Succession of Raymond John Brandt

SUCCESSION OF NO. 21-CA-131
RAYMOND JOHN BRANDT
FIFTH CIRCUIT
COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 801-807, DIVISION "P"
HONORABLE LEE V. FAULKNER, JR., JUDGE PRESIDING
December 29, 2021
HANS J. LILJEBERG
JUDGE
Panel composed of Judges Jude G. Gravois,
Robert A. Chaisson, and Hans J. Liljeberg
REVERSED; EXCEPTION OF NO RIGHT
OF ACTION DENIED; REMANDED
HJL
JGG
RAC
COUNSEL FOR PLAINTIFF/APPELLANT,
TODD DEMPSTER
Philip A. Franco
Jeffrey E. Richardson
Courtney C. Miller
William K. Wright, IV
COUNSEL FOR PLAINTIFF/APPELLEE,
MARC S. MILANO, TRUSTEE OF THE RAYMOND J. BRANDT
REVOCABLE TRUST
Timothy S. Madden
Henry A. King
J. Grant Coleman
Robert J. Burvant
W. Spencer King
LILJEBERG, J.
This matter involves a Petition To Annul Probated Testament filed by
appellant, Todd Dempster, in the succession proceeding for the decedent,
Raymond John Brandt. Mr. Dempster is named as a successor executor in a will
executed by the decedent in 2010. Mr. Dempster filed a petition to annul the
probate of a subsequent will executed by the decedent in 2019. Marc S. Milano,
the successor trustee of a trust named as the sole legatee in the probated will, filed
an exception of no right of action arguing that Mr. Dempster has no right of action
or interest to seek to annul the probated will because he is not an heir, legatee,
descendant or family member of the decedent. On December 1, 2020, the trial
court sustained Mr. Milano’s exception of no right of action and dismissed Mr.
Dempster’s petition to annul the probated will with prejudice. The trial court
stated in its judgment that Mr. Dempster, “who is not an heir at law nor a trustee
nor a legatee named in any Last Will and Testament of Decedent, has no
procedural right to file a claim seeking to invalidate Decedent’s Last Will and
Testament.” Mr. Dempster now appeals this ruling.
After considering the applicable law and the specific factual circumstances
at issue in this matter, we find that as an executor named in a prior will that would
become operative, Mr. Dempster possesses a right of action to seek to annul the
probated will. Accordingly, we reverse the trial court’s judgment sustaining the
exception of no right of action and dismissing the Petition To Annul Probated
Testament filed by Mr. Dempster, and remand the matter for further proceedings.
FACTUAL AND PROCEDURAL HISTORY
Three weeks before his death, Raymond John Brandt executed a will on
October 24, 2019 (“2019 Will”), revoking all prior wills and codicils and leaving
his entire estate to the Raymond John Brandt Revocable Trust, an inter vivos trust
established by Mr. Brandt on January 16, 2015 (the “2015 Trust”). The 2015 Trust
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was established in connection with a previous testament executed by Mr. Brandt on
January 16, 2015 (“2015 Will”). On October 24, 2019, Mr. Brandt also amended
the 2015 Trust to name Mr. Milano as successor trustee upon Mr. Brandt’s death.
Mr. Brandt died on November 14, 2019. On November 26, 2019, his
surviving spouse, Jessica Brandt, filed a Petition for Probate of Notarial Testament
and for Confirmation of Independent Testamentary Executrix, requesting that Mr.
Brandt’s 2019 Will be probated. That same day, the trial court signed an order
probating the 2019 Will and appointing Ms. Brandt as the independent
testamentary executrix. On July 10, 2020, Mr. Milano, in his capacity as trustee of
the 2015 Trust, sought to have the trust placed into possession of the entirety of the
decedent’s estate, which includes, among other assets, 15 motor vehicle
dealerships.
On October 23, 2020, Mr. Dempster filed the petition to annul the 2019
Will.1 Mr. Dempster alleged that the 2019 Will was absolutely null under La. C.C.
art. 15732 because the attestation clause did not comply with the formalities
required by La. C.C. art. 1577.3 He specifically alleged that the attestation clause
was defective on the following two grounds:
The attestation clause in the probated, October 24, 2019 testament is
defective because (1) it does not indicate that, in the presence of the
1
Mr. Dempster serves as the Chief Operating Officer of Ray Brandt Auto Group, which oversees the 15 motor
vehicle dealerships. He testified at the hearing on the exception of no right of action that he spent the last 27 years
working with Mr. Brandt to build the business.
2
La. C.C. art. 1573 states the “formalities prescribed for the execution of a testament must be observed or the
testament is absolutely null.”
