SUCCESSION OF RAMON HAROLD GRANT v. << (2025)

In this trust matter, Defendant, Randall Lee Grant, appeals from the trial court judgment modifying the inter vivos trust established by his father and stepmother to exclude him from the list of named beneficiaries and ordering the termination of the trust and the distribution of the trust assets to the remaining beneficiaries named in the trust. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Ramon Harold “Bud” Grant (Bud) and Bobbie Olene Swain Grant (Bobbie), residents of Natchitoches Parish, had each been previously married. Bud had three children from his previous marriage: Rhonda Diane Grant Hittle (Rhonda), Defendant, and Roger Harold Grant (Roger).¹ Bobbie had two children from her previous marriage: Pamela Pilkenton Casey (Pamela), and Paul Edward Pilkenton (Paul). In 2006, Bobbie suffered a disabling stroke as a result of a cerebral aneurysm, which rendered her incapable of caring for herself for the remainder of her life.

On July 16, 2009, Bud, as settlor and as Bobbie's agent and attorney-in-fact, created the revocable Bud and Bobbie Grant Management Trust (the Trust), whereby they transferred separate and community property to the Trust, consisting of tracts of land located in Vernon, Catahoula, Sabine, and Natchitoches Parishes, a Merrill Lynch Wealth Management Account, and their interests in RHG Systems, Inc., B & BG Systems, and GHR Properties, L.L.C. Bud and Bobbie were named as settlors and initial income beneficiaries, and Bud was designated as trustee, with Defendant listed as the successor trustee. Bud's and Bobbie's children were named as the Trust's principal beneficiaries. The Trust reserved to Bud and Bobbie the right to modify the Trust as long as it remained revocable.

That same day, Bud executed his notarial testament (the Will), whereby he stated that “[a]ll of my property that shall not pass to legatees who survive me under Article II of this will constitutes my Residuary Estate.”² Regarding Bud's residuary estate, the Will stated:

If my spouse shall survive me, I give and bequeath my Residuary Estate to the Bud and Bobbie Grant Management Trust, of which my spouse and I are settlors, established by trust instrument dated July 16, 2009, executed in the Parish of Calcasieu, State of Louisiana, before David L. Sigler, Notary Public, as it may be amended (the Management Trust”)[.]

In the event Bobbie predeceased Bud or the Trust was revoked prior to his death, the Will provided for the creation of a testamentary trust in favor of Bobbie, if she survived him, and testamentary trusts in favor of his descendants, the five children, if she predeceased him. On July 31, 2009, Bobbie executed her last will and testament, which mirrored the terms found in Bud's Will.

On October 23, 2014, Bud, as trustee and settlor of the Trust and as Bobbie's agent and attorney-in-fact, executed a donation and partial revocation of the Trust, in which four of the Trust's six Natchitoches Parish tracts of property (the Saline property), totaling approximately eighty-seven acres, was donated to Defendant. The donation was made subject to a life-time usufruct in favor of Bud and Bobbie.³

Early in February 2017, Bud was diagnosed with lung cancer, which had metastasized to his brain. On February 28, 2017, he revoked a prior power of attorney granted in favor of Defendant, and the next day, March 1, 2017, he executed a notarial codicil (Codicil) to his Will, by which he replaced the definition of “our descendants” with “our remaining descendants,” based on the following declaration:

My son, RANDALL, has already received from me his inheritance as a result of the donation and partial revocation of trust recorded in the Natchitoches Parish Clerk of Court on November 5, 2014[,] under Register 372865 in Book 688, page 623. Where used in this will, the term “our descendants” is hereby replaced with the term “our remaining descendants” which shall refer to RHONDA, ROGER, PAMELA and PAUL. I will and bequeath to my remaining descendants, RHONDA, ROGER, PAMELA and PAUL in equal undivided fractional shares of an undivided one-fourth (1/4) interest to each any or all legacies left in this will to “our descendants” which shall now read “our remaining descendants”.

