Succession of Robert S. Maloney, Sr.

SUCCESSION OF NO. 21-CA-683
ROBERT S. MALONEY, SR.
FIFTH CIRCUIT

COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 796-214, DIVISION "D"
HONORABLE SCOTT U. SCHLEGEL, JUDGE PRESIDING

November 09, 2022

HANS J. LILJEBERG
JUDGE

Panel composed of Judges Fredericka Homberg Wicker,
Jude G. Gravois, and Hans J. Liljeberg

AFFIRMED
HJL
FHW
JGG

COUNSEL FOR PLAINTIFF/APPELLANT,
ROBERT S. MALONEY, JR.
J. Scott Loeb
Lauren F. Bartlett
Margaret M. Guidy
Jason R. Anders

COUNSEL FOR PLAINTIFF/APPELLEE-2ND APPELLANT,
KURT B. MALONEY
Michael G. Calogero

COUNSEL FOR PLAINTIFF/APPELLEE,
CRAIG STEWART MALONEY
Patrick S. McGoey
Andrea V. Timpa

LILJEBERG, J.

Appellants, Robert S. Maloney, Jr. and Kurt B. Maloney, seek review of the

trial court’s August 5, 2021 judgment that disinherited appellants pursuant to a no-

contest clause contained in a codicil to their deceased father’s will. Appellants

contend that the trial court erred by enforcing the no-contest clause. For the

reasons discussed more fully below, we affirm the trial court’s judgment.

FACTS AND PROCEDURAL BACKGROUND

This appeal arises out of the same proceedings pending before this Court in

Case No. 21-CA-618, wherein this Court affirmed the trial court’s judgment that

denied appellants’ petition to annul three codicils executed by their late father,

Robert S. Maloney, Sr.1 After the trial court denied the petition to annul,

appellee/independent executor, Craig S. Maloney, filed a motion on May 27, 2021,

seeking to disinherit appellants, as well as their sister, Julie Ann Maloney Wenck,

pursuant to a no-contest clause contained in the first codicil executed by the

decedent on June 15, 2018, which provides as follows:2

12.1 I hereby specifically disinherit each and every legal heir of
mine, and each and every legatee, substitute/alternate legatee, legatee
by accretion, by representation or otherwise under the 2012 Will or
under this Codicil or any subsequent, and each and every person
claiming under any of said legal heirs or legatees, who either (a)
contests the 2012 Will, this Codicil, or any subsequent codicils to the
2012 Will; or (b) seeks to impair or invalidate any of the provisions of
the 2012 Will, this Codicil, or any subsequent codicils to the 2012
Will; or (c) conspires with or voluntarily assists anyone attempting to
do any of the aforementioned acts. And, in that event, all legacies,
bequests, and interests devolving as a result of my death to my legal
heir, or bequeathed under the 2012 Will, this Codicil or any
subsequent codicils to the 2012 Will to said legatee, shall be forfeited
and shall devolve to the herein named alternate legatee of said legacy,
bequest, and interest provided that said legal heir or alternate legatee
has not participated in any of the aforementioned acts; or alternatively
(b) if no such alternate legatee(s) or legal heir(s) exist, said legacies,

1
The decedent executed a notarial will on December 21, 2012, and then executed three subsequent codicils to the
will each in notarial form, on June 15, 2018, August 28, 2018 and February 26, 2019. A codicil is an addition or
qualification to a will and is considered part of the will. Succession of Laborde, 17-1334 (La. App. 1 Cir. 5/31/18),
251 So.3d 461, 463.
2
The trial court denied appellee’s request to enforce the no-contest clause against Julie Ann Maloney Wenck.
Appellee did not appeal this portion of the trial court’s ruling and therefore, it is not at issue before this Court.

21-CA-683 1

bequests, and interests shall become part of the rest and remainder of
my estate.

