Succession of Loy L. Olsen, Jr.

SUCCESSION OF LOY L. OLSEN, JR. NO. 19-CA-348

FIFTH CIRCUIT

COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 768-260, DIVISION "H"
HONORABLE GLENN B. ANSARDI, JUDGE PRESIDING

January 29, 2020

HANS J. LILJEBERG
JUDGE

Panel composed of Judges Marc E. Johnson,
Robert A. Chaisson, and Hans J. Liljeberg

AFFIRMED
HJL
MEJ
RAC

COUNSEL FOR PLAINTIFF/APPELLEE,
DAVID DAVENPORT AND PHYLLIS DAVENPORT, INDIVIDUALLY AND AS
ADMINISTRATORS OF THE SUCCESSION OF LOY L. OLSEN, JR.
M. Elizabeth Bowman
Christy M. Howley

COUNSEL FOR INTERVENOR/APPELLANT,
REBECCA CREPPEL AND PAUL ALEXANDER
Harold E. Molaison
Justin E. Molaison
Warren E. Mouledoux, Jr.
Jack E. Morris

LILJEBERG, J.

In this succession proceeding, intervenors seek review of the trial court’s

April 22, 2019 amended final judgment, dismissing their claims after finding that

they failed to carry the burden of proof necessary to probate an olographic will and

that the succession rights under the decedent’s notarial will are governed by the

law existing at the time of his death. They also seek review of the trial court’s

September 15, 2018 judgment denying their motion for partial summary judgment

on the issue of whether the decedent’s estate must devolve intestate since all

legacies in the notarial will have lapsed. For the following reasons, we affirm both

judgments.

FACTS AND PROCEDURAL HISTORY

Loy Lee Olsen, Jr. died on December 11, 2016 at the age of seventy-three.

He did not have any children and his mother and father predeceased him. He had a

sister, Loydella Olsen Davenport, and a half-sister, Lynn Olsen Rizzo. Loy was

married once to Jane Ellen White Olsen.

On December 5, 1994, Loy executed a last will and testament in notarial

form in which he bequeathed all of his property to his wife, Jane Ellen White

Olsen. The testament also provided that in the event that Jane predeceased him or

died simultaneously with him, he bequeathed all of his property to his sister,

Loydella Olsen Davenport. Jane passed away on June 29, 2012 and Loydella

passed away on May 16, 2008. Therefore, since they both predeceased Loy, no

legatees under the 1994 notarial will remained at the time of Loy’s death.

Although Lynn survived Loy, she died just a few days later on December 17, 2016.

Loydella had two children, Phyllis and David Davenport. Lynn also had two

children, Rebecca Creppel and Paul Alexander. On January 18, 2017, Phyllis and

David filed a “Petition to Probate Will, Open Succession, and to Place Under

Independent Administration,” along with a photocopy of Loy’s 1994 notarial will

19-CA-348 1

and an affidavit of the attorney and notary who prepared the will, attesting to its

authenticity. In their petition, Phyllis and David indicated that they would attempt

to locate the original 1994 notarial will. In accordance with Phyllis and David’s

requests in their petition, the trial court signed an Order on January 18, 2017,

ordering that the 1994 notarial will be probated, that the succession be opened, and

that Phyllis and David be named as co-independent administrators of the

succession.

On March 29, 2017, Rebecca and Paul filed a “Petition to Annul Probated

Testament and to Probate Later Dated Testament,” along with the original of an

olographic will purportedly executed by Loy on November 25, 2016. This

olographic will named Amos Cormier III as the executor, indicated that previously

signed wills were revoked, and further provided:

I LEAVE $25,000 TO MACK CORMIER MY GODCHILD
I LEAVE $25,000 TO ASPCA
I LEAVE $20,000 TO SUE CHURCH MY DEAR FRIEND

AS TO THE REST OF MY ESTATE I LEAVE TO DAVID
DAVENPORT NEPHEW, PHYLLIS DAVENPORT NIECE
REBECCA CREPPEL NIECE AND PAUL ALEXANDER
NEPHEW TO BE DIVIDED EQUAL

In Rebecca and Paul’s petition, they alleged that on March 17, 2017, an

envelope was anonymously dropped off to a receptionist at the law office of

Warren Mouledoux, who had been retained by Rebecca and Paul. In the envelope

was the olographic will that had been “crumpled.” The petition indicates that an

anonymous message was attached to the will stating that it had been retrieved from

the trash bin of a friend of the co-administrators and that it was authentic. An

affidavit of two witnesses, Mack Cormier and Susan Church, attesting that the will

was entirely written, dated and signed in Loy’s handwriting, was included with the

petition.

