Succession of Joseph H. Miller Jr. (consolidated with) Succession of Joseph Herman Miller, Jr

Judgment rendered April 9, 2025.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 56,139-CA
No. 56,140-CA

(Consolidated Cases)

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****
No. 56,139-CA No. 56,140-CA

SUCCESSION OF JOSEPH SUCCESSION OF
H. MILLER, JR. JOSEPH HERMAN
MILLER, JR.

*****

Appealed from the
Fourth Judicial District Court for the
Parish of Ouachita, Louisiana
Trial Court Nos. 2015-3872 and 2024-2434

Honorable Wilson Rambo, Judge

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DIANNE HILL Counsel for Appellant,
Darryl Michael Miller

CUMMINS AND FITTS, LLC Counsel for Appellee,
By: Jessica L. Fitts Cleo Miller

THE JONES LAW GROUP, LLC
By: Charles D. Jones

*****

Before PITMAN, THOMPSON, and MARCOTTE, JJ.

PITMAN, C. J.

Appellant Darryl Miller, a disinherited heir, appeals a judgment

sustaining a peremptory exception of no cause of action which was filed in

response to his petition to annul the Succession of Joseph H. Miller, Jr. For

the following reasons, we affirm the judgment of the trial court.

FACTS

Joseph H. Miller, Jr. died testate in Ouachita Parish on December 14,

2015. Miller was married twice and had a child by his first marriage,

Carrington Maddox Miller. Of his second marriage to Cleo Miller, to whom

he was married at the time of his death, one child was born, Scott Cameron

Miller. Miller also adopted two children, Darryl Michael Miller and Steven

Richard Miller.

Miller executed a written will dated February 28, 1996. In it, he left

all of his community property to his wife, Cleo, who was also named as

executrix of his estate. He left portions of separate property to Cleo and his

son Scott (now deceased), and he named Scott, Vicki Lang, Carrington and

Steven as his residual legatees. The will specifically stated, “It is my wish

and direction that my son, Darryl M. Miller, receive no portion of my estate

under any circumstances.”

The original petition for administration was filed in January 2016

requesting Cleo’s appointment as independent administrator. She was

appointed the administrator; and, in March 2016, she filed a petition to

probate the will. The will was recognized by the trial court to be in notarial

form and as self-proving. Cleo was placed in possession of the family home

in August 2016. No further action was taken in this succession for seven

years.

On November 30, 2023, Darryl filed a petition to annul the testament

and a rule for accounting and removal of the executrix. His petition alleged

that the will was null and void in that “it attempts to disinherit him as a

forced heir without complying with statutory requirements of Louisiana

Civil Code Art. 1621.” He also alleged that no other documents had been

filed, the succession remained open, there had been no detailed descriptive

list filed and no court-ordered disbursal of assets except the marital home.

He sought to be named a one-fourth owner of the assets of the estate.

Cleo filed peremptory exceptions of no cause and no right of action in

response to Darryl’s petition to annul, in which she noted that Darryl was

not a forced heir under any interpretation of the law because he was born on

June 20, 1952, and was 44 years old when his father disinherited him in the

1996 will.

A hearing was held in March 2024, on the exceptions of no cause and

no right of action. At the hearing, Darryl’s attorney argued that at the time

Miller executed his will in 1996, Darryl was either a direct descendant or a

forced heir; and because the procedure for disinherison for forced heirs was

not followed, Darryl was a presumptive forced heir with a right and cause of

action to challenge the will. The trial court attempted to clarify the

argument and asked, “He’s a forced heir just because he’s a descendant?”

The attorney responded:

He’s presumptive because we don’t know the condition that he
would be in at the time that Mr. Joseph Miller died. He was
presumptive at the time the testament was drafted. We’re
arguing that the testament itself is drafted incorrectly.

In May 2024, the trial court issued a judgment finding that Darryl

belonged to a class of persons who had a right of action and overruled that

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exception. However, the trial court sustained Cleo’s exception of no cause

of action and found that Darryl, who was 44 at the time the testament was

written, and 71 at the time he filed the petition to annul, and who had no

other claim to status as a forced heir, could not state a cause of action to

challenge the validity of the testament. His suit to annul was dismissed.