12.2 Any and all expenses which are incurred by my
executrix/executor in defense of any such contest or other attack of
any nature upon any provision of the 2012 Will, this Codicil, or any
subsequent codicils to the 2012 Will shall be paid as expenses of
administration from my estate. An action for declaratory relief or
interpretation of the 2012 Will and any codicil thereto, shall constitute
a contest of, and an attack on, the 2012 Will, this Codicil, or any
subsequent codicils to the 2012 Will if the purpose of such action is to
oppose, impair or invalidate any of the provisions thereof.

In his motion to enforce the no-contest clause and disinherit appellants as

legatees under the will and codicils, appellee alleged that by filing the petition to

annul the codicils, appellants violated the no-contest clause. As a result, appellee

requested that the trial court order that all legacies devolving to appellants as

legatees be forfeited. Following a hearing on July 27, 2021, the trial court granted

the motion to enforce the no-contest clause, and on August 5, 2021, the trial court

entered a written judgment granting the motion and disinheriting appellants.

Appellants both filed timely petitions for a devolutive appeal, which the trial court

granted.

LAW AND DISCUSSION

Appellants contend that the trial court committed reversible error by

granting appellee’s motion to enforce the no-contest clause.

The intent of the testator is paramount in interpreting the provisions of a

will. Succession of Williams, 608 So.2d 973, 975 (La. 1992). If the language of

the will is clear, it must be carried out according to its written terms. La. C.C. art.

1611(A). A testator who leaves no forced heirs is free to dispose of his estate to

whomever and in any manner he wishes and to impose any conditions on his

bequests, as long as they contain nothing contrary to law or good morals. See La.

21-CA-683 2

C.C. arts. 1519,3 1528;4 Succession of Robinson, 52,718 (La. App. 2 Cir. 6/26/19),

277 So.3d 454, 458, writ denied, 19-1195 (La. 10/15/19), 280 So.3d 613.

A no-contest clause, also referred to as an in terrorem clause, is a

testamentary provision providing for the revocation of a bequest if a legatee

contests the validity of the will. Id. No-contest clauses are not expressly

prohibited by Louisiana law. Id.; Succession of Laborde, 251 So.3d at 464; 10 La.

Civ. L. Treatise, Successions and Donations, §13.10, citing Succession of Rouse,

80 So. 229 (La. 1918).

Appellants do not contend that the no-contest clause is ambiguous. Rather,

appellants first argue that the entire no-contest clause is unenforceable and

impermissibly overbroad because Section 12.2 prohibits a legatee from seeking an

interpretation of the provisions of the will or codicils. This argument is without

merit as appellants fail to recognize the entirety of the language contained in

Section 12.2, which states that an action seeking an interpretation is a contest to the

will or codicil “if the purpose of such action is to oppose, impair or invalidate any

of the provisions thereof.” Second, even if this provision were overbroad, it would

not affect the request to disinherit appellants as they did not merely seek an

interpretation of the codicils; they sought to have them declared null and void,

which is a violation of the provisions set forth in Section 12.1.

Appellants further argue that Section 12.1 of the no-contest clause is

contrary to public policy because it applies to future codicils, thereby rendering

subsequent alterations to the will infallible even if the testator loses capacity at a

later date. They argue that this provision is invalid because it could allow a

situation where “a testator could, in fact, lose all testamentary capacity, but

3
La. C.C. art. 1519 provides that “[i]n all dispositions inter vivos and mortis causa impossible conditions, those
which are contrary to the laws or to morals, are reputed not written.”
4
La. C.C. art. 1528 provides that “[t]he donor may impose on the donee any charges or conditions he pleases,
provided they contain nothing contrary to law or good morals.”

21-CA-683 3

lawfully make alterations without restraint or review.” Appellee argues in

response that if appellants met their burden of proving by clear and convincing

evidence that the decedent lacked testamentary capacity at the time he executed

each codicil, the no-contest clause would have been declared invalid and of no

consequence, citing Succession of Laborde, 251 So.3d at 464, fn. 1. Appellee

further contends that appellants not only sought to annul “future” codicils, but also

the June 2018 codicil containing the original no-contest clause.

