Succession of Bonny Babin Maloney

SUCCESSION OF BONNY BABIN MALONEY NO. 22-CA-571

FIFTH CIRCUIT

COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 806-605, DIVISION "K"
HONORABLE ELLEN SHIRER KOVACH, JUDGE PRESIDING

October 04, 2023

SUSAN M. CHEHARDY
CHIEF JUDGE

Panel composed of Judges Susan M. Chehardy,
Marc E. Johnson, and John J. Molaison, Jr.

AFFIRMED
SMC
MEJ
JJM

COUNSEL FOR PLAINTIFF/APPELLEE,
CRAIG STEWART MALONEY, EXECUTOR OF THE SUCCESSION OF
BONNY BABIN MALONEY
Patrick S. McGoey
Andrea V. Timpa
McClain R. Schonekas

COUNSEL FOR PLAINTIFF/APPELLANT,
KURT B. MALONEY
Michael G. Calogero

COUNSEL FOR PLAINTIFF/APPELLEE-2ND APPELLANT,
ROBERT S. MALONEY, JR.
Jason R. Anders
J. Scott Loeb
Lauren F. Bartlett

CHEHARDY, C.J.

Appellants, Robert S. Maloney, Jr. and Kurt Maloney, separately appeal the

trial court’s June 30, 2022 judgment, which granted a motion for partial summary

judgment in favor of their brother, Craig S. Maloney, in his capacity as the

executor of the succession of their mother, Bonny Babin Maloney, resulting in the

disinherison of appellants pursuant to a no-contest clause contained in their

deceased mother’s last will and testament. For the reasons discussed more fully

below, after de novo review, finding the trial court’s conclusion was legally correct

and supported by the undisputed facts, we affirm the trial court’s judgment.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Bonny Babin (“Bonny”) married Robert S. Maloney, Sr. (“Robert Sr.”), and

of the marriage five children were born: Robert S. Maloney, Jr. (“Robert”), Kurt

Maloney (“Kurt”), Craig Maloney (“Craig”), Jeanie Maloney (deceased), and Julie

Maloney Wenck (“Julie”). During the course of their marriage, Robert Sr. and

Bonny successfully operated several businesses and invested in real estate,

accumulating significant wealth. The children eventually joined the family

business and worked together in various business enterprises thereby increasing the

family’s overall wealth.1 The family members continued in business together until

the demise of Robert Sr. on June 2, 2019.

Robert Sr. executed a notarial will (“Will”) on December 21, 2012, which

did not contain a “no contest clause.” During the year prior to his death, Robert Sr.

executed three codicils to his Will, each in notarial form, on June 15, 2018, August

28, 2018, and February 26, 2019, respectively.2 The first codicil increased the

property bequeathed to Bonny, including Robert Sr.’s one-half community interest

1
According to the record, while their parents were still alive, the family’s relationship with Robert
Jr. and Kurt began to deteriorate due to their alleged theft from family businesses and because of their
alleged failure to assist Robert Sr. in caring for Bonny following a cancer diagnosis.
2
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.

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in the family home, and added a no-contest clause; the second codicil included

additional bequests to Bonny, slightly reducing the inheritances of Robert Jr. and

Kurt;3 and the third made changes to the successor executors, in the event Bonny

became unable to serve as executrix of his estate. Robert Sr. died on June 2, 2019.

As his surviving spouse, Bonny opened Robert Sr.’s succession on June 16, 2019,

in the Twenty-Fourth Judicial District Court, Parish of Jefferson, case number 796-

214, Succession of Robert S. Maloney, Sr., where the matter remains pending, and

was confirmed independent executrix. Bonny served as the independent executrix

of Robert Sr.’s estate until her death on May 4, 2020.

