Succession of Joseph Calvin Tauzin

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 21-533

SUCCESSION OF JOSEPH CALVIN TAUZIN

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APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 20-P-3860-B
HONORABLE ADAM GERARD CASWELL, DISTRICT JUDGE

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BILLY H. EZELL
JUDGE

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Court composed of Elizabeth A. Pickett, Billy H. Ezell, and Jonathan W. Perry,
Judges.

Perry, J., dissents and assigns reasons.

AFFIRMED.

Thomas M. Lockwood
7901 Wrenwood Blvd., Suite A
Baton Rouge, LA 70809
(225) 769-6799
COUNSEL FOR APPELLEE:
Nina Tauzin Opperman

Carmen T. Hebert
J. Jacob Chapman
400 Convention St., Suite 550
Baton Rouge, LA 70802
(225) 282-0602
COUNSEL FOR APPELLANT:
Deeya L. Tauzin

Ogden L. Pitre
Pitre Law Firm
511 E. Landry Street
Opelousas, LA 70570
(337) 924-1991
COUNSEL FOR APPELLEE:
Succession of Joseph Calvin Tauzin

Guy Tauzin
In Proper Person
490 Highway 31
Arnaudville, LA 70512

EZELL, Judge.

In this succession proceeding, Deeya L. Tauzin, daughter of Joseph Calvin

Tauzin, appeals the trial court’s judgment granting summary judgment in favor of

her sister, Nina Tauzin Opperman, and rejecting probate of a purported olographic

testament.

FACTS

Joseph Tauzin died on October 12, 2020, in St. Landry Parish. His daughter,

Deeya, filed a petition for probate of an olographic will dated September 8, 2015.

She also requested that she be appointed executrix on October 26, 2020. A

different daughter, Nina, filed an objection to and motion to dismiss the petition on

October 28, 2020. Nina subsequently filed a motion for summary judgment on

April 6, 2021, arguing that the purported will lacked testamentary intent.

A hearing on the motion was held on May 17, 2021. Following the hearing,

the trial court rendered judgment granting the motion for summary judgment by

rejecting and precluding from probate the September 8, 2015 writing, finding a

lack of testamentary intent on the face of the document. Deeya then filed the

present appeal.

SUMMARY JUDGMENT

Deeya argues that summary judgment should be reversed because the

September 8, 2015 writing by Joseph Tauzin satisfies the requirements for an

olographic will.

Summary judgment procedure is favored and “is designed to secure the just,

speedy, and inexpensive determination of every action . . . and shall be construed

to accomplish these ends.” La.Code Civ.P. art. 966(A)(2). In reviewing the trial

court’s decision on a motion for summary judgment, this court applies a de novo

standard of review. Jackson v. City of New Orleans, 12-2742, 12-2743 (La.

1/28/14), 144 So.3d 876, cert. denied, 574 U.S. 869, 135 S.Ct. 197 (2014).

The burden of proof is on the mover unless the mover will not bear the

burden of proof at trial, in which case the mover is not required to negate all

essential elements of the adverse party’s claim, but only to point out to the court

the absence of factual support for one or more of the elements necessary to the

adverse party’s claim. La.Code Civ.P. art. 966(D)(1). “The burden is on the

adverse party to produce factual support sufficient to establish the existence of a

genuine issue of material fact or that the mover is not entitled to judgment as a

matter of law.” Id.

“After an opportunity for adequate discovery, a motion for summary

judgment shall be granted if the motion, memorandum, and supporting documents

show that there is no genuine issue as to material fact and that the mover is entitled

to judgment as a matter of law.” La.Code Civ.P. art. 966(A)(3).

A fact is material if it potentially ensures or precludes recovery,
affects a litigant’s ultimate success, or determines the outcome of the
legal dispute. 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.

Jackson, 144 So.3d at 882.

Olographic testaments are recognized and established by La.Civ.Code art.

1575. In addition to the form requirements required by La.Civ.Code art. 1575, an

olographic will must evidence testamentary intent. Succession of Enos, 20-329

(La.App. 3 Cir. 12/16/20), 310 So.3d 236.

“A valid olographic testament must do more than express or explain the

wishes or desires of a decedent; the document must show intent to convey the

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decedent’s property by the instrument itself.” In re Succession of Cannon, 14-59,

p. 5 (La.App. 1 Cir. 3/25/15), 166 So.3d 1097, 1102, writ denied, 15-816 (La.