The no-contest clause contained in Section 12.1 of the June 2018 codicil

provides that a legatee who contests the 2012 will or the June 2018 codicil is

disinherited. The parties do no dispute that appellants are named as residual

legatees in the 2012 will and subsequent codicils. There is also no dispute that

appellants contested the June 2018 codicil, as well as the subsequent codicils by

filing the petition to annul the codicils. We recognize that a situation could exist

where a legatee seeks to annul a subsequent codicil after an alleged loss of

testamentary capacity, and an executor seeks to enforce a no-contest clause

contained in an earlier provision. However, we do not need to consider this issue

as appellants sought to annul the June 2018 codicil that contained the no-contest

clause and failed to meet their burden to prove that this codicil was null.

Furthermore, even if the portion of the no-contest clause applying to future

codicils is unenforceable, it would not affect the remaining provisions in Section

12.1 of the June 2018 codicil, which serve to disinherit a legatee who contests the

existing June 2018 codicil. As explained above, the codicil is part of the will, and

Section XI of the will provides that if any provision “is declared invalid, illegal or

inoperative for any reason, the remaining provisions hereof shall not be invalid and

shall be given full force and effect.”

Finally, appellant, Kurt Maloney, raises an additional argument in his

appellate brief claiming that the judgment granting the motion to enforce the no-

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contest clause and request to disinherit is premature prior to a resolution of the

appeal of the March 24, 2021 judgment in Case No. 21-CA-618 denying the

petition to annul the codicils. We find that this argument is also without merit.

First, Kurt Maloney did not file an exception of prematurity in response to

appellee’s motion to enforce the no-contest clause.5 In addition, Kurt Maloney did

not appeal the March 24, 2021 judgment denying the petition to annul. Robert

Maloney’s appeal of that ruling is devolutive and therefore, did not suspend the

effect of the March 24, 2021 judgment. Furthermore, La. C.C.P. art. 2088 provides

that while trial courts are divested of jurisdiction of all matters in the case that are

reviewable under the appeal, they maintain jurisdiction to proceed with issues

remaining in the trial court proceedings not reviewable under the appeal. See

Succession of McLean, 580 So.2d 935, 943 (La. App. 2nd Cir. 1991), writ denied,

584 So.2d 682 (La. 1991).

Accordingly, we affirm the trial court’s August 5, 2021 judgment that

disinherited appellants, Robert S. Maloney, Jr. and Kurt B. Maloney, pursuant to a

no-contest clause contained in the June 2018 codicil to their deceased father’s will.

AFFIRMED

5
La. C.C.P. art. 926(A) provides that objections regarding prematurity may be raised through a dilatory exception.
Section B provides that “[a]ll objections which may be raised through the dilatory exception are waived unless
pleaded therein.”

21-CA-683 5

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
INTERIM CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
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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
NOVEMBER 9, 2022 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

21-CA-683
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HON. SCOTT U. SCHLEGEL (DISTRICT JUDGE)
JASON R. ANDERS (APPELLANT) LAUREN F. BARTLETT (APPELLANT) MICHAEL G. CALOGERO (APPELLEE)
ANDREA V. TIMPA (APPELLEE) MCCLAIN R. SCHONEKAS (APPELLEE) PATRICK S. MCGOEY (APPELLEE)

MAILED
J. SCOTT LOEB (APPELLANT) PATRICIA G. BRECKENRIDGE (APPELLEE) APRIL L. WATSON (APPELLEE)
MARGARET M. GUIDY (APPELLANT) ATTORNEY AT LAW GREGORY S. LACOUR (APPELLEE)
ATTORNEYS AT LAW 141 EAST OAKRIDGE PARK KRISTINA J. FONTE (APPELLEE)
1180 WEST CAUSEWAY APPROACH METAIRIE, LA 70005 ATTORNEYS AT LAW
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