Succession of John Garner Lynch

Judgment rendered July 16, 2025.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 56,052-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

SUCCESSION OF
JOHN GARNER LYNCH

*****
On Rehearing
Originally Appealed from the
First Judicial District Court for the
Parish of Caddo, Louisiana
Trial Court No. 632,448

Honorable Brady D. O’Callaghan, Judge

*****
MIRAMON LAW, INC. Counsel for Appellants,
By: Patricia N. Miramon Susan Carol Lynch Hunt,
Julia Miramon Todd Martha Elizabeth Lynch
Connor J. Hargrave Riley, Nathan Hammett,
and Katie Elizabeth
Smith

CHARLES TAUNTON MELVILLE Counsel for Appellee,
Succession of John Garner
Lynch

AYRES, SHELTON, WILLIAMS, Counsel for Appellee,
BENSON & PAINE, LLC Rudy Allen Nolin
By: Lee H. Ayres
Alexandra E. Vozzella

THOMAS, SOILEAU, JACKSON Counsel for Appellee,
& COLE, LLP Martha Crosslin
By: Erica M. Ducoing
*****

Before PITMAN, COX, THOMPSON, HUNTER, and ELLENDER, JJ.

PITMAN, C.J., dissents with written reasons.
ELLENDER, J., dissents with written reasons.

THOMPSON, J.,

This matter comes before the Court on rehearing. A well-meaning

attorney, faced with a hospitalized client during COVID-19 restricted visits,

crafted a plan to replace the effects of the provisions of his client’s existing

last will and testament to achieve what he concluded the client generally

wanted to happen to his estate, which was in part to prevent his children

from inheriting his assets. In the last few days of his client’s life, the

attorney drafted documents to create a trust and used an existing power of

attorney to convey all the client’s property to that trust, which would remove

any assets from being subject to being inherited by his children.

The trust named the client as the initial beneficiary but also contained

provisions for a successor beneficiary, someone the client had never made

bequests to in his previous last will and testaments. The client never

specifically requested or knew anything about the trust and had never

indicated he wanted to convey ownership of the entirety of his estate to the

person who named himself trustee and successor beneficiary. After the

client’s death, his adult children challenged the creation of and conveyances

to the trust. In response, the individual who benefited from and participated

in implementing the plan argued it was in keeping with his understanding of

the decedent’s stated wishes. In support of that assertion, he relied upon and

pointed the court to a recorded conversation between him, the client, and the

attorney. The trial court held the actions of the agent and trustee were

proper, upheld this use of the power of attorney, creation of the trust, and

conveyance of substantially all the property to the trust. The children of the

decedent have appealed that judgment.

We find the sweeping provisions of the trust and disposition of the

decedent’s property to be irreconcilable with limited authority of the power

of attorney and recorded expressions of the decedent. We, therefore

conclude the actions and conveyances under these circumstances were not

for the benefit of the decedent and exceeded the agent’s authority, and

reverse the trial court and declare that all transfers of the decedent’s property

to the trust are null and void and remand the matter to the trial court for

further proceedings.

FACTS AND PROCEDURAL HISTORY

It is pertinent to address at the outset that the actions of the appellees

and attorney acting on their behalf appear to have at all times been well-

meaning and in good faith. The primary concern is not the motivation of the

parties in this matter but, rather, the mechanism to achieve their desired

results, which if endorsed by this Court, could create a blueprint undue

influence to potentially be asserted by those of lesser moral character, which

could victimize both testators, legatees, and heirs. Good faith here,

however, is insufficient grounds to allow the actions and results of endorsing

the conveyance of all of the decedent’s property to a beneficiary (as trustee

and successor beneficiary) he never designated, by means of a trust he never

requested, and the existence of which he was never advised.

John Garner Lynch (“Lynch”) died on August 31, 2021, at the age of

85. At the time of his death, he was a patient at Willis Knighton Medical

Center, where he had been since the 18th of August, after being diagnosed

with COVID-19. Both Lynch and his fourth wife, Katherine Lynch

(“Kathy”), were admitted to Willis Knighton with COVID-19. While

hospitalized, Lynch was predeceased by Kathy, by one week. Lynch was
2

survived by two of his children, Susan Carol Lynch Hunt (“Hunt”) and

Martha Elizabeth Lynch Riley (“Riley”), and predeceased by three other

additional children. He was also survived by two grandchildren, Nathan

Hammett (“Hammett”) and Katie Elizabeth Smith (“Smith”), who are the

children of his predeceased son and daughter, John Garner Lynch, Jr. and

Lisa K. Lynch Smith, respectively.

Following Lynch’s death, Rudy Allen Nolin (“Nolin”), a good friend

of Lynch’s, filed a petition on September 2, 2021, to probate his last will and

testament (the “2018 Testament”), which was dated March 19, 2018, and

requested to be appointed independent executor. In the 2018 Testament,

Lynch left his entire estate to Kathy (his wife at the time), and did not name

any successor or alternate legatees. Lynch nominated Kathy to be

independent executrix of the will, and if she could not serve, he nominated

Nolin and Martha Crosslin (“Crosslin”), another good friend, as successor

executors, in that order. The trial court admitted the will to probate and, as

Kathy predeceased Lynch, confirmed Nolin as independent executor. 1

Subsequently,2 Hunt, Riley, Hammett, and Smith (hereinafter

collectively referred to as the “Heirs”) filed a petition for intervention and

rule for accounting/discharge, naming Nolin as a defendant. The Heirs’

petition asserted that in the 2018 Testament, Lynch had bequeathed his

entire estate to his wife, Kathy and that bequest had failed by her

predeceasing him. As such, without any alternative legatees named, as his

intestate heirs are entitled to be recognized as owners and sent into

possession of all Lynch’s property and assets.

