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1 NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2016 CA 1346 SUCCESSION OF CHARLES GEORGE HARLAN Judgment rendered_._ju_n_0_6_2_0_17_ On Appeal from the Eighteenth Judicial District Court In and for the Parish ofpoint Coupee State oflouisiana No. 46,840-D The Honorable Elizabeth A. Engolio, Judge Presiding Eugene R. Groves Baton Rouge, LA and Stephen P. Jewell New Roads, LA Attorneys for Appellants Hansel M. Harlan, individually and as Independent Executor, Veni Sue Harlan, Hansel M. Harlan, Jeffrey D. Harlan and Gretel G. Harlan Kelly Joseph A. Prokop, Jr. Baton Rouge, LA and Mark R. Callender Baton Rouge, LA Attorneys for Appellee Xiaoping W. Harlan BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ. e,,,,,..ec... ~ ~ ~.. ~ ~ ~ ~ -;; ezt.j

2 HOLDRIDGE, J. The decedent's children appeal from a trial court judgment finding that a document which was invalid as a will was not valid as an authentic act to revoke the decedent's prior wills, leaving the succession intestate. 1 Finding error, we reverse. FACTS AND PROCEDURAL BACKGROUND Charles G. Harlan died on November 26, He was survived by his second wife, Xiaoping Harlan, whom he married on February 28, He was also survived by four adult children from his first marriage, namely, Veni Harlan, Hansel Harlan, Jeffrey Harlan, and Gretel Harlan Kelly. On December 10, 2015, the children filed a petition to file and execute a notarial testament that Charles executed on March 9, 2000 ( the 2000 will), and to have Hansel named independent executor. The trial court entered an order that the 2000 will be filed and executed and appointed Hansel as executor. 2 On January 15, 2016, Xiaoping filed a petition to nullify the 2000 will, to file another purported will, and to remove Hansel as executor and have herself appointed as executor. The purported will that Xiaoping filed was a document dated June 5, 2012 ( the 2012 document). Xiaoping claimed the 2012 document was invalid as a will but was valid as an authentic act that revoked the 2000 will based on its provision revoking all prior wills, thereby leaving the estate intestate. 3 1 Another related appeal arose from the succession. The present appeal arises from the latter judgment in this suit, which was signed on June 6, The other appeal, Succession of Harlan, , decided by a separate opinion rendered on this same date, arises from the first judgment in this suit, which was signed on February 24, See La. C.C.P. art (" A notarial testament, a nuncupative testament by public act, and a statutory testament do not need to be proved. Upon production of the testament, the court shall order it filed and executed and this order shall have the effect ofprobate."). 3 Xiaoping also filed a purported codicil to the 2012 document, which was dated March 1, 2014, but it is not relevant to any issues before this court. In its February 24, 2016 judgment, the court found that the codicil was null. 2

3 On February 11, 2016, the trial court held a hearing on this matter and in oral reasons agreed with Xiaoping's assertion that the 2012 document was null as a will because it did not contain an attestation clause. The trial court then held that because the 2012 document was null as a will, it could not invalidate the prior properly executed 2000 will. On February 24, 2016, the trial court signed a judgment declaring that the 2012 document was null ab initio and rejecting the challenge to the probate ofthe 2000 will. 4 After the February 24, 2016 judgment was signed, but on the same date, Xiaoping presented a purported olographic will dated May 24, 2007 for probate the 2007 document). Xiaoping then filed a petition to probate the 2007 document. Hansel and his siblings opposed the petition to probate the 2007 document. Hansel and his siblings took the position that the 2012 document's revocation provision was an authentic act that served to revoke the 2007 document, although they had previously argued that the 2012 document was not an authentic act sufficient to revoke the earlier 2000 will. Likewise, although Xiaoping previously contended that the 2012 document validly revoked the 2000 will, she argued that it was not a valid authentic act and could not revoke the 2007 document. On April 7, 2016, the successor trial judge presiding over the trial court5 held a hearing on Hansel's and his siblings' opposition to the petition to probate the 2007 document, among other matters. In the trial court's oral reasons, she 4 The judgment does not specifically state that the 2012 document does not revoke the 2000 will, but it does reject the challenge to the probate of the 2000 will, which was based upon the consideration of the 2012 document as an authentic act revoking prior wills. The judgment also reconfirmed Hansel as the independent executor, denied Xiaoping's request to be appointed administratrix, ordered her to vacate the premises within a period oftime to be worked out by the parties, ordered her to tum over all property belonging to the estate to the independent administrator, and denied her demand for a marital portion. 5 We note that the judge presiding in the trial court changed during the pendency of these proceedings. 3

