Succession of Jo Beth Rettig Baggett

Judgment rendered May 21, 2025.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 56,266-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

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SUCCESSION OF
JO BETH RETTIG BAGGETT

*****

Appealed from the
First Judicial District Court for the
Parish of Caddo, Louisiana
Trial Court No. 644,021

Honorable Brady D. O’Callaghan, Judge

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THE TOUCHSTONE LAW FIRM, APLC Counsel for Appellant,
By: David Mark Touchstone Brenda F. Rhyns
Dylan David Touchstone

SHUEY SMITH LLC Counsel for Appellee,
By: Richard E. Hiller David E. Fite

ROBERT M. DAVIS, III

*****

Before THOMPSON, ROBINSON, and MARCOTTE, JJ.

MARCOTTE, J.

This civil appeal arises from the First Judicial District Court, Parish of

Caddo, the Honorable Brady O’Callaghan presiding. Appellant-Plaintiff,

Brenda F. Rhyns (“Rhyns”), seeks review of the part of the trial court’s

judgment evicting her from estate property and declaring that the decedent’s

notarial testament and codicil were deficient and null. Appellee answered

the appeal seeking damages for the filing of a frivolous appeal. For the

following reasons, the trial court’s judgment is affirmed. Appellee’s request

for damages is denied.

FACTS AND PROCEDURAL HISTORY

On May 18, 2023, David Fite (“Fite”) filed a petition for appointment

as administrator of the estate of the decedent, Jo Beth Rettig Baggett

(“Baggett”), who died intestate on August 25, 2022. Her husband

predeceased her, and she had no children by birth or adoption. Fite said he

was a creditor of the succession as he had trash picked up from the

decedent’s yard on a regular basis, and incurred costs and legal fees in

preparing and filing the petition. He also claimed that the devaluation of his

home resulted from Baggett’s home not having been kept in a proper

manner, in violation of his subdivision’s building restrictions. Fite was

appointed succession administrator.

On April 3, 2024, Fite filed a “Petition for Eviction and a Ruling to

Declare that the Purported Notarial Testament is Invalid.” The petition

named Rhyns as the defendant. The petition stated that Rhyns was Baggett’s

caretaker, and that the decedent was severely ill and unable to care for

herself in the days prior to her death. Fite said that Baggett owned a house

and lot located at 233 Clearwood Lane, Shreveport, Louisiana, and since her

death, Rhyns continued to reside in the house. Fite stated that Rhyns did not

file a petition to open the succession and that no one had attempted to

probate Baggett’s will.

Fite alleged that on September 1, 2022, Rhyns filed in the conveyance

records of Caddo Parish a document that purported to be a seven-page

notarial will of the deceased, which was dated March 16, 2021. The will

bequeathed $10,000 to Baggett’s friend, Arlene McEwen, and the remainder

of her estate she left to Rhyns. Fite argued that the purported will was

invalid because, although it was signed by Baggett and two witnesses, it was

not notarized.

Fite further alleged that on February 14, 2024, an “Affidavit of

Correction,” signed by Notary Public Janice V. Morgan (“Morgan”), was

also filed in the conveyance records of Caddo Parish. The affidavit was

dated March 23, 2023, and it declared that an error was made in Baggett’s

will. The affidavit stated (verbatim):

1. The error(s) made consist(s) of No signature on the
Attestation.

2. The correct information is that The Attestation is signed.

Rhyns filed a copy of Baggett’s will with the affidavit. In the copy of

the will, Morgan’s signature and the date, backdated to March 16, 2021,

appeared in the place for the notary’s signature and date. Fite also claimed

in his petition that Rhyns was not a relative or legatee of Baggett, therefore

she did not have any rights of ownership over the decedent’s assets. Fite

averred that he delivered to Rhyns a notice to vacate the Clearwood Lane

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property, but she had refused to do so. Fite asked the trial court to declare

the will invalid and order Rhyns to vacate the Clearwood Lane property.

