C/W 2023-C-01452 succession of Bonny Babin Maloney

• Court: Supreme Court of Louisiana
• Decided: September 6, 2024
• Docket: 2023-C-01447
• Status: Published

Opinion

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #041

FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 6th day of September, 2024 are as follows:

BY Griffin, J.:

2023-C-01447 SUCCESSION OF BONNY BABIN MALONEY (Parish of Jefferson) C/W 2023-C-01452 AFFIRMED. SEE OPINION.

Hughes, J., dissents and assigns reasons. SUPREME COURT OF LOUISIANA

No. 2023-C-01447

c/w

No. 2023-C-1452

SUCCESSION OF BONNY BABIN MALONEY

On Writ of Certiorari to the Court of Appeal, Fifth Circuit, Parish of Jefferson

GRIFFIN, J.

We granted this writ to determine whether a no-contest clause in a will is

enforceable for an action taken outside the will’s succession proceeding. Under the

unique facts of this case and the language of the no-contest clause herein, we answer

in the affirmative.

FACTS AND PROCEDURAL HISTORY

Bonny Babin Maloney (“Mrs. Maloney”) was married to Robert Maloney, Sr.

until his death in June 2019. Mrs. Maloney died in May 2020. The couple had five

children including Robert, Jr., Kurt, Craig, and Julie.1

Robert, Sr. executed a notarial will in December 2012. Three codicils were

executed the year prior to his death. The first increased the property bequeathed to

Mrs. Maloney including Robert, Sr.’s one-half community interest in the family

home and added a no-contest clause. The second included additional bequests to

Mrs. Maloney that slightly reduced the inheritances of Robert, Jr. and Kurt. The

third made changes to the executors in the event Mrs. Maloney were unable to serve.

Upon Robert, Sr.’s death, Mrs. Maloney opened his succession and was

confirmed as independent executrix. A judgment of partial possession was rendered

 Retired Justice Jeanette T. Knoll, appointed Justice pro tempore, sitting for the vacancy in the

Third District. 1 Another daughter, Jeanie, is deceased. in August 2019 that placed Mrs. Maloney in possession of various assets including

the community property bequeathed to her in the first two codicils of Robert, Sr.’s

will. The family home and other assets then belonged solely to Mrs. Maloney, in

full ownership.

Mrs. Maloney subsequently executed a new Last Will and Testament

(“Testament”) in September 2019 to include the assets she inherited from Robert,

Sr. The Testament named Craig as independent executor. The Testament also listed

the family home as the separate property of Mrs. Maloney and bequeathed it in full

ownership to Julie. One quarter of Mrs. Maloney’s residual estate was bequeathed

to each of the surviving children. The Testament included a no-contest clause,

Article 13.1, which disinherits and revokes any legacy to any legatee or heir who

contests or challenges it, who seeks to impair or invalidate any provision of it, or “is

otherwise engaged in a controversy with or against the Executor of [Mrs. Maloney’s]

estate and which concerns her estate.”

Upon Mrs. Maloney’s death, Craig succeeded her as independent executor of

Robert, Sr.’s succession and was confirmed as independent executor of Mrs.

Maloney’s succession. Both successions remain open, and Craig remains the

executor in each.

In August 2020, Robert, Jr. and Kurt (collectively “Applicants”) filed a

petition in Robert, Sr.’s succession to annul the codicils, to vacate the judgment of

partial possession, and for injunctive relief averring various infirmities in execution

including lack of testamentary capacity. The petition named Craig as defendant in

his capacity as both the executor of Robert, Sr.’s estate and as the “succession

representative of Bonny Babin Maloney.” The petition sought to annul the bequest

made to Mrs. Maloney of Robert, Sr.’s community interest in the family home. A

temporary restraining order (“TRO”) was sought to prevent Craig, “from alienating,

[or otherwise] encumbering … any moveable or immovable property comprising the

2 estate of [Robert, Sr.] including but not limited to all property set forth in the

[judgment of partial possession]” – this included the family home bequeathed to

Julie in Mrs. Maloney’s Testament. The TRO was granted thus prohibiting Craig,

as executor of Mrs. Maloney’s estate, from placing Julie in possession of her

inheritance. The trial court ultimately ruled that Robert, Sr. had testamentary

capacity to execute the codicils. On subsequent motion by Craig as executor of

Robert, Sr.’s estate, the trial court disinherited Robert, Jr. and Kurt pursuant to the

no-contest clause in the first codicil of Robert, Sr.’s will.