1
September 6, 2021
2
October 5, 2021
3

In response, Nolin filed peremptory exceptions of no right of action

and no cause of action.3 In those motions, he stated that on March 19, 2018,

the same date Lynch signed the will in question, he also executed a durable

power of attorney (the “POA”) and appointed Kathy as his agent, Nolin as

successor agent, and Crosslin as an additional successor agent. Nolin noted

that the POA authorized the agent to form trusts and transfer Lynch’s

property. Nolin explained that because no one could visit Lynch in the

hospital, he could not execute a new will, and the POA was used to transfer

all his property to a revocable trust, a plan conceived by Lynch’s attorney,

John Williams (“Wiliams”), and Nolin. Numerous documents were

prepared by Williams to effectuate the plans for Lynch’s assets in

furtherance of what they described as their understanding of Lynch’s desires.

On August 27, 2021, Nolin signed a declination to serve as agent

under the 2018 POA, Crosslin accepted the appointment as successor agent

at Nolin’s request, and she immediately executed documents presented to

her by Nolin to create the John Garner Lynch Trust (the “Trust”). Nolin

explained that Lynch was named the beneficiary of the Trust for the

remainder of his life, and that at his death, the Trust would be for the

primary benefit of Nolin and the secondary benefit of other named

friends. Lynch died within days of the trust being created and within a few

hours of his assets being conveyed to the trust by Crosslin and Nolin. It is

difficult to conclude the trust was in any manner in Lynch’s best interest or

designed for his benefit in the final hours and days of his life. As part of the

orchestrated plan, Nolin declined to become Lynch’s agent but named

3
November 12, 2021
4

himself in the documents as the trustee of the Trust. Apparently, Nolin, at

the direction of Williams, interjected Crosslin as the agent so that it would

not appear as though Nolin was acting as agent to convey Lynch’s property

to himself as trustee and then as beneficiary.4 In this transaction, Nolin

would have functioned as agent to convey the property to the trust, then act

as trustee to receive the donation of the assets donated to the trust of which

he was the primary beneficiary of the trust and would receive the future

benefit. That same day, Crosslin, now acting as agent under the POA, as

directed by Williams and Nolin, transferred Lynch’s property to Nolin, as

trustee, by an Act of Assignment and Warranty Deed prepared by

Williams.5 Nolin accepted the transfers between 10:00 and 10:15 a.m. on

August 31, 2021, and Lynch passed away at 2:12 p.m. that same day.

Nolin argued that there were clerical errors in the Warranty Deed,

including incorrectly naming the trust as the “John Garner Trust,” but that

these errors were corrected by a Notarial Act of Correction after Lynch’s

death. The Heirs point out that Lynch died a mere three days after the

creation of the Trust and only hours after all his property was transferred

into the Trust. The record clearly indicates Lynch never identified Nolin as

his universal legatee, never requested his property be placed in a trust, and

was never informed by Nolin (trustee), Crosslin (agent), or Williams

(attorney) that a trust had been created.

Nolin argued that the Heirs had no right of action to demand an

accounting because all Lynch’s assets were transferred to the Trust and were

4
We reject this tactic as anything other than a thinly veiled attempt to disguise the
appearance of self-dealing by Nolin, when the record clearly indicates he exercised
control of Crosslin, and she signed anything he and Williams instructed her to sign
without further inquiry.
5
August 27, 2021.
5

no longer a part of his estate. He contended that the Heirs have no

ownership interest in this property and no right to demand an

accounting. He also argued that the Heirs had no cause of action to remove

him as independent executor.

In response, the Heirs filed a petition to annul and an amended

petition to remove the executor and for accounting,6 and named Nolin and

Crosslin as defendants. They argued that Lynch was not capable of directing

the actions of Nolin and Crosslin regarding the POA and the Trust. They

contended that the actions of Nolin and Crosslin were not authorized by the

POA and could not be used to allow them to self-deal and ultimately transfer

all Lynch’s assets to Nolin in a trust which has as its primary design to

benefit Nolin. They argued that as executor, Nolin acted in his own interest

and not in the interest of Lynch or the Heirs to the estate. They requested

that Nolin be removed as executor and that Hunt be appointed independent

executor, or in the alternative, that the court appoint an independent third-

party executor.

Nolin and Crosslin filed exceptions and an answer to the Heirs’

petition, and a hearing7 was held on Nolin and Crosslin’s exceptions and the

Heirs’ petition to remove the executor and for accounting. The trial court

filed a judgment, granting Nolin’s exception of no right of action related to

the Heirs’ request for an accounting of the Trust and dismissed their claim

with prejudice. 8 It denied Nolin’s exception of no cause of action related to

the Heirs’ request for his removal as executor and granted the Heirs’ request

6
August 12, 2022
7
May 15, 2023
8
June 15, 2023
6

to remove Nolin as independent executor, denied their request to appoint

Hunt as executrix, and named a third-party executor. It granted Crosslin’s

exception of no cause of action related to the Heirs’ request for an

accounting of actions taken by her as agent and dismissed the Heirs’ claim

without prejudice. It denied Crosslin’s exception of no right of action

related to the Heirs’ request to nullify the Trust and referred it to the merits.

The Heirs amended their petition against Crosslin and alleged that she

engaged in numerous acts that exceeded her appointment as agent, including

that she used the POA to create the Trust, which was not used for the benefit

of Decedent’s descendants and when Decedent was not interdicted; that she

attempted to transfer Decedent’s property to the Trust, when the Trust is not

for the benefit of Decedent’s descendants; and that she attempted to donate

Decedent’s entire estate to the Trust, in violation of La. C.C. art. 1498.

Crosslin filed an answer and requested judgment in her favor and that

the Heirs’ claims be dismissed with prejudice. 9 A bench trial

followed.10 The first witness, Creighton Hodges, CPA, testified that

Williams, Lynch’s attorney, contacted him after Lynch’s death to prepare his

tax returns for 2018, 2019, 2020, and 2021. He determined that the total

amount of federal taxes and penalties due for the years 2018 to 2021 was

$122,789, and the total amount for the State was $28,601. Thus, Lynch’s

estate owed the government $151,390.

