Succession of Ferguson

114 So. 3d 1260, 2013 WL 2325177, 2013 La. App. LEXIS 1048
CourtLouisiana Court of Appeal
DecidedMay 29, 2013
DocketNo. 47,941-CA
StatusPublished
Cited by2 cases

This text of 114 So. 3d 1260 (Succession of Ferguson) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Succession of Ferguson, 114 So. 3d 1260, 2013 WL 2325177, 2013 La. App. LEXIS 1048 (La. Ct. App. 2013).

Opinion

WILLIAMS, J.

| jThe petitioner, Terry Elizabeth Ferguson, appeals a judgment dismissing her petition to reopen the succession of her father, Joseph C. Ferguson, Jr. The district court found that the petitioner’s claim for her legitime as a forced heir had prescribed. For the following reasons, we affirm.

FACTS

The decedent, Joseph C. Ferguson, Jr., died testate on March 31, 2005. The decedent was survived by his wife, Linda Ferguson, and their two children, Honour Ferguson Zueco and Joseph C. Ferguson, III. The decedent’s notarial will bequeathed all of his property to his wife and their children. Decedent was also survived by his daughter, Terry Ferguson, who was born of his first marriage, which ended in divorce from Nan Ferguson. The decedent’s will did not make any provision for Terry Ferguson, who was aware of her father’s death and had attended his funeral. All of the children were over the age of 23 at the time of decedent’s death.

In July 2005, the Succession of Joseph Ferguson, Jr., (“the succession”) was opened with the filing of a petition for probate of the notarial testament. Linda Ferguson was designated as the testamentary executrix. Attached to the petition were the affidavits of Mary Register and Deanna Roth, who attested that to the best of their knowledge, decedent was domiciled in Caddo Parish at the time of his death and that decedent was the father of three children, who were “competent majors capable of managing their property and affairs.” In November 2005, the district court entered the judgment of possession delivering the property of decedent’s estate to the ^legatees as provided in the will and closing the succession.

In May 2011, more than five years after the will was filed for probate, the petitioner, Terry Ferguson, filed a petition to reopen the succession and annul the judgment of possession. The petition alleged that the November 2005 judgment of possession was rendered in reliance on false assertions of petitioner’s competency con[1262]*1262tained in the affidavits of death filed with the court. Attached to the petition was a Social Security Administration disability evaluation indicating that petitioner was bipolar with borderline mental functioning. The testamentary executrix filed an exception of prescription.

After a hearing, the district court granted the exception, finding that the petitioner failed to file her petition within the five-year prescriptive period. The court rendered judgment dismissing the petition to reopen the succession. Subsequently, the district court denied petitioner’s motion for new trial. The petitioner appeals the judgment.

DISCUSSION

The petitioner contends the trial court erred in dismissing her petition to annul the judgment of possession. Petitioner argues that the judgment should be declared null because her identity as a “possible” forced heir was concealed from the court by the submission of affidavits falsely stating that she was mentally competent.

A proceeding to open a succession shall be filed in the district court of the parish where the deceased was domiciled at death. LSA-C.C.P. art. 2811. The deceased’s domicile at the time of death, his ownership of |sproperty in the state and all other facts necessary to establish the jurisdiction of the court may be evidenced by affidavits. The deceased’s death, his marriage and all other facts necessary to establish the relationship of his heirs may be evidenced by official certificates of a public officer or by affidavits. LSA-C.C.P. art. 2821.

In the present case, the petitioner argues that the judgment of possession is null because the submission of affidavits misrepresenting her competency constituted fraud, citing Succession of Hearn, 412 So.2d 692 (La.App. 2d Cir.1982) and Schoen v. Burns, 321 So.2d 908 (La.App. 1st Cir.1975). In Hearn, supra, the deceased’s widow filed a petition and affidavits alleging that decedent had died leaving no descendants, despite her knowledge that a child had been born of his previous marriage. The court found that the false allegations suspended the running of prescription until the adult child discovered the fraud. In Schoen, supra, a summary judgment case, Schoen had filed a petition for probate alleging that the deceased left no descendants. The court found there were genuine issues of material fact as to whether Schoen knowingly concealed the forced heir’s existence from the court and whether the heir had filed his lawsuit within one year of discovering the fraud.

Here, unlike the situation in the cited cases, the affidavits submitted to the court do not omit petitioner, but specifically name her as a descendant of the decedent. Even though the affiants did not personally know the petitioner, they correctly stated that she is the decedent’s child born of his first marriage and was over 23 years of age. Thus, this case does not|4involve the same type of concealment at issue in the Hearn and Schoen cases.

Regarding the petitioner’s mental competency, the affiants stated that to the best of their knowledge, petitioner is a competent major capable of managing her property and affairs. The petitioner did not present evidence to show that the affiants had received contrary information about her mental capacity at the time they signed the affidavits in 2005. The finding that petitioner was disabled for the purpose of Social Security benefits was not issued until 2007 and there was no showing that she had been interdicted by any court. Based upon this record, the petitioner failed to demonstrate that the affidavits contained false statements such that their [1263]*1263submission to the court constituted fraud requiring that the judgment of possession be annulled. The assignment of error lacks merit.

Prescription

The petitioner contends the trial court erred in failing to apply the doctrine of contra non valentem to suspend the running of prescription. Petitioner argues that prescription did not run because her reduced intellectual abilities prevented her from learning of her cause of action as a forced heir and the executrix failed to inform her of the succession proceedings.

An action for the reduction of an excessive donation is subject to a liberative prescription of five years. LSA-C.C. art. 3497. A donation which exceeds the disposable quantum that a testator may dispose of, to the prejudice of his forced heir, is not void but is reducible by the forced heir. | ¿Where the plaintiff does not attack the validity of the will and seeks only to recover his legitime, such an action can only be construed as one for the reduction of an excess donation and the five-year prescriptive period of Article 3497 is applicable. This prescriptive period begins to run on the date the will is filed for probate. Kilpatrick v. Kilpatrick, 625 So.2d 222 (La.App. 2d Cir.1993).

The cause of action to reduce an excessive donation arises when the will is probated because at that time there is spread upon the public record a proceeding which makes it known that the deceased has left a will, identifies the testamentary heirs, provides the quantum of the estate and names the person appointed to carry out the provisions of the will. Whether the legitime has been impinged upon is made known in the succession proceedings, which provide the forced heir with all the information necessary to seek reduction of an excessive donation. Kilpatrick, supra.

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Bluebook (online)
114 So. 3d 1260, 2013 WL 2325177, 2013 La. App. LEXIS 1048, Counsel Stack Legal Research, https://law.counselstack.com/opinion/succession-of-ferguson-lactapp-2013.