Darryl appeals the judgment of the trial court sustaining the exception of no

cause of action and the dismissal of his petition to annul.1

DISCUSSION

Darryl argues that the trial court erred in sustaining the exception of

no cause of action and contends that no evidence is allowed to determine

whether he, as a descendant, has a cause of action to annul a testament and

that the issue must be decided based on the factual allegations of the petition

and that each well-pled fact must be accepted as true. He argues that the

trial court erred in establishing his status as someone who was not a forced

heir on the date the will was executed or on the date of his father’s death.

He also complains that the trial court ignored the suggestion that on the date

of his father’s death, he could possibly have been a person who was a forced

heir as a result of mental incompetence or physical infirmity. He argues that

the will is null and void in that it attempts to disinherit him as a forced heir

without complying with statutory requirements that the testator state the

reason for disinherison. He contends that the law allows a person to

disinherit a person who is not a “presumptive forced heir” but also asserts

that the law still requires the statement of a reason for disinherison.

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After the trial court’s judgment on the exceptions, Cleo filed another petition to
probate the will on July 8, 2024. The suit was consolidated with the earlier succession
proceeding; and, eventually, a judgment of possession and an amended judgment of
possession were rendered.
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Cleo argues that although Darryl appears to argue the principles of

disinherison under the Louisiana Civil Code, those principles apply only to

forced heirs and do not apply to him. She interprets his argument to be that

the determination of whether someone is a forced heir is made at the time of

the death of the decedent and that any and all presumptive heirs are

presumptive forced heirs at the time the will is executed. She contends that

the argument is flawed because under that logic, every testator would have

to follow the disinherison principles and formalities to leave out any and all

presumptive heirs because there is a possibility that one day they could be a

forced heir. She points out that Darryl is not and never has been a forced

heir. She also argues that forced heirship has been abolished in all cases

except under the special circumstances provided in the law, and the testator

can deny anyone a portion of his estate in his will.

Cleo also argues that to have standing to maintain an action to annul a

will or testament, one must have a justiciable interest in the succession

proceedings. She points out that Darryl has no justiciable interest in the

succession because he is not a forced heir, that he is not a universal

successor and that he has no specific legal interest in the estate. For these

reasons, she challenges his right to demand an accounting of the estate or to

annul the testament.

Forced Heirship

The concept of forced heirship in Louisiana was in effect for many

years but was abolished in 1995, except under certain circumstances, by La.

Const. art. XII, § 5, which states as follows:

(A) The legislature shall provide by law for uniform
procedures of successions and for the rights of heirs or legatees
and for testate and intestate succession. Except as provided in
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Paragraph (B) of this Section, forced heirship is abolished in
this state.

(B) The legislature shall provide for the classification of
descendants, of the first degree, twenty-three years of age or
younger as forced heirs. The legislature may also classify as
forced heirs descendants of any age who, because of mental
incapacity or physical infirmity, are incapable of taking care of
their persons or administering their estates. The amount of the
forced portion reserved to heirs and the grounds for
disinherison shall also be provided by law. Trusts may be
authorized by law and the forced portion may be placed in trust.

The laws defining forced heirs as all children remained intact until

the supplemental legislation mandated by this constitutional amendment

became effective on January 1, 1996. In re Succession of Boyter, 99-0761

(La. 1/7/00), 756 So. 2d 1122.

La. C.C. art. 1493 was enacted in 1996 and was amended in 2003

and states in pertinent part as follows:

A. Forced heirs are descendants of the first degree who, at the
time of the death of the decedent, are twenty-three years of age
or younger or descendants of the first degree of any age who,
because of mental incapacity or physical infirmity, are
permanently incapable of taking care of their persons or
administering their estates at the time of the death of the
decedent.
***
D. For purposes of this Article, a person is twenty-three years
of age or younger until he attains the age of twenty-four years.

E. For purposes of this Article ‘permanently incapable of taking
care of their persons or administering their estates at the time of
the death of the decedent’ shall include descendants who, at the
time of death of the decedent, have, according to medical
documentation, an inherited, incurable disease or condition that
may render them incapable of caring for their persons or
administering their estates in the future.