During Crosslin’s testimony, she confirmed she and Lynch had been

friends since the 1980s. She was a nurse at the hospital where Lynch

received his final medical care and saw him three times while he was

9
June 29, 2023
10
October 12, 2023
7

hospitalized. She acknowledged she did not tell Lynch that she accepted the

appointment as his agent under the POA and that she never spoke with him

about creating a trust for his property. Crosslin testified that she, without

inquiry or question, transferred Lynch’s property, without his knowledge, to

the Trust on documents provided by Nolin and Williams and did so at their

direction. She noted that on August 27, 2021, the documents were signed,

Lynch was in “very bad shape” in the ICU on high-flow oxygen but that he

was not on a ventilator. She testified that Nolin and Williams showed up at

her house, stood in her driveway, and told her that she needed to sign the

paperwork for the POA and the Trust. She executed those documents in her

driveway without examining them and had nothing else to do with the

Trust.

On cross-examination, Crosslin identified a 2014 last will and

testament (“2014 Testament”) for Lynch, in which his third wife at the time,

Marlene, who also predeceased him, was named the sole legatee. In the

2014 Testament, Lynch again made no provisions for his children or any

other alternative legatees. Crosslin testified that Lynch’s relationship with

his children was better during his marriage to Marlene but that in 2018, at

the age of 82, when Lynch married for the fourth time, to Kathy, his contact

with his children deteriorated. Crosslin testified that she also did not spend

as much time with Lynch after his latest marriage and stated, “I think his

relationship was different with everybody after he married Kathy.” When

asked why the Trust was necessary for Lynch, when she had full power of

attorney to manage anything that might arise while he was in the hospital,

Crosslin stated that she created the Trust because Williams recommended it.

Crosslin testified:
8

Q: So you just did what they told you to do [regarding creating
the trust]?

A: I did.

Q: Okay. And none of the wills, not the will he had for
Marlene …or the will that he had with Kathy had an alternate
beneficiary beside his wife, correct?

A: No.

Q: All right. And did you ever say, hey, John, you need to put
somebody down as an alternate because you’ve already outlived
two wives?

A: We did…My husband and I both had told him that on, on
different times.

Q: And he never did that, right?

A: He never did that.

Crosslin confirmed that neither she nor Nolin was ever named as a

beneficiary of any of Lynch’s wills, including the 2014 Testament and the

2018 Testament.

During Nolin’s testimony, he acknowledged that he was never named

as a beneficiary of any of Lynch’s wills. Nolin confirmed Lynch was

unaware that Nolin was creating the Trust and that Lynch did not direct him

to create the Trust or make him the beneficiary of the trust. Despite this,

Nolin acknowledged that he was the primary beneficiary of the Trust. Nolin

testified:

Q: So he asked you to take care of his estate. Did he ask you to
get his estate, to become the owner of his property?

A: No.

Q: So he never said, hey, Al, I want you to become the owner
of everything?

A: No.

9

Nolin testified that Lynch told him he wanted Nolin to “take care of”

his property but never stated that he wanted Nolin to become the owner of

his property. Nolin testified that while Lynch was in the hospital, people

had broken into his property and stolen items from him. Nolin confirmed

that he could have taken care of Lynch’s property while he was alive without

the Trust. It is evident that Lynch relied on Nolin to help administer his

property and that Nolin acted in good faith in helping administer the

property, to the extent possible, while Lynch was hospitalized. When asked

how the Trust, and the authority he created for himself as trustee, as opposed

to the authority to act as agent under the 2018 POA, helped him preserve the

property that was being stolen and broken into, Nolin testified, “I don’t think

it did.” Nolin acknowledged that he signed deeds transferring property into

the Trust on August 31, 2021, the day that Lynch died. He did not know for

sure that Lynch was still alive when he signed the documents.

Regarding what apparently prompted Lynch’s property to be placed in

a trust, Nolin testified that while Lynch was in the hospital, some of his

properties were being broken into and his things were being stolen. Those

circumstances prompted Nolin to participate in a telephone call with Lynch,

while Nolin was in the presence of Williams and Williams’s associate. There

is no indication Lynch asked for the telephone conversation to be recorded

or even knew that it was. Nolin and Williams point the Court to this

telephone call as evidence of instructions from Lynch that they implemented

through the juggling of the role of agent and creation of the trust to benefit

Nolin to the exclusion of Lynch’s children, who would have inherited from

Lynch through intestacy.

10

The record reflects that the telephone call was only partially recorded

and was played at trial. A somewhat inaccurate transcript was prepared and

filed in the record. The entirety of what is purported to be a “transcribed”

version of that telephone call is attached as Appendix A to this opinion.

A review of the recording reveals that each person, Lynch included,

stated that they expected Lynch to get out of the hospital and return home.

The discussions clearly focused on the administration of Lynch’s property

while he was hospitalized. Lynch stated that he expected to get out of the

hospital within the following two days. Nolin and Williams both agreed

Lynch was expected to leave the hospital. During the call, Nolin and

Williams prompted specific questions to Lynch about certain items and

whether he wanted certain people to receive a few specific items. Lynch

would respond but did not initiate discussions regarding bequeathing any of

his property to anyone. He clearly had plans for it when he would be

discharged from the hospital.

The few items discussed during the call comprise only a small portion

of Lynch’s estate, and there is no mention of any intention to convey or

direct to anyone, including Nolin, the majority of Lynch’s assets as owner.

