Succession of Raymond John Brandt

SUCCESSION OF RAYMOND JOHN BRANDT NO. 21-C-88

FIFTH CIRCUIT

COURT OF APPEAL

STATE OF LOUISIANA

April 13, 2021

Susan Buchholz
First Deputy Clerk

IN RE MARC S. MILANO, TRUSTEE OF THE RAYMOND JOHN BRANDT REVOCABLE TRUST

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT,
PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE LEE V. FAULKNER,
JR., DIVISION "P", NUMBER 801-807

Panel composed of Judges Robert A. Chaisson,
Hans J. Liljeberg, and John J. Molaison, Jr.

WRIT GRANTED

Relator, Marc Milano, as Trustee of the Raymond John Brandt Revocable Trust,

seeks review of the January 25, 2021 judgment in which the trial court granted the

“Motion to Determine Validity of Wills” filed by Jessica Brandt, in her capacity as

the Independent Testamentary Executrix of the Succession of Raymond J. Brandt,

and declared the probated Last Will and Testament of Raymond John Brandt dated

October 24, 2019 to be invalid and absolutely null. For the following reasons, we

grant this writ application, vacate the judgment declaring the October 24, 2019 will

to be absolutely null, and remand for further proceedings.

Procedural History

Raymond John Brandt died on November 14, 2019. Thereafter, on

November 26, 2019, Mr. Brandt’s surviving spouse, Jessica Brandt, filed a

“Petition for Probate of Notarial Testament and for Confirmation of Independent

Testamentary Executrix,” requesting that Mr. Brandt’s October 24, 2019 will be

21-C-88

given the effect of probate per La. C.C.P. art. 2891 and that she be confirmed as

the independent executrix of the succession per the terms of the will. That same

day, November 26, 2019, the trial court signed an Order declaring that Mr.

Brandt’s will “dated October 24, 2019 and prepared in accordance with Louisiana

Civil Code Article 1577, be filed, deposited and recorded in the office of the

Jefferson Parish Clerk of Court for the Parish of Jefferson” and that “this Order

shall have the effect of probate.” The Order further provided that Mrs. Brandt be

appointed as the independent executrix of the succession and that letters

testamentary issue to her upon taking the oath required by law.

Nearly one year later, on October 23, 2020, Todd Dempster filed a “Petition

to Annul Probated Testament” pursuant to La. C.C.P. art. 2931, asserting that the

October 24, 2019 will should be annulled because the attestation clause does not

comply with La. C.C. art. 1577. In his petition, Mr. Dempster argued that a second

will, dated January 16, 2015, was also null and that a third will, dated March 29,

2010, should control. In his Petition to Annul the 2019 will, Mr. Dempster

recognized that “a probated testament may be annulled only by a direct action

brought in the succession proceeding” pursuant to La. C.C.P. art. 2931.

In response to Mr. Dempster’s Petition to Annul, Mr. Milano filed several

exceptions. On December 1, 2020, the trial court rendered a judgment granting

Mr. Milano’s Exception of No Right of Action on the basis that Mr. Dempster has

no procedural right to file a claim seeking to invalidate Mr. Brandt’s will since he

is not an heir, trustee, or legatee, and dismissing Mr. Dempster’s Petition to Annul

Probated Testament, with prejudice.1

Thereafter, on December 17, 2020, Jessica Brandt, solely in her capacity as

the independent testamentary executrix of Mr. Brandt’s estate, filed a “Motion to

1
Mr. Dempster has filed an appeal from the December 1, 2020 judgment dismissing his Petition to Annul, which is
pending.
2

Determine Validity of Wills.” Although the October 24, 2019 will had already

been probated, Mrs. Brandt asserted in her motion that there are competing notarial

wills “vying for probate” and asked the trial court to determine which one is valid

and should be probated and given legal effect. On December 23, 2020, Mr.

Dempster filed a “Petition in Intervention into Jessica F. Brandt’s Motion to

Determine Validity of Wills,” asserting that he is an interested third person in this

matter because the 2010 will provides that he would become the sole executor of

Mr. Brandt’s estate if the designated co-executors are unwilling or unable to serve.