On August 7, 2019, prior to Bonny’s death, a judgment of partial possession

was rendered in Robert Sr.’s succession, that placed Bonny in possession of

numerous assets, including community property bequeathed to her in the first two

codicils of Robert Sr.’s Will. In particular, the trial court recognized Bonny as the

legatee in full ownership of Robert Sr.’s separate property,4 and placed Bonny in

possession Robert Sr.’s one-half interest in certain community assets, including the

family home at 185 Ridgewood Drive in Metairie, as well as various bank accounts

and accounts receivable. Consequently, on August 7, 2019, when the judgment of

partial possession was rendered in Robert Sr.’s succession, the family home on

Ridgewood Drive and other assets belonged solely to Bonny, in full ownership,

and formed a portion of her estate.

Approximately seven weeks later, on September 24, 2019, Bonny executed a

new Last Will and Testament (“Testament”) to include the assets she inherited

from Robert Sr. that now comprised a part of her estate. Execution of the

Testament was video recorded. Craig was named as independent executor of

3
The second codicil also left property located in Pearl River County, Mississippi, to Craig;
however, this property had previously been transferred inter vivos to Craig on June 13, 2018.
4
Bonny was placed in possession in full ownership of Robert Sr.’s shares of stock in Maloney
Trucking & Storage, Inc.

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Bonny’s estate. In her Testament, the family home is listed as a separate property

asset of Bonny valued at 1.1 million dollars, which Bonny bequeathed, in full

ownership, to her daughter, Julie. One quarter of Bonny’s residuary estate was

bequeathed to each of her four surviving children. Bonny’s new Testament also

included a no-contest clause, which specifically disinherits and revokes any legacy

to any legatee or heir who contests or challenges her Testament, or who seeks to

impair or invalidate any provision of her Testament, or “is otherwise engaged in a

controversy with or against the Executor of [Bonny’s] estate and which concerns

her estate.”

In the event of a violation, the no-contest clause mandates that:

… all legacies, bequests, and interests devolving as a
result of [Bonny’s] death to any such person(s) who
has/have done or attempted to do any of the acts
described in sections (a) through (d) of this Article 13.1
(hereinafter the ‘Challenger,’ whether one or more) is
hereby revoked; and said legacies, bequests, and interests
shall not devolve to heirs of said Challenger, rather said
revoked legacies, bequests, and interest shall become part
of [Bonny’s] Residuary Estate …

Bonny died on May 4, 2020. On May 22, 2020, Craig Maloney was

confirmed as independent executor of his father’s succession, succeeding Bonny in

this position. On May 27, 2020, Bonny’s Testament was probated and Craig was

also confirmed as the independent executor of her succession. Bonny and Robert

Sr.’s successions remain open, and Craig remains the executor in each.

On August 7, 2020—exactly one year to the day after Bonny was placed in

possession as the full owner of the Ridgewood property and other assets, and three

months after her death—Robert Jr. and Kurt filed a petition in their father’s

succession to annul the three probated codicils to Robert Sr.’s original Will (on the

basis that Robert Sr. lacked testamentary capacity to understand or execute the

codicils), to vacate the August 7, 2019 judgment of partial possession, and for

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injunctive relief.5 The petition named Craig as a defendant, not only in his

capacity as the successor executor of Robert Sr.’s succession, but also in his

capacity as the “succession representative of Bonny Babin Maloney.” The petition

sought to annul the individual bequest made to Bonny of Robert Sr.’s community

property interest in the family home on Ridgewood Drive, and to annul and vacate

the August 19, 2019 judgment of partial possession that placed Bonny into full

ownership of the family home.

In order to prevent Craig, in his capacity as the executor of Bonny’s estate,

from disposing or otherwise encumbering succession property that now comprised

a part of Bonny’s estate, the petition to annul also requested the issuance of an ex

parte temporary restraining order (“TRO”). The TRO was signed by the trial court

on August 12, 2020, without notice to Craig, prohibiting him “from alienating,

encumbering, selling, exchanging, wasting, concealing, or destroying any

moveable and or immovable property comprising the estate of [Robert Sr.]

including but not limited to all property set forth in the August 7, 2019 Partial

Sworn Descriptive List of Assets and Liabilities and all property set forth in the

