Succession of Elmoses Ivey

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-653

SUCCESSION OF ELMOSES IVEY

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 42,935
HONORABLE THOMAS YEAGER, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Sylvia R. Cooks, Elizabeth A. Pickett, and Phyllis M. Keaty,
Judges.

AFFIRMED.

Terry Aubin
Aubin Law Firm
A Professional Corporation
3600 Jackson Street, Suite 107
Alexandria, LA 71303
(318) 561-7000
COUNSEL FOR DEFENDANT-APPELLANT:
Lois Ivey

J. Graves Theus
Christopher Kinnison
Theus Law Offices
Post Office Box 8432
Alexandria, LA 71301
(318) 541-8999
COUNSEL FOR PLAINTIFF-APPELLEE:
Mary Ivey Waters
William Ivey

PICKETT, Judge.

Testator’s widow appeals the trial court’s grant of summary judgment

declaring her husband’s last will and testament invalid because it does not satisfy

the legal requirements for a notarial testament. For the following reasons, we

affirm.

FACTS

In 1996, Elmoses Ivey executed his last will and testament in which he

bequeathed all of his property to his wife, Lois Ivey. He died in February 2016,

and Lois probated the will and obtained a judgment of possession. Shortly

thereafter, Mary Ivey Waters and William Ivey, Mr. Ivey’s children from a prior

marriage, filed suit, contesting the validity of Mr. Ivey’s will. Mary and William

then filed a motion for summary judgment, seeking a judgment declaring the will

null.

In their motion for summary judgment, Mary and William assert that the

attestation clause in Mr. Ivey’s will fails to satisfy the legal requirements of a

notarial testament; therefore, it is invalid. After conducting a hearing, the trial

court granted the motion for summary judgment and signed a judgment that

declared Mr. Ivey’s will invalid, annulled the judgment of possession, and

designated the summary judgment a final judgment as provided in La.Code Civ.P.

art.1915(B). Lois appealed.

DISCUSSION

In their motion for summary judgment, Mary and William identify the

following formalities required by La.Civ.Code art. 1577 that they claim Mr. Ivey’s

will does not include which renders the will null:

(1) The notarial attestation clause fails to state that the testator signed
the will at the end and on each other separate page in the
presence of the notary and witnesses;

(2) The notarial attestation clause fails to state that the testator
declared or signified in the presence of the notary and witnesses
that the instrument was his last will and testament;

(3) The notarial attestation clause does not clearly state that the
notary, witnesses[,] and testator executed the testament in the
presence of each other; and

(4) The declaration in the notarial attestation clause is made by the
testator, not the notary or the witnesses, which essentially
amounts to no attestation clause at all.

Lois appeals the trial court’s judgment and assigns a number of errors with

the trial court’s conclusion that Mr. Ivey’s will is null. These assigned errors

present the primary legal issue of whether the trial court properly granted summary

judgment in favor of Mary and William. To prevail on a motion for summary

judgment, the moving party must show that there are no genuine issues of material

fact and that he “is entitled to judgment as a matter of law.” La.Code Civ.P. art.

966(A)(3); Duncan v. U.S.A.A. Ins. Co., 06-363, p. 4 (La. 11/29/06), 950 So.2d

544, 547. “A fact is ‘material’ when its existence or nonexistence may be essential

to [the] plaintiff’s cause of action.” Smith v. Our Lady of the Lake Hosp., Inc., 93-

2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751. “A genuine issue of material fact is

one as to which reasonable persons could disagree; if reasonable persons could

reach only one conclusion, there is no need for trial on that issue and summary

judgment is appropriate.” Smitko v. Gulf S. Shrimp, Inc., 11-2566, p. 8 (La. 7/2/12),

94 So.3d 750, 755. Summary judgment is favored by law and provides a vehicle

by which the just, speedy, and inexpensive determination of an action may be

achieved. La.Code Civ.P. art. 966(A)(2).

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Currently, there are two forms of testaments in Louisiana: olographic and

notarial. La.Civ.Code art. 1574. An olographic testament is executed by the

testator in his own hand. La.Civ.Code art. 1575. The notarial testament must be

executed in accordance with the formalities of La.Civ.Code arts. 1577-1580.1,

which include notarization. La.Civ.Code art. 1576. The plaintiff in an action to

annul a notarial testament has the burden of proof. La.Code Civ.P. art. 2932(B).