3
La. C.C. art. 1577 sets forth the following requirements to execute a notarial will or testament:
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 presence of the testator and each other we have hereunto subscribed
our names this ____ day of _________, ____.”
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notary and two witnesses, the testator declared that he signed the
instrument at the end and on each other separate page and (2) it does
not indicate that in the presence of the testator and each other, the
notary and the two witnesses subscribed their names.
Mr. Dempster further alleged that the decedent executed three prior wills in
2006, 2010 and 2015. He asserted that the 2015 Will was absolutely null because
it contained the same attestation clause as the 2019 Will. He claimed the third will,
dated March 29, 2010 (“2010 Will”), should control the succession because it is
the most recent, valid notarial will signed by the decedent. The 2010 Will
designates Ms. Brandt and Terry Alarcon as co-executors of the decedent’s estate
and provides that if they are unwilling or unable to serve, then Mr. Dempster is
designated as executor:
I appoint Terry Alarcon and Jessica Brandt, as Co-Executors of my
estate and grant them full seizin and dispense him (sic) from
furnishing bond. Should both predecease me or should either be or
become unwilling or unable to serve, I appoint Todd Dempster as
Executor of my estate and grant him full seizin and dispense him from
furnishing bond or other security.
The 2010 Will also names Ms. Brandt as trustee of the Raymond J. Brandt
Testamentary Trust (“2010 trust”) established in the same will. Mr. Dempster
alleged in his petition to annul that Ms. Brandt and Mr. Alarcon were both
unwilling to serve as executors of the 2010 Will, and therefore, he was the proper
party to seek to annul the 2019 Will and enforce the 2010 Will.4 He requested that
the trial court declare the 2019 Will absolutely null and probate the 2010 Will.
In response to Mr. Dempster’s petition to annul the 2019 Will, Mr. Milano
filed several exceptions, including the exception of no right of action at issue in
this appeal. Mr. Milano argued that Mr. Dempster did not have a right of action to
seek to annul the 2019 Will because the validity of a will may only be contested by
4
At the evidentiary hearing on the exception of no right of action, Ms. Brandt explained that she would decline to
serve as the executrix under the 2010 Will because she would not want to serve as both the executrix and trustee at
the same time. Mr. Alarcon also testified that he was unwilling and unable to serve as executor due to health issues.
Furthermore, as noted above, Mr. Dempster contends the 2015 Will would not become operative because it is also
absolutely null pursuant to La. C.C.P. arts. 1573 and 1577.
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an heir, legatee, descendant or family member of the decedent. Mr. Milano
alleged that, as the Chief Operating Officer of Ray Brandt Auto Group, Mr.
Dempster is under the direct control and supervision of Ms. Brandt, who succeeded
her late husband as the Chief Executive Officer of Ray Brandt Auto Group. Mr.
Milano claimed that Ms. Brandt had Mr. Dempster file the petition to annul as a
part of her attempt to thwart Mr. Milano’s efforts as trustee to place the entirety of
the decedent’s estate into the 2015 trust.
On December 1, 2020, the trial court held an evidentiary hearing and
rendered a judgment sustaining Mr. Milano’s exception of no right of action. The
trial court found that Mr. Dempster has no procedural right to file a claim seeking
to invalidate Mr. Brandt’s 2019 Will because he was not an heir, legatee or trustee.
The judgment also dismissed Mr. Dempster’s petition to annul the 2019 Will, with
prejudice.5 On December 15, 2020, Mr. Dempster filed a motion for a suspensive
appeal, which the trial court granted on December 22, 2020.
LAW AND DISCUSSION
On appeal, Mr. Dempster argues the trial court erred as a matter of law when
it ruled he has no right of action to file a petition to annul the 2019 Will because he
has a real and actual interest in contesting the validity of the will and would benefit
from the attack based on three grounds: 1) he is the executor of the estate entitled
to fees under the 2010 Will that is operative if the 2019 Will and the 2015 Will are
null and void; 2) he has a personal financial interest in the success of the 15 motor
vehicle dealerships that are assets of the estate; and 3) he has a nonpecuniary
5
After the trial court sustained Mr. Milano’s exception of no right of action, Ms. Brandt filed a “Motion to
Determine Validity of Wills” pursuant to La. C.C.P. art. 2853, asking the trial court to determine which will was
valid. On January 25, 2021, the trial court rendered a judgment declaring the 2019 Will and 2015 Will to be invalid
and absolutely null. Mr. Milano filed a writ application seeking review of the January 25, 2021 judgment. This
Court granted the writ application on procedural grounds and found that the trial court erred by invalidating the
probated 2019 Will in a manner outside of the exclusive procedure set forth in La. C.C.P. art. 2931, which requires a
direct action seeking to annul the probated testament. Succession of Brandt, 21-88, p. 6 (La. App. 5 Cir. 4/13/21),
2021 WL 1394693, writ denied, 21-741 (La. 10/19/21), 326 So.2d 253 and 21-750 (La. 10/19/21), 326 So.3d 256.
21-CA-131 4
interest in the success of the dealerships because he spent the last 27 years working
with the decedent helping to build the business.