August 7, 2019 Judgment of Partial Possession …,” which included the

Ridgewood property. In short, the nullity action not only directly challenged the

validity of the three codicils to Robert Sr.’s Will, but also challenged the specific

legacies contained in Bonny’s Testament. In effect, by filing the petition to annul,

though filed in their father’s succession, Robert Jr. and Kurt sought to reduce

Bonny’s estate by annulling half of her ownership in the Ridgewood property and

other assets, and cancelling those bequests as made in her Testament. It is

undisputed that the TRO, once issued, prohibited Craig, as the executor of Bonny’s

5
In their petition to annul, Robert Jr. and Kurt alleged that the three codicils were invalid because
Robert Sr. could not read, he had not executed them in the presence of a notary and two witnesses, he
lacked testamentary capacity due to an alleged mental impairment, and that Bonny had unduly influenced
him. According to Robert Jr. and Kurt, the codicils dramatically altered the distribution of assets in favor
of Bonny and Craig.

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estate, from placing Julie in possession of her inheritance, and from administering

and disposing of other assets in Bonny’s estate.6

A trial on Robert Jr. and Kurt’s petition to annul was held on March 11,

2021, in the Succession of Robert S. Maloney, Sr. At the conclusion of trial, the

trial court ruled from the bench against Robert Jr. and Kurt, finding that Robert Sr.

possessed the testamentary capacity to execute the three codicils, and denied all

other relief. The trial court’s ruling was reduced to judgment on March 24, 2021.7

Thereafter, on May 27, 2021, Craig, in his capacity as executor of his father’s

estate, filed a motion in Robert Sr.’s succession seeking to disinherit Robert Jr. and

Kurt pursuant to the no-contest clause contained in the first codicil of Robert Sr.’s

Will. Following a July 27, 2021 hearing, the trial court issued a second judgment

on August 5, 2021, granting the motion to enforce the no-contest clause in Robert

Sr.’s Will, effectively disinheriting Robert Jr. and Kurt in their father’s

succession.8

On November 19, 2021, in the instant proceedings—Bonny’s succession—

Craig, as the executor of Bonny’s estate, filed a petition for declaratory judgment

seeking to enforce the no-contest clause set forth in Section 13.1 of Bonny’s

Testament.9 In particular, Craig sought a declaratory judgment (1) that the no-

contest clause in Bonny’s Testament was unambiguous, valid and enforceable; (2)

6
Following the expiration of the TRO, which dissolved as a matter of law, Robert Jr. and Kurt
withdrew their request for a preliminary injunction to prohibit the encumbrance, transfer or sale of
succession assets.
7
The trial court’s March 24, 2021 judgment was affirmed by this Court in Succession of Maloney,
21-618 (La. App. 5 Cir. 11/9/22), 353 So.3d 292.
8
The trial court’s August 5, 2021 judgment was also affirmed by this Court in Succession of
Maloney, 21-683 (La. App. 5 Cir. 11/9/22), 353 So.3d 267.
9
Similar to actions taken in Robert Sr.’s succession, Craig, in his capacity as the executor of
Bonny’s estate, filed a motion on August 18, 2021, to enforce the no-contest clause contained in Bonny’s
Testament against Robert and Kurt. In response, Robert and Kurt objected to the procedure and
separately filed dilatory exceptions to the executor’s motion, including dilatory exceptions of
unauthorized use of summary proceedings, nonconformity to the petition, and prematurity. Following a
hearing on November 29, 2021, the trial court overruled the exceptions, but also denied the executor’s
motion without prejudice. The executor then filed a petition for declaratory judgment at issue in this
appeal and moved for partial summary judgment regarding the enforceability of the no-contest clause.

22-CA-571 5

that Robert Jr. and Kurt had “engaged in a controversy with or against [the]

Executor of [Bonny’s] estate and which concerned [her] estate,” thereby triggering

the no-contest clause in Bonny’s Testament; and, consequently, (3) that all legacies

and bequests to Robert Jr. and Kurt be forfeited.