Mr. Milano filed exceptions to Mrs. Brandt’s Motion to Determine Validity of

Wills and to Mr. Dempster’s Petition to Intervene.

On January 22, 2021, Mrs. Brandt’s Motion to Determine Validity of Wills

and Mr. Milano’s exceptions came for hearing before the trial court. After denying

Mr. Milano’s exceptions, the trial court heard argument on the Motion to

Determine Validity of Wills and then took the matter under advisement. On

January 25, 2021, the trial court rendered a judgment granting Mrs. Brandt’s

Motion to Determine Validity of Wills and declaring both the Last Will and

Testament of Raymond John Brandt dated October 24, 2019, and the Last Will and

Testament of Raymond John Brandt dated January 16, 2015, to be invalid and

absolutely null. The trial court found that the attestation clause in both of these

wills does not comply with the requirements of La. C.C. art. 1577. Mr. Milano

seeks review of this judgment.

Discussion

In this writ application, Mr. Milano sets forth the following four assignments

of error:

1) The trial court erred in granting Mrs. Brandt’s Motion to Determine
Validity of Wills in which the trial court invalidated Mr. Brandt’s
probated 2019 will.

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2) The trial court erred by refusing to permit Mr. Milano to introduce
evidence that would have clarified any alleged ambiguity on whether the
2019 will complied with the statutory formalities of La. C.C. art. 1577.

3) The trial court erred by invalidating a probated testament in a manner
outside of the procedure set forth in La. C.C.P. art. 2931, which provides
the exclusive method by which a probated testament may be challenged
and annulled.

4) The trial court erred by failing to rule on all issues presented in Mrs.
Brandt’s Motion to Determine Validity of Wills.

We first address assignment of error number three, as it contains a

procedural challenge to the judgment. Mr. Milano argues that the trial court erred

by invalidating a probated testament in a manner outside the procedure of La.

C.C.P. art. 2931, because this article provides the exclusive procedure by which a

probated testament may be challenged and annulled. He asserts that since it is

undisputed that Mrs. Brandt’s motion was not brought in accordance with La.

C.C.P. art. 2931, the correct procedure to seek annulment of a probated testament

was not followed and the judgment annulling the October 24, 2019 will should be

reversed.

Mrs. Brandt filed a response to the writ application, maintaining that she is

not advocating for the validity or invalidity of any of the wills, but also asserting

that the trial court did not err by making a determination as to the validity of the

October 24, 2019 will because it was obligated to do so pursuant to La. C.C.P. art.

2853. In his memorandum in opposition to the writ application, Mr. Dempster

argues that La C.C.P. art. 2931 does not set forth an exclusive procedure for a

probated will to be declared null. Rather, he contends that a probated will may be

annulled by a “second procedure” set forth in La. C.C.P. art. 2853, when there are

one or more documents purporting to be a valid will and there is a question as to

their validity. These arguments are not supported by the Louisiana Code of Civil

Procedure or the controlling jurisprudence.

La. C.C.P. art. 2931 provides:

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A probated testament may be annulled only by a direct action
brought in the succession proceeding against the legatees, the
residuary heir, if any, and the executor, if he has not been
discharged. The action shall be tried as a summary proceeding.
(Emphasis added.)

Pursuant to La. C.C.P. art. 2931, a probated testament cannot be attacked

collaterally. Rather, the language of this article clearly provides that a direct action

is required to annul a probated testament.

The starting point in the interpretation of any law is the language of the law

itself. Succession of Harlan, 17-1132 (La. 5/1/18), 250 So.3d 220, 224, citing M.J.

Farms, Ltd. v. Exxon Mobil Corporation, 07-2371 (La. 7/1/08), 998 So.2d 16, 27.

It is presumed that every word, sentence, or provision in a law was intended to

serve some useful purpose, that some effect is to be given to each such provision,

and that no unnecessary words or provisions were employed. Succession of Carter,

19-545 (La. App. 5 Cir. 5/28/20), 298 So.3d 370, 373, writ denied, 20-808 (La.

10/14/20), 302 So.3d 1117; Succession of Toney, 16-1534 (La. 5/3/17), 226 So.3d

397, 406. When a law is clear and unambiguous and its application does not lead

to absurd consequences, it shall be applied as written and no further interpretation

may be made in search of the intent of the legislature. La. C.C. art. 9; Harlan, 250

So.3d at 224.

