature line and is also labeled underneath as "his mark". The trial court determined that Mr. Wade's "signature does not appear anywhere on the Will." There was no evidence presented to determine whether Mr. Wade was physically able to sign his name. The only evidence presented was that it was cold outside, he was in his nineties, and he had arthritis. His grandson, Neil Armstrong, witnessed him signing the will. He testified that his grandfather did the best he could when signing the will.
Defendant contends that the marking on the second page of the will is Mr. Wade's signature. The trial court determined that his signature did not appear anywhere on the will. We find no manifest error in this factual finding by the trial court. See
There is no dispute that the will does not contain a declaration stating something substantially similar to "he is able to see and read and knows how to sign his name but is unable to do so because of a physical infirmity; and in our presence he has affixed, or caused to be affixed, his mark in accordance with La. Civ. Code article 1578. Therefore, because the will does not contain the attestation clause which is a mandatory formality for someone who is able to read and write, but unable to sign his name, it is not a valid will under article 1578.
However, Ms. Wade contends that the clause regarding Mr. Wade's inability to sign his name was not necessary because, as the trial court noted, Ms. Wade was unable to prove that Mr. Wade could not write his name; thus the will was subject to the formalities of article 1577. The mandatory requirements of article 1577 require that the testator "shall sign his name at the end of the testament and on each other separate page." As the trial court noted, Mr. Wade's signature did not appear anywhere on the will. Therefore, the requirements for a valid will under article 1577 were not met either.
Although we find this to be a harsh result under the circumstances, we are bound to follow the law. Therefore, because Mr, Wade did not sign his name on each page as mandated by article 1577 or, in the alternative, did not have the required attestation clause for someone unable to sign his name as mandated by article 1578, we find no error in the trial court's finding that the December 30, 2008 will was invalid. For the foregoing reasons, the judgment of the trial court is affirmed.
AFFIRMED.
Succession of Cure, 633 So.2d 590, 594 (La. App. Ist Cir. 1993).