As the questioning continues during the phone call, it is clear that Lynch did

not intend and had not planned on this conversation being a discussion of

global estate planning and, rather, just requested that Nolin take care of his

things until he left the hospital. When asked by Williams “if there was like a

charity ultimately you wanted anything to go to,” Lynch, obviously

understanding that Nolin and Williams were prematurely making permanent

plans for his property, replied, “Don’t iron your dress just yet,” before the

telephone call ended.
11

Appellees argue Lynch intended to prevent his children from

inheriting through intestacy, which would occur due to his wife and only

legatee in the 2018 Testament predeceasing him. Williams had prepared

Lynch’s 2014 Testament and his 2018 Testament and discussed that very

topic with him on at least two occasions. During his testimony, Williams

confirmed that Lynch was aware that if he did not name alternate legatees in

his 2014 Testament and 2018 Testament, and if he outlived his wife, then his

children and grandchildren would inherit his estate through intestacy.

Williams further testified that it was his idea to use the power of

attorney and to create the Trust. Williams asserted he conceived and

implemented this plan “to accomplish what John wanted with his estate.”

Williams confirmed that Lynch never asked for a trust and was never made

aware by him or anyone else that a trust had been created and that his

property had been conveyed to it. When asked whether he had tried to draft

a new will for Lynch after his fourth wife Kathy died, Williams testified that

COVID-19 restrictions may have prevented him from visiting with Lynch in

person, and that “well, I didn’t need to, I had a power of attorney.”

Regarding the trust document and conveyances, Williams confirmed that

Nolin signed the deeds and other trust documents at 10:30 a.m. and that

Lynch died at 2:30 p.m. on that same day.

Lynch’s daughter Riley testified at trial that she thought she had a

good relationship with her father, and they talked on the telephone once or

twice a month. She stated that she spoke to Lynch while he was in the

hospital and that she also spoke to Nolin. She was aware that Lynch

intended to leave everything to Kathy, and she told her father that she would

not do anything to disrupt this from happening. She stated that Lynch never
12

mentioned what would happen if Kathy predeceased him because he was

sure she would outlive him. She testified that she did not know anything

about the creation of the Trust and that when she asked Nolin about the 2018

Testament, he said there was no will. She also asked Nolin if she could go

to her father’s house and help with his services, and Nolin would not allow

her to do so.

Lynch’s grandson, Hammett, testified that his parents never married,

so he did not meet his grandfather until he was older and when he was

seeking out his father. He stated that he saw his grandfather three times

before his death and that they had nice visits. He recalled that during the

first visit, Lynch told him that if he was looking for money, he was not going

to receive any. Hammett responded that he was not there for money but to

meet his father’s family. On cross-examination, he agreed that the last time

he saw Lynch was in 2018 or 2019.

On December 1, 2023, the trial court filed a judgment, finding that

Lynch’s desire to disinherit his heirs was clear. It determined that due to

Kathy’s death and his own final illness, Lynch was unable to execute a

testament reflecting his wishes, so he equipped his friends, Nolin and

Crosslin, with legal means to achieve his desires regarding his possessions.

The trial court used the partially recorded telephone call to justify this

assumption that Lynch had expressed his testamentary wishes to Williams

and Nolin and that Williams and Nolin were simply carrying out his

wishes.

The trial court determined that the POA granted the “broadest possible

authority over [Lynch’s] affairs” to Kathy, Nolin, and Crosslin, citing the

language in the POA that stated:
13

To make gifts, grants, or other transfers without consideration,
either outright, in trust or otherwise to or for the benefit of
Appearer’s children and their descendants, the spouses of all of
Appearer’s descendants, and such other persons as Agent
may determine to be in Appearer’s best interest or in the
best interest of Appearer’s estate.

(Emphasis original.) It also found that the Trust was validly created. It

stated that the parties agreed that Lynch’s property in Texas and his IRA

were not properly transferred to the Trust, so they would ultimately be

distributed to the Heirs under the law of intestacy. The court noted that

these assets are more than sufficient to cover any debts of the succession. It

determined that all other property, both movable and immovable, was

validly transferred to the Trust.

Regarding the error in the name of the Trust in the Warranty Deed, the

trial court found that the Notarial Act of Correction was appropriate but

unnecessary and that the public records doctrine cannot be extended to

thwart Lynch’s wishes. Accordingly, the trial court decreed that the Trust

was validly created and that the Act of Assignment and Warranty Deed

transferred Lynch’s assets to the Trust, not including his IRA or property in

Texas. It denied the Heirs’ petition to annul and dismissed it with prejudice.

The Heirs now appeal this judgment.

ASSIGNMENTS OF ERROR

The Heirs assert the following five assignments of error:

First Assignment of Error: The trial court erred when it found that Nolin
and Crosslin could use a power of attorney to create a Trust that did not
benefit Lynch’s children, their descendants or their spouses and was never
authorized or even discussed with Lynch and benefitted Nolin.

Second Assignment of Error: the trial court erred when it found that a deed
attempting to transfer “all my property” was valid.

Third Assignment of Error: the trial court erred when it found that a
Notarial Act of Correction created after the death of the donor and recoded
14

after the death of the donor could be used to change the name of the
Trust/Donee in a donation deed and validly transfer property to that trust to
the detriment of the donor’s intestate Heirs.

Fourth Assignment of Error: the trial court erred when it found that the
Louisiana immovable property was validly transferred to the trust.

Fifth Assignment of Error: the trial court erred when it found that all
moveables were validly transferred to the Trust.

DISCUSSION

In their first assignment of error, the Heirs contend that the trial court

erred in finding that Nolin and Crosslin could use the POA to create the

Trust and transfer Lynch’s assets to that trust for the benefit of Nolin.

As outlined above, Lynch’s friends encouraged him to put something

in his will about who would receive his estate if he outlived his wife. Lynch

elected not to follow those recommendations, even after speaking with his

attorney on the subject in preparing his last will and testaments in 2014 and

again in 2018. Lynch had already outlived two wives when he had Williams

prepare his 2018 Testament, and he knew his children would inherit if his

wife at the time were also to predecease him. Lynch had lived with his 2014

Testament controlling and knowledge his children would inherit for years

between the death of his third wife and his marriage years later to his fourth

wife. In the 2018 Testament he knowingly continued that apparent

intentional plan.