On April 11, 2024, Rhyns filed a “Petition to Probate Testament, and

Codicil, with Rule Nisi to Remove Administrator, Recall Letters, and to

Appoint Brenda F. Rhyns as Executrix (or Administratrix).” Rhyns stated

that on March 18, 2021, two days after signing her purported will, Baggett

executed a codicil in notarial form leaving the entirety of her estate to Rhyns

and nominating her as executrix. The codicil also stated:

II. Terms. All other terms, conditions, statements, and requests
of the Last Will shall remain in effect. In every respect, I
hereby ratify, reaffirm and republish my Last Will dated the
16th day of March 2021.

The two-page codicil was signed by a notary and two witnesses, but

Baggett’s signature appeared only on the first page. The second page

included solely Morgan’s signature and the following attestation (verbatim):

On this 18 day of March 2021, personally appeared the
Testator, known as Jo Beth Baggett, of this Codicil and
acknowledged the foregoing to be her free act and deed, before
me.

Rhyns asked that the court declare that the will, the affidavit, and the

codicil together formed a valid last will and testament. Rhyns also asked the

trial court to remove Fite as the administrator and appoint her administratrix.

She contended that Fite was not a creditor of the estate because he held no

estate debt. Rhyns stated that she had paid taxes, utilities, and completed

maintenance on the house since Baggett’s death, making her a creditor of the

estate. Rhyns also filed an exception of no right of action with her petition,

alleging Fite did not qualify as a creditor of Baggett’s estate and had no right

to serve as administrator.

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On April 30, 2024, Fite filed an exception of no right of action

arguing that the purported will, affidavit, and codicil were not valid notarial

wills in accordance with La. C.C. art. 1577. Therefore, Rhyns did not have

the right to challenge his appointment as administrator. Fite discovered that

Baggett’s succession had not been opened and that a document purporting to

be her will was filed six days after her death in the conveyance records of

Caddo Parish. Fite learned that the purported will was not signed by a

notary.

On May 2, 2024, a trial was held on the validity of the will where the

following evidence was adduced. Rhyns testified that Baggett was her

mother’s boss, which was how the two knew each other. She said she did

not know if Baggett had any surviving relatives. Rhyns testified that she

became Baggett’s caretaker in 2016, and she moved into Baggett’s home on

Clearwood Lane about two years later to care for her.

Rhyns testified that Baggett decided to change her will. So, the

decedent wrote a will herself, and they called a traveling notary to her home

to sign it. On March 16, 2021, Johnnie Jackson (“Jackson”), Bertha Morris

(“Morris”), and Morgan went to Baggett’s home to witness and notarize

Baggett’s will. Rhyns witnessed Baggett, Jackson, and Morris sign the will.

She stated that she saw the three and Morgan sign the codicil two days later,

and it was Baggett’s intent to bequeath the entirety of her estate to Rhyns.

She later stated she did not know what the codicil contained at the time it

was signed. Rhyns stated that on September 1, 2022, about one week after

Baggett’s death, she filed the will into the conveyance records of Caddo

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Parish. She said that after she filed it, she realized the will was missing the

notary’s signature.

Rhyns testified that at the time Baggett wanted to execute her will, she

had just had a knee replacement, so she spent more time in bed, but she was

still able to move around and was mentally sharp. Rhyns said she was

present when Morgan signed the affidavit of correction and signed in the

vacant place for a notary’s signature on a copy of Baggett’s will. Rhyns said

that Baggett informed her that she had a previous will in which she left her

estate to her friend Louise, but she had not searched Baggett’s papers to find

the prior will.

Morgan testified that she was a licensed notary since 2004, and Rhyns

asked her to notarize Baggett’s will at her home on Clearwood Lane.

Morgan said that she witnessed Baggett sign every page of her will; she was

sitting in her bed at the time. Morgan stated that on March 16, 2021, she

saw Jackson and Morris sign as witnesses, but she unintentionally forgot to

sign the will as the notary.