La. C.C.P. art. 681 states that “[e]xcept as otherwise provided by law, an
action can be brought only by a person having a real and actual interest which he
asserts.” While the exception of no right of action tests whether the plaintiff has a
“real and actual interest” in the action, it does not raise questions of the plaintiff’s
ability to prevail on the merits or whether the defendant may have a valid defense.
Lemmon Law Firm, LLC v. Sch. Bd. of St. Charles, 13-376 (La. App. 5 Cir.
12/12/13), 131 So.3d 231, 236. The court assumes the “petition states a valid
cause of action for some person and questions whether the plaintiff in the particular
case is a member of the class that has a legal interest in the subject matter of the
litigation.” Howard v. Administrators of Tulane Educational Fund, 07-2224 (La.
7/1/08), 986 So.2d 47, 60. The introduction of evidence is permitted to support or
controvert an exception of no right of action. La. C.C.P. art. 931.
The burden of proof of establishing the exception of no right of action is on
the exceptor. Succession of Sylvester, 16-372 (La. App. 5 Cir. 12/14/16), 215
So.3d 368, 371, writ denied, 17-265 (La. 4/13/17), 218 So.3d 119. The
determination of whether a plaintiff has a right to bring an action raises a question
of law, which requires de novo review. Id. La. C.C.P. art. 5051 provides that the
articles of the Louisiana Code of Civil Procedure “are to be construed liberally,
and with due regard for the fact that rules of procedure implement the substantive
law and are not an end in themselves.”
We first consider the issue of whether Mr. Dempster has a right of action as
the executor entitled to fees under the 2010 Will that is operative if the 2015 and
2019 Wills are null and void. La. C.C.P. art. 2931 governs the procedure one must
follow to annul a probated will. Though this provision lists the parties that must be
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joined as defendants in such a proceeding, it does not specify the parties who may
file a petition to annul a probated testament:
A probated testament may be annulled only by a direct action
brought in the succession proceeding against the legatees, the
residuary heir, if any, and the executor, if he has not been discharged.
The action shall be tried as a summary proceeding.
La. C.C.P. art. 2972, which is included in the chapter providing general rules
of procedure for succession proceedings, states that an opposition to a petition,
motion or other application for an order or judgment in a succession proceeding
shall allege the interest of the opponent in filing the opposition:
An opposition to the petition, motion, or other application of a party
to a succession proceeding for an order or judgment of the court shall
be in writing and be filed within the delay allowed. It shall comply
with the provisions of Articles 853 through 863; shall state the name,
surname, and domicile of the opponent; shall allege the interest of
opponent in filing the opposition, and the grounds for opposing the
petition, motion, or other application; and shall conclude with a prayer
for appropriate relief. [Emphasis added.]
Section (b) of Official Revision Comments to La. C.C.P. art. 2972 further
explains that a person must have a “justiciable interest” to file an opposition in a
succession proceeding:
(b) No person should be permitted to file an opposition in a succession
proceeding unless he has a justiciable interest in doing so. The
definition of this interest has been left for the determination of the
courts, and the requirement has been stated only implicitly in the term
“interested person.”
Mr. Milano argues that Louisiana courts have generally concluded that only
heirs or legatees may bring an action to annul a will or testament. In support of his
argument, Mr. Milano cites to Succession of Moran, 485 So.2d 623, 625 (La. App.
4th Cir. 1986), writ denied, 488 So.2d 204 (La. 1986) and Succession of Wilson,
210 So.2d 602, 604 (La. App. 2nd Cir. 1968). However, these cases do not state
that only heirs or legatees can file a petition to annul a probated testament under
La. C.C.P. art. 2931, and they did not consider whether an executor or individual
21-CA-131 6
named in a will in a capacity other than as an heir or legatee has a justiciable
interest in filing a petition to annul a probated will.
Louisiana courts recognize that one must have a justiciable interest in the
succession proceeding in order to have standing to maintain an action to annul the
testator’s testament. See Succession of Barbee, 19-575 (La. App. 4 Cir. 11/27/19),
286 So.3d 461, 466; Succession of Duskin, 14-236 (La. App. 4 Cir. 11/19/14), 153
So.3d 567, 571-72; Succession of Kilpatrick, 356 So.2d 1083, 1085 (La. App. 2nd
Cir. 1978), writ denied, 359 So.2d 198 (La. 1978); Estate of Mallet v. Mallet, 527
So.2d 30, 31 (La. App. 3rd Cir. 1988). Mr. Milano agrees that courts discussing the
concept of justiciable interest in the context of a petition to annul a probated
testament have reasoned that in order to have a justiciable interest, one must
benefit from the attack if successful:
For one to be allowed to oppose a succession proceeding, one must
have a justiciable interest in doing so. One must therefore be able to
benefit from the attack. Succession of Kilpatrick, 356 So.2d 1083 (La.