The district court relied, at least in part, on the telephone call between

Lynch, Nolin, and Williams to support the argument that Lynch intended to

disinherit his children and bequeath all of his property to Nolin. We

disagree that the telephone call equates to Lynch expressing that he wanted

Nolin to own all his property. The transcript reveals Lynch made no

15

mention of a great many of his assets and never identified Nolin to receive

any assets other than one or two guns. Even Nolin testified that Lynch never

made such a request or declaration.

Our review of the recorded telephone conversation makes clear that it

was not intended to be an estate planning conference or direction by Lynch

for his assets to be conveyed to Nolin. Lynch’s intentions and discussion

reflected in the transcript of the telephone call are irreconcilable with the

provisions of the trust document and the naming of Nolin as beneficiary of

Lynch’s assets. The call was initiated to tell Lynch that his property had

been very recently vandalized, items belonging to him had been stolen, and

there presently existed a risk of additional thefts and damage. A review of

the telephone conversation illustrates that Nolin prompted Lynch about what

he wanted him to do with the property that may not be secured while he was

in the hospital. Nolin testified:

I had told him that things were not good at his farm, you know.
It was being broken into. And we needed to do something, so
if you got out of the hospital that you would have something
left when you got there, you know. So that’s, that’s when he
told me to take care of things.

(Emphasis added.) Contrary to any assertion that Lynch named Nolin as his

universal legatee, the record reflects that all people involved in the telephone

conversation, most especially Lynch himself, expected that he would be

soon leaving the hospital. Importantly, Lynch did respond to questions and

name a few people he would like certain items to go to, but when Nolin and

Williams inquired about his property and possible charitable donations,

Lynch said “Don’t iron your dress just yet.” We interpret this

colloquialism to mean that Lynch was not prepared and had no present

desire to outline plans for inheritance of his assets and that Lynch did not
16

intend to engage in a conversation effectively concerning global estate

planning on this phone call. Additionally, when Lynch does name someone

and says, “he gets the farm,” that request is rejected by Nolin, who replies:

“Okay, well right now we’re keeping the farm, how about that?” Nolin

continues, “And we’ll decide later, now we may have to liquidate some of it

to pay the bills, I don’t know …” Lynch replies: “I don’t think we will …”

If the telephone call is to reflect Lynch’s donative intent, this request was

rejected by Nolin, and as a result, the property went to the trust and would

then go to Nolin as beneficiary.

The record simply does not support an interpretation of this telephone

conversation as a directive from a dying man to his lawyer and friend to

dispose of all his assets for the benefit of Nolin. A fair review of the

telephone call and transcript establish Lynch never said anything

approaching the results of implementing the trust, conveying his assets to it,

or naming the beneficiary. The provisions of the trust are a gross overreach.

We decline the invitation to elevate the limited telephone conversation

as a call of action and of equal significance to contemplated and

longstanding estate plans. Lynch did not empower Nolin or Crosslin to

create a trust, convey his assets to it, or name Nolin as its beneficiary.

Although there is testimony that at different times Lynch mentioned

not wanting his children to inherit, including specifically saying he did not

want his daughters to inherit on the recorded phone call, he never actually

was able to reflect on those expressions and never executed a testament that

would provide for alternative legatees in their place. Interestingly, Lynch

never undertook any efforts to disinherit his children at any time, if that was

in fact, as suggested by Nolin, Lynch’s true intention. His actions, and
17

inactions, over several years and after the death of previous wives, speak

volumes about his actual desires. Importantly, as previously referenced, the

record indicates that Lynch did not care what happened to his assets if his

wife predeceased him, a response necessitated by questions on the topic

raised by Williams. Williams testified that Lynch did not believe he would

outlive Kathy and did not care where his assets would go if she predeceased

him. Regarding the language of Lynch’s 2014 Testament and his

appreciation of its effect, Williams had the following conversation11 with

Lynch:

Q: Mr. Williams, at the time that you were asked to prepare this
Will that we identified as Exhibit 1A, what -what did you
discuss with Mr. Lynch?

A: Who he wanted to leave his estate to. And he told me he
wanted to leave it to his wife at the time, which was referred to
as Marlene. I asked him at the time, I said, “What if she doesn’t
survive you?” And I still remember, John was sitting there in
overalls, and pointed to his belly and said, look at me. “I don’t -
I don’t think that I’ll survive her. So, I’m not worried about
where it goes if she doesn’t survive me.”

(Emphasis added.)

Williams and Nolin decided to use the POA as an estate planning

“work around” to overcome Lynch’s children from inheriting as intestate

heirs. Nolin testified that he could have administered and cared for Lynch’s

assets while Lynch was alive without the Trust. Williams testified that he

never even tried to draft a new will for Lynch to sign. It seems unlikely,

based on the telephone conversation and his prior actions, that Lynch would

have actually signed a new will with the provisions contained in the trust, as

he believed he was leaving the hospital and had already deflected numerous

11
R. P. 824, l. 30 – R. P. 825, l. 8.
18

questions over the years from Williams and Crosslin regarding bequests of

his property and his children. Lynch wanted Nolin to “take care of” his

property, particularly concerning the break-ins that were happening while he

was in the hospital. There can be no confusion that the plain language of

“taking care of” or administering something is not intended to be the same as

becoming the owner of a person’s entire estate. If Lynch had desired Nolin

be an alternative legatee to Kathy, he certainly could have done so in any

one of his notarial testaments or prepared a codicil to that effect. He did

neither. Instead, Nolin and Crosslin replaced Lynch’s volition with their

own by use of the POA and directed Lynch’s assets through the trust and to

Nolin. Nolin may have given all the assets away in an attempt to satisfy

what he believed Lynch wanted, but there was no requirement to do so, and

this blueprint empowers those who, unlike Nolin, have motives for personal

gain.