Morgan said that two days later, she witnessed Baggett, Jackson, and

Morris sign the codicil, to which she affixed her signature. Morgan testified

that she prepared the codicil and reviewed it with Baggett. Morgan said she

executed the act of correction to revise her error in failing to notarize

Baggett’s will, and she notarized the will, backdating it. She said she did not

know if the will she signed was a copy. Morgan stated that Baggett signed

the first page of the codicil, but she did not sign the second page, which

contained only her signature as notary and an attestation clause. When

asked if she was aware that the acknowledgment said just that the testator,

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Baggett, appeared before her to sign the codicil, but did not mention the

witnesses, Morgan responded that she was exclusively responsible for

Baggett’s signature.

The court questioned Morgan about why a date appears next to each

signature in the will, and she responded, “Because it shows us … the date

that they signed it.” When the court asked Morgan if she signed the will on

March 16, 2021, she stated that she did not. When asked if she notarized

documents days after they were signed, she stated, “No.” She agreed with

the trial court that the most essential function of a notary is to sign in her

official capacity at the time a document is executed.

Morris testified that on March 16, 2021, she witnessed Baggett sign

her will and she affixed her own signature to the will after the decedent. She

also saw Jackson sign the will. She said Baggett was “chatty,” “friendly,”

and “of sound mind” at the time she signed her will. On March 18, 2021,

she watched Baggett sign the codicil and then she signed it. Jackson

testified that he witnessed Baggett execute her will and the codicil and he

signed both documents after she did.

Robert G. Foley (“Foley”) was accepted as an expert in the field of

forensics and document examination. Foley testified that Baggett’s

signatures on the documents he was asked to review were all the same.

After argument, the trial court adjudicated the will and codicil invalid.

The trial court said (verbatim):

[Morgan] had one job, sign and date the document and she
didn’t do it. And if we say that you don’t have to do that then
[La. C.C. art.] 1577 seems to be pretty meaningless. I mean, I

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read Liner.1 I’ve read Guezuraga.2 … But those are like the
language in the attestation clause is off. This is not that. This
is the notary didn’t notarize it. And is trying to say that two
years later, she can just literally put her signature with the date
it happened. I mean that, I’ve had my law clerk looking for a
way to try to remove her notary license. Because, to me,
backdating something like that is borderline criminal. She
didn’t write nunc pro tunc. She didn’t write, signing on this
date in place of that date. She executed it as though she signed
it that day.
….

[T]he whole point of the notary is to vouch for the witnesses
that they signed it. That there wasn’t a gun to the testator’s
head. That three people didn’t just … kind of strong arm this
person. If I find that person completely unworthy of belief,
then … that’s not a form of deviation. That is, there is no
notary. I mean, as far as I’m concerned, for legal purposes, this
is an un-notarized will, and the codicil doesn’t have the
attestation clause or the signature of the testator on the notarial
verification. And I’m not sure I would trust anything that Ms.
Morgan notarized, based on her conduct in my courtroom, to
argue with the court about what a signature’s date means….
[O]n the totality of the record, it’s entirely possible that this
was, in fact, Ms. Baggett’s intent.
….

[I]t is this court’s ruling that the will is such a grave deviation
from Article 1577 that the notary’s testimony left the court with
more questions about her as a vouchsafer [sic] of documents,
document authenticity, that I cannot give it legal effect. I
simply find that it is too defective, that the notary signature is
an essential part of the safeguarding against coercion, undue
influence, and fraud. I’m not saying that those were pled
specifically in this case, and I’m not making such a finding.
However, I do think that the notary’s contemporaneous and
simultaneous signature and attestation is only for the purpose of
protecting against fraud and all those other things. And,
therefore, to say that it’s merely technical would destroy the
requirements of the statute…. I am adjudicating the will
invalid.
….

[As to the codicil,] there is no signature on the attestation
clause…. [Morgan] prepared [the codicil] and she still put her
own signature page as a separate part of the document that’s

1
Succession of Liner, 19-02011 (La. 6/30/21), 320 So. 3d 1133.
2
Succession of Guezuraga, 512 So. 2d 366 (La. 1987).

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unsigned. So, it’s not like the testator wrote way too much stuff
to leave room for her to put an attestation clause. That
document could have been executed at any time, in any
location, and just attached. And given Ms. Morgan’s testimony
and demeanor in court, I have no confidence that it was done
contemporaneously.