4 stated that she agreed with the previous presiding judge's analysis of the ability of the 2012 document to revoke prior wills. The trial court signed a judgment on June 6, 2016, holding that the 2007 document was in proper form and admitting it for probate, and also holding that the 2012 document was void and therefore did not revoke the 2007 document. From this judgment, the children filed a devolutive appeal on June 10, 2016, which is the present appeal. 6 The children had also filed a devolutive appeal from the judgment of February 24, 2016, which is the subject of the related appeal. 7 Hansel filed a motion to consolidate the appeals, but the motion was denied; however, this court assigned the appeals to the same panel on the same docket. The related appeal is decided by a separate opinion rendered on this same date. Hansel raises substantially the same assignments of error in both appeals. He assigns as error the rulings that the 2012 purported authentic act was not in legal form, that the invalidation of the 2012 document as a will also invalidated it as an authentic act, and that the 2000 will and 2007 document were not revoked by the 2012 purported authentic act, which contained the statement, " Any prior wills are hereby revoked." The parties do not dispute that the 2012 document is not valid as a will, but they dispute its validity as an authentic act to revoke the 2007 document. If the 2012 document is valid as an authentic act, and therefore, as a revocation of prior wills, then the succession would proceed intestate. If the document is not a valid revocation, then the 2007 document would control. 6 Among the children appealing the judgment, Hansel filed the appeal as the executor and in his individual capacity. The appellate briefs were filed by only Hansel and identified him as the executor. 7 See footnote 6. 4

5 ANALYSIS These appeals present legal issues only, as the facts are undisputed. This court reviews the legal conclusions of the trial court under a de novo standard of review. Holly & Smith Architects, Inc. v. St. Helena Congregate Facility, Inc., (La /06), 943 So.2d 1037, The 2012 document consists of two typed pages and is entitled, " LAST WILL AND TESTAMENT OF CHARLES GEORGE HARLAN, SR." The first paragraph, second sentence, of the document states, " Any prior wills are hereby revoked." The right margin of the first page contains Charles' handwritten initials and the date, and at the bottom of the page, the notary's signature, the handwritten date, and his notarial seal appears. The second ( and last) page concludes with the typed language, " I hereunto set my signature this [ 5] day of [June] 2012." The bracketed material is handwritten. Below that language is Charles' signature on a line, beneath which is his typed name. To the right of Charles' signature and typed name is the typed word " Witness." Beneath the word " Witness" are lines containing the signatures of Tungele Heard and Jarel E. Neese. Below their signatures are the typed words, " Notary Public" followed by the signature of Felix DeJean IV, Notary Public, with a handwritten date of June 5, 2012, then followed by Felix's notarial seal. Louisiana Civil Code article 1607, which is entitled, " Revocation of entire testament by testator," provides: Revocation of an entire testament occurs when the testator does any ofthe following: direction. 1) Physically destroys the testament, or has it destroyed at his 2) So declares in one of the forms prescribed for testaments or in an authentic act. 5