The revision comments of 1996 state that La. C.C. art. 1493 is the

threshold article of the forced heirship revision. Title II of the Louisiana

Civil Code, Donations, Chapter 6, Donations Mortis Causa, Section 8,

Disinherison, contains La. C.C. art. 1617, which states that a forced heir
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shall be deprived of his legitime if he is disinherited by the testator for just

cause. The articles following La. C.C. art. 1617 concern the forms of

disinherison and reasons for disinherison of forced heirs. La. C.C. art. 1620

states that there are no just causes for disinherison except those expressly

recognized in the following code articles. La. C.C. art. 1621 provides just

causes for disinherison and states that for it to be valid, the cause must have

occurred prior to the execution of the instrument that disinherits the heir.

The comment to that article states, “This Article reduced the number of

causes for which a testator may disinherit a forced heir from twelve to

eight.”

A person may be disinherited even though he was not a presumptive

forced heir at the time of the occurrence of the act or the facts or

circumstances alleged to constitute just cause for his disinherison. La. C.C.

art. 1623. Comment (b) to this article states that “a presumptive forced heir

is a person who would have been a forced heir if the person from whom he

would inherit as such had died at that time. Thus, a fifteen-year-old child of

a person is a presumptive forced heir, but a twenty-five-year-old child of a

person is not a presumptive forced heir.”

Based on the foregoing, we conclude that Darryl was not a forced heir

at any time pertinent to this inquiry. He was 44 years old when Joseph

Miller signed his will; he was 63 years old when the testator died; and he

was 71 years old when he filed the petition to annul the will. At no time did

Darryl meet the age requirement of less than 23 years of age or allege that he

was permanently incapacitated. Therefore, he cannot be deemed a forced

heir under any circumstances, and the rules regarding disinherison do not

apply to him.
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No Cause of Action

A cause of action, when used in the context of the peremptory

exception, is defined as the operative facts that give rise to the plaintiff’s

right to judicially assert the action against the defendant. Wederstrandt v.

Kol, 22-01570 (La. 6/27/23), 366 So. 3d 47, reh’g denied, 22-01570 (La.

9/8/23), 370 So. 3d 457.

An exception of no cause of action is utilized to determine the legal

sufficiency of the petition by determining whether the law affords a remedy

on the facts alleged in the pleading. Everything on Wheels Subaru, Inc. v.

Subaru, Inc., 616 So. 2d 1234 (La. 1993). No evidence may be introduced

to support or controvert the objection that the petition fails to state a cause of

action. La. C.C.P. art. 931. Thus, the court reviews the petition and accepts

well-pleaded allegations of fact as true; and the issue at the trial of the

exception is whether, on the face of the petition, the plaintiff is legally

entitled to the relief sought. Everything on Wheels Subaru, supra. The

adjective “well-pleaded” refers to properly pleaded allegations conforming

to the system of fact pleading embodied in the Louisiana Code of Civil

Procedure. Wederstrandt, supra. It does not include allegations deficient in

material detail, conclusory factual allegations or allegations of law. Id. The

burden of demonstrating that the petition states no cause of action is upon

the mover. Id.

A petition should not be dismissed for failure to state a cause of action

unless it appears beyond doubt that plaintiff can prove no set of facts in

support of any claim which would entitle him to relief. Walker v. Dollar

Tree Stores, Inc., 53,898 (La. App. 2 Cir. 4/14/21), 316 So. 3d 585. In

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reviewing a trial court’s ruling on an exception of no cause of action, an

appellate court applies a de novo standard of review. Id.

After conducting a de novo review, we find that the petition to annul

the testament states no facts to support Darryl’s claim that would entitle him

to the relief sought.

CONCLUSION

For the reasons stated above, the judgment of the trial court sustaining

the exception of no cause of action and dismissing the petition to annul the

testament of Joseph H. Miller, Jr. is affirmed. Costs of this appeal are

assessed to Darryl Michael Miller.

AFFIRMED.

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