App. 2nd Cir.1978), writ denied, 359 So.2d 198 (La. 1978), appeal
after remand, 422 So.2d 464 (La. App. 2nd Cir. 1982), writ denied,
429 So.2d 126 (La. 1983). The interest may come in the form of being
named as executor of the estate, see Kilpatrick, supra, or as attorney
for a succession, see Succession of Pope, 230 La. 1049, 89 So.2d 894(La. 1956), or gaining an interest as an heir or legatee.
Estate of Mallet, 527 So.2d at 31; See also Succession of Moran, 485 So.2d at 624-
25 (“The general class in whose favor the law grants a cause of action to annul a
probated testament is composed of persons who would realize some benefit should
the attack be successful.” [Emphasis added.]).
Mr. Milano and Mr. Dempster disagree, however, as to whether an executor
named in an earlier will has a justiciable interest or will benefit from a successful
attack on a subsequent will. Mr. Milano argues that Mr. Dempster would not
realize any conceivable benefit if the trial court found the 2010 Will to be
controlling and contends that Louisiana law does not vest an executor with a right
or duty to challenge a will. Mr. Dempster, on the other hand, argues in his first
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assignment of error that as an executor named in the 2010 Will, he stands to
benefit from the attack based on the compensation he would receive as executor
under La. C.C.P. arts. 3033 and 3351, which provide for executor compensation in
the amount of two and one-half percent of the amount of inventory in the absence
of a provision in the will.6
Succession of Kilpatrick
Mr. Dempster directs this Court’s attention to Succession of Kilpatrick,
supra. In Kilpatrick, the appellate court considered a similar issue - that is whether
a bank named as the decedent’s executor and trustee of a trust established in an
earlier will executed in 1976 had a right of action to file a petition to annul a
probated will executed by the decedent in 1977. 356 So.2d at 1084-85. The
executors for the 1977 will filed an exception of no right of action against the
bank, and alleged it did not have a real or actual interest in annulling the 1977 will
because it was not an heir or beneficiary under the 1976 will. The bank argued that
it had a right of action to annul because it was named as the executor and trustee in
the 1976 will. The trial court agreed with the executors of the probated 1977 will
and sustained the exception of no right of action.
In analyzing the issue of whether the bank possessed a right of action, the
appellate court considered whether the bank had a justiciable interest under La.
C.C.P. art. 2972. Id. at 1085. The appellate court found that because the bank
would be entitled to recover a fee as an executor under La. C.C.P. arts. 3033 and
3351, “the bank would have an actual pecuniary interest (its fee) in its probate.”
6
La. C.C.P. art. 3033 provides that “the person named therein as executor shall be entitled to reasonable
compensation for the services which he has rendered, whether he has been confirmed as executor or not.” La.
C.C.P. art. 3351 further provides:
An executor shall be allowed as compensation for his services such reasonable amount as is
provided in the testament in which he is appointed.
In the absence of a provision in the testament or an agreement between the parties, the
administrator or executor shall be allowed a sum equal to two and one-half percent of the amount
of the inventory as compensation for his services in administering the succession. The court may
increase the compensation upon a proper showing that the usual commission is inadequate.
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Id. The appellate court also recognized that as the trustee, the bank would be
entitled to reasonable compensation and would also be a universal legatee because
after making certain specific bequests, the decedent bequeathed the remainder of
his estate to the bank as trustee. Id. The appellate court concluded that as the
executor and trustee, the bank possessed a justiciable interest in the action to annul
the 1977 will. Id.
Subsequent courts have recognized in dicta that being named as an executor
of the estate qualifies as a justiciable interest. As quoted above in Estate of Mallet,
527 So.2d at 31 (La. App. 3rd Cir. 1988), the appellate court cited to Succession of
Kilpatrick, supra, in its recognition that a justiciable interest to attack a succession
proceeding may arise from being named as an executor of the estate. See also
Succession of Guidry, 06-1089 (La. App. 3 Cir. 12/6/06), 945 So.2d 187, 188;
Succession of Wolf, 05-1480 (La. App. 4 Cir. 10/4/06), 943 So.2d 537, 540
(Appellate court considered whether plaintiff who filed petition to annul a probated
will was named in any capacity in any will, not just whether plaintiff was an heir or
legatee.).