19-CA-348 2

On March 29, 2017, the trial court signed an Order prohibiting the co-

administrators, Phyllis and David, from disposing of any contents of Loy’s

residence or assets of his estate, and ordering them to show cause at a hearing why

the 1994 notarial will should not be declared revoked and why the 2016 olographic

will should not be admitted to probate.

On June 16, 2017, Phyllis and David filed an “Answer and Opposition to

Probate of Olographic Testament,” in which they challenged the authenticity of the

will and noted that the two witnesses attesting to its authenticity were both named

as legatees in this purported will. On this same date, Phyllis and David filed a

“Supplemental Petition to Probate Notarial Will” indicating that the original 1994

notarial will had been located and attaching it thereto. On June 19, 2017, the trial

court signed an Order requiring Rebecca and Paul to show cause at a hearing why

the original 1994 notarial will should not be probated. On March 29, 2018,

Rebecca and Paul filed a “First Amended Petition (Action for Declaratory

Judgment),” asserting that in the event the 1994 notarial will was not revoked,

Loy’s estate would devolve intestate since the legacies provided for therein have

lapsed.

On July 31, 2018, Rebecca and Paul filed a “Motion for Partial Summary

Judgment on the Issue of Intestacy,” seeking a declaration that, in the event that the

1994 notarial will survives revocation by the 2016 olographic will, Loy’s estate

would devolve intestate unto Rebecca, Paul, Phyllis, and David. Phyllis and David

filed a memorandum in opposition to the motion for partial summary judgment,

arguing that the law does not support the relief requested by Rebecca and Paul.

After a hearing, the trial judge denied the motion for partial summary judgment

and signed a judgment to that effect on September 15, 2018.

19-CA-348 3

A bench trial was held on October 16, 2018, October 29, 2018, December 4,

2018, and January 28, 2019. At trial, Stephanie Schieffler testified that she is a

notarial legal secretary and receptionist for the law office of Warren Mouledoux,

Jr. She testified that a lady dropped off an envelope at the office in March of 2017

and indicated that she was leaving it for Mr. Mouledoux. However, the lady did

not identify herself or provide any further information. Within an hour, Mr.

Mouledoux came into the office and she gave him the envelope.

Warren Mouledoux, Jr. testified that he is one of the attorneys representing

Rebecca and Paul. He first saw the 2016 olographic will when someone dropped it

off in an envelope at his office on March 17, 2017. He stated that the olographic

will was “crumpled up” and agreed there was a note attached indicating it was

“found in the trash of Phyllis’ friend.”1

Roland “Jimmy” Broussard testified that he had known Loy since they were

children and they were “pretty close.” According to Mr. Broussard, he had a

conversation with Loy about a month before he died in which Loy talked about

making a will and indicated he was thinking of making Amos Cormier the

executor. Mr. Broussard testified he was not sure if Loy ever wore a hand brace.

Amos Cormier, III, testified that he had known Loy all of his life because his

father and Loy were very good friends and that Loy was the godfather of his

brother, Mack Cormier. According to Amos, Loy spoke with him around

November of 2016 and asked Amos to make a will for him. Amos responded that

he did not have time to make a will because he was in the middle of a political

campaign, but he told Loy that he knew other attorneys who could help him.

Amos also informed Loy that he could write his own olographic will by writing,

1
When counsel for Rebecca and Paul moved to admit the note into evidence, counsel for Phyllis and
David objected on the grounds of foundation and hearsay. The trial court sustained the objection and did
not admit the note itself into evidence.

19-CA-348 4

signing, and dating it in his own handwriting, and that Amos could “make it into a

statutory, a form will” after the election. Amos stated that Loy indicated to him

that he wanted to leave something to his friend, Sue Church, and to Amos’ brother,

Mack. At a later date, Loy asked Amos if he would be the executor of his

succession.

Amos also testified that Loy would complain about his health issues,

including pain in his hands, and that he had seen Loy wear a hand brace. Amos

testified that he has a general idea of Loy’s handwriting, because he has seen

things written in his handwriting once or twice, such as a $500 check Loy wrote to

Amos’ campaign on November 25, 2016, which is the same date the purported

olographic will is dated. Amos testified that the $500 check and the olographic

will both appear to be written in Loy’s handwriting.