Mr. Ivey executed his will in 1996 when more testamentary options were

available. His will was drafted to conform with the requirements provided in

former La.R.S. 9:2442. In 1997, our legislature revised the laws governing

testaments, and La.R.S. 9:2442 1 was repealed and replaced by La.Civ.Code art.

1577. Comment (a) to La.Civ.Code art. 1577 states, “This article reproduces the

substance of R.S. 9:2442. It does not change the law.”

Louisiana Civil Code Article 1577 requires that a notarial testament be

“prepared in writing and dated” and that it “be executed in the following manner[,]

[i]f the testator knows how to sign his name and to read and is physically able to do

both:

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Louisiana Civil Code Article 2442 provided, in part:

(B) The statutory will shall be prepared in writing and shall
be dated and executed in the following manner:

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

(2) In the presence of the testator and each other, the notary
and the witnesses shall then sign the following declaration, or one
substantially similar: “The testator has signed this will at the end
and on each other separate page, and has declared or signified in
our presence that it is his last will and testament, and in the
presence of the testator and each other we have hereunto
subscribed our names this ______ day of ____________, 19___.”

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(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 trial court agreed with Mary and William and found Mr. Ivey’s will to

be “fatally flawed” in the four respects identified in their motion for summary

judgment and concluded that the will is an absolute nullity.

In Successions of Toney, 16-1534 (La. 5/2/17), 226 So.3d 397, our supreme

court affirmed the lower courts’ findings that the attestation clause at issue therein

rendered the will absolutely null. Addressing the parties’ arguments, the supreme

court conducted a thorough review of the legal requirements of a notarial testament

and the jurisprudence deciding claims of nullity for failure to comply with

requirements previously set forth by La.R.S. 9:2442, now set forth by the

La.Civ.Code art. 1577. At the outset of its discussion, the supreme court restated

these long-held tenets of law applicable to wills:

There is a presumption in favor of the validity of testaments in general,
and proof of the nonobservance of formalities must be exceptionally
compelling to rebut that presumption. However, the Civil Code also
provides in no uncertain terms that “[t]he formalities prescribed for
the execution of a testament must be observed or the testament is
absolutely null.” La. Civ.Code art. 1573 (emphasis added).
Nevertheless, the codal article which provides the form requirements
for the notarial testament does contain an allowance that the mandated
attestation clause need only be “substantially similar” to the sample
declaration provided in statute[.]

Id. at 401 (citation omitted).

Continuing, the supreme court quoted with acceptance the first circuit’s

designation of “the three required elements of a valid attestation clause under
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La.R.S. 9:2442(B)(2), [now] La.Civ.Code art. 1577[,]” as set forth in Succession of

Brown, 458 So.2d 140, 143 (La.App. 1 Cir. 1984):

The attestation clause set forth in the statute . . . requires the notary
and witnesses to declare (1) the testator signed the will at its end and
on each separate page, (2) the testator declared in the presence of the
notary and witnesses that it (the instrument) was his will, and (3) in
the presences of the testator and each other, they (the notary and
witnesses) signed their names on a specified date.

Toney, 226 So.3d at 405.

The attestation clause in Mr. Ivey’s will reads:

SIGNED AND DECLARED by me, ELMOSES IVEY,
Testator, above named in our presence of the Testator and each other,
we have hereunto signed our names this 25th day of November, 1996.

/s/ Elmoses Ivey
ELMOSES IVEY
TESTATOR

WITNESSES:

/s/ Linda D. Westbrook

/s/ Linda J. Bohannan

/s/ Shelby E. Bohannon
SHELBY E. BOHANNON
NOTARY PUBLIC

Comparison of Mr. Ivey’s attestation clause to the requirements set forth in

Succession of Brown, 458 So.2d 140, clearly shows that it lacks two of those

requirements: (1) the declaration by the witnesses and notary that Mr. Ivey signed

the will at its end and on each separate page and (2) the declaration by the

witnesses and notary that Mr. Ivey declared to them that the document is his will.