Mr. Milano argues in response that Mr. Dempster’s reliance on Kilpatrick is
misplaced on several different grounds. First, he contends that because the
executor in Kilpatrick was also a universal legatee, the finding that the executor
had a right of action is consistent with his position that only heirs and legatees have
standing to challenge the validity of a testament. However, as noted above, the
Kilpatrick court’s reasoning indicates that it found that the pecuniary interest in
recovering the executor fee established the right of action to seek to annul the
probated will. Id. at 1085. The Kilpatrick court specifically stated that “the
pleadings and documents establish the [bank], both as executor and as trustee, has
a justiciable interest in this action to annul the 1977 will, and in having the 1976
will recognized and probated.” Id. [Emphasis added.] Furthermore, subsequent
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courts citing to this reasoning recognize in dicta that a justiciable interest can arise
from being named as an executor. Estate of Mallet, supra; Succession of Guidry,
supra.
Mr. Milano further questions the Kilpatrick decision based on the enactment
of La. C.C. art. 1583 in 1997, which provides that “[t]he designation of a
succession representative or a trustee, or an attorney for either of them, is not a
legacy.” Codification of the rule that designation of a representative is not a
bequest or legacy does not overrule the finding in Kilpatrick that the pecuniary
interest resulting from an executor’s fee creates a justiciable interest sufficient to
maintain a right of action to seek to annul a probated will.
Mr. Milano finally argues that the Kilpatrick decision was overruled by the
Louisiana Supreme Court’s subsequent decision in Succession of Jenkins, 481
So.2d 607 (La. 1986), which held that the designation of an attorney in a will is
merely precatory and not binding on the executor. The Jenkins decision overruled
a line of cases, including Succession of Pope, 89 So.2d 894 (La. 1956), which is
cited in Kilpatrick as follows:
The First National Bank of Shreveport claims its “justiciable
interest” or right of action to annul is based upon its having been
named decedent's executor and trustee in the 1976 will. As executor of
the estate under that will, the bank would have an actual pecuniary
interest (its fee) in its probate. La. C.C.P. Arts. 3033 and 3351. In
Succession of Pope, 230 La. 1049, 89 So.2d 894 (1956), the court held
that an attorney, named as attorney for the succession in a will which
he claimed to be the last valid will left by decedent, had a real interest
(his fee) in having the earlier will probated and hence a real interest in
assailing the validity of the later will.
We disagree that the Jenkins decision overruled Kilpatrick. Our following
review of the decision in Pope and Jenkins reveals that while the Jenkins court
determined that the practice of making a testator’s attorney designation binding on
the estate was contrary to public policy, it did not hold that the right to recover an
executor’s fee was insufficient to create a justiciable interest. In Pope, the will at
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issue, executed in 1953, named the appellee, Henry A. Mentz, Jr., as the attorney
for the estate. A subsequent will executed the following year in 1954, did not
name the same attorney, but rather provided for the trustees and executors to
appoint an attorney of their choice to handle the estate. The trial court probated
the 1954 will and the attorney, Mr. Mentz, filed an opposition to the judgment
probating the will, alleging the 1954 will was invalid because the witnesses to the
will did not sign in the presence of the notary and the notary subsequently removed
his signature from the will in the presence of and with the consent of the testator.
Following a hearing on Mr. Mentz’s opposition, the trial court vacated its
judgment probating the 1954 will and determined it was a nullity.
On appeal, the decedent’s widow argued the attorney did not have an interest
in opposing the judgment probating the will and argued that only the legitimate
heirs of the decedent may bring such an action. The Louisiana Supreme Court
found this contention to be without merit and relied on its holding in Rivet v.
Battistella, 167 La. 766, 120 So. 289, that “a provision in a will designating an
attorney-at-law to settle the estate of the testator is valid and binding upon those
who take under the will and that, while the executors are not required to use the
services of the attorney, the estate is liable to him for a reasonable fee.” Id. at
1057. The Pope court reasoned that if the 1953 will was the last valid will and
testament of the decedent, then Mr. Mentz “had a real interest in having it
probated, and, hence, a real interest in assailing the validity of the later will.” Id. at
1057.
In Jenkins, supra, the Louisiana Supreme Court overruled the holding in
Rivet and other cases (including Pope) that the designation of an attorney in a will
is binding. Id. at 610. The court reasoned as follows in finding the binding nature
of the designation rendered the attorney a “quasi executor” in effect, and such a
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designation infringed on the codal authority of the executor and created ethical
concerns:
Thus, designation of an attorney by a testator in a will is merely
precatory. It is not binding because: it infringes on the codal authority
of the executor; it is not specifically authorized by law; it encourages
solicitation and the appearance of impropriety on the part of attorneys;
and it is contrary to general civilian principles.
