Succession of Joseph Ames Guidry

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

06-1089

SUCCESSION OF JOSEPH AMES GUIDRY

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF ST. MARTIN, NO. 13554
HONORABLE PAUL J. DEMAHY, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Glenn B. Gremillion, Elizabeth A. Pickett, and J. David Painter,
Judges.

AFFIRMED.

Randy P. Angelle
Bernard & Angelle
224 St. Landry Street, Suite 2-F
P.O. Box 3265
Lafayette, LA 70502-3265
Counsel for Appellee:
William Jerry Guidry, Jr.

James L. Brazee Jr.
Brazee, Cormier & Gallaspy
2901 Johnston St., #206
Lafayette, LA 70503
Counsel for Appellant:
Gail Guidry

Pickett, Judge.

Intervenor, Gail Guidry, the only daughter of the deceased, Joseph Ames

Guidry, appeals a judgment of the trial court sustaining an exception of no right of

action and dismissing her intervention. We affirm the judgment of the trial court.

FACTS

Joseph Ames Guidry died on September 27, 2004. He had been married once,

to Ruth Hebert Guidry, which marriage ended in divorce. One child was born of the

marriage, the appellant, Gail Guidry. Before his death, Mr. Guidry executed three

notarial testaments, the first on March 28, 2001, the second on December 19, 2002,

and the third, the will at issue, on March 18, 2003. The first two testaments left the

whole of his estate to the Navy-Marine Corps Relief Society. The third and final

testament left the whole of his estate to his nephew, William Jerry Guidry Jr. That

testament was submitted for probate, in these proceedings, on October 4, 2004.

Thereafter, on November16, 2004, the intervenor/appellant, Gail Guidry filed

a “Petition To Annul Probated Testament” in these proceedings alleging that at the

time the third testament was executed, the deceased was in the advanced stages of

Alzheimer’s disease and thus lacked the capacity to execute a new testament and/or

that the universal legatee, William Jerry Guidry Jr., “exercised undue influence over

the decedent so as to substitute his own volition for that of the decedent.”

William Jerry Guidry Jr. filed a peremptory exception of no right of action on

February 17, 2006. The trial court sustained the exception and this appeal followed.

LAW AND DISCUSSION

Louisiana Code of Civil Procedure Article 681 states: “Except as otherwise

provided by law, an action can be brought only by a person having a real and actual

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interest which he asserts.” A persons who is not an heir of the testator can not

maintain an action to annul the testator’s will. Succession of Gardiner, 366 So.2d

1065 (La.App. 3 Cir.), writs denied, 369 So.2d 154, and 369 So.2d 156 (La.1979);

Succession of Wilson, 210 So.2d 602( La.App. 2 Cir.), writ refused, 252 La. 838, 214

So.2d 162 (La.1968), appeal dismissed, certiorari denied,89 S.Ct. 1465, 394 U.S.

713, appeal dismissed, certiorari denied, 89 S.Ct. 1470, 394 U.S. 713.

In Estate of Mallet v. Mallet, 527 So.2d 30 (La.App. 3 Cir.1988), writ denied,

528 So.2d 155 (La.1988) we stated the following:

C.C.P. art. 2972 provides:

“ ART. 2972. OPPOSITIONS

An opposition to the petition, motion, or other application
of a party to a succession proceeding for an order or
judgment of the court shall be in writing and be filed
within the delay allowed. It shall comply with the
provisions of Articles 853 through 863; shall state the
name, surname, and domicile of the opponent; shall allege
the interest of opponent in filing the opposition, and the
grounds for opposing the petition, motion, or other
application; and shall conclude with a prayer for
appropriate relief.”

For one to be allowed to oppose a succession proceeding, one
must have a justiciable interest in doing so. One must therefore be able
to benefit from the attack. Succession of Kilpatrick, 356 So.2d 1083
(La.App. 2nd Cir.1978), writ denied 359 So.2d 198 (La.1978), appeal
after remand, 422 So.2d 464 (La.App. 2nd Cir.1982), writ denied 429
So.2d 126 (La.1983). The interest may come in the form of being
named as executor of the estate, see Kilpatrick, supra, or as attorney for
a succession, see Succession of Pope, 230 La. 1049, 89 So.2d 894
(La.1956), or gaining an interest as an heir or legatee.

In the case sub judice, Gail Guidry would neither inherit nor share in any

inheritance from the testator, her father, even if the testament were annulled. The

Louisiana Supreme Court discussed the exception of no right of action in Badeaux

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v. Southwest Computer Bureau, Inc., 05-0612, pp. 6-7 (La. 3/17/06), 929 So.2d 1211,

1216-17:

[T]he focus in an exception of no right of action is on whether the
particular plaintiff has a right to bring the suit . . . .

The function of an exception of no right of action is a
determination of whether plaintiff belongs to the class of persons to
whom the law grants the cause of action asserted in the petition. La.
C.C.P. art. 927; Turner v. Busby, 03-3444, p. 4 (La.9/9/04), 883 So.2d
412, 415. The exception of no right of action serves to question whether
the plaintiff in the particular case is a member of the class of persons
that has a legal interest in the subject matter of the litigation. Id.

Inasmuch as she would not gain an interest as an heir of the legatee, she does not

belong to “the class of persons that has a legal interest in the subject matter of the

litigation.”

Accordingly, for the reasons stated, the judgment of the trial court is affirmed.

All costs of this appeal are assessed against appellant, Gail Guidry.

AFFIRMED.

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