On May 28, 2024, the trial court signed a judgment declaring that the

will, affidavit, and codicil did not meet the requirements for a notarial

testament under La. C.C. art. 1577 and were invalid and null. The trial court

also denied all relief Rhyns requested in her petition and exception of no

right of action. The trial court granted Fite’s exception of no right of action

and his rule nisi for eviction, ordering Rhyns to vacate the estate property by

May 31, 2024, at 5:00 p.m. Rhyns now appeals. Fite answered the appeal.

DISCUSSION

Validity of the Testament

In her first assignment of error, Rhyns states that the trial court erred

in invalidating Baggett’s will and declaring it null. Baggett argues that

notarial testaments should be construed liberally, and the testator’s intent is

the most important consideration in testamentary interpretation. Rhyns

argues that will formalities are to function as safeguards against fraud, and

where no fraud is alleged, they should not be used meticulously to thwart the

evident intention of the testator.

Rhyns contends that Baggett’s intent was clear; she had no remaining

family and wanted to leave her estate to Rhyns, her longtime friend. Rhyns

states that testimony showed that Baggett prepared her will herself, signed it,

had two witnesses watch her sign it, and then signed it themselves, all of

which a notary observed. Rhyns contends that the only defect in the will

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was that the notary did not sign it, a defect which was overcome by

testimony. Rhyns asks this court to reverse the trial court’s judgment.

In a will contest, an appellate court must accord great weight to the

factual findings of the trial court and cannot disturb such findings in the

absence of manifest error. Matter of Succession of Thomas, 55,972 (La.

App. 2 Cir. 12/18/24), 402 So. 3d 131. However, the trial court’s

interpretation and application of legal principles and statutory provisions are

legal findings subject to de novo review. Id.

The formalities prescribed for the execution of a testament must be

observed or the testament is absolutely null. La. C.C. art. 1573. Louisiana

Civil Code Article 1576 specifies that notarial wills are those “executed in

accordance with the formalities of Articles 1577 through 1580.1.” Louisiana

Civil Code Article 1577 states:

The notarial testament shall be prepared in writing and dated
and shall be executed in the following manner. If the testator
knows how to sign his name and to read and is physically able
to do both, then:

(1) In the presence of a notary and two competent witnesses, the
testator shall declare or signify to them that the instrument is his
testament and shall sign his name at the end of the testament
and on each other separate page.

(2) In the presence of the testator and each other, the notary and
the witnesses shall sign the following declaration, or one
substantially similar: “In our presence the testator has declared
or signified that this instrument is his testament and has signed
it at the end and on each other separate page, and in the
presence of the testator and each other we have hereunto
subscribed our names this ____ day of _________, ____.”

The notarial will is the codal successor of the statutory will.

Succession of Frabbiele, 24-00091 (La. 12/13/24), 397 So. 3d 391. Its

minimal formal requirements “provide a simplified means for a testator to

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express his testamentary intent and to assure, through his signification and

his signing in the presence of a notary and two witnesses, that the instrument

was intended to be his last will.” Id. at p. 4, 397 So. 3d at 395, quoting

Succession of Porche, 288 So. 2d 27, 30 (La. 1973). The Louisiana

Supreme Court stated that the primary motivation for enacting the codal

requirements for notarial wills was the prevention of fraud, but evidence of

fraud is not required to render a notarial will invalid for noncompliance with

the mandatory requirements. Succession of Frabbiele, supra.

In Matter of Succession of Thomas, supra, this court stated that the

purpose of prescribing formalities for the execution of wills is to guard

against mistake, imposition, undue influence, fraud or deception, to afford a

means of determining the will’s authenticity, and to prevent substitution of

some other writing in its place. In Succession of Roussel, 373 So. 2d 155

(La. 1979), the supreme court noted:

The fact that there is no fraud, or even suggestion or intimation
of it, will not justify the courts in departing from the statutory
requirements, even to bring about justice in the particular
instance, since any material relaxation of the statutory or codal
rule will open up a fruitful field for fraud, substitution, and
imposition.