Id.
The Jenkins court did not consider or overturn the specific issue of whether
the right of an executor or attorney to recover a fee in general is sufficient to create
a justiciable interest. If anything, the reasoning in Jenkins highlights the
distinction between an attorney and executor named in a will as the Jenkins court
reasoned that the binding designation improperly elevated an attorney to the level
of an executor. While the Jenkins decision extinguished the right of an attorney
named in a will to seek a fee from the heirs, it did not consider or repudiate an
executor’s right to recover a fee or declare that the pecuniary interest created by the
fee does not create a justiciable interest. The Jenkins court simply determined the
binding nature of an attorney designation was not authorized by law and was
precatory. Id. Contrary to the finding in Jenkins regarding the designation of an
attorney, a testator’s designation of an executor is not merely a non-binding wish
of the testator as La. C.C.P. art. 3082 provides that “[u]nless the person named in
the testament as executor is disqualified on any of the grounds assigned in Article
3097, the court shall render an order upon his petition for confirmation, confirming
him a testamentary executor . . ..” [Emphasis added.]
Accordingly, we do not find that the decision in Jenkins overruled the
holding in Kilpatrick to the extent it determined an executor has a justiciable
interest in an action to annul a probated testament if he is named in a will that
would become operative if the attack was successful.
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Succession of Dean and Succession of Reno
In addition to contesting the Kilpatrick decision, Mr. Milano argues that
Louisiana courts have found an executor has no duty or right to attack a will or
bring an action to annul a testament of a decedent. In support of this argument,
Mr. Milano cites to Succession of Dean, 17-155 (La. App. 1 Cir. 3/29/18), 247
So.3d 746, writ denied, 18-679 (La. 9/14/18), 252 So.3d 479, and Succession of
Reno, 15-854 (La. App. 1 Cir. 9/12/16), 202 So.3d 1147, writ denied, 16-2106 (La.
2/10/17), 215 So.3d 701. Neither case considered the exact issue in Kilpatrick of
whether an executor named in a prior will possesses a right of action to attack a
probated will under La. C.C.P. art. 2931. However, we closely analyze the facts
and findings in these decisions to determine whether their finding and reasoning
apply in the present matter.
In Dean, the decedent had three wills executed in 2007, March 2010 and
August 2010. An heir filed a petition to probate the March 2010 will and
challenged the validity of the August 2010 will on the grounds of undue influence
and lack of capacity. Cherry Dean was named as independent executrix in the
wills executed in March 2010 and August 2010. She filed a motion to intervene in
the proceedings without specifying any position as to the validity of the wills, and
requested that the trial court appoint her as independent executrix, which the trial
court granted. However, Ms. Dean later amended her petition of intervention and
joined in the petition challenging the August 2010 will.
Heirs named in the August 2010 will filed an exception of no right of action
alleging that as independent executrix, Ms. Dean was obligated to defend the
August 2010 will and had no procedural right or standing to attack it. In analyzing
the issue of whether Ms. Dean had a right of action to attack the decedent’s last
executed will, the appellate court analyzed the rights and duties of succession
representatives provided by applicable law and jurisprudence. Id. at 760-61. The
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appellate court first recognized that pursuant to La. C.C.P. art. 3196, a succession
representative may exercise all procedural rights available to a litigant in the
performance of her duties. Id. at 760. It considered that a succession
representative’s duties are fiduciary in nature and “include but are not limited to
the duty of collecting, preserving, and managing succession property; the duty to
enforce all obligations in favor of the succession; and the duty to close the
succession as soon as advisable.” Id.
The Dean court further recognized that a “person named executor in a will
has a duty to offer the will for probate, defend it from attack, and to endeavor to
have it executed . . ..” Id. at 761. Citing to its recent decision in Succession of
Reno, supra, the Dean court concluded, however, that an executor does not have an
enumerated duty or right to challenge the validity of the decedent’s will. Id. at
761-62. The Dean court reasoned that the decedent’s will is presumed valid and
the testator presumed competent. Id. at 762. It further reasoned that the executor
is a “fiduciary with respect to the succession” and concluded that “a challenge to
the decedent’s will is a challenge to the document that presumptively identifies the
successors to whom the executor is obliged to transmit the estate. Inevitably, any
pleading filed by the executor seeking to invalidate that instrument creates a
conflict of interest between himself and those successors.” Id. at 761. The Dean
court finally concluded that in her capacity as independent executrix, Ms. Dean
had not identified any statutory duty or right to file a claim seeking to invalidate
the decedent’s last will and testament, and therefore she had no procedural right to
assert the claim. Id. at 762.