Craig, as executor of Mrs. Maloney’s estate, filed a petition for declaratory

judgment in Mrs. Maloney’s succession seeking to enforce the no-contest clause in

Article 13.1 of Mrs. Maloney’s Testament. Craig later moved for partial summary

judgment against Robert, Jr. and Kurt arguing that by filing suit and obtaining a TRO

against him in Robert, Sr.’s succession in his capacity as executor of Mrs. Maloney’s

estate, effectively enjoined him from administering the assets of Mrs. Maloney’s

estate. The trial court granted judgment in favor of Craig finding that Robert, Jr. and

Kurt violated the no-contest clause in Article 13.1 by engaging in a controversy

against the executor of Mrs. Maloney’s estate that concerned her estate. Robert, Jr.

and Kurt were thus disinherited from Mrs. Maloney’s estate. The court of appeal

affirmed based on the clear and unambiguous language of the no-contest clause.

Robert, Jr. and Kurt filed separate writ applications to this Court which we

granted. Succession of Maloney, 23-1447 (La. 1/17/24), 376 So.3d 845; Succession

of Maloney, 23-1452 (La. 1/17/24), 376 So.3d 840.

DISCUSSION

The issue before this Court is whether partial summary judgment in favor of

Craig was appropriately granted under the language of the no-contest clause in Mrs.

Maloney’s Testament. Determination of whether the language of a will is clear and

unambiguous is a question of law subject to de novo review. Succession of Foster,

3 19-0209, p. 8 (La.App. 4 Cir. 7/31/19), 363 So.3d 505, 511. Similarly, the grant or

denial of a motion for summary judgment is reviewed de novo using the same criteria

as trial courts. Catzen v. Toney, 22-1261, p. 3 (La. 1/18/23), 352 So.3d 972, 974.

“A cardinal rule of the interpretation of wills is that the intention of the testator

as expressed in the will must govern.” Succession of Liner, 19-2011, p. 4 (La.

6/30/21), 320 So.3d 1133, 1137 (citing Soileau v. Ortego, 189 La. 713, 718, 180 So.

496, 497 (1938)). If the language of a will is clear and unambiguous, it must be

carried out as written – its letter is not to be disregarded under the pretext of pursuing

its spirit. See La. C.C. art. 1611(A). Absent the existence of a forced heir, a testator

is free to dispense of her estate in any manner and impose any conditions not contrary

to law or good morals. See La. C.C. arts. 1519 and 1528.

No-contest clauses, also known as in terrorem clauses, are testamentary

provisions that trigger the revocation of a bequest if a legatee contests a will. See

Succession of Scott, 05-2609, p. 3 (La.App. 1 Cir. 11/3/06), 950 So.2d 846, 848

(citing BLACK’S LAW DICTIONERY 819 (6th ed. 1990)). Such clauses are not

expressly prohibited under Louisiana law. 10 La. Civ. L. Treatise, Successions and

Donations, § 13.10 (citing Succession of Rouse, 144 La. 143, 80 So. 229 (1918)). A

no-contest clause that comports with La. C.C. arts. 1519 and 1528 is therefore valid

and enforceable.

Article 13.1 of the Testament, the no-contest clause at issue, provides in

relevant part:

I hereby specifically disinherit each and every legal heir of mine, and each and every legatee … under this Last Will and Testament … who at any time either (a) contests or challenges this [Testament], any codicils hereto, and any and all orders or judgments rendered in my succession or estate; or (b) seeks to impair or invalidate any of the provisions of this [Testament], any codicils hereto, and any and all orders or judgments rendered in my succession or estate; or (c) is otherwise engaged in a controversy with or against the Executor of my estate and which concerns my estate; or (d) conspires with or voluntarily assists anyone attempting to do any of the acts described in sections (a) through (c) of this Article 13.1…

4 Of particular significance is Article 13.1(c) which triggers the no-contest clause in

the event a legatee is “engaged in a controversy … against the Executor of [Mrs.

Maloney’s] estate and which concerns [her] estate.”