The authority of the representative to represent another in legal

relations may be conferred by law, by a contract of mandate, or by the

unilateral juridical act of procuration. La. C.C. art. 2986. Pursuant to

procuration, a person, the principal, confers authority on another person, the

representative, to represent the principal in legal matters. La. C.C. art. 2987.

The term procuration refers to the same contractual relationship that is

known as a power of attorney. Richland State Bank v. dePingre, 54,411 (La.

App. 2 Cir. 4/5/22), 337 So. 3d 579. A power of attorney is subject to the

rules of mandate to the extent those rules are compatible with the nature of

the representation. La. C.C. art. 2988.

Under the rules of mandate, the authority to alienate or encumber a

thing must be expressly given. La. C.C. art. 2996. Express authorization is
19

required for the agent to contract a loan, acknowledge a debt, or become a

surety. La. C.C. art. 2997(3). Self-dealing also requires express authority.

Richland, supra. La. C.C. art. 2998 requires that a mandatary who

represents the principal as the other contracting party may not contract with

himself unless he is authorized by the principal. When the authority to self-

deal involves the sale of immovable property, that authority must be specific

and in writing. Noel v. Noel, 16-734 (La. App. 3 Cir. 8/2/17), 225 So. 3d

1114, writs denied, 17-1817 (La. 1/9/18), 231 So. 3d 651 and 17-1830 (La.

1/9/18), 231 So. 3d 654.

While Nolin was never officially a mandatory of Lynch, the timing of

his declination to serve and the obedient compliance of Crosslin to sign,

without question, the documents handed to her, is unmistakable evidence of

collaboration and control. Nolin declined to serve as his close friend’s agent

seemingly for the sole reason so that he could then benefit from Lynch’s

estate as the beneficiary of the Trust. His testimony is that he would have

administered and conveyed some of Lynch’s property as indicated in the

recorded telephone call, but Nolin would become owner of all of Lynch’s

estate and the trust document clearly indicated it was for the future benefit of

Nolin above all else, which would include those mentioned in the recorded

telephone call.

One is said to act in a fiduciary capacity “when the business which he

transacts, or the money or property which he handles, is not his own or for

his own benefit, but for the benefit of another person, as to whom he stands

in a relation implying and necessitating great confidence and trust on the one

part and a high degree of good faith on the other.” State v. Hagerty, 251 La.

477 (La. 1967). The defining characteristic of a fiduciary relationship is the
20

special relationship of confidence or trust imposed by one in another who

undertakes the act primarily for the benefit of the principal in a particular

endeavor. Scheffler v. Adams & Reese, LLP, 06-1774 (La. 2/22/07), 950 So.

2d 641. The mandatary is bound to fulfill with prudence and diligence the

mandate he has accepted. He is responsible to the principal for the loss that

the principal sustains as a result of the mandatary’s failure to perform. La.

C.C. art. 3001. In order to prove a breach of fiduciary duty, the claimant

must show that the party acted fraudulently, breached the trust bestowed

upon him, or took actions that exceeded those granted to him. Here,

Crosslin did not act fraudulently and her actions were not for her personal

gain, but she exceeded the authority granted to her and assisted and

collaborated with Nolin in his obtaining almost immediate ownership of

Lynch’s estate when there was no indication that is what Lynch actually

desired or requested.

These actions could be described as self-dealing. Crosslin, as Lynch’s

agent, had a fiduciary duty, which she promptly abandoned by immediately

signing documents presented to her by Nolin and Williams without further

inquiry. Crosslin never inquired about the conveyance of all of Lynch’s

property to a trust that would benefit Nolin and had no knowledge or

indication this was Lynch’s expressed desire. She never discussed any of

these plans with Lynch, and that breach is fatal to her attempts to convey

Lynch’s assets to the trust. Accordingly, we find that Crosslin breached her

fiduciary duty to Lynch as his agent.

A mandatary is not allowed to speculate for his own profit in handling

his principal’s affairs. Noe v. Roussell, 310 So. 2d 806 (La. 1975);

Woodward v. Steed, 28,676 (La. App. 2 Cir. 9/25/96), 680 So. 2d 1320, writ
21

not considered, 96-2648 (La. 12/6/96), 684 So. 2d 411. The mandatary must

disclose to his principal all facts relating to his principal’s affairs. Id. As

noted above, we believe Nolin declined to serve as the agent to specifically

avoid the appearance of self-dealing. Thus, Crosslin accepted her

appointment as Lynch’s agent. However, Williams also prepared a trust

document, acts of assignment to the trust, and a warranty deed to the trust

for Crosslin’s signature as agent. The trust document packet was presented

to Crosslin for her signature while in her driveway. Crosslin had not

participated in the telephone conversation with Lynch the evening before,

and she did not initiate the concept of the trust or any other action on behalf

of Lynch exercising her new authority. Crosslin testified that after signing

the documents that morning, her involvement effectively ended.

Crosslin had a duty to confirm with Lynch that he desired, as the Trust

documents provided, that Nolin was allowed, after Lynch’s death, to transfer

all of Lynch’s assets to himself:

so much or all of the trust estate, both principal and income, as
in the Trustee’s (his own) sole discretion is necessary or
beneficial for the support, maintenance, health or education of
Al. After Grantor’s death, Grantor’s primary concern is for
the future benefit of Rudy Allen Nolin, and secondary
concern is for the benefit of Arlin Mullen and Irma McDuff.

(Emphasis added.) Nolin and Crosslin worked in conjunction, when her

loyalty was owed to Lynch and what was in his best interest. As Lynch’s

agent, Crosslin’s actions must comport with the authority granted her in the

power of attorney, and she must do “whatever may appear to Agent to be

conducive to the interest of [John Garner Lynch].” The POA granted her

the authority to manage the affairs of Lynch, which would remain in effect

if, in her words, “something happened to him,” such as a stroke, a coma, or

22

incapacity. However, the Trust was used in this matter solely to rewrite how

Lynch’s estate would devolve after his death. The record reflects that Lynch

had politely ignored her previous recommendations to him to name an

alternate legatee in his will to effectively disinherit his children. The actions

taken by Williams, Nolin, and Crosslin clearly replace Lynch’s volition with

their own.