As noted above, the Dean court relied on its decision in Reno in its
reasoning. The issue in Reno was whether the estate was liable for attorney’s fees
the succession administrator incurred in a will contest. In Reno, the decedent’s
son, Jimmy Reno, petitioned to be appointed provisional administrator and was
21-CA-131 14
eventually appointed full administrator. Jimmy was named as a legatee in a 2007
will, but the decedent had executed a subsequent will in 2011 that did not name
Jimmy as a legatee. The 2011 will named the decedent’s grandson, Joshua, as the
naked owner of the entirety of the decedent’s estate and provided a usufruct of the
estate to the decedent’s surviving spouse, Dorothy Reno. The 2011 will did not
name an executor and revoked prior wills. In petitioning for his appointment as an
administrator of the estate, Jimmy alleged that he was a legatee in the 2007 will
and anticipated that there would be a challenge against the 2011 will based on
incapacity and undue influence. Ms. Reno petitioned to probate the 2011 will and
shortly, thereafter, Jimmy filed a petition to probate the 2007 will. Jimmy also
filed a petition to invalidate several inter vivos donations made to Joshua. At the
time the Reno court issued its decision, neither will had been probated.
During the pendency of the proceedings, Jimmy submitted several petitions
and tableaus of distribution for homologation seeking authority to pay succession
debts and expenses, including attorney’s fees incurred in the dispute over the 2011
will and inter vivos donations. Ms. Reno specifically contested court orders
approving $57,926.51 in attorney’s fees and $29,587.50 in medical expenses
allegedly incurred by Jimmy to contest the validity of the 2011 will. She argued
that as administrator, his duty was to preserve and protect the estate and not to fund
his challenge to the 2011 will.
In determining that the estate was not liable for attorney’s fees that Jimmy
incurred for his personal benefit in contesting the 2011 will and other inter vivos
donations, the Reno court recognized that pursuant to La. C.C. art. 1415, estate
debts include administration expenses that are defined as “obligations incurred in
the collection, preservation and distribution of the estate of the decedent.” Id. at
1154. It recognized that a succession representative owes a duty to legatees,
creditors, and heirs and may not place his own interest before the succession
21-CA-131 15
interest. Id. at 1155. It further noted that it was presumed that the 2011 will was
the decedent’s valid will and that a succession representative has a duty to defend
the validity of the testator’s last will and testament and that as “administrator of the
estate, Jimmy is not to assume the judicial role of determining which will is valid;
his role is to produce the will for probate, leaving to any interested party the onus
of impeaching its validity.” Id.
Mr. Dempster argues that Dean and Reno are not applicable to the present
matter because they only stand for the proposition that a person named executor in
a will cannot challenge the same will based on the fiduciary duty of the executor to
that will. He contends there is no jurisprudence holding that an executor of an
earlier will is barred from challenging the legitimacy of a subsequent will that
names someone else an executor. He also argues that Mr. Milano failed to address
the substantive ruling in Kilpatrick that an executor named in an earlier will has a
right of action to file a petition to annul a subsequent will based on the fee he is
entitled to receive as executor if the subsequent will is declared invalid.
As discussed above, we accept that Mr. Dempster’s petition to annul alleges
a valid cause of action solely for purposes of evaluating whether he possesses a
right of action.7 In the present matter, we have an individual named as a successor
executor in a prior will, who alleges that the decedent’s subsequent wills are null
and void due to the alleged failure to follow required formalities. Mr. Dempster
testified that he filed the petition to annul the probated 2019 Will only after he
learned that the 2019 and 2015 Wills may be absolutely null. Mr. Dempster
testified that he first obtained this information after engaging in two conversations
with Ms. Brandt. He testified that in the first conversation, Ms. Brandt informed
him that her attorney engaged in discussions with Mr. Milano’s attorney about
7
We do not intend to provide an opinion on the merits whether the 2019 or 2015 Wills are null and void as alleged
by Mr. Dempster.
21-CA-131 16
whether the 2019 Will was null and void, and that her attorneys were looking into
the issue to determine if Mr. Milano’s attorney “was correct.” He stated that in the
second discussion, Ms. Brandt told him her attorney agreed the 2019 and 2015
Wills were null and void. She further informed Mr. Dempster that he was named
as an executor in the prior 2010 Will and told him he may want to seek assistance
from an attorney. Ms. Brandt also testified that her attorney told her that Mr.