On April 28, 2022, Craig moved for partial summary judgment against

Robert Jr. and Kurt, seeking to have the trial court find that by filing suit and

wrongfully obtaining a TRO against him in their father’s succession, in his

capacity as the executor of Bonny’s estate, which effectively enjoined Craig from

administering the assets of Bonny’s estate, Robert Jr. and Kurt violated the no-

contest clause contained in Bonny’s Testament, and, accordingly, they are

disinherited. Craig argued that the language of the no-contest clause was clear and

unambiguous and plainly prohibited such actions, which constituted “engag[ing] in

a controversy” by a legatee or heir against the executor concerning Bonny’s estate.

In response, while not refuting that they had obtained a TRO against Craig,

as the executor of Bonny’s estate, prohibiting him from administering certain

assets and property in Bonny’s estate, Robert Jr. and Kurt argued the no-contest

clause in Section 13.1 of Bonny’s Testament did not apply because the actions they

took against the executor were taken in Robert Sr.’s succession, and not in Bonny’s

succession proceeding, as Section 13.1 intended to prohibit. Alternatively, Robert

Jr. and Kurt averred that the language of the no-contest clause was ambiguous, thus

requiring additional evidence in order to determine whether Bonny “intended” for

“succession” and “estate,” as used in Section 13.1(c), to be used synonymously or

interchangeably such that only a “controversy” brought against the executor in

Bonny’s succession proceeding could violate the no-contest clause triggering

disinherison.

Craig’s motion came for hearing on June 22, 2022, after which the trial court

took the matter under advisement. On June 30, 2022, the trial court issued

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judgment, with written reasons, granting partial summary judgment in favor of

Craig Maloney, the duly appointed executor of Bonny’s succession, and against

Robert Jr. and Kurt. Specifically, the trial court determined that by filing the

petition in their father’s succession against the executor of Bonny’s estate seeking,

in part, to annul a judgment that placed Bonny into possession and full ownership

of certain property, which thereafter became a part of her estate, Robert Jr. and

Craig violated the clear and unambiguous terms of the no-contest clause of

Bonny’s Testament (i.e., engaging in a controversy against the executor of

Bonny’s estate that concerned her estate). Consequently, the trial court adjudged

Robert Jr. and Kurt disinherited, and that all legacies, bequests, and interests

devolving to them as a result of the death of Bonny Babin Maloney under her

September 24, 2019 Testament are forfeited.

Robert Jr. and Kurt separately appealed the trial court’s June 30, 2022

judgment.

ISSUES PRESENTED FOR REVIEW

Based upon our de novo review of the record, we find the dispositive issue

presented for our review is whether the language contained in the no-contest clause

in Bonny’s Testament is clear and unambiguous and, if so, what that language

means. Stated differently, the issue is whether the language Bonny used in drafting

Section 13.1 clearly and unambiguously evidences her intent that the no-contest

clause apply to all controversies brought by an heir or legatee against her executor

that concerns her estate, whether instituted in her succession proceeding or

elsewhere.10

10
In his appeal, Robert Jr. raised the follow issues for this Court’s review: (1) whether the trial
court construed all factual inferences reasonably drawn from the evidence and resolved all doubt in favor
of Robert Jr. as the nonmoving party; (2) whether the trial court improperly considered extrinsic evidence
to determine Bonny’s intent in drafting the no-contest clause when, by the trial court’s own admission,
the plain language of her Testament is clear and unambiguous; (3) whether the trial court erred by
interpreting the no-contest clause in a manner that does not give effect to each provision and is
inconsistent with Bonny’s intent; and (4) whether the trial court erred when it considered actions taken by

22-CA-571 7

LAW AND ARGUMENT

Summary Judgment and Standard of Appellate Review

In reviewing the trial court’s decision on a motion for summary judgment,

this Court applies a de novo standard of review using the same criteria applied by

the trial courts to determine whether summary judgment is appropriate. Lapuyade

v. Rawbar, Inc., 18-474 (La. App. 5 Cir. 12/27/18), 263 So.3d 508, 511-12.

