Succession of George Collett

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-70

SUCCESSION OF GEORGE COLLETT

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APPEAL FROM THE
ELEVENTH JUDICIAL DISTRICT COURT
PARISH OF SABINE, NO. 60851
HONORABLE ROBERT EDWARD BURGESS, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and
Jimmie C. Peters, Judges.

AFFIRMED.

William Daniel Dyess
Dyess Law Firm, LLC
P. O. Drawer 420
Many, LA 71449
Telephone: (318) 256-5667
COUNSEL FOR:
Other Appellants - Naomi Ruth Collett Ebarb and Mary Lou Collett
Dayhuff

Charles David Soileau
730 San Antonio Avenue
Many, LA 71449
Telephone: (318) 256-0076
COUNSEL FOR:
Other Appellee - Marjorie L. Collett

THIBODEAUX, Chief Judge.

Appellants, Mary Lou Collett Dayhuff and Naomi Ruth Collett Ebarb,

claim that the trial court erred in its interpretation of their father’s testament, thereby

depriving Dayhuff and Ebarb of their portion of his estate. The testament, which pre-

dated the abolition of forced heirship, left the forced portion of his estate to his

children. Reasoning that the law in effect at the time of George Collett’s death

governed the succession rights of the parties, the trial court determined that one

hundred percent of George Collett’s estate belonged to Dayhuff and Ebarb’s mother,

Marjorie Collett. For the following reasons, we affirm.

I.

ISSUE

We shall consider whether the testator’s children, who were not forced

heirs at the time of the testator’s death, are entitled to the forced portion, where the

testator wrote his will prior to the abolition of forced heirship and died after the

legislature repealed a transitional provision that guided interpretation of wills written

prior to the abolition, and where the testator bequeathed the forced portion to his

children and the disposable portion to his wife.

II.

FACTS

George Collett died testate on August 14, 2007. His widow and three

children of their marriage survived him. At the time of George Collett’s death, none

of his children was a forced heir within the meaning of La.Civ.Code art. 1493.

In his April 28, 1988 testament, George Collett bequeathed to Marjorie

Collett “the disposable portion of all of the property” of which he died possessed, “of

any kind, whether movable or immovable, wherever located.” George Collett next

bequeathed to his three children “the forced portion of the property” of which he died

possessed, “of whatever nature, and wherever the same is located, share and share

alike, subject to the lifetime usufruct in favor of Marjorie L. Collett.”

During the probate proceedings, two of George and Marjorie Collett’s

children—Dayhuff and Ebarb—claimed entitlement to the forced portion of George

Collett’s estate. Dayhuff and Ebarb argued that George Collett’s intent, at the time

he wrote the will, was to bequeath the forced portion of his estate to his children.

Dayhuff and Ebarb also argued that Louisiana Supreme Court jurisprudence applying

the now-repealed transitional provision, La.R.S. 9:2501, should govern this case. The

trial court reasoned that the proper interpretation of the will involved application of

Louisiana law in effect at the time of the testator’s death. Because at the time of

George Collett’s death forced heirship was abolished, the trial court ruled that the

disposable portion bequeathed to Marjorie Collett was one hundred percent of George

Collett’s estate. This appeal followed.

III.

STANDARD OF REVIEW

When a court interprets a will, the court’s function is to determine and

carry out the intention of the testator. Adams v. Willis, 00-589 (La.App. 3 Cir.

11/2/00), 777 So.2d 5, writ denied, 00-3289 (La. 2/2/01), 784 So.2d 7. If the will is

not ambiguous, it must be carried out according to its written terms, without reference

to the external information. Id. Here, the parties did not argue that the will was

ambiguous. Thus, we shall determine George Collett’s intent from the language of

his testament. Interpretation of an instrument’s language is a question of law that this

court reviews to determine whether the trial court was legally correct. Cleland v. City

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of Lake Charles, 02-805 (La.App. 3 Cir. 3/5/03), 840 So.2d 686, writs denied, 03-

1380, 03-1385 (La. 9/19/03), 853 So.2d 644, 645.

IV.

LAW AND DISCUSSION

Over the last two decades there have been many changes in the law of

forced heirship, and the following is a brief overview that is relevant here. The

Louisiana constitution was amended in 1995 to abolish forced heirship with an

exception for children who were the age of twenty three or younger, or who were

permanently disabled at the time of the testator’s death. In re Succession of Boyter,

99-761 (La. 1/7/00), 756 So.2d 1122. The legislature also enacted a transitional

statute, La.R.S. 9:2501,1 that specified rules by which the courts should interpret the

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Prior to its repeal, the statute, as amended in 1997, read:

Construction of testaments executed prior to January 1, 1996

If a person dies testate after July 15, 1997, and the testament
is executed before January 1, 1996, then the testator's intent shall be
ascertained according to the following rules:

(1) That the testament shall be governed by the law in effect
at the time of the testator’s death in any of the following instances:

(a) When the testament manifests an intent to disinherit a
forced heir or to restrict a forced heir to the legitime under the law in
effect at the time of the testator’s death.