Milano’s attorney “said the will was invalid,” and that she was not aware of any
issues with respect to the 2019 Will when she executed an affidavit to have the
2019 Will probated.
Though we recognize that the right to receive an executor fee is personal to
the executor, based on the foregoing testimony and because Mr. Dempster is not
currently serving as executor of the estate and is not the named executor in the
2019 or 2015 Wills, we do not find that the same issues and concerns regarding
fiduciary duties and conflicts of interest that existed in Dean and Reno are present
in the current matter. As argued by Mr. Dempster, the Dean court considered the
rights and duties of an independent executrix to challenge the decedent’s last will
and testament naming the independent executrix. The Dean court based its
determination on its recognition that a challenge to the will naming the
independent executrix was a challenge to the successors identified in the will and
created a conflict of interest. In addition, unlike the administrator in Reno, Mr.
Dempster is not a legatee under the 2010 Will.
More importantly, though the trial court had not yet probated a will in Dean,
the appellate court noted the conflict of interest an appointed executor would face
in seeking to annul a probated will under La. C.C.P. art. 2931, because such action
required the executor to sue himself:
We further note that while the Code of Civil Procedure does not
specifically identify who has the right to file an action to annul a will,
the Code does mandate that the executor, if he has not been
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discharged, must be named as a defendant in any such proceeding.
See La. Code Civ. Pro. art. 2931.
Dean, 247 So.3d at 762, fn. 6.
Since Mr. Dempster is not currently the executor administering the succession, he
was not required to file suit against himself when he filed the petition to annul and
did not face the same conflict of interest concerns.
After the 2019 Will was probated, Mr. Dempster received information
regarding the 2010 Will, as well as the claims that the subsequent wills were null
and void. Pursuant to these specific facts and circumstances, and as a person
named executor in a will, Mr. Dempster acted in accordance with his duty to offer
the will for probate and to endeavor to have it executed as recognized in Dean. See
id. at 761. Because the trial court had entered the order probating the 2019 Will,
his only option to seek to enforce the 2010 Will was to have the 2019 Will
annulled. In a prior disposition in this matter, this Court concluded that a probated
will could “only be annulled via a direct action challenging the validity of the
probated will,” and further concluded that “La. C.C.P. art. 2853 does not provide a
procedure to annul a testament after it has been probated.”8 Succession of Brandt,
21-88, 2021 WL 1394693, p. 3 (La. App. 5 Cir. 4/13/21), writ denied, 21-471 (La.
10/19/21), 326 So.3d 253 and 21-750 (La. 10/19/21), 326 So.3d 256.
Considering the applicable law and existing jurisprudence providing that a
justiciable interest exists if one is able to benefit from the attack on the will, and
pursuant to the specific facts and circumstances of this case, we find that the trial
court erred in finding that Mr. Dempster did not have a procedural right to file a
8
La. C.C.P. art. 2853 provides:
If a person has possession of a document purporting to be the testament of a deceased person, even
though he believes that the document is not the valid testament of the deceased, or has doubts
concerning the validity thereof, he shall present it to the court with his petition praying that the
document be filed in the record of the succession proceeding.
A person so presenting a purported testament to the court shall not be deemed to vouch for its
authenticity or validity, nor precluded from asserting its invalidity.
21-CA-131 18
petition to annul the probated 2019 Will as an executor named in the 2010 Will.
Mr. Dempster contends that the estate is “worth hundreds of millions of dollars.”
If the 2010 Will becomes operative, he may be eligible to receive a significant
executor fee in the amount of two and one-half percent (2 ½%) of the inventory of
the estate since the 2010 Will does not include a provision establishing the amount
of the executor fee. See La. C.C.P. art. 3351. Also, based on our extensive
analysis of Dean and Reno, we find that Mr. Dempster is not violating any duties
or acting contrary to the expressed duties of an executor by contesting a will that
does not name him as executor. Mr. Dempster did not seek to annul the 2019 Will
and probate the 2010 Will until he was informed that the subsequent wills may be
absolute nullities and that Ms. Brandt and Mr. Alarcon were unwilling or unable to
serve as executors. By filing the petition to annul the 2019 Will, he was fulfilling
his duty to offer the next valid will for probate and to have it executed. Further, we
do not find any authority in Louisiana that prohibits an executor named in a prior
will from filing a petition to annul a subsequent probated will that does not name
him as an executor.9
DECREE
Based on the foregoing, the trial court’s December 1, 2020 judgment
sustaining Mr. Milano’s exception of no right of action and dismissing the Petition
to Annul Probated Testament filed by Mr. Dempster is reversed and we deny Mr.
Milano’s exception of no right of action. We remand the matter for further
proceedings.
REVERSED; EXCEPTION OF NO
RIGHT OF ACTION DENIED;
REMANDED
9
Because we find that Mr. Dempster possessed a right of action based on his justiciable interest as the next alternate
executor named in the 2010 Will, we pretermit discussion of additional arguments presented by Mr. Dempster in
support of his right of action.
21-CA-131 19
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
NANCY F. VEGA
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN S. BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
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