Applicants collectively argue that no-contest clauses should be strictly

construed and, in this instance, limited to a direct challenge to Mrs. Maloney’s

succession. Applicants further argue enforcement of overly broad no-contest clauses

would have a chilling effect on the ability of a legatee to challenge a will on grounds

of lack of testamentary capacity or statutory formalities. Applicants alternatively

argue summary judgment was inappropriate as genuine issues of material fact

remain as to Mrs. Maloney’s intent. Craig counters that the court of appeal correctly

concluded Article 13.1(c) of the no-contest clause is clear and unambiguous and

must be enforced as written. Craig elaborates the court of appeal found both prongs

of Article 13.1(c) were satisfied: 1) applicants engaged in a controversy against him

in his capacity as executor of Mrs. Maloney’s estate; and 2) the controversy

concerned Mrs. Maloney’s estate. Craig asserts Mrs. Maloney was free to impose

any condition in her testament provided it was not contrary to law or good morals –

there is no requirement that a no-contest clause be limited to direct challenges of a

given succession. We agree.

As a threshold matter, a court must determine whether a no-contest clause is

triggered by the actions of a legatee, i.e., is the no-contest clause applicable. See

Succession of Robinson, 52,718, p. 9 (La.App. 2 Cir. 6/26/19), 277 So.3d 454, 459;

Irina Fox, Penalty Clauses in Testaments: What Louisiana Can Learn from the

Common Law, 70 La. L. Rev. 1265, 1273 (2010). If an action does not amount to a

contest of a will, the no-contest clause is not triggered, and a court need not

determine its scope or enforceability. Fox, supra. Thus, in Robinson, 52,718, pp.

6-9, 277 So.3d at 457-59, the Second Circuit affirmed that a legatee’s action did not

5 violate a no-contest clause as “she was seeking a determination of what property

should be included as part of the estate, just as if she were traversing a detailed

descriptive list.” Where children of a testator sued a succession for settlement of the

community formerly existing between their father and mother, this Court held it was

“not a suit to fix the will of [the decedent]” such that “the provision in [the] will

declaring a forfeiture of inheritance … for contesting [the] will has no application.”

Rouse, 144 La. at 156, 80 So. at 234. Or, as succinctly stated in Succession of

Rosenthal, 369 So.2d 166, 178 (La.App. 4th Cir. 1979), a suit brought by a legatee

against an executrix arising out of a shortage of cash required for the payment of

succession debts was an “appropriate action to have the will properly administered”

and did not constitute “an attack on the will as contemplated by the testator.” Suits

meant to prevent the squandering of an estate by an executrix facilitate the

disposition of the estate according to a testator’s wishes. Fox, supra, at 1294. The

matter before us is distinguishable.

The clear and unambiguous language of Article 13.1(c) of Mrs. Maloney’s

Testament dictates that Robert, Jr. and Kurt – by obtaining a TRO against Craig in

Robert, Sr.’s succession in his capacity as executor of Mrs. Maloney’s estate – are

disqualified as legatees. As astutely observed by the court of appeal, Mrs. Maloney’s

inclusion of Article 13.1(c) clearly and unambiguously expressed her intent to

broaden the reach of the no-contest clause beyond actions or controversies brought

in the instant succession proceeding. Maloney, 22-571, p. 14, 374 So.3d at 156; La.

C.C. art. 1611(A); Giroir v. Dumesnil, 248 La. 1037, 1052, 184 So.2d 1, 7 (1966)

(“extrinsic evidence is only used to resolve ambiguity, “not to rewrite [a] will or do

violence to its terms”); see also Kazan v. Red Lion Hotels Corp., 21-1820, pp. 3-4

(La. 6/29/22), 346 So.3d 267, 270 (insurance policy may be general without being

ambiguous). Disputes or controversies brought in Mrs. Maloney’s succession are

covered by Article 13.1(a) and (b) whereas the language of Article 13.1(c) reflects

6 an intention for broader application to include any disputes or controversies against

her executor concerning her estate – to conclude otherwise would render Article

13.1(c) superfluous. Maloney, 22-0571, p. 13-14, 374 So.3d at 155 (further

observing the “phraseology [of Article 13.1] conveys mutually exclusive scenarios

and an intent to recognize the different meanings of ‘succession’ and ‘estate’”). The

TRO effectively sought to remove property from Mrs. Maloney’s estate and prevent

Craig from administering her estate and the specific bequests contained in her

Testament. Id., 22-0571, p. 16, 374 So.3d at 156. The practical result of which

would allow Applicants to do indirectly what they could not do directly.