6 3) Identifies and clearly revokes the testament by a writing that is entirely written and signed by the testator in his own handwriting. emphasis added). Louisiana Civil Code article 1833, entitled "Authentic Act," states: A. An authentic act is a writing executed before a notary public or other officer authorized to perform that function, in the presence of two witnesses, and signed by each party who executed it, by each witness, and by each notary public before whom it was executed. The typed or hand-printed name of each person shall be placed in a legible form immediately beneath the signature of each person signing the act. B. To be an authentic act, the writing need not be executed at one time or place, or before the same notary public or in the presence of the same witnesses, provided that each party who executes it does so before a notary public or other officer authorized to perform that function, and in the presence of two witnesses and each party, each witness, and each notary public signs it. The failure to include the typed or hand-printed name of each person signing the act shall not affect the validity or authenticity ofthe act. To support his contention that the 2012 document is an authentic act that revokes both the previously probated 2000 notarial will and the 2007 document, leaving the succession intestate, Hansel relies on In re Hendricks, ( La. App. 1 Cir. 9/23/09), 28 So.3d 1057 ( Hendricks I), and In re Succession of Hendricks, ( La. App. 1 Cir. 11/7/14), 2014 WL ( Hendricks II). In Hendricks I, this court found that a notarial testament was null because the testator did not sign on each separate page ofthe testament as required by La. C.C. art. 1577(1), but this court also held that the revocation clause in the nullified testament revoked a prior will. Hendricks I, 28 So.3d at 1057, 1060, This court initially noted that effective July 1, 1999, 1997 La. Acts, No. 1421, 1, revised the Civil Code so that a testator's revocation of a testament is now governed by La. C.C. art. 1607, as opposed to former La. C.C. art. 1692, which had read, " The act by which a testamentary disposition is revoked, must be made in one ofthe forms prescribed for testaments, and clothed with the same formalities." 6

7 Hendricks I, 28 So.3d at This court then discussed whether the revocation clause was valid under La. C.C. art. 1607, stating: The testator's ability to revoke a prior testament was expanded by adding the use of an authentic act to do so. See LSA-C.C. art and Revision Comments In 2006, an entire testament could be revoked by an authentic act in which the testator declared his testament revoked. An authentic act is a writing executed before a notary public or other officer authorized to perform that function, in the presence of two witnesses, and signed by each party who executed it, by each witness, and by each notary public before whom it was executed. LSA-C.C. art. 1833(A). Thus, the fact that the document executed by [ decedent] in 2006 is not a valid testament does not preclude the document from constituting an authentic act, and the parties do not dispute that the 2006 document complies with the requirements of LSA-C.C. art. 1833(A). In the 2006 document, decedent] stated: " I revoke all of my prior wills and codicils." This statement reflects a clear intent to revoke and should be honored. See LSA-C.C. art. 1607, Revision Comments Thus, we are unable to find that the trial court erred in finding that the revocation clause in decedent's] 2006 authentic-act document constituted a formal revocation ofhis 1993 testament under LSA-C.C. art. 1607(2) We note that, on the last page ofthe 2006 document, [ decedent] did not sign his name after concluding the dispositive, appointive, and directive provisions, but instead signed after the declaration or attestation clause along with the two witnesses and the notary. If decedent] had followed the opposite sequence, our conclusion may have been different. See LSA-C.C. art. 1833(A). Hendricks I, 28 So.3d at When the Succession of Hendricks was appealed a second time for different reasons, the court summarized its prior opinion, explaining that under former La. C.C. art. 1692, which was revised and reenacted as La. C.C. art. 1607, if a will containing a clause revoking a previous will or wills of the testator was annulled, the revoking clause lost its effect and the last preceding will stood unrevoked. Hendricks II at 2014 WL at p. 4. This court noted in Hendricks II, "Until this court's decision in Hendricks I, no court had interpreted the revised codal article to declare that even when a subsequent will containing a revocation clause was not a valid will, if it was a valid authentic act, then the revocation clause was effective as to prior wills." Id. 7