Mack Cormier testified that Loy was his godfather. Around Thanksgiving

of 2016, he had a conversation with Loy and Amos during which Loy indicated

that he wanted Amos to make a will for him and to be the executor of his

succession. According to Mack, Loy did not indicate what he wanted to put in his

will or state that he wanted to leave anything to Mack, but it was Mack’s

understanding that Loy was going to leave him something because Loy asked

Mack’s mother for the legal spelling of his name and his social security number.

Mack testified that Loy was not in good health for several months before he died,

had problems with his foot, and had an issue with his hand or wrists causing him to

wear a hand brace. Loy would wear the brace occasionally and he left it at Mack’s

house one time. Mack testified that he has seen Loy’s handwriting on some

documents, including a note to Susan Church and several receipts that were

handwritten and signed by Loy. He indicated that he recognized the 2016

olographic will as being in Loy’s handwriting.

19-CA-348 5

Susan Church testified that she met Loy about four years ago and they

became good friends. He did not talk to her about what he would do with his

estate when he passed away, but he often spoke about Amos and Mack and he had

a fondness for animals. Ms. Church testified that Loy lent her money several times

and she signed “IOUs” or receipts that were handwritten by Loy. She further

indicated that Loy had problems with diabetes and with his wrists, knees, and feet.

She saw Loy wear a hand brace and stated that he always had one with him in case

his wrist started hurting. Ms. Church testified that she was familiar with Loy’s

handwriting, and she recognized the olographic will as being in his handwriting.

Ronald Thibodeaux testified via video deposition that he is an attorney and

that Loy Olsen had been his client. He had no independent recollection of

speaking with Loy about making a will, given that the 1994 notarial will was

prepared over twenty years ago, but he stated that they obviously did since it

appears he prepared and notarized the 1994 notarial will. He indicated that he

would typically discuss potential issues with his client and answer succession

questions. It does not appear Loy gave him any direction regarding what to do in

the event Jane and Loydella both predeceased him, because such a situation is not

addressed in the will.

David Davenport testified that Loy was his uncle and that he had taken the

lead in the administration of his estate. When cleaning out Loy’s house, he did not

find the purported olographic will. He stated that he and Loy used to write cards

and send them to each other over the years, so he is familiar with Loy’s

handwriting. David does not believe the olographic will was written by Loy. He

noted what he believed to be discrepancies in the handwriting and also that the will

refers to David before Phyllis, which he stated Loy would never do because Phyllis

was older and he always referred to them in birth order. David testified that Loy

19-CA-348 6

never told him that he had issues with his hands and needed a brace, and no hand

brace was found when they cleaned out his house and vehicles.

Paul Alexander testified that Loy was his uncle and he used to do “little

handy work” for him. He stated that he has seen Loy’s handwriting quite a few

times and would recognize it. Paul testified that the signature on the olographic

will “really looks like” Loy’s handwriting.

Rebecca Creppel testified that Loy was her uncle. According to Rebecca,

during one of their conversations, he spoke about his will and mentioned he would

leave some money to Rebecca, Paul, his Godchild, and the SPCA. Rebecca

testified that she has carpal tunnel syndrome and wears a hand brace. She stated

that she occasionally saw Loy wearing a similar brace. Rebecca admitted that she

did not see Loy write or sign anything with the brace, but she stated that when she

wears her brace, it restricts her writing and affects her penmanship. She stated that

she is familiar with Loy’s handwriting and signature because she has seen samples

of his handwriting, and the olographic will appears to be in his handwriting.

Brenda Johnson testified that Phyllis and David are her cousins and she

helped to clean out Loy’s house after his death. She stated that she did not find the

olographic will in Loy’s house or attempt to destroy it or throw it away, and she

did not see that Phyllis found it or attempted to destroy it.

Phyllis Davenport testified that Loy was her uncle and that she became an

administrator of his estate when he died. She stated that she did not find the

olographic will in Loy’s house, crumple it up, or throw it away.

Robert Foley was accepted as an expert in forensic document examination

with a specialty in handwriting comparison. He examined several documents

containing Loy’s handwriting and compared them with the olographic will. Based

on the comparative documents, Mr. Foley stated that it was his opinion that Loy

19-CA-348 7

did not sign the olographic will. He stated that it was probable that Loy did not

write or date the will either. He noted that the samples he reviewed were all in

cursive or a combination of cursive and hand printing, with upper and lower case

letters, whereas the olographic will was written in block printing with all capitals.

