In re Succession of Coon

207 So.3d 419

IN RE: SUCCESSION OF Betty Joyce Weathers COON

2016 CA 0240

Court of Appeal of Louisiana, First Circuit.

OCTOBER 31, 2016

Felix A. Dejean, IV, Baton Rouge, Louisiana, Counsel for Plaintiff/Appellant, Brian Keith Hall

Mark R. Callender, Baton Rouge, Louisiana, Counsel for Defendant/Appellee, Douglas P. Coon, Sr.

BEFORE: WHIPPLE, C.J., GUIDRY, AND McCLENDON, JJ.

McCLENDON, J.

Heirs challenge a trial court's ruling that reopened a succession, ordered the filing and execution of a statutory will, and appointed a testamentary executor. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Mrs. Betty Joyce Weathers Coon died on December 6, 2013. She was survived by five adult children who were born during her first marriage to Gerald W. Hall, Sr., namely: Jeffrey Wayne Hall, Kimberly Ann Smith, Gerald Wayne Hall, Jr., Vickie Lynn Hall Frick, and Brian Keith Hall (collectively, "the Hall Children"). Following her divorce from Gerald W. Hall, Sr., Mrs. Coon married Douglas P. Coon, Sr. in 1986. The couple had been married for 27 years when Mrs. Coon died.

Prior to her death, Mrs. Coon executed a statutory will in accordance with former LSA-R.S. 9:2442.¹ The statutory will was executed on December 27, 1994, before Rosalie B. Smith as Notary Public and Mark D. Plaisance and Sandra L. Crain as the witnesses. The statutory will, among other things, bequeathed a one-sixth ownership interest in the family home, which was Mrs. Coon's separate property, to Mr. Coon; gave him a usufruct over the remaining ⁵/₆interest in the family home until remarriage or death; and named Mr. Coon executor. The remaining ⁵/₆interest in the family home was divided equally between the Hall Children.

On the night Mrs. Coon died, Mr. Coon asked Kimberly, Mrs. Coon's daughter, to retrieve her mother's will. Kimberly testified that her mother had previously indicated to her where the will was located. Accordingly, Kimberly and her brother, Jeffrey, went into her mother's room and retrieved the will from a secret compartment in a nightstand.

Thereafter, Jeffrey read the will in front of everyone present, including all of the other Hall Children and Mr. Coon. Kimberly recalled that the will allowed Mr. Coon "to stay in the house until he remarried ... or passed away" and it "split the house between I think it was six of us, which I think she included [Mr. Coon] on that ¹/₆th."

Subsequently, Mr. Coon, who wished to access his deceased wife's checking account, signed an Affidavit of Jurisdiction and Relationship (Small Deposit Affidavit) on January 31, 2014.² In the affidavit, Mr. Coon attested that Mrs. Coon died intestate. However, according to Mr. Coon, he never used the affidavit.

On August 1, 2014, Kimberly and Brian filed a petition for possession, attaching thereto the Small Deposit Affidavit executed by Mr. Coon. Therein, Kimberly and Brian alleged that the decedent died intestate as evidenced by the Small Deposit Affidavit executed by Mr. Coon, which Kimberly had taken from the family home. This petition was filed despite the fact that both Kimberly and Brian were fully aware of the existence of Mrs. Coon's statutory will. Petitioners prayed that the Hall Children be recognized as Mrs. Coon's sole heirs-at-law and as owners of the decedent's property. The trial court signed a Judgment of Possession on August 4, 2014, recognizing the Hall Children as sole heirs and placing them in possession of the decedent's property, including the family home.

Thereafter, the Hall Children, through their attorney, mailed a copy of the Judgment of Possession to Mr. Coon, along with a demand that he vacate the family home. Additionally, Brian filed a "Petition for Eviction" seeking to evict Mr. Coon from the home.

In response, Mr. Coon filed a "Petition to Annul The Judgment of Possession and to Reopen the Succession, Execute Will, Appoint Executor and Assert Claim." Mr. Coon alleged that his wife died testate and attached the statutory will dated December 27, 1994, to his petition. Mr. Coon prayed that the trial court: 1) reopen the succession with the submission of the original will; 2) order a filing and execution of the will in accordance with LSA-C.C.P. art. 2891 ; 3) appoint Mr. Coon as executor without necessity of providing security; and (4) vacate, annul and/or set aside the ex parte Judgment of Possession signed on August 4, 2014.