“Therefore, appellate courts must ask the same question as the district court:

whether there is any genuine issue of material fact, and whether mover is entitled

to judgment as a matter of law.” Id. at 512. Unlike the trial court’s findings of

fact, trial court’s rulings on motion for summary judgment are reviewed without

regard or deference because credibility is not an issue. Montalbano v. Perisch, 18-

602 (La. App. 5 Cir. 5/29/19), 274 So.3d 855, 860-61. Thus, courts of appeal

review summary judgment evidence and procedure from the same perspective as

the trial court.

Summary judgment procedure is favored and “is designed to secure the just,

speedy, and inexpensive determination of every action … and shall be construed to

accomplish these ends.” La. C.C.P. art. 966(A)(2). After an opportunity for

adequate discovery, a motion for summary judgment shall be granted if the motion,

memorandum, and supporting documents show there is no genuine issue of

material fact and that the mover is entitled to judgment as a matter of law. La.

C.C.P. art. 966(A)(3). A genuine issue of fact is one as to which reasonable

persons could disagree; if reasonable minds could only reach one conclusion, there

is no need for trial on that issue and summary judgment is appropriate. Stogner v.

Robert Jr. and Kurt in Robert Sr.’s succession to determine whether they challenged Bonny’s Testament
in her succession proceeding.
In Kurt’s appeal, he questions whether the trial court erred in failing to find that genuine issues of
material fact exist regarding Bonny’s testamentary intent precluding summary judgment, and whether a
testator can maintain control of matters occurring outside of her succession proceeding by use of a no-
contest clause contained in her testament.

22-CA-571 8

Ochsner Clinic Foundation, 18-96 (La. App. 5 Cir. 9/19/18), 254 So.3d 1254,

1257, writ denied, 18-1723 (La. 1/8/19), 259 So.3d 1023.

The Intent of the Testator and Admission of Extrinsic Evidence

The intent of the testator controls the interpretation of his testament. If the

language of the testament is clear, its letter is not to be disregarded under the

pretext of pursing its spirit. La. C.C. art. 1611(A). A cardinal rule of the

interpretation of wills is that the intention of the testator as expressed in the will

must govern. Succession of Liner, 19-02011 (La. 6/30/21), 320 So.3d 1133, 1137

(citing Soileau v. Ortega, 189 La. 713, 718, 180 So. 496, 497 (1938)).

Importantly, “the court’s function is to construe the will as written, without adding

words to any controversial parts under the guise of interpreting the testator’s

intent.” Laborde, supra, 251 So.3d at 464; see also Succession of Robinson,

52,718 (La. App. 2 Cir. 6/26/19), 277 So.3d 454, 458, writ denied, 19-01195 (La.

10/15/19), 280 So.3d 613. It is well-established that in interpreting wills, the first

and natural impression conveyed to the mind on reading the will as a whole is

entitled to great weight. Laborde, 251 So.3d at 464. The testator is not supposed

to be propounding riddles, but is conveying his ideas to the best of his ability so as

to be correctly understood at first view. Succession of Hurst v. Gremillion, 552

So.2d 799, 801 (La. App. 1 Cir. 1989). Additionally, a testamentary disposition

should be interpreted in a sense in which it can have effect, rather than in one in

which it can have none. La. C.C. art. 1612. When a testator leaves no forced

heirs, he is free to dispose of his estate to whomever he wishes, in any manner he

wishes, and to impose any conditions on his bequests that are not contrary to law

or good morals. La. C.C. arts. 1519, 1528; Maloney, 353 So.3d at 269.

When the words of a testament are plain and unambiguous, the testator’s

intent should be ascertained from the language used in the testament, giving the

words used their usual significance. Succession of Cottrell v. Quirk, 05-841 (La.

22-CA-571 9

App. 3 Cir. 2/1/06), 921 So.2d 1235, 1238. The language used in the testament

must be understood according to its common, popular acceptation. Id. If the

testament uses terms of art or “legal” terms, the court should interpret them under

“the law in effect at the time the testament was executed to ascertain the testator’s

intent … .” La. C.C. art 1611(B).