As a result, the will is invalid.

Mary and William also assert that the attestation clause lacks the

requirement that the witnesses and notary declare in the presences of the testator

and each other that they signed their names on a specified date because Mr. Ivey,

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not the witnesses and notary, make the declarations contained therein. Lois

contends, however, that the inclusion of “me” in the clause is a typographical error

and should be read out of the attestation clause.

In Succession of Bilyeu, 28,701 (La.App. 2 Cir. 9/25/96), 681 So.2d 56, writ

denied, 96-2868 (La. 1/24/97), 686 So.2d 862, the court held that an incorrect

reference to the testator, who was a man, as “she” and “her” in the attestation

clause was a typographical error that did not nullify the will. After noting that “the

primary purpose of the attestation clause is merely to certify that, at the time of

execution of the testament, the statutory formalities have been satisfied,” the court

reiterated that when “the formalities have been satisfied, technical deviations in the

attestation clause should not defeat the dispositive portions of an otherwise valid

will.” Bilyeu, 681 So.2d at 58-59.

In Bilyeu, the alleged typographical errors were merely an inaccurate use of

pronouns referencing the testator’s sex; they did not change the meaning of the

sentence(s) in which they appeared and were not needed to satisfy the required

formalities of the will. That is not the case here. As written, the phrase “SIGNED

AND DECLARED by me, ELMOSES IVEY, Testator” indicates that Mr. Ivey is

the declarant. Without “me,” the sentence indicates that the witnesses and notary

are the declarants. Thus, treating “me” as a typographical error and ignoring it

completely changes the meaning of the sentence which is required to satisfy one of

the formalities of an attestation clause. As a result, treating “me” as a

typographical error is more than a technical deviation. Accordingly, Lois’s

argument lacks merit.

Even if we were to assume for purposes of argument that “me” is a

typographical error and delete it for purposes of our review, the clause lacks the

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first two mandatory requirements of an attestation clause. Accordingly, the will is

still null.

Lois urges that there is no need for rigid application of the attestation clause

requirements because there is no evidence of fraud herein. The supreme court

rejected this argument in Toney, 226 So.2d at 407, holding that the failure of an

attestation clause to substantially comply with the requirements of La.Civ.Code art.

1577 renders it absolutely null, “even in the absence of fraud.” The supreme court

further stated, “Any language in previous jurisprudence which suggested otherwise

is rejected[,]” making it clear that earlier jurisprudence which treated deviations

from the testamentary form requirements leniently when fraud was not an issue no

longer applies. Toney, 226 So.2d at 407.

The supreme court also rejected Lois’s argument that the trial court erred in

refusing to allow her to present the testimony of the witnesses and notary as to

what occurred when Mr. Ivey executed his will, explaining:

[A]s shown above, the testament itself failed to include the mandatory
elements specified in La.Civ.Code art. 1577. While extrinsic evidence
may be used to resolve ambiguity in a testament, extrinsic evidence
cannot cure a testament which is materially defective on its face. The
formalities prescribed for the execution of a testament must be
observed or the testament is absolutely null. La.Civ.Code art. 1573.
As the testament propounded in this case materially deviated from the
requirements of La.Civ.Code art. 1577 as described in detail above,
we find the lower courts correctly held that it is absolutely null.

Id. at 408 (footnote omitted) (italics emphasis added).

Mr. Ivey’s will does not substantially comply with the requirements of a

notarial will as set for the La.Civ.Code art. 1577 and former La.R.S. 9:2442;

therefore, it is invalid and null. We need not address each of Lois’s assignments of

error individually because the attestation clause of Mr. Ivey’s will does not satisfy

all the legal requirements set forth in La.Civ.Code art. 1577. Lois has failed to

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show that any material issue of genuine fact exists which precludes summary

judgment and that Mary and William are not entitled to judgment as a matter of

law. Accordingly, we affirm the grant of summary judgment.

DISPOSITION

The trial court’s judgment declaring Elmoses Ivey’s last will and testament

invalid and annulling the previous judgment of possession is affirmed. All costs

are assessed to Lois Ivey.

AFFIRMED.

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