IN RE: THE SUCCESSION OF CARLOS CASTRO (2025)

In this appeal, Leonor Castro seeks review of the trial court's judgment denying her petition to probate testament, for appointment as executrix, and for possession. For the following reasons, we vacate the trial court's judgment denying the petition and remand for further proceedings.

FACTS and PROCEDURAL HISTORY

On August 27, 2024, Leonor Castro filed a petition to probate testament, for appointment of executrix without bond, and for possession. Therein, Mrs. Castro represented that her husband, Carlos Castro, died on September 12, 2023. The petition indicates that Mr. Castro was married twice, and that he was married to Mrs. Castro at the time of his death. Mr. Castro had three children out of wedlock before his marriage to Mrs. Castro, and one child from his marriage to Mrs. Castro.

Mrs. Castro stated that Mr. Castro died testate in that he executed a notarial testament on August 15, 2011, and she submitted the testament in conjunction with the petition. Mrs. Castro requested that the testament be filed into the succession record and executed pursuant to La. C.C.P. art. 2851, et seq. She also requested that she be appointed independent testamentary executrix of the succession. Mrs. Castro sought possession of the undivided one-half (1/2) interest in the property belonging to the community of acquets and gains that existed between her and Mr. Castro, as well as the property Mr. Castro bequeathed to her in his testament.

Mrs. Castro submitted with her petition the following pertinent documents: (1) Mr. Castro's death certificate; (2) his testament; (3) an affidavit of death, domicile, and heirship; and (4) a detailed descriptive list.

On August 31, 2024, without a hearing, the trial court denied, in pertinent part, Ms. Castro's request for the decedent's testament to be filed and executed and to appoint her as independent testamentary executrix of the succession. The trial court also denied Ms. Castro's proposed judgment of possession. In reasons for judgment dated October 1, 2024, the trial court sua sponte declared Mr. Castro's testament invalid, concluding that it lacked an attestation clause by the notary and the witnesses, as required by La. C.C. art. 1577(2).

Following this court's order for the trial court to render an amended judgment with appropriate and necessary decretal language, on January 30, 2025, the trial court signed an amended judgment declaring Mr. Castro's testament invalid. In the amended judgment, the court also denied Ms. Castro's petition to probate testament with prejudice and denied her request to be appointed independent executrix. This appeal followed.

LAW and ANALYSIS

Ms. Castro appeals the trial court's judgment declaring the decedent's testament invalid. For the following reasons, we vacate the trial court's judgment and remand for further proceedings.

The Louisiana Code of Civil Procedure provides detailed guidelines for heirs to follow in seeking to probate a decedent's testament.

If a deceased is believed to have died testate, any person who considers that he has an interest in opening the succession may petition a court of competent jurisdiction for the probate and execution of the testament. La. C.C.P. art. 2851. When a petitioner files the testament for probate, the petitioner shall submit with the petition evidence of the decedent's death and all necessary facts to establish the court's jurisdiction. La. C.C.P. art. 2852 A.

A person in possession of a document purporting to be a deceased person's testament shall present the document to the court with a petition praying that the document be filed in the record of the succession proceeding, even though the person does not believe the document is the deceased's valid testament or doubts its validity. La. C.C.P. art. 2853.

When a person produces a testament for probate, the court shall order it presented for probate on a date and hour assigned. La. C.C.P. art. 2856. If all necessary witnesses are present in court at the time the testament is produced, the court may order it presented for probate forthwith. Id.

Pending the probate hearing, the court may appoint a provisional administrator, when it deems such appointment necessary to preserve, safeguard, and operate the property of the succession. La. C.C.P. art. 3111. The appointment of a provisional administrator is temporary, pending the confirmation of the executor or appointment of the administrator, and must be a competent person not disqualified on any of the grounds in La. C.C.P. art. 3097. The court may, on its discretion, appoint as provisional administrator the executor named in the unprobated will. La. C.C.P. art. 3111; Succession of Liner, 53,138 (La. App. 2 Cir. 11/20/19), 285 So.3d 63, 69, writ granted, 19-2011 (La. 2/26/20), 294 So.3d 476, and aff'd, 19-2011 (La. 6/30/21), 320 So.3d 1133.

At the probate hearing, the court shall proceed to probate the testament ex parte as provided in Article 2882, unless an objection thereto is made at the hearing. La. C.C.P. art. 2881. A person may object to the ex parte probate of a testament in an opposition, or orally at the hearing. Id. If the objection is made in a written opposition, the opposition must comply with La. C.C.P. art. 2902 and be filed prior to the hearing. Id. An oral objection must specify the grounds of invalidity of the testament asserted, and must be urged immediately after the objector has had an opportunity to examine the purported testament. Id.

At the probate hearing, the court shall open the testament, if it is enclosed in a sealed envelope, receive proof of the making of the testament as provided in Articles 2883 through 2889, may read the testament to those present, and shall paraph the top and bottom of each page of the testament by inscribing it “ne varietur” over the judicial signature. La. C.C.P. art. 2882. “Ne varietur” is a Latin phrase, meaning “it must not be altered.” Black's Law Dictionary, (8th ed.).

The Louisiana Supreme Court has held that the admission of a will to probate, and the order given for its execution, are only preliminary proceedings necessary for the administration of the estate, and do not amount to a judgment binding on those who are not parties thereto. Shimshak v. Cox, 166 La. 102, 116 So. 714 (1928); Succession of Duplessis, 10 Rob. (La.) 193, 196 (1845).

In the present case, Mrs. Castro filed her petition to probate the late Mr. Castro's will to the court first seeking to have the will filed in the record of the succession proceeding. There was no objection to Mr. Castro's will. In addition, there was no contradictory hearing regarding the validity of Mr. Castro's will.

Pursuant to La. C.C.P. art. 2881, the trial court “shall proceed” to probate a will ex parte according to the procedure stated in La. C.C.P. art. 2882, “unless an objection thereto is made at the hearing.” When a law is clear and unambiguous and its application does not lead to an absurd result, the law shall be applied as written and no further interpretation may be made in search of the legislative intent. La. C.C. art. 9. The language of La. C.C.P. art. 2881 indicates a court shall probate a will unless another party objects.

According to the petition to probate, Mr. Castro left a notarial testament executed on August 15, 2011. La. C.C.P. art. 2891 does not require that a notarial testament be proven. This article states that upon production of the testament, the court shall order it filed and executed and this order shall have the effect of probate.

Considering the foregoing code articles, we find, under these circumstances, it was premature for the trial court to declare Mr. Castro's will invalid. There was no hearing and no objection to the will prior to the trial court's judgment. Based on the above guidelines, the trial court should have ordered the will filed into the succession record and/or allowed for a hearing to take place before declaring it invalid.

According to the Louisiana Supreme Court, the admission of a will to probate, and the order given for its execution, are only preliminary proceedings necessary for the administration of the estate, and do not amount to a judgment binding on those who are not parties thereto. Shimshak, 116 So. 714 (1928); Schwan v. Schwan, 52 La. Ann. 1183, 1195, 27 So. 678, 683 (1900); Succession of Duplessis, 10 Rob. (La.) 193, 196 (1845). Thus, if there are heirs who seek to challenge the will, they will have the opportunity.

We therefore vacate the trial court's judgment declaring Mr. Castro's will invalid and remand for further proceedings.

DECREE

For the reasons stated herein, we vacate the trial court's judgment declaring Mr. Castro's will invalid, order it filed into the record, and remand for further proceedings.

VACATED AND REMANDED

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