8 In this case, the original judge presiding over the trial court stated that his decision was contrary to Hendricks I in that it failed to recognize the 2012 document as an authentic act that revoked all prior wills. ( TR 425) At the hearing, he also commented that the 2012 document was not an authentic act because it did not contain the typed or printed names below the witnesses' signatures. The successor trial court judge agreed with the original presiding judge's analysis and added that the revocation language in the 2012 document was not on the same page as the signatures ofthe attorney, witnesses, and the purported testator. We will first consider whether the 2012 document constitutes an authentic act sufficient to revoke prior wills pursuant to La. C.C. art The 2012 document is a writing executed before a notary public, in the presence of two witnesses, and signed by the party who executed it, each witness, and the notary public. However, while La. C.C. art. 1833(A) states that the signers' names must be typed or printed beneath their signatures, La. C.C. art. l 833(B) states that the failure to include the typed or printed names shall not affect the validity or authenticity of the writing. 8 Therefore, the lack of typed or printed names below the witnesses' signatures does not render the 2012 document invalid as an authentic act. Moreover, while Charles failed to sign the first page of the two-page document, which contained the revocation language, La. C.C. arts and 1607(2) do not require that the signatures necessary for the authentic act must be on the page containing the revocation language. Louisiana Civil Code article 1607 merely states that the testator must declare his desire to revoke a prior testament 8 The provisions as to typed or printed names in authentic acts were added by 2003 La. Acts, No. 965, which was effective January 1, 2005, and to be applied prospectively. 8

9 in an authentic act." Neither La. C.C. art nor La. C.C. art requires that the person executing an authentic act sign every page of the document. Similarly, La. C.C. art only requires that the revocation language be contained in an authentic act, not on the same page as the signatures of the party, witnesses, and notary. Xiaoping contends that an authentic act must include a statement that the document was executed before a notary public or other officer authorized to perform that function, in the presence of two witnesses, and signed by each party who executed it, by each witness, and by each notary public before it was executed. The 2012 document does not contain such language, but there is no requirement in La. C.C. art that those words or substantially similar words be included in the document for it to be a valid authentic act. 9 While similar language is a requirement for a valid notarial will pursuant to La. C.C. art. 1577, 10 it is not a 9 Xiaoping points out that the parties in Hendricks I did not dispute that the invalid testament contained a valid authentic act, and she relies on the language in footnote 15 of the opinion. In that footnote, quoted earlier, the court said that if the testator had followed the opposite sequence, which would appear to mean that if the testator had signed his name after the dispositive, appointive, or directive provisions followed by the attestation clause with the two witnesses and the notary, " our conclusion may have been different," citing La. C.C. art. 1833(A). We initially note that the language in footnote 15 is dicta, which we are not bound to follow. Moreover, the court in Hendricks I did not definitively state that its conclusion would have been different, but only that it "may have been different." Our decision herein is based on La. C.C. art. 1833(A), which does not require that to be a valid authentic act, the document must contain a statement that it was executed before a notary in the presence of two witnesses in addition to the required signatures, and on La. C.C. art. 1607(3), which does not add the requirement of an attestation clause to the authentic act. 10 Louisiana Civil Code article 1577 provides: The notarial testament shall be prepared in writing and dated and shall be executed in the following manner. Ifthe 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 ofthe testament and on each other separate page. 2) In the presence ofthe 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 ofthe 9

10 requirement for a valid authentic act under La. C.C. art The rules for the revocation of a testament are more relaxed. See Revision Comments-1997, La. C.C. art Under La. C.C. art. 1835, "[ a] n authentic act constitutes full proof of the agreement it contains, as against the parties, their heirs, and successors by universal or particular title." The law accords a high degree of sanctity to authentic acts. DiVincenti v. Mcintyre, 611 So.2d 140, 141 ( La. App. 1 Cir. 1992), writ denied, 614 So.2d 1264 ( La. 1993). Thus, because an authentic act is clothed with a presumption of genuineness, the party attacking its authenticity bears the burden of proving its invalidity. Id. Moreover, in order to overcome the presumption of genuineness, the attacking party must meet a higher burden of proof than a mere preponderance of the evidence. Id. Because an authentic act is presumed to be valid, regardless of whether it is attacked on the grounds that an included signature is a forgery or that the act was not executed before a notary and two witnesses, convincing proofmust be presented to invalidate the act. See id. In this case, Xiaoping presented no evidence to challenge the validity of the authentic act. Additionally, the cases relied on by Xiaoping to support her contention that the 2012 document is not an authentic act do not apply to this case. Eschete v. Eschete, (La. App. 1 Cir. 2/27/14), 142 So.3d 985, 11 Hardin v. Williams, 468 So.2d 1302 ( La. App. 1 Cir. 1985), affd, 478 So.2d 1214 ( La. 1985), 12 and Zamjahn v. Zamjahn, ( La. App. 5 Cir.1/28/03), 839 So.2d testator and each other we have hereunto subscribed our names this day of 11 In Eschete, 142 So.3d at 988, the purported donation was not a valid authentic act because the trial court found the writing was not executed before the notary and one of the witnesses. The evidence showed that the witness and the notary were physically separated from the donor husband, which prevented them from watching him sign the document. Id. 12 In Hardin, 468 So.2d at 1304, a purported donation was attacked based on the notary public's testimony that he was not in the room where the donor, witnesses, and the draftsman of the act 10