La. C.C.P. art. 2931 indicates by the plain and unambiguous wording of the

article that a probated testament can “only” be annulled via a direct action. It is

presumed that the word “only” was intended to serve a purpose and should be

given effect. This article does not provide an exception for La. C.C.P. art. 2853 or

any other provision of law.

We also note that La. C.C.P. art. 2931 is located in Chapter 4 of Book VI,

Title I of the Louisiana Code of Civil Procedure entitled, “Annulment of Probated

Testaments,” whereas La. C.C.P. art. 2853 is located in Section 1 of Chapter 3,

entitled, “Procedure Preliminary to Probate.” Further, the language of La. C.C.P.

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art. 2853 does not provide a procedure to annul a testament after it has been

probated. Rather, it provides, in pertinent part:

If a person has possession of a document purporting to
be the testament of a deceased person, even though he
believes that the document is not the valid testament of
the deceased, or has doubts concerning the validity
thereof, he shall present it to the court with his petition
praying that the document be filed in the record of the
succession proceeding. (Emphasis added.)

In the present case, Mrs. Brandt did not file her Motion to Determine

Validity of Wills prior to requesting probate of the October 24, 2019 will or with

her Petition to Probate this will. With her petition, Mrs. Brandt filed only the

October 24, 2019 will, requesting that it be probated and that she be confirmed as

the independent executrix of the succession. The trial court signed an Order

probating this will on November 26, 2019. Pursuant to La. C.C.P. art. 2931, once

the October 24, 2019 will was probated, it could only be annulled via a direct

action challenging the validity of the probated will. The plaintiff in an action to

annul a statutory or notarial testament has the burden of proving the invalidity of

the testament. La. C.C.P. art. 2932(B).

Mrs. Brandt did not file a direct action seeking to annul the October 24,

2019 judgment pursuant to La. C.C.P. art. 2931. Rather, she filed a “Motion to

Determine Validity of Wills,” under La. C.C.P. art. 2853, in which she did not

challenge the validity of the 2019 will. She expressly disclaimed any advocacy in

support of or in opposition to any of the wills executed by Mr. Brandt. As

previously noted, La. C.C.P. art. 2853 does not provide a procedure by which to

annul a probated will. Accordingly, the trial court’s judgment annulling the

October 24, 2019 will must be vacated.

Conclusion

Considering the foregoing, we find that the trial court erred by declaring the

October 24, 2019 will to be absolutely null and without effect, based on Mrs.

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Brandt’s motion and not a direct action. Therefore, we grant Mr. Milano’s writ

application, vacate the judgment declaring the October 24, 2019 will to be

absolutely null, and remand for further proceedings. Considering our decision to

vacate the judgment annulling the 2019 will, we pretermit discussion of the

remaining assignments of error.

Gretna, Louisiana, this 13th day of April, 2021.

HJL
RAC
JJM

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SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

NANCY F. VEGA
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)
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GRETNA, LOUISIANA 70054 (504) 376-1400

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21-C-88
E-NOTIFIED
24th Judicial District Court (Clerk)
Hon. Lee V. Faulkner, Jr. (DISTRICT JUDGE)
Courtney C. Miller (Respondent) Philip A. Franco (Respondent)
Thomas M. Flanagan (Respondent) Fred L. Herman (Respondent)
William K. Wright, IV (Respondent) Jeffrey E. Richardson (Respondent)
Randall A. Smith (Respondent) Matthew A. Sherman (Respondent)
Robert J. Burvant (Relator)
Walter R. Woodruff, Jr. (Respondent)

MAILED
Timothy S. Madden (Relator) Monica L. Hof (Respondent) David R. Sherman (Respondent)
Henry A. King (Relator) Attorney at Law Jacob D. Young (Respondent)
J. Grant Coleman (Relator) 7214 St. Charles Avenue Meredith E. Chehardy (Respondent)
W. Spencer King (Relator) Box 901 Attorneys at Law
Attorneys at Law New Orleans, LA 70118 One Galleria Boulevard
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