Only Nolin and Williams decided on the language of the trust

document, which included: “Grantor’s primary concern is for the future

benefit of Rudy Allen Nolin . . .” There is nothing in the transcript of the

phone call with Lynch that suggests that was Lynch’s desire. It may have

been Nolin’s concern, but Nolin can only direct Crosslin to undertake

actions that are in Lynch’s best interest or in the best interest of Lynch’s

estate. Nolin may very well have the most honorable of intentions, but the

mechanism and process of obtaining ownership of all of Lynch’s assets

creates a troubling blueprint.

In sum, we find Crosslin acted outside the authority granted to her as

agent, and that the documents relating to the Trust, the act of assignment to

the Trust, the warranty deed, and any other efforts to deprive Lynch’s estate

of assets solely for the purpose of circumventing Louisiana’s laws of

intestacy are declared null and of no effect. The sweeping provisions of the

trust and the control and direction of Lynch’s assets thereby are

irreconcilable with the requirement use of the power of attorney must be

exercised to act in the best interests of Lynch, as Lynch gave no such

direction or instruction in his limited comments in the recorded

conversation. This assignment of error has merit, and the trial court’s ruling

is reversed and vacated, and the matter is remanded for further proceedings
23

for the administration of the succession, including payment of all debts and

distribution of assets, not inconsistent with this opinion. Discussion of the

remaining assignments of error is pretermitted based on this ruling.

CONCLUSION

For the foregoing reasons, the trial court’s ruling is reversed and

vacated. The Trust is null and void and all transfers of property, real and

personal, corporeal and incorporeal, of John Garner Lynch are null and void.

The assets of John Garner Lynch are the property of the estate of John

Garner Lynch and the matter is remanded for further proceedings as may be

necessary.

REVERSED. VACATED. REMANDED.

24

APPENDIX A

25

26

27

28

29

PITMAN, C.J., dissents.

I respectfully dissent from the majority opinion. While the majority

finds manifest error by the trial court, I do not agree.

As the majority opinion states, the primary concern in this case is not

the motivation of the parties but rather the mechanism to achieve the desired

results. That mechanism is Lynch’s durable power of attorney (the “POA”).

“Power of attorney” is a common law term whose equivalent civilian

term is “procuration.” La. C.C. art. 2986, Revision Comments (a);

Succession of Conville v. Bank One, Louisiana, N.A., 40,506 (La. App.

2 Cir. 1/25/06), 920 So. 2d 397. A procuration is a unilateral juridical act by

which a person, the principal, confers authority on another person, the

representative, to represent the principal in legal relations. La. C.C.

art. 2987. A procuration is subject to the rules governing mandate to the

extent that the application of those rules is compatible with the nature of the

procuration. La. C.C. art. 2988.

Under the rules of mandate, the principal may confer on the

representative general authority to do whatever is appropriate under the

circumstances. La. C.C. art. 2994. The authority to alienate, acquire,

encumber or lease a thing must be given expressly. La. C.C. art. 2996. La.

C.C. art. 2997 sets forth additional instances when the principal must give

express authority to the representative. Self-dealing also requires express

authorization by the principal. La. C.C. art. 2998; Matter of Succession of

Frazier, 54,751 (La. App. 2 Cir. 9/21/22), 349 So. 3d 634.

As a procuration or power of attorney is a contract, we interpret its

provisions pursuant to the rules of contract interpretation. When a contract

can be construed from the four corners of the instrument without looking to
1

extrinsic evidence, the question of contractual interpretation is answered as a

matter of law. Sims v. Mulhearn Funeral Home, Inc., 07-0054 (La. 5/22/07),

956 So. 2d 583. When the words of a contract are clear and explicit and lead

to no absurd consequences, no further interpretation may be made in search

of the parties’ intent. La. C.C. art. 2046. Powers of attorney are construed

strictly and no special authority is implied by the general terms of a

procuration except ordinary powers of administration. Matter of Succession

of Frazier, supra.

In the POA, Lynch granted his representative the following authority,

as is relevant to this appeal:

[T]o do any and every act and to exercise any and every
power that Appearer could do or exercise if present and acting
for himself and in his own right, including not only all matters
of administration, but also all acts of ownership and the doing
of whatever may appear to Agent to be conducive to the
interest of Appearer.
Without in any manner limiting or restricting any of the
foregoing, Appearer hereby grants unto Agent, for Appearer
and in Appearer’s name, place and stead, full power and
authority:
***
2. To do the following things and perform the following acts
with respect to Appearer’s interest or a part thereof, or an
undivided interest therein, in all kinds of things or property,
whether movable or immovable, personal or real, corporeal or
incorporeal, tangible or intangible, wheresoever situated, and
whether now owned or hereafter acquired:
***
f. To exchange, sell, convey, assign or otherwise
dispose of the same in any manner, including but
without being limited to making dations en
paiement and gratuitous, onerous or remunerative
donations of the same;
***
14. To form or cause to be formed, or join with any other
person or persons in forming or causing to be formed, one or
more partnerships, limited liability companies, corporations,
trusts, and other business entities, in any manner, on any terms
and conditions, and for any capitalization, duration or purpose
authorized by the laws applicable thereto; to execute, as one of
the partners, members, incorporators, trustees, or settlers,
2

