In the Matter of the Succession of Otis Thomas

• Court: Louisiana Court of Appeal
• Decided: December 18, 2024
• Docket: 55,973-CA
• Status: Published

Opinion

Judgment rendered December 18, 2024. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.

No. 55,973-CA

COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA

***** IN THE MATTER OF THE SUCCESSION OF OTIS THOMAS

***** Appealed from the Fifth Judicial District Court for the Parish of Franklin, Louisiana Trial Court No. 47,937

Honorable Stephen G. Dean, Judge

*****

MICHAEL W. KELLY Counsel for Appellants, Stephanie Foy Wilhite and Kimona Arthur Guillory

E. MICAH HOGGATT Counsel for Appellee, Daryl Higgins

MICHAEL R. ELLINGTON Counsel for Appellees, Siblings of Mabel Lawrence Thomas, Leah Lawrence Watson, Freddy Lawrence and Sherman Lawrence

CAREY ELLIS, III Counsel for Appellees, Siblings of Otis Thomas, Willie Thomas, David Thomas, Frank Thomas, and Alfred Thomas

Before PITMAN, COX, and ROBINSON, JJ. COX, J.

These civil appeals arise from the Fifth Judicial District Court,

Franklin Parish. Three docket numbers were assigned at the trial court

pertaining to the successions of Otis Thomas and Mabel Lawrence Thomas,

husband and wife. Mabel’s siblings filed a petition to open her intestate

succession in the case underlying Docket No. 55,972-CA; two of Otis’s

putative children filed to establish paternity, and his siblings petitioned the

trial court to name one of his brothers as the independent administrator in the

case underlying Docket No. 55,973-CA; and Otis’s putative children filed a

petition to probate two notarial testaments executed by Otis and Mabel on

May 22, 2012, in the case underlying Docket No. 55,974-CA.

Otis’s putative children, Stephanie Wilhite and Kimona Guillory,

(hereinafter referred to as “the Children”) appeal the trial court’s judgment

ruling the two notarial testaments executed by Otis and Mabel were invalid

and null. For the following reasons, we affirm the trial court.

FACTS

No children were born of the marriage between Otis and Mabel

Thomas. Mabel died on November 5, 2021, and Otis died on April 25,

2022. The following three suits were filed after their deaths:

Docket No. 55,972-CA (Trial Court No. 47,936C)

On April 25, 2022, Leah Watson (“Leah”), Mabel’s sister, filed a

notice of application for appointment of administratrix of Mabel’s

succession in accordance with La. C.C.P. arts. 3091 and 3093. On May 18,

2022, the Children also filed a request for notice of application for

appointment of administrator or administratrix. On October 19, 2022, Leah, Freddy Lawrence, and Sherman

Lawrence filed a petition for appointment of administrator. They requested

that Elbert Lawrence be appointed as administrator of Mabel’s succession.

On November 14, 2022, the Children filed an objection to the

appointment of administrator. They alleged that Mabel died testate, the

testament was filed under a separate docket number (No. 48,161), and

Stephanie was appointed independent executrix of both Otis’s and Mabel’s

successions.

Docket No. 55,973-CA (Trial Court No. 47,937C)

On April 25, 2022, Leah filed a notice of application for appointment

of administratrix of Otis’s succession in accordance with La. C.C.P. arts.

3091 and 3093. On May 18, 2022, the Children also filed a request for

notice of application for appointment of administrator or administratrix.

On June 20, 2022, the Children filed a petition to establish filiation.

They stated that Otis died intestate; his May 22, 2012 will was invalid; and

he had affairs with their respective mothers nine months before they were

born. The Children requested blood/tissue samples from Otis’s brothers to

determine paternity.

On September 16, 2022, Willie Thomas, Otis’s sibling, filed an

application to be appointed administrator of Otis’s succession. The trial

court signed an order appointing Willie as administrator on September 19,

2022.

On October 28, 2022, Ladarrell Jerrell Higgins filed a petition to

establish filiation. He alleged that Otis had a romantic relationship with his

mother nine months before he was born and requested blood/tissue samples

from Otis’s siblings to determine paternity. Higgins included the affidavit of 2 his mother. She stated that Otis was Higgins’ father, and Otis acknowledged

to Frank Thomas that Higgins was his son.

On February 3, 2023, the Children filed a motion to amend the

petition to establish filiation and consolidate their suits with No. 48,161.

They stated that they held a familial relationship with Mabel as their mother

and a familial and biological relationship with Otis as their father. They

sought to amend their filiation petition to state that Otis left a valid will, and

they were uncertain of the biological relationship between Otis and his

brothers. The Children stated that they were named and acknowledged as

daughters of Otis in his will.