(b) When the testament leaves to the forced heir an amount
less than the legitime under the law in effect at the time the testament
is executed.

(c) When the testament omits a forced heir and the language
of the testament indicates an intent to restrict the forced heir to an
amount less than the legitime under the law in effect at the time the
testament is executed.

(2) That in all other instances the testament shall be governed
by the law in effect at the time the testament was executed.

(3) That the term forced heir, as used above, shall mean a
presumptive forced heir under the law in effect at the time the
testament was executed.

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testaments written prior to the change to ascertain the testator’s intent. Boyter, 756

So.2d 1122. Prior to its repeal in 2001, the Louisiana Supreme Court held that the

1996 version of La.R.S. 9:2501 was a mandatory statute applicable to all successions

where a person executed a will before January 1, 1996 and died after December 31,

1995. Boyter, 756 So.2d 1122.

By Act 560 of the Regular Session of 2001, effective June 22, 2001, the

Louisiana legislature repealed La.R.S. 9:2501 and included in La.Civ.Code art. 870

a provision that “[t]estate and intestate succession rights, including the right to claim

as a forced heir, are governed by the law in effect on the date of the decedent’s

death.” The legislature also added that

[w]hen a testament uses a term the legal effect of which has
been changed after the date of execution of the testament,
the court may consider the law in effect at the time the
testament was executed to ascertain the testator’s intent in
the interpretation of a legacy or other testamentary
provision.

La.Civ.Code art. 1611.

Dayhuff and Ebarb’s argument is two-fold. First, they argue that the

facts in this case and the facts in Boyter, where the supreme court declared La.R.S.

9:2501 mandatory, are similar. Thus, Dayhuff and Ebarb argue that we should apply

Boyter here, which leads to their inheriting the forced portion of George Collett’s

estate. Second, Dayhuff and Ebarb maintain that George Collett’s inclusion of the

language regarding the forced portion in his testament manifested his intent to leave

something to his children. Thus, because the testator’s intent is paramount, Dayhuff

and Ebarb assert that this court should award them the forced portion of the estate.

Dayhuff and Ebarb’s first argument turns on its head our long-cherished

legal principle that no law can survive the reasons on which it was founded. The

existence of La.R.S. 9:2501 was the reason for the Boyter decision. By the time

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George Collett died, the legislature repealed La.R.S. 9:2501. Therefore, the supreme

court’s application of the now-repealed statute in Boyter has no consequence in this

case.

We also find without merit the contention that George Collett manifested

a specific desire to leave a portion of his estate to his children by stating that he

wished to leave the forced portion to them. George Collett’s testament employed

terminology that has legal meaning. Thus, instead of using a numerical value, such

as one-half or some other fraction or portion of the estate, which would indeed signify

a desire to leave something to the children, the testament used legal terms, i.e.,

“forced portion” and “disposable portion.” What is “forced portion” and what is

“disposable portion” is to be decided according to the law in effect on the date of the

testator’s death. See La.Civ.Code art. 870. At the time of George Collett’s death, his

estate had no forced portion.

Finally, we conclude that even though the legal effect of the terms

George Collett used in his testament has changed after his execution of the testament,

Dayhuff and Ebarb are not entitled to any portion of his estate. The change in the

legal effect of the terms used in the testament is only one of several factors our courts

consider when they try to ascertain the testator’s intentions. The legislature’s use of

the permissive “may” instead of the mandatory “shall” when it suggested in

La.Civ.Code art. 1611 that the courts may consider the law at the time of the

testament’s execution if the legal effect of the testament’s terms changed, supports

this proposition.

Yet, even this factor is in favor of Marjorie Collett. Contrary to Dayhuff

and Ebarb’s assertions that George Collett’s reference to the forced portion in his will

signifies his intent to leave them a portion of his estate, George Collett’s use of this

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legal phraseology manifests his desire to leave his children only that which the law

required him to leave, whatever the law may be at the time of his death. Had George

Collett, in fact, wanted to leave his children some portion of his estate and not simply

that which the law required him to leave, he would have used terminology that does

not vary with the fluctuations in the law. Moreover, the absence of something other

than these legal terms demonstrates George Collett’s desire to leave his wife the

maximum portion of his estate the law allows. Thus, this court’s consideration of the

law in effect at the time George Collett executed his testament does not militate in

favor of Dayhuff and Ebarb’s claims. The trial court was eminently correct in its

interpretation of the legal effects of Mr. Collett’s testament.

V.

CONCLUSION

The trial court’s judgment in favor of Marjorie Collett is affirmed. Costs

of this appeal are assessed to Mary Lou Collett Dayhuff and Naomi Ruth Collett

Ebarb.

AFFIRMED.

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