Mr. Foley explained some of the differences noted between the olographic will and

other documents, such as the check Loy wrote to Amos’ campaign on the same

date. He explained what he found to be differences in letters, sizing, speed and pen

strokes, and style. Mr. Foley testified that if Loy wore a hand brace, he does not

believe it would account for the discrepancies in the handwriting. He opined that

although a hand brace can alter the appearance of a person’s writing “a little bit,”

there were significant letter design differences.

Mr. Foley testified that prior to the issuance of his first report, he was not

told that Loy may have used a hand brace. Mr. Foley admitted that he was aware

prior to the issuance of his second report that there was an issue as to whether or

not Loy wore a hand brace. However, he stated that he did not mention the brace

in his second report because it was just a “hypothetical" that he used a hand brace

and he did not have any samples of Loy’s writing while wearing a hand brace to

analyze or compare to the olographic will.

Mr. Foley testified that he believes it is improbable, though not impossible,

for a hand brace to have impacted the signature on the will to make it look a little

different. Based on the data he reviewed, Mr. Foley believes the olographic will is

a simulation, meaning someone had known samples of Loy’s handwriting and

signature and tried to copy them.

On April 10, 2019, the trial court rendered a judgment finding that

intervenors, Rebecca and Paul, failed to meet their burden of proof necessary to

probate the olographic will dated November 25, 2016. The court also found that

19-CA-348 8

the succession rights pertinent to the 1994 notarial will are governed by the law in

effect at the time of Loy’s death, including testamentary accretion per La. C.C. art.

1593, thereby leaving Phyllis and Davis as sole heirs. In its reasons for judgment,

the trial court stated that “more likely than not, the olographic will was not that of

the decedent.” It noted that the intervenors and the lay witnesses who testified that

they believed the olographic will had been written by Loy would all have

benefitted from the probate of this testament. It further noted that the only expert

testimony presented was that of Mr. Foley, who opined that Loy probably did not

sign, date, or write the will, and believed the will was a simulation, meaning that

someone tried to mimic the decedent’s handwriting.

On April 22, 2019, the trial court issued an “Amended Final Judgment”

adding decretal language providing that all of Rebecca and Paul’s claims were

dismissed with prejudice. Rebecca and Paul appeal both the April 22, 2019

amended final judgment and the September 15, 2018 interlocutory judgment

denying their motion for partial summary judgment.

LAW AND DISCUSSION

In their first argument on appeal, Rebecca and Paul contend that the trial

court erred by dismissing their claims for a judgment declaring the 1994 notarial

will revoked and by failing to admit the 2016 olographic will to probate. They

argue that the testimony and evidence adduced at trial prove the validity of the

olographic will. They further assert that the trial court erred in admitting irrelevant

and prejudicial testimony about Rebecca and Paul’s former non-testifying

handwriting expert.

An olographic testament is one entirely written, dated, and signed by the

testator. La. C.C. art. 1575. The only other requirement is that the document itself

evidence testamentary intent. In re Succession of Carroll, 09-219 (La. App. 5 Cir.

19-CA-348 9

12/8/09), 30 So.3d 11, 17. An olographic testament must be proved by two

credible witnesses testifying that the handwriting on the instrument is that of the

testator. La. C.C.P. art. 2883; In re Succession of Plummer, 37,243 (La. App. 2

Cir. 5/14/03), 847 So.2d 185, 188, writ denied, 03-1751 (La. 10/10/03), 855 So.2d

323; Succession of Calhoun, 28,233 (La. App. 2 Cir. 4/3/96), 674 So.2d 989,

990. 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. La. C.C.P. art 2883(A).

The proponent of an olographic will has the burden of proving its

authenticity and its compliance with all of the formal requirements of law. La.

C.C.P. art. 2903; Hamilton v. Kelley, 25,820 (La. App. 2 Cir. 8/17/94), 641 So.2d

981, 986, writ denied, 94-2338 (La. 11/18/94) 646 So.2d 388. In will contest

cases, absent a finding of manifest error, the factual findings of the trial court are

accorded great weight and will not be disturbed on appeal. In re Succession of

Caillouet, 05-957 (La. App. 4 Cir. 6/14/06), 935 So.2d 713, 715, writ denied, 06-

1732 (La. 10/6/06), 938 So.2d 85.