A court may resort to extrinsic evidence to determine the testator’s intent

only when his or her intent cannot be ascertained from the language of the

testament. La. C.C. art. 1611(A). Ambiguity exists “when a will is subject to

more than one equally reasonable interpretation.” Succession of Theriot, 16-639

(La. App. 3 Cir. 5/17/17), 221 So.3d 862, 869, writ denied, 17-0919 (La. 9/29/17),

227 So.3d 392. When a will is free of ambiguity, the will must be carried out

according to his written terms, without reference to extrinsic evidence of the

testator’s intent. See Giroir v. Dumesnil, 248 La. 1037, 1052, 184 So.2d 1 (La.

1966); Succession of Williams, 608 So.2d 973, 975 (La. 1992). In other words,

while the court must endeavor to give all legacies of a testament effect, the court

cannot ignore the testament as written. Succession of Merritt, 581 So.2d 728 (La.

App. 1 Cir. 1991), writ denied, 584 So.2d 1165 (La. 1991).

Enforceability of No-Contest or In Terrorem Clauses in Testaments

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 will. Maloney, 353 So.3d at 271; Robinson, 277 So.3d at 458. No-

contest clauses are not expressly prohibited by Louisiana law. Id.; Laborde, 251

So.3d at 464; 10 La. Civ. L. Treatise, Successions and Donations, § 13.10, citing

Succession of Rouse, 144 La. 143, 80 So. 229 (1918).

The No-Contest Clause in Bonny’s Testament

In the instant matter, Bonny left no forced heirs; therefore, she was free to

dispose of her estate to whomever and in any manner she wished, and to impose

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any conditions on her bequests, as long as they contained nothing contrary to law

or good morals. See La. C.C. arts. 1519, 1528; Laborde, 251 So.3d at 464.

Section 13.1 of Bonny’s Testament, the no-contest clause at issue, provides, in

pertinent part:

I hereby specifically disinherit each and every legal heir
of mine, and each and every legatee … under this Last
Will and Testament … who at any time either (a)
contests or challenges this 2019 Last Will and Testament,
any codicils hereto, and any and all orders or judgments
rendered in my succession or estate; or (b) seeks to
impair or invalidate any of the provisions of this 2019
Last Will and Testament, any codicils hereto, and any
and all orders or judgments rendered in my succession or
estate; or (c) is otherwise engaged in a controversy with
or against the Executor of my estate and which concerns
my estate; or (d) conspires with or voluntarily assists
anyone attempting to do any of the acts described in
sections (a) through (c) of this Article 13.1; …[Emphasis
supplied.]

Appellants argue that the word “estate” in paragraph (c) must be interpreted

to mean that Bonny intended for the no-contest clause to be restricted to actions

against her executor that concern her estate brought by heirs or legatees directly in

her succession proceeding. They contend that the trial court’s interpretation and

application of Section 13.1(c)—that it pertains solely to disputes involving the

corpus of Bonny’s estate—completely ignores the plain language of paragraph (c)

and the language of the entire no-contest clause. According to appellants, a plain

reading of Section 13.1 evidences that 13.1(a) and (b) involve challenges to

Bonny’s Testament itself, whereas 13.1(c) is designed to protect her executor from

attacks involving the administration of her estate. Bonny uses identical verbiage in

Paragraph 1.1 when discussing the executor “of her estate.” Thus, appellants aver

that this interpretation of the no-contest provision “creates symmetry within the

[Testament] itself while at the same time dispensing with the need” to speculate as

to Bonny’s intent.

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Additionally, appellants argue that the trial court’s interpretation of Section

13.1(c) ignores Section 13.2 and, in effect, renders it meaningless. Section 13.2

provides:

Further, said legacies, bequests and interests to any such
Challenger [which is defined in paragraph 13.1] are
hereby revoked in the event said heir or legatee does not
sign, prior to issuance of any judgment of possession in
my succession, a written agreement waiving the right to
contest, challenge, impair or invalidate any of the
provisions of this 2019 Last Will and Testament, any
codicils hereto, and any and all orders and judgments
rendered in my succession or estate.