Docket No. 55,974-CA (Trial Court No. 48,161)

On October 4, 2022, Stephanie filed a petition for probate of

testament and independent administration of Otis’s and Mabel’s successions.

Otis stated in his two-page last will and testament, “I have two children,

namely: Stephanie Foy and Kimonia Guillory. No other children were born

to me, and I have neither acknowledged any other children, either formally

or informally, nor have I ever adopted any other children.”1 He stated that if

Mabel predeceased him, then he leaves “all that I die possessed of [sic]

Stephanie Foy, Kimonia Guillory, Morgan Hill, and Andrea Delone Estes to

share and share alike in equal parts.” The attestation clause provided the

following:

This will, consisting of two (2) pages, has been prepared and typewritten under my direction for execution in accordance with the provisions of La Rev Stat § 9:2442, and, accordingly, has been signed by me, Otis Thomas, testator, on the date first above written, in the presence of the undersigned notary public and witnesses, after due presentation and declaration by me,

1 Kimona’s name is also spelled “Kimonia” in the record. 3 Otis Thomas, testator, that this is my last will and testament and I have signed my name at the end of the will and on each page.

Mabel’s last will and testament is almost identical to Otis’s will.

However, Mabel stated that she did not have any children. She left

everything to Otis; and if he predeceased her, she left everything to

Stephanie Foy, Kimonia Guillory, Morgan Hill, and Andrea Delone Estes.

The attestation clause in her will provided the following:

This will, consisting: of two (2) pages, has been prepared and typewritten under my direction for execution in accordance with the provisions of La Rev Stat § 9:2442, and, accordingly, has been signed by me, Mabel Lawrence Thomas, testator, on the date first above written, in the presence of the undersigned notary public and witnesses, after due presentation and declaration by me, Mabel Lawrence Thomas, testator, that this is my last will and testament and I have signed my name at the end of the will and on each page.

Both wills were signed by two witnesses and a notary, attorney C. Arnold

Lain.

On October 11, 2022, Stephanie was appointed and confirmed as

testamentary independent executrix of both successions. On October 18,

2022, Leah filed an ex parte motion to set aside the order, arguing that an

action between identical parties has already commenced under Docket Nos.

47,936 and 47,937. She requested that the order appointing Stephanie as

administrator be set aside. The trial court signed the order setting aside the

appointment of Stephanie effective immediately.

A hearing was held on November 14, 2022, for all three docket

numbers. All parties agreed to provide an accounting for any assets in their

possession or control, and the validity of the testaments would be argued at a

later hearing.

4 On February 9, 2023, a hearing was held regarding the validity of the

wills. Arnelia Short testified that she witnessed Otis’s will on May 22,

2012, in Attorney Lain’s office. Ms. Short stated that she saw Otis sign the

will on both pages, she was presented with the document, and the document

was read aloud. She testified that Otis seemed to be aware of what was

going on during the signing, and she did not recall anything being “out of

order” that day. On cross-examination, Ms. Short stated that the last clause

did not include the words “our,” “each other,” or “we.”

Grace Blount testified that she knew Otis and Mabel and suggested to

Mabel that they come into her office and have their wills done. Ms. Blount

was a secretary for Attorney Lain. She testified that she witnessed Otis’s

will and was present when he signed both pages. She stated that she was

presented with the will, and it was read aloud. Ms. Blount stated that Otis

appeared to understand what was being read to him, and there did not appear

to be any stress or fraudulent activity that day. Ms. Short and Ms. Blount

agreed that the people present at the time of the signing were themselves,

Mr. Lain, Otis, and Mabel.

Elbert Lawrence testified that he took Mabel to the hospital on the day

she passed away. He stated that after Mabel passed away, they found her

2012 will, and the envelope in which the will was found had “cancel”

written on it. He testified that Mr. Wilhite was the one to show him the

envelope with “cancel” written on it. He stated that he was not certain how

many wills were in the envelope, but he knew Mabel’s 2012 will was inside.

The attorneys submitted briefs regarding the validity of the wills. On

October 19, 2023, the trial court issued its judgment and written reasons for

5 judgment declaring the wills to be invalid or absolutely null. The trial court

stated the following:

Having considered these memoranda and the statutes and case cited therein, in light of the language and wording of the Wills themselves and the testimony received at the hearing on this Motion to Rescind, the Court is of the opinion that each of the Wills lacks a declaration, or “attestation clause”, in the language of article 1577 or substantially similar thereto, by the notary and witnesses to each of the respective Wills.

Each of the Wills are therefore declared to be absolutely null pursuant to the provisions of Civil Code Article 1573.

Accordingly, all orders previously entered in Docket Number 48161 will be rescinded and withdrawn, and all proceedings under Docket Number 48,161 are terminated and closed.