At trial, Rebecca and Paul had the burden of proving the olographic will was

authentic. Paul, Rebecca, Mack, Amos, and Susan all testified that they were

familiar with Loy’s handwriting and that the olographic will and signature

appeared to be in Loy’s handwriting. We note, as did the trial judge, that each of

these witnesses would benefit from a finding that the olographic will was

authentic. An interest in the estate is not grounds for disqualification as a witness

for purposes of La. C.C.P. art. 2883, but it is a factor affecting the credibility of the

legatee's testimony. Succession of Calhoun, 674 So.2d at 991.

In opposition to Rebecca and Paul’s claim that the olographic will was

written, dated, and signed by Loy, David testified that he is familiar with Loy’s

handwriting and does not believe the olographic will was written by Loy. He

19-CA-348 10

noted what he believed to be discrepancies in the handwriting and the order in

which he and Phyllis were referenced in the will. Robert Foley testified that he did

not believe the olographic will was written by Loy, based on samples of Loy’s

handwriting, including the check to Amos’ campaign that was written the same

date the olographic will was allegedly written. Mr. Foley testified that he believes

the olographic will was a simulation, meaning that someone tried to mimic Loy’s

handwriting. Although Mr. Foley admitted that a hand brace could have affected

Loy’s handwriting somewhat, it was disputed whether Loy wore a hand brace.

Further, Mr. Foley did not believe a hand brace would account for the

discrepancies between the writing of the olographic will and Loy’s writings.

The factfinder is required to assess the credibility of both expert and lay

witnesses to determine the most credible evidence. Johnson v. E.I. DuPont

deNemours & Co., Inc., 08-628 (La. App. 5 Cir. 1/13/09), 7 So.3d 734, 741.

Expert testimony is to be weighed the same as any other evidence, and the trier of

fact has the discretion to accept or reject, in whole or in part, the opinion of an

expert. King v. Nat’l Gen. Assurance Co., 18-281 (La. App. 5 Cir. 12/12/18), 260

So.3d 1298, 1308. The strength of an expert’s opinion depends upon his

experience, knowledge, and skill, as well as the facts upon which his opinion is

based. Succession of Calhoun, 674 So.2d at 990. The effect and weight to be

given to expert testimony is within the broad discretion of the trial court. Normand

v. Cox Communications Louisiana, L.L.C., 14-563 (La. App. 5 Cir. 12/23/14), 167

So.3d 156, 163, writ denied, 15-158 (La. 4/10/15), 163 So.3d 815.

In the present case, the trial court weighed the testimony of the expert and

lay witnesses, made credibility determinations, and chose to give more weight to

the testimony of Mr. Foley, who did not believe the olographic will was written,

dated, and signed by Loy. In its reasons for judgment, the trial court noted that Mr.

Foley was accepted as an expert in forensic document examination, that he has

19-CA-348 11

testified at least 500 times, and that he is certified by the American Board of

Forensic Document Examiners, “which requires repeated written and practical

examinations to retain one’s certification.” Based on the testimony and evidence

presented, we cannot say the trial court manifestly erred by finding that the 2016

olographic will was not authentic and failing to admit it to probate.

Rebecca and Paul also argue that the trial court erred in admitting testimony

about their former non-testifying handwriting expert, because it was irrelevant and

the probative value of the testimony was “substantially outweighed by the danger

of unfair prejudice.” See La. C.E. arts. 401, 403. They claim that the trial court

specifically relied on this testimony, because it noted in its reasons for judgment

that Rebecca and Paul did not present any expert testimony to bolster their

position, even though they had retained a handwriting expert at one point.

A trial court has wide discretion concerning the admissibility and relevancy

of evidence, and a trial court's ruling will not be disturbed on appeal absent a clear

abuse of discretion. Succession of Davisson, 50,830 (La. App. 2 Cir. 12/22/16),

211 So.3d 597, 604, writ denied, 17-307 (La. 4/7/17), 218 So.3d 111. On appeal,

the reviewing court must consider whether the complained-of ruling was erroneous

and whether the error affected a substantial right of the complaining party. La. C.E.

art. 103; Pratt v. Culpepper, 49,627 (La. App. 2 Cir. 2/27/15), 162 So.3d 616, 621.

If a party's substantial right was not affected by an evidentiary ruling, reversal is

not warranted. The complainant has the burden of proof. Id.