11 309, 315, writ denied, ( La.4/25/03), 842 So.2d These decisions involved notarial acts that were attacked by one party as not meeting the applicable requirements for an authentic act. The courts in those cases did not hold that to be authentic, an act must contain a declaration with language tracking La. C.C. art in addition to the signatures of the signing party, the notary, and the witnesses. Rather, the documents in these cases appeared to be authentic on their faces, but the evidence established that they were not signed before the notary and/or the witnesses. Here, there was no evidence introduced to show that the 2012 document was not an authentic act or that the clause "[ a]ny prior wills are hereby revoked" was not the intention ofthe testator. We find that, as was the case in Hendricks I, the 2012 document is a valid authentic act pursuant to La. C.C. art. 1833, and therefore, under La. C.C. art. 1607(2), the statement within that document revoking prior wills can serve to revoke all prior wills in this matter of Charles G. Harlan, including the May 24, 2007 olographic will. 14 were when the act was signed. The evidence was sufficient to overcome the presumption of validity ofthe notarial act and render it null. Id. at In Zamjahn, 839 So.2d at 314, the validity of a donation was attacked because the husband, two witnesses, and notary were all present when the donor husband signed, but the donee wife simply added her signature at a later time. The notary and two witnesses actually were present when she signed, but they did not sign the instrument again attesting to her later acceptance. Id. The court found that the signature of the donee as to the acceptance, which must also be witnessed by a notary and two witnesses who must also sign the document, was not in compliance with the statutory requirements for an authentic act; therefore, the donation was invalid. Id. at While this court notes that it is an extremely harsh remedy for this court to rule that a testator who has signed three wills has died intestate, this is the result mandated by the Civil Code. Louisiana does not follow the common law doctrine of dependent relative revocation, which is explained in The Restatement (Third) ofproperty as follows: a) A partial or complete revocation of a will is presumptively ineffective ifthe testator made the revocation: 1) in connection with an attempt to achieve a dispositive objective that fails under applicable law, or 2) because ofa false assumption oflaw, or because ofa false beliefabout an objective fact, that is either recited in the revoking instrument or established by clear and convincing evidence, 11

12 CONCLUSION For the above reasons, we reverse that part of the June 6, 2016 judgment finding that the June 5, 2012 document did not revoke the May 24, 2007 olographic will, and render judgment finding that the 2012 document revoked the May 24, 2007 olographic will. This matter is hereby remanded to the trial court for further proceedings consistent with this opinion. Costs of this appeal to be paid by Xiaoping Harlan. REVERSED AND REMANDED. b) The presumption established in subsection (a) is rebutted ifallowing the revocation to remain in effect would be more consistent with the testator's probable intention. Restatement (Third) ofprop.: Wills and Other Donative Transfers 4.3 ( 1999). See also Smith v. Shaw, 221 La. 896, 60 So.2d 865, 900 (La. 1952). 12

13 STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO. 2016CA1346 SUCCESSION OF CHARLES GEORGE HARLAN CRAIN, J., concurring. Wj~ I concur for the reasons expressed in my concurrence to the companion case, Succession ofcharles George Harlan, , _ WL ( La. App. 1 Cir. 17).