proper organizational documents, including without limitation,
articles of incorporation, articles of partnership, articles of
organization, and to execute any and all other papers which
Agent may deem necessary or desirable to effect such
formation or in connection with such formation; and to
exchange cash or property of any amount or value belonging to
Appearer for any form of general or limited interest, or class or
amount of stock or other evidence of ownership or membership
in such entity, or for any bonds, notes or other evidences of
indebtedness of such entity;
***
17. To make gifts, grants, or other transfers without
consideration, either outright, in trust or otherwise to or for the
benefit of Appearer’s children and their descendants, the
spouses of all of Appearer’s descendants, and such other
persons as Agent may determine to be in Appearer’s best
interest or in the best interest of Appearer’s estate, including but
not limited to gifts that will be eligible for the annual gift tax
exclusion in Section 2503(b) of the Internal Revenue Code
(IRO) as it now appears or may be hereafter amended, and gifts
of tuition costs and medical costs in accordance with IRC
Sections 2503(e) and 2611(b)(1), as they now appear or may be
hereafter amended, as well as taxable gifts that may use up
Appearer’s unified credit during lifetime as the same is defined
in IRC Section 2010 as it now appears or may be hereafter
amended, as well as gifts to charities and the making or
fulfillment of charitable pledges, and to elect split-gift giving
in accordance with IRC Section 2513 as it now appears or may
be hereafter amended; provided, however, that Agent shall have
no power or authority to make a gift to herself, her estate, or her
creditors or a gift which directly or indirectly relieves her of a
support obligation.
***
21. To sell, transfer and convey all of Appearer’s interest in and
to any immovable property for such consideration and on such
terms and conditions as Agent shall deem proper in her
unrestricted discretion; said Agent shall also have full authority
and power to execute on Appearer’s behalf such contracts to
sell, settlement statements, affidavits, declarations and other
contracts and documents as in Agent’s judgment are proper so
as to effectively and completely convey title to immovable
property.

As is clearly evident in these sections of the POA, Lynch gave his

representative broad and express authority to form a trust and to transfer his

assets. The actions taken by Crosslin as agent to create the Trust and

transfer property to it were for Lynch’s best interest, as he was the

3

beneficiary of the Trust. The majority opinion’s focus on whether Lynch

designated or desired these actions is irrelevant because the POA expressly

provided for them. Lynch knew he had a POA in place, knew the provisions

of it and knew who he named as agents—he did not need to be notified of or

approve the actions taken by Crosslin as agent after the death of his wife.

Lynch could have revoked the POA at any time but did not do so.

There are no allegations in the record that the POA was invalid or that

Nolin or Crosslin exercised undue influence to be named as alternate agents

when the POA was created. As Nolin and Crosslin testified, Lynch named

them as both alternate agents and alternate executors because he trusted

them.

The trial court was not manifestly erroneous in determining that

Lynch executed a valid POA and that Crosslin was authorized by this POA

to create the Trust and transfer assets to it.

For these reasons, I must dissent.

4

ELLENDER, J., dissents.

I respectfully dissent, for the reasons expressed by Chief Judge

Pitman, as well as for these additional reasons. The trial court found the

transfer of assets to the trust was permissible pursuant to a valid power of

attorney, noting the evidence was abundantly clear decedent had no intention

of leaving his property to his heirs and the law strongly favors fulfilling the

desires of decedent. I agree.

These facts, on first glance, appear suspicious that a power of attorney

was used to create a trust to transfer assets just hours before Lynch died

from COVID in isolation at the hospital, resulting in his heirs not receiving

the bulk of his estate and instead Lynch’s best friend, Al Nolin, being

designated as the trustee/primary beneficiary of the trust. Further suspicion

is created by Nolin declining to act as the agent under the power of attorney,

in an apparent attempt to prevent self-dealing. Juxtaposed to these facts is

the validity of the broad power of attorney allowing the creation of a trust

and transfer of assets to it, and the undisputed conclusion that Lynch did not

want his heirs to receive his property, who apparently had little or nothing to

do with decedent. Significantly, there is no suspicion of undue influence or

bad faith on the part of anyone involved.

Lynch’s longtime attorney, John Williams, testified he knew Lynch

didn’t want his children to receive any of his assets, not based only on the

telephone call made a few days before his death, but also based on his prior

representation of Lynch. Williams’ testimony is unrefuted about what

happened and why he took the steps he did, considering his limited options

due to Lynch’s isolation in the hospital with COVID, choosing to use the

authority granted in the power of attorney to effectuate what he believed was
1

Lynch’s desire. While it is clear Lynch didn’t want his heirs to receive

anything, the record is less clear about who he desired to receive his assets.

It is worth noting there are no other potential legatees, other than Lynch’s

heirs, who are claiming they are entitled to his assets

and Nolin was apparently Lynch’s best friend. It is not unreasonable to

believe Lynch might have wanted Nolin to receive his assets following the

untimely death of his wife only a week prior to his own death. Regardless,

an uncertain determination of who Lynch might would have wanted to

receive his assets, other than his wife, doesn’t invalidate what occurred here

pursuant to a valid power of attorney, particularly on these facts. The power

of attorney provides the agent with broad discretion to set up a trust without

restriction as to where those assets may ultimately go. The trust as created

does not contradict any expressed desires of Lynch. Significantly, it does

substantially fulfill his unrefuted desire that his heirs receive nothing.

While I am cognizant of the concern raised by the majority of

providing a blueprint for potential undue influence by those of lesser moral

character, resulting in the victimization of testators, legatees, and heirs, such

a concern should not invalidate actions taken to fulfill the desires of the

decedent where there is no suspicion of undue influence or bad faith on the

part of anyone involved. Such a determination should be made on a case-

by-case basis.

The unique facts of this case provide a reasonable and well-supported

justification for why, how, and when the transfer of assets were made

pursuant to the clear authority granted in the valid power of attorney. The

desires of Lynch were unrefuted that his heirs receive nothing, he took steps

after his wife’s death, limited by his capacity and circumstances in isolation,
2

to ensure these desires were fulfilled, and he had previously granted a broad

power of attorney giving his agent the authority to do what happened here.

For these reasons, and those expressed by Chief Judge Pitman, I

respectfully dissent.

3