Appellants note that Bonny specifically did not use “heir” or “legatee,” but

rather, used the word “Challenger,” a term defined in Paragraph 13.1 as someone

who violates Paragraph 13.1(a) – (d), when identifying those who may be required

to sign a waiver in order to avoid disinherison. Thus, according to appellants, a

Challenger’s bequest will be revoked only if he refuses to sign a written agreement

waiving the right to contest any judgment of possession. In this regard, appellants

contend the trial court’s interpretation does not comport with actual events that

have occurred to date in Bonny’s succession. For example, on August 5, 2021, the

trial court issued a judgment of partial possession placing Craig and Julie in

possession of certain bequests made in Bonny’s Testament, and on January 24,

2022, a second judgment of partial possession was signed placing Julie in

possession of additional property bequeathed to her by Bonny. According to

appellants, even assuming they are “challengers” under Section 13.1(c), their

legacies and bequests should not be revoked because they voiced no objection to

the entry of these judgments. Because La. C.C. art. 1612 does not allow for a

testament to be interpreted in a manner that removes all meaning from another

provision, appellants argue the trial court erred in its interpretation of Bonny’s

Testament. At the very least, appellants argue that disputed facts exist as to

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Bonny’s intent regarding the scope of the no-contest clause, and thus, summary

judgment was improper. We disagree.

We find that the language Bonny used in the no-contest clause of her

Testament is clear and unambiguous, as it is not subject to more than one

reasonable interpretation. See Theriot, 221 So.3d at 869. Based on our de novo

review of the no-contest clause, we find that any dispute or controversy brought by

an heir or legatee in the instant succession proceeding is covered by paragraphs (a)

and/or (b) of Section 13.1. Both of these paragraphs clearly state that an heir or

legatee is disinherited if he challenges any order or judgment rendered in this

succession, meaning Bonny’s succession. If Bonny’s intent was to only cover

contests, challenges, or attempts to impair or invalidate orders or judgments in the

instant proceeding, we conclude that there would have been no need or purpose for

Bonny to have included paragraph (c) because all such scenarios are already

covered in paragraphs (a) and/or (b), including any challenge to an order or

judgment governing actions of the executor, Craig, taken in her succession

proceeding. However, paragraph (c) does not reference the instant succession.

Instead, it contains the broader term “estate.” Moreover, paragraph (c) does not

use the word “order” or “judgment.” Instead, by adding paragraph (c), we find that

Bonny clearly and unambiguously intended for the reach of the clause to include

any “controversy” against the executor that merely “concerns” her estate.

Additionally, appellants aver that because Bonny used “succession” and

“estate” in paragraphs (a) and (b) interchangeably, her use of the word “estate” is

superfluous. Because a judgment or order cannot be rendered in an “estate,”

appellants contend this Court should “read in” the word “succession” in paragraph

(c) and find that the terms “succession” and “estate” mean the same thing and,

accordingly, refer solely to the instant proceeding. We find this attempt to create

ambiguity where there is none unreasonable.

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“Succession” is defined in La. C.C. art. 871 as the transmission of the estate

of the decedent to his successors. La. C.C. art. 872 defines “estate” of the decedent

as the property, rights, and obligations that a person leaves after his death. In

short, Bonny’s succession is the legal proceeding wherein the property and assets

comprising her estate are distributed, whereas Bonny’s estate refers to the actual

property and Bonny’s rights to that property. A finding that “succession” and

“estate” mean the same thing, as posited by appellants, ignores the plain language

of the no-contest clause. If Bonny had intended to include “succession” in

paragraph (c), she could have done so, just as she did in paragraphs (a) and (b), but

she did not. Further, such a finding ignores the disjunctive meaning of the phrase

“succession or estate” used in paragraphs (a) and (b). Instead, we find this

phraseology conveys mutually exclusive scenarios and an intent to recognize the

different meanings of “succession” and “estate.” Moreover, appellants’

interpretation gives no meaning to paragraph (c) because, as previously stated, any

challenge by an heir or legatee to any aspect of the instant proceeding is already

covered in paragraphs (a) and/or (b). Thus, in order to reconcile Section 13.1(c),

which includes only the word “estate,” with Sections 13.1(a) and 13.1(b), which

include both “succession” and “estate,” Sections 13.1(a) and 13.1(b) must pertain

only to disputes involving Bonny’s succession, whereas Section 13.1(c), which

addresses disputes involving the “corpus of her estate,” extends the scope of the

no-contest clause to “controversies” that merely “concern” Bonny’s estate.