Any and all future matters concerning the Succession of Otis Thomas or Succession of Mabel Thomas shall be filed in the respective matter to which it applies under either Docket Number 47,936 or Docket Number 47,937.

All costs of court associated with the filing of docket number 48161 and necessitated thereby shall be cast against Stephanie Foy Wilhite and Kimona Arthur Guillory.

The Children now appeal.

DISCUSSION

Attestation Clause

The Children argue that the wills executed by Otis and Mabel

substantially comply with the attestation clause requirements set forth in La.

C.C. art. 1577. They argue that Otis and Mabel placed everyone on notice

of their wishes to dispose of their property in their wills, which were done by

authentic act. They submit that the attestation clauses in both wills, which

are identical, are sufficient to meet the requirements in La. C.C. art. 1577.

Appellees assert that the attestation clauses were not an attestation by

the notary and witnesses to wills. They argue that the attestation clause

before this Court is not an attestation clause. They state that because there is 6 no declaration by the notary and witnesses, as required by art. 1577, both

wills are invalid. They argue that an attestation clause of a testator cannot be

substituted as an attestation clause for the notary and witnesses.

In a will contest, an appellate court must accord great weight to the

factual findings of the trial court and cannot disturb such findings in the

absence of manifest error. Succession of Rogers, 51,267 (La. App. 2 Cir.

9/27/17), 243 So. 3d 1209. However, the trial court’s interpretation and

application of legal principles and statutory provisions are legal findings

subject to de novo review. Id.

The formalities prescribed for the execution of a testament must be

observed or the testament is absolutely null. La. C.C. art. 1573. A notarial

testament is one that is executed in accordance with the formalities of

Articles 1577 through 1580.1. La. C.C. art. 1576. The purpose of

prescribing formalities for the execution of wills is to guard against mistake,

imposition, undue influence, fraud or deception, to afford a means of

determining the will’s authenticity, and to prevent substitution of some other

writing in its place. Succession of Rogers, supra.

La. C.C. art. 1577 provides:

The notarial testament shall be prepared in writing and dated and shall be executed in the following manner. If the testator knows how to sign his name and to read and is physically able to do both, then:

(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 7 presence of the testator and each other we have hereunto subscribed our names this ____ day of _________, ____.”

Courts liberally construe and apply the laws governing notarial wills,

maintaining the validity of the will if at all possible, as long as it is in

substantial compliance with the statute. Succession of Harlan, 17-1132 (La.

5/1/18), 250 So. 3d 220. Because the purpose of an attestation clause is

merely to “evince the facts and circumstances of the confection and

execution” of a will, the form of an attestation clause is not “sacrosanct.”

Succession of Liner, 19-02011 (La. 6/30/21), 320 So. 3d 1133.

Courts must determine if a notarial will, with all formalities and

evidence taken into consideration, reflects the testator was sufficiently

protected against the risk of fraud. Id. Whether the deviating language

sufficiently protects against the risk of fraud is construed liberally in favor of

maintaining the validity of the will. Id.

In order for a notarial testament to be valid as to form, (1) the testator

must declare in the presence of a notary and two witnesses that the

instrument is his testament, (2) the testator must sign his name at the end of

the testament and on each separate page, and (3) the notary and two

witnesses must sign a declaration in the presence of each other and the

testator attesting that the formalities of Article 1577 have been followed.

Succession of Watson, 52,199 (La. App. 2 Cir. 8/15/18), 253 So. 3d 867.

In Succession of Otillio, 22-0606 (La. App. 1 Cir. 1/10/23), 361 So. 3d

19, the First Circuit found that the lack of an attestation clause by the notary

and witnesses was a material deviation causing the will to be invalid. The

Otillio case is similar to the case before us.

8 In this case, there is no attestation made by either the witnesses or the

notary. As quoted above, both wills only contain an attestation by the

testator/testatrix. The first and second requirements of a notarial testament

are not questioned. However, the third requirement is that the notary and

two witnesses sign a declaration in the presence of each other and the

testator. This requirement is not met as there is no attestation by the

witnesses and notary. We are unable to determine that the attestation is

substantially similar to La. C.C. art. 1577 because it is nonexistent. We find

this lack of attestation clause to be a material deviation. Therefore, both

wills fail to comply with La. C.C. art. 1577(2) and are invalid. The rule of

liberal construction set forth in Liner, supra, cannot create a declaration

where none exists. Succession of Otillio, supra. This assignment of error

lacks merit.

CONCLUSION

For the reasons stated above, we affirm the trial court’s judgment in

declaring the wills of Mabel and Otis Thomas to be invalid. Costs

associated with this appeal are cast on Stephanie Wilhite and Kimona

Guillory.

AFFIRMED.