Having affirmed on the narrower grounds of Applicants obtaining a TRO

against Craig in his capacity as Mrs. Maloney’s executor, we pretermit

determination of whether an unsuccessful action against the validity of a will based

on a lack of testamentary capacity or deficiency of requisite statutory formalities

results in enforcement of a no-contest clause. It has been observed that “where the

principal dispositions of the will … have nothing of public import in them, and where

the right against which the penal clause operates is only of a private or pecuniary

nature, the penalty is good and if an attack is made it will operate to divest the

unfortunate litigant of his share.” Wood Brown, Provisions Forbidding Attack on a

Will, 4 Tul. L. Rev. 421, 423 (1930). However, “if the principal disposition is against

good morals, then the penal clause automatically becomes against good morals also,

since it is surely … to the public interest that such dispositions in wills be attacked.”

Id. It is thus argued that the absence of any leeway for challenging a will in good

faith creates a chilling effect against bringing an action as “no one can be sure that a

disposition is actually against law or morals until the court has decided the point.”

Id. at 424-25. A resulting balance suggests “a no-contest clause does not foster the

probate of invalid wills” as “a successful challenge will invalidate the will, making

the no-contest clause of no consequence” whereas the existence of “a no-contest

7 clause will generally prevent frivolous challenges that may exhaust the estate.”

Succession of Laborde, 17-1334, p. 5 (La.App. 1 Cir. 5/31/18), 251 So.3d 461, 464

n. 1 (citing Smithsonian Institution v. Meech, 169 U.S. 398, 415, 18 S.Ct. 396, 402-

03, 42 L.Ed 793 (1898)); see also Brown, supra at 424-25 (“there is nothing more

worthy than the wish of the testator to prevent wrangling in the courts among his

heirs”) (citation omitted). One commentator has advocated for Louisiana courts to

adopt a modified common law approach allowing for good faith, probable cause

exceptions wherein courts consider an action contesting a will on a spectrum: “the

more serious and public-policy implicating the allegation, the less showing should

be required by the beneficiary.” Fox, supra, at 1298; Anne Marie Guglielmo, In

Terrorem Clauses: Do They Really Work?, 26 Westchester B.J. 19, 21 (1999)

(“balance between allowing a testator to discourage pesky contestants and providing

an avenue for legitimate contests where fraud, undue influence or forgery seem

likely”). We leave this question for another day noting that – in the interim – our

legislature may wish to evaluate whether public policy dictates that specific statutory

exceptions precluding the operation of no-contest clauses should exist based on the

nature of a legatee’s action in contesting a will.

DECREE

For the foregoing reasons, the grant of partial summary judgment is affirmed.

AFFIRMED

8 SUPREME COURT OF LOUISIANA

No. 2023-C-1447

On Writ of Certiorari to the Court of Appeal, Fifth Circuit, Parish of Jefferson

Hughes, J., dissents.

I respectfully dissent. There is no authority in Louisiana law to support a no-

contest clause in a will. 10 La. Civil Law Treatise, Successions and Donations,

§13.10 cites two cases: Succession of Rouse, a 1918 case to settle community

property from a prior marriage, and Succession of Rosenthal, where the tableau of

distribution was attacked, not the will. Neither upholds a no-contest clause.

It is argued that even though there is no authority to support such a clause,

they are not “expressly prohibited.” Many things are not expressly prohibited. But

these clauses are immoral and contrary to civilian principles. Civilian law, unlike

common law, is expressly provided for, in a Code. And immoral, because they

preemptively deny access to the courts, which is not only immoral but violative of

the constitutional guarantees of due process.

Further, these clauses should not be allowed to extort compliance with one

party’s view of the will of the testator, which is best honored by open and honest

examination. Nor is the argument persuasive that “frivolous” claims would consume

the estate. There are remedies for those who would pursue frivolous claims, and to

assume that they would be allowed is to promote an unprofessional if not unethical

view of attorneys and judges.