On cross-examination, Rebecca was asked if she had retained a handwriting

expert during this litigation and she indicated that she had not. She acknowledged

that she had heard something about a handwriting expert being hired, but she did

not think she and Paul had a handwriting expert to testify at trial. Counsel for

Rebecca and Paul moved to strike the testimony related to whether they retained a

handwriting expert, but the trial court denied their request.

19-CA-348 12

There was no testimony regarding any findings of this handwriting expert,

his qualifications, or the reason he was not called to testify at trial; rather, the

testimony just reflected that an expert had been retained by Rebecca and Paul at

some point. After review, we find the trial court did not abuse its discretion by

finding the testimony in question was relevant and allowing it at trial. Further, we

cannot say the probative value of this testimony was substantially outweighed by

the risk of unfair prejudice.

Having determined that the trial court did not err by finding that Rebecca

and Paul failed to prove the authenticity of the 2016 olographic will and by

denying their request for a judgment declaring the 1994 notarial will revoked and

admitting the olographic will to probate, we now consider what law applies to

determine the effect of the 1994 notarial will.

On appeal, Rebecca and Paul assert that the trial court erred in denying their

motion for partial summary judgment on the issue of intestacy and in dismissing

their claim for a judgment declaring that Loy’s estate devolves intestate. They

argue there is no genuine issue of material fact that Loy intended for his estate to

devolve intestate in the event all legacies in the 1994 notarial will lapsed, because

that was the law at the time he executed this will. They argue that under La. C.C.

art. 1611(A), the intent of the testator controls the interpretation of his testament.

They also argue that the trial court erred by construing La. C.C. art. 1611(B) to

require a finding of ambiguity in the will before a court can consider the law in

effect at the time the will was executed in order to ascertain the testator’s intent.

Finally, Rebecca and Paul contend that the trial court erred by applying La. C.C.

art. 1593 to the 1994 notarial will because it violates the provisions of La. R.S.

9:2440.

La. C.C. art. 870(B) provides that testate and intestate succession rights are

governed by the law in effect on the date of the decedent’s death. Pursuant to La.

19-CA-348 13

C.C. art. 1589, a legacy lapses when the legatee predeceases the testator. La. C.C.

art. 1590 provides that “[t]estamentary accretion takes place when a legacy lapses.”

At the time of Loy’s death and presently, La. C.C. art. 1593 provides that if

a legatee is a sibling of the testator and the legatee’s interest in the legacy lapses,

accretion takes place in favor of the legatee’s descendants by roots who were in

existence at the time of the decedent’s death.

The only legatees named in Loy’s 1994 notarial will were Jane and

Loydella, both of whom predeceased Loy. The record reflects that Jane did not

have any descendants, but Loydella had two children, Phyllis and David. Pursuant

to the law in effect at the time of Loy’s death, testamentary accretion would apply

herein, making Phyllis and David the sole heirs of Loy’s succession.

Rebecca and Paul cite In Re Succession of Gonzales, 03-0823 (La. App. 4

Cir. 3/10/04), 868 So.2d 987, in support of their position that Loy’s estate should

devolve intestate because the intent of the testator at the time he executed his

testament controls the interpretation of his testament.

In Gonzales, Dr. Gonzalez executed a testament in 1990 leaving his entire

estate to his then wife and appointing her as executrix. At that time, there was no

law providing that a legacy to one’s spouse would not remain in effect after

divorce. Subsequent to the execution of this testament, Dr. Gonzales and his wife

divorced. Prior to Dr. Gonzales’ death, in La. Acts 1997, No. 1421, the Louisiana

Legislature enacted La. C.C. art. 1608(5), which provides for revocation of a

legacy or other testamentary provision when the testator is divorced after the

testament is executed and at the time of his death, unless the testator provides to

the contrary. In Gonzalez, the Fourth Circuit declined to apply the provisions of

La. C.C. art. 1608(5), which were in effect at the time of death, and found that the

law in effect when the testament was executed was applicable. The Court cited La.

R.S. 9:2440, which provides:

19-CA-348 14

A testament, testamentary provision, legacy, or other
appointment executed prior to January 1, 1998, and valid
under the law and jurisprudence prior to that date, when
executed, is not invalidated by the passage of Acts 1997,
No. 1421.

The Court noted that La. C.C. art. 1608(5) was enacted in La. Acts 1997,

No. 1421, and that application of the law at the time of death would invalidate the

testament.2 Gonzalez, 868 So.2d at 991.