6/5/15), 171 So.3d 948. “A paper is not established as a person’s will merely by

proving that he intended to make a disposition of his property similar to or even

identically the same as that contained in the paper. It must satisfactorily appear that

he intended the very paper to be his will.” Id. “Simply stated, not every

instrument that one writes, signs, and dates is a last will and testament; the author

must[:] intend for the instrument to serve that purpose, and that intent must be

evident on the face of the document.” Id. “The document must be read as a whole

to determine whether the necessary testamentary intent was present when it was

executed.” Id. at 1104-05. “In the absence of testamentary intent, there cannot be

a will.” Succession of Tedeton, 51,507, p. 6 (La.App. 2 Cir. 9/27/17), 243 So.3d

1226, 1230.

The handwritten document at issue provides:

To whom it may concern

[Initials] 9-8-2015

On May 28, 1930 I was born of the Union of Anicet Tauzin and
Therese Robin and subsequently baptized at St. Leo the Great
Catholic Church in Leonville, La. USA. I, having grown up to
maturity and very recently been declared sane by numerous
professionals that can be substantiated by document in the possession
of my attorney Antonio Birotte and also my youngest daughter Deeya
Tauzin Ray. I pledge all of my eartly [sic] belongings and cash, and
certainly including the real estate which I co-own with my, soon to be
former wife, Anna Belle Taylor Tauzin to Deeya Tauzin Ray. This
pledge is with conditions. First condition is that in no way will any
part of my estate be granted directly or indirectly to any person who is
not a descendant of myself and not former in-laws.

[Signature]
Dated 9-8-2015

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Reading the statement as a whole, we agree that it does not establish

testamentary intent. The writing does not contain the very language you normally

see in a will to convey that it is a last will and testament other than to say that

Joseph had the capacity when he signed the document. There is no clear intent that

Joseph was disposing of his assets when he dies. The writing does not mention

that it is a will nor that there is to be a disposition upon his death. Joseph merely

pledged his assets to Deeya; he did not leave or give them to her upon his death.

The word “pledge” is more commonly used to establish a security interest.

La.Civ.Code art. 3138. A “pledge” is defined as a real right over property to

secure performance of an obligation. La.Civ.Code art. 3141. It is more in the

nature of a deposit or guarantee.

Reading the document as a whole, we find that the document does not

establish the necessary testamentary intent. We affirm the trial court’s grant of

summary judgment in favor of Nina Tauzin Opperman rejecting and precluding

from probate the writing dated September 8, 2015. Costs of this appeal are

assessed to Deeya Tauzin.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Uniform Rules—Courts of Appeal, Rule 2-16.3.

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STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

21-533

SUCCESSION OF JOSEPH CALVIN TAUZIN

PERRY, Judge, dissenting.

I respectfully dissent from the majority opinion in that I do believe the

document in question does illustrate testamentary intent such that it is a valid

olographic will.

Olographic wills are generally written without the assistance of an attorney;

thus, the wording used to express testamentary intent is generally not expressed in

legalese. With a document that is written without counsel, the “law is indulgent in

such cases. It exempts language from technical restraints and obeys the clear

intention however informally conveyed.” Carter v. Succession of Carter, 332 So.2d

439, 422 (La.1976); see La.Civ.Code art. 1612.

The form of the document is not being contested. The document’s language

and structure must be looked at to determine if there is intent. It is the intent of

Mr. Tauzin that is under examination. If the form is not questioned, then the

language within the four corners of the document become paramount in determining

Mr. Tauzin’s intent. In re Succession of Bernstine, 04-739, p. 4 (La.App. 3

Cir. 12/22/04), 890 So.2d 776, 779 (extrinsic or parol, evidence cannot be used to

establish the testator’s intent”). It is my position the words “pledge” and “my estate”

strongly show testamentary intent.

It has been put forth by the majority that the word pledge is defined as a real

right over property to secure performance of an obligation. Slip opinion at 4. Are

we to really think that Mr. Tauzin was thinking about securing the performance of

an obligation when he used the word pledge? I submit that was not his intent.

It is my position Mr. Tauzin’s use of the term “my estate” shows clear intent

the document was his Last Will and Testament. In what other “legal” documents

does a lay person use the term “my estate” but for a Will?

The genesis of an olographic will is allowing a person to hand write their last

wishes, desires, and intent without the assistance of anyone else. If a person does

not use normal or routine legal words that does not deplete the intent of the writer.

Contrary to the majority, I would reverse the trial court, finding Mr. Tauzin’s

writing expresses testamentary intent; thus, the opponent to the will’s validity is not

entitled to judgment as a matter of law. For these reasons, I respectfully dissent.

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