Id. at 157.

The Louisiana legislature adopted the statutory, now notarial, will

from the common law to avoid the rigid formal requirements of the civil

law. Succession of Liner, supra. The validity of a testament should be

maintained through the liberal construction and application of the codal

articles, instead of a strict interpretation, if there is substantial compliance

with the codal provisions. Succession of Bruce, 20-239 (La. 1/27/21), 315

So. 3d 193; In re Succession of Holbrook, 13-1181 (La. 1/28/14), 144 So. 3d

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845. Given the presumption in favor of the validity of testaments, proof of

failure to comply with the formalities of testaments must be exceptionally

compelling to rebut that presumption. Id.

We agree with the trial court that Baggett’s purported testament does

not meet with the requirements of La. C.C. art. 1577. The lack of a notary’s

signature on the decedent’s will does not qualify as substantial compliance

with the codal provision and is a fatal flaw. This was not a deviation from

the recommended attestation language found in La. C.C. art. 1577; it was

one of the fixed requirements of the article. “In the presence of the testator

and each other, the notary and the witnesses shall sign” the attestation clause

found in Article 1577. Use of the word “shall” makes it imperative that the

notary sign the testament in the presence of the testator and two witnesses.

We find that this is a defect which cannot be corrected later by an act of

correction. In the context of testaments, signatures are notarized to prevent

fraud and to provide certainty in the testator’s intent.

Louisiana Revised Statute 35:2.1(A)(1)(a) stipulates that a clerical

error in a notarial act affecting movable or immovable property or any other

rights, corporeal or incorporeal, may be corrected by an act of correction

executed by the person who was the notary before whom the act was passed.

However, the act of correction must be executed before two witnesses and a

notary public. La. R.S. 35:2.1(A)(2). Even if Morgan’s affidavit of

correction was properly witnessed and notarized, which it was not, her

failure to sign the will was not a clerical error by which an act of correction

might overcome the requirement that a notary sign the testament in the

presence of the testator and two witnesses.

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We find that an unnotarized testament is invalid and null and that it

cannot later be corrected through an act of correction. The fact that there is

not a reported case challenging or questioning this holding is telling. It is

such an essential requirement that testaments be notarized in the presence of

the testator and two witnesses, that it shows that this holding is a core

standard by which notaries and courts have been guided. The trial court’s

judgment invalidating Baggett’s testament and finding it an absolute nullity

is affirmed.

Validity of the Codicil

In her second assignment of error Rhyns contends that the trial court

erred in finding that the codicil was not a legal notarial testament on its own.

Rhyns argues that if this court determines that Baggett’s will is invalid, then

the court should hold that the codicil is a valid notarial testament. She

argues that Baggett’s intent is clear on the face of the codicil, and no

reference to any extrinsic evidence is required. Rhyns says the codicil

contains attestations and was signed contemporaneously by a notary and two

witnesses two days after the will was signed, and it was signed by Baggett

immediately after the conclusion of the dispositive provisions, which is

sufficiently compliant with the form requirements for the testator’s

signature.

A codicil is an addition or qualification to a will and is considered part

of the will. In re Succession of Cannon, 14-0059 (La. App. 1 Cir. 3/25/15),

166 So. 3d 1097, writ denied, 15-0816 (La. 6/5/15), 171 So. 3d 948.

Louisiana Civil Code Article 1610 provides that modification of a testament

must be in one of the forms prescribed for testaments, either in notarial form,

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as found in La. C.C. arts. 1577 through 1580.1, or in the olographic form

prescribed in La. C.C. art. 1575. Louisiana Civil Code Article 1575 states

that an olographic testament is one entirely written, dated, and signed in the

handwriting of the testator. Baggett’s codicil was not written in her own

hand; therefore, Article 1575 is inapplicable.