Subsequently, Brian filed a petition seeking to be appointed the succession's administrator.

Following a hearing on November 23, 2015, the trial court rendered a judgment dated January 26, 2016, that ordered the succession be reopened and the last will and testament dated December 27, 1994, be filed and executed, "with this filing and execution having the full effect of probate of this statutory Last Will and Testament." The trial court also appointed Mr. Coon executor in accordance with the will and "vacated, annulled and/or set aside" the August 4, 2014 Judgment of Possession. The trial court denied Brian's motion to be appointed administrator.

The Hall Children have appealed, asserting seven assignments of error and presenting the following issues for review:³

1. Whether the succession of Betty Joyce Weathers Coon should have been reopened by the district court.

2. Whether Mrs. Coon's "will" should have been accepted as valid by the [d]istrict court.

3. Whether Mr. Coon should have been named Testamentary Executor.^[4]

DISCUSSION

Louisiana Code of Civil Procedure article 3393 provides for the reopening of a succession. The article provides, in pertinent part:

B. After formal or informal acceptance by the heirs or legatees or rendition of a judgment of possession by a court of competent jurisdiction, if other property is discovered, or for any other proper cause, upon the petition of any interested person, the court, without notice or upon such notice as it may direct, may order that the succession be opened or reopened, as the case may be, regardless of whether or not, theretofore, any succession proceedings had been filed in court. The court may appoint or reappoint the succession representative, if any, or may appoint another, or new, succession representative. The procedure provided by this Code, for an original administration, shall apply to the administration of successions formally or informally accepted by heirs or legatees and in successions where a judgment of possession has been rendered, in so far as same is applicable.

The basic purpose of the article is to provide a means for dealing with overlooked succession assets. Succession of Villarrubia , 95–2610 (La. 9/5/96), 680 So.2d 1147, 1150. Courts have found "other proper cause" under LSA-C.C.P. art. 3393 to exist under extremely limited circumstances, such as where a valid will is discovered after the administration of an intestate succession. Id. Whether or not a succession will be reopened is within the sound discretion of the trial court. Id.

In their first two issues presented for review, the Hall Children assert that the trial court should not have reopened Mrs. Coon's succession and should not have accepted the December 27, 1994 will as valid. The Hall Children contend that Mr. Coon, if he believed a will existed, had a duty to inform the court and to produce any and all versions of Mrs. Coon's will in his possession. The Hall Children assert that there may be three or more versions of Mrs. Coon's will. Specifically, the Hall Children aver that in addition to the December 27, 1994 will, there is possibly an olographic testament and another statutory will. However, none of these alleged referenced wills have been produced nor have they been proven to be valid if they exist. Additionally, there has been no challenge to whether the will filed with the court meets all the requirements for a valid statutory will.

With regard to the alleged olographic testament, the Hall Children presented the testimony of Rita Britten, who dated Mr. Coon following Mrs. Coon's death. Ms. Britten testified that she had read a document shown to her by Mr. Coon, which appeared to be Mrs. Coon's will. The document was not typewritten, but was handwritten on "greenish" legal-size paper. Ms. Britten testified that the purported olographic will bequeathed one-sixth interest in the family home to Mr. Coon. She also recalled the will mentioning a usufruct, giving Mr. Coon "rights to the house until he dies or he remarries." She further testified that Mrs. Coon's signature and the witnesses' signatures appeared on the document. Ms. Britten's testimony does not indicate any conflict between the contents of the purported olographic will and the provisions of the statutory will filed and executed by the trial court.

With regard to the alleged additional testamentary will, Kimberly testified that the December 27, 1994 will that was probated was exactly the same as the will read the night Mrs. Coon died, but claimed that the will read the night Mrs. Coon died did not have a notarial seal. Further, Brian asserts that a copy of the will he later retrieved from the bank contained "no dates or anything on it," but admitted that he did not hold or see the will after Kimberly retrieved it from her mother's nightstand.

The Hall Children aver that Mr. Coon, even if he believed the other wills to be invalid, was required to produce them to the trial court. In this regard, LSA-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.

The Hall Children posit that Mr. Coon, in attempting to reopen the intestate...