In the present case, unlike Gonzales, La. R.S. 9:2440 does not apply. There

is no testamentary provision, legacy, or appointment in this case that would be

invalidated by application of the law at the time of death. Rather, the legacies in

Loy’s 1994 notarial will lapsed by operation of law due to the legatees’ deaths, and

there is no testamentary provision indicating the testator’s intent in such a

situation.

Rebecca and Paul also argue that testamentary accretion under La. C.C. art.

1593 cannot apply herein, pursuant to La. R.S. 9:2440. They claim that the law at

the time of the execution of a testament applies in this case. At the time Loy

executed the 1994 notarial will, the law provided that in the event all legacies

lapsed, the decedent’s estate would devolve upon the legitimate heirs, who are

Rebecca, Paul, Phyllis and David in this case.

As previously noted, La. C.C. art. 870 specifically provides that testate and

intestate succession rights are governed by the law in effect at the time of the

decedent’s death. Further, the provisions of La. R.S. 9:2440 do not apply when

there is no testamentary provision or legacy that would be invalidated by the

passage of La. Acts 1997, No. 1421. Therefore, La. R.S. 9:2440 does not preclude

the application of testamentary accretion in this case.

2
Rebecca and Paul also cite In re Succession of Clark, 08-1278 (La. App. 1 Cir. 2/13/09), 6 So.3d 266,
writ denied, 09-580 (La. 5/13/09), 8 So.3d 568, asserting that the appellate court in Clark reached the
same conclusion as the court in Gonzales.

19-CA-348 15

Rebecca and Paul further contend that the trial court erred by construing La.

C.C. art. 1611(B) to require a finding of ambiguity in the will before a court can

consider the law in effect at the time the will was executed in order to ascertain the

testator’s intent. La. C.C. art. 1611(B) provides:

When a testament uses a term the legal effect of which
has been changed after the date of execution of the testament,
the court may consider the law in effect at the time the
testament was executed to ascertain the testator’s intent in
the interpretation of a legacy or other testamentary provision.

Rebecca and Paul argue that even a clear and unambiguous will can contain

a “term the legal effect of which has been changed after the date of execution of

the testament.” However, in this case, the 1994 notarial testament does not contain

any “term the legal effect of which has been changed after the date of execution of

the testament.” Accordingly, we find that La. C.C. art. 1611(B) does not apply in

this matter.

Finally, Rebecca and Paul assert that because the lapse of all legacies in a

testament would have resulted in his estate devolving intestate at the time the will

was executed, Loy must have intended for his estate to devolve intestate in the

event the legatees named therein predeceased him. However, the 1994 will does

not contain any testamentary provision indicating that Loy wished his estate to

devolve intestate in the event the legacies had lapsed. Without any testamentary

provision to the contrary, we must apply the law in effect at the time of Loy’s

death in accordance with La. C.C. art. 870.

Based on our de novo review of Rebecca and Paul’s motion for partial

summary judgment on intestacy, we agree with the trial court that there were

genuine issues of material fact that precluded summary judgment. We further find

that the law at the time of Loy’s death, including testamentary accretion pursuant

to La. C.C. art. 1593, applies herein and thus, Phyllis and David are the sole heirs

of Loy’s estate.

19-CA-348 16

DECREE

For the foregoing reasons, we affirm the trial court’s April 22, 2019

amended final judgment finding Phyllis and David to be the sole heirs of Loy’s

succession and dismissing Rebecca and Paul’s claims with prejudice. We also

affirm the trial court’s September 15, 2018 judgment denying Rebecca and Paul’s

motion for partial summary judgment.

AFFIRMED

19-CA-348 17

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

MARY E. LEGNON
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
JANUARY 29, 2020 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

19-CA-348
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE GLENN B. ANSARDI (DISTRICT JUDGE)
CHRISTY M. HOWLEY (APPELLEE) HAROLD E. MOLAISON (APPELLANT) JACK E. MORRIS (APPELLANT)

MAILED
JUSTIN E. MOLAISON (APPELLANT) M. ELIZABETH BOWMAN (APPELLEE) WARREN E. MOULEDOUX, JR.
ATTORNEY AT LAW ATTORNEY AT LAW (APPELLANT)
111 VETERANS BOULEVARD 629 LAFAYETTE STREET ATTORNEY AT LAW
SUITE 1810 GRETNA, LA 70053 833 4TH STREET
METAIRIE, LA 70005 GRETNA, LA 70053