On de novo review, we find that Bonny’s inclusion of paragraph (c) in

Section 13.1 clearly and unambiguously expresses her intent to broaden the reach

of the no-contest clause beyond actions or controversies brought in the instant

succession proceeding. Accordingly, we hold that to “read in” the word

“succession” in paragraph (c) ignores the clear expression of Bonny. The word

“estate” unequivocally refers to Bonny’s property and her rights to that property.

22-CA-571 14

There is no other equally reasonable interpretation of paragraph (c)—Bonny did

not intend to limit its application solely to the instant proceeding.

CONCLUSION

In sum, after thoroughly reviewing the record and applicable jurisprudence

de novo, we find the plain language of the no-contest clause in Bonny’s Testament

lays bare that Bonny did not want her heirs or legatees to engage in any

controversy with or against her executor concerning her estate. The language of

the no-contest clause is broad and unqualified. It is clear that by including Section

13.1(c), Bonny intended to prevent disputes between her heirs regarding not only

matters pertaining to her succession proceeding, but to also curtail controversies

concerning any aspect of her estate. Stated differently, the language is sufficiently

broad, in our opinion, to include any controversy with or against Bonny’s executor

concerning her estate, regardless of whether an heir or legatee brings the

controversy in Bonny’s succession proceeding or engages in the controversy

elsewhere, as long as the controversy against the executor concerns her estate.

Only when the language of a testament is ambiguous and there remain

disputed issues of fact as to the testator’s intent should summary judgment be

denied. Here, the language of the no-contest clause in Bonny’s Testament is clear

and unambiguous as it is not open to more than one reasonable interpretation.

Consequently, we find the trial court was correct in not relying on anything other

than the plain language of the Testament in ascertaining Bonny’s intent that an heir

or legatee who engages in a controversy with or against her executor concerning

her estate—whether brought in her succession proceeding or elsewhere—triggers

the no-contest clause and results in his or her disinherison.

By seeking to invalidate the three codicils to their father’s Will and to nullify

the judgment of possession that vested Bonny with full ownership of certain

property upon Robert Sr.’s death, and which Bonny, thereafter, specifically

22-CA-571 15

bequeathed to others in her Testament, Robert Jr. and Kurt’s actions did, in effect,

restrict the probate of these bequests, even though the contest as to their validity

was not brought within Bonny’s succession proceeding. Further, the TRO

obtained by Robert Jr. and Kurt against Craig, in his capacity as the executor of

Bonny’s estate, sought to remove property from Bonny’s estate and prevented

Craig from administering Bonny’s estate and the specific bequests contained in her

Testament. By doing so, we find that the trial court’s determination that Robert Jr.

and Kurt engaged in a controversy against the executor of Bonny’s estate, although

it originated in their father’s succession, which concerned her estate (i.e.,

concerned her property and her ownership rights to that property), in violation of

the clear and unambiguous terms of Section 13.1(c) of Bonny’s Testament

triggering their disinherison, was legally correct. Accordingly, Robert, Jr. and

Kurt Maloney are disinherited, and all legacies, bequests, and interests devolving

to them as a result of the death of their mother, Bonny Babin Maloney, under her

September 24, 2019 Last Will and Testament are forfeited.

DECREE

For the foregoing reasons, finding no error in the trial court’s granting of

partial summary judgment in favor of Craig S. Maloney, we affirm the trial court’s

June 30, 2022 judgment resulting in the disinherison of Robert S. Maloney, Jr. and

Kurt Maloney.

AFFIRMED

22-CA-571 16

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
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SCOTT U. SCHLEGEL FIFTH CIRCUIT
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IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
OCTOBER 4, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

22-CA-571
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