Rhyns argues that the decedent’s codicil alone stands as her testament.

However, Article 1577 requires that the testator sign each page of her

testament. The supreme court, in Succession of Frabbiele, supra, said:

[La. C.C. art. 1577] Subsection (1) expressly requires a testator
to sign his name at the end and on each separate page of a
notarial will. There can be no dispute these provisions are
mandatory; thus, any departure from these mandatory
requirements constitutes a material deviation rendering a
notarial will invalid.

Id. at p. 6, 397 So. 3d at 396.

Baggett did not sign at the end of the codicil. That alone makes her

codicil invalid as an amendment to her will and as a testament. Article 1577

also requires the presence of an attestation clause which includes language

stating that the witnesses and notary declared that the instrument was her

testament and that, in the presence of the testator and each other, the two

witnesses and notary signed the testament.

The attestation to Baggett’s codicil stated, “On this 18 day of March

2021, personally appeared the Testator, known as Jo Beth Baggett, of this

Codicil and acknowledged the foregoing to be her free act and deed, before

me.” We find that such language is not substantially like what is contained

in Article 1577. The attestation did not indicate that Baggett declared, in the

presence of the notary and two witnesses, that the testament was her last will

and testament, or that all persons signed in the presence of each other,

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including the notary. Baggett’s codicil is insufficient and is a material

deviation from the codal requirements for a valid notarial testament. This

assignment of error lacks merit.

Rhyns’ final claim about her eviction from estate property is rendered

moot.

Answer to the Appeal

Fite answered the appeal seeking damages for the filing of a frivolous

appeal. He contends that during argument at the trial court, Rhyns’ counsel

acknowledged that he had not discovered jurisprudence that recognized the

validity of a notarial will that was not notarized. Fite asserts that Rhyns was

aware that she was not raising a serious legal question and filed the appeal

for delay purposes. Fite states that the lack of seriousness in Rhyns’ position

is further corroborated by Morgan’s actions in trying to correct the defect in

the will by preparing and executing her affidavit and backdating the will.

Fite asks that this court award damages as costs and attorney fees were

incurred in defending this appeal.

The appellate court shall render any judgment which is just, legal, and

proper upon the record on appeal. The court may award damages, including

attorney fees, for a frivolous appeal or application for writs, and may tax the

costs of the lower or appellate court, or any part thereof, against any party to

the suit, as in its judgment may be considered equitable. La. C.C.P. art.

2164. This provision is penal in nature and is to be strictly construed.

Fuller v. Pittard, 55,336 (La. App. 2 Cir. 11/15/23), 374 So. 3d 345, writ

denied, 23-01666 (La. 2/27/24), 379 So. 3d 663.

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Damages for a frivolous appeal are allowed only when it is obvious

that the appeal was taken solely for delay, that the appeal fails to raise a

serious legal question, or that counsel is not sincere in the view of the law he

advocates, even though the court is of the opinion that such a view is not

meritorious. Id. The award of damages and attorney fees for a frivolous

appeal is utilized to curtail the filing of appeals that are intended to delay

litigation, harass another party, or those that have no reasonable basis in fact

or law. Id. Appeals are always favored and, unless the appeal is

unquestionably frivolous, damages will not be allowed. Id.

This court does not find that Rhyns filed her appeal for the purpose of

delay. She filed a devolutive appeal, which in no way prevents or hinders

the administration of Baggett’s succession. We also do not find her appeal

to be frivolous. The facts surrounding Baggett’s invalidated will and codicil,

particularly regarding Morgan’s actions as notary, present a unique fact

pattern. Furthermore, it is apparent from the trial transcript that the trial

court did not believe Rhyns filed her claims with the court in bad faith or for

frivolous reasons, and we agree. We decline to award damages.

CONCLUSION

The trial court’s judgment is affirmed. All relief sought by appellee,

David E. Fite, is denied. The costs of the appeal are assessed to appellant,

Brenda F. Rhyns.

AFFIRMED.

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