The Codicil further amended the Will to appoint Rhonda and Richard Paul Garofano, Bud's nephew, as trustee and successor trustee, respectively, “of any trust created under this will” in place of Defendant and Bud's accountant. It also amended the Will to appoint Mr. Garofano and Rhonda in place of Defendant and Bud's accountant, as the original and successor independent administrator of his estate, respectively. Finally, the Codicil added the following miscellaneous provision:

6.5 Consequences of Contest. Should any heir or legatee contest any provision of this will in any form or fashion, including, but not limited to any litigation in connection therewith, any bequests made to that heir or legatee who contests this will or any portion thereof is hereby nullified and rescinded and it is my intention that that person or persons should not receive any bequests, legacies or inheritance from me whatsoever.

On March 9, 2017, eight days after executing the Codicil, Bud executed a Financial Power of Attorney in favor of Rhonda, appointing her as his agent, mandatary, and attorney-in-fact, and granting her:

[A]ny or all rights, powers and authorities to act for and on behalf of the appearer in connection with his capacity as both Settlor and Trustee of the “BUD AND BOBBIE GRANT MANAGEMENT TRUST” (hereinafter “THE TRUST”), dated July 16, 2009 and specifically included would be any or all powers to which the Grantor would be entitled to have (and to delegate and assign herein) as Trustee under the provisions of the Louisiana Trust Code which are adopted herein by reference.

Bud died on April 11, 2017. On April 28, 2017, Bobbie was placed under a temporary full interdiction, with Pamela and Paul appointed as curator and undercurator. An order of preliminary interdiction was rendered on May 14, 2017, with Pamela and Rhonda appointed as preliminary curator and preliminary undercurator, respectively.

On March 2, 2018, Mr. Garofano filed a petition to probate Bud's Will and Codicil and to be appointed as the independent administrator of the succession. On March 5, 2018, the trial court held that the Will and Codicil were proved and ordered that they be filed and executed according to law. It further appointed Mr. Garofano as the independent administrator of the succession. Following Mr. Garofano's resignation, Rhonda was appointed independent administrator of the succession on December 20, 2018. On March 20, 2020, Defendant filed a petition seeking to be substituted as the independent administrator or executor in place of Rhonda, who had resigned. An order approving Defendant as executor and ordering him to post a bond of $20,000.00 was rendered by the trial court on March 24, 2020.

Bobbie died on February 18, 2022. As to the termination of the Trust, the trust instrument provides:

[U]nless the trust shall have been sooner revoked as provided in this trust instrument, each trust created under this trust instrument shall terminate as of the last to occur of the following:

(1) the end of the twelfth (12th) calendar month following the date as of which neither Settlor shall be an income beneficiary of the trust; or

(2) with respect to the interest in the trust of any principal beneficiary, the earliest to occur of the following:

(i) the death of such beneficiary; or

(ii) the end of the calendar year during which such beneficiary shall have reached twenty-five (25) year [sic] of age.

Thus, the Trust by its own terms, could have terminated on February 18, 2023, as all of the principal beneficiaries had reached twenty-five years of age prior to Bobbie's death.

On April 15, 2024, Paul, with Pamela, Roger, and Rhonda joining him pro se (referred to collectively as “Plaintiffs”), filed a petition for instructions and modification of the Trust pursuant to La.R.S. 9:2233(A) and La.R.S. 9:2026(A), against Defendant, the purported Trustee. They requested that the Trust be modified to exclude Defendant as a principal beneficiary based on Bud's actions and clear statement in the Codicil that he had already received his inheritance. They pointed to Bud's revocation of Defendant's power of attorney, and his grant of Rhonda's financial power of attorney, which appointed her as Bud's agent in regard to trust matters. They also pointed to Bud's execution of the Codicil, which excluded Defendant as a descendant, declared that Defendant had already received his inheritance via the October 23, 2014 donation, removed him as testamentary trustee and independent executor of the succession, and inserted a provision revoking the inheritance of any legatee who contested the Will.

Based on the foregoing, Plaintiffs requested that the Trust be modified to exclude Defendant as a principal beneficiary. They further alleged that absent modification, the terms of the Trust “would substantially impair the purposes of the Trust, which is to distribute the remaining property of Bud and Bobbie Grant to the Petitioners as beneficiaries (specifically excluding Randall Grant), since Randall Grant previously received his inheritance via the 2014 Donation.” Thus, because the Trust had terminated as of February 18, 2023, and Defendant refused to terminate it, Plaintiffs requested that the trial court issue instructions modifying the Trust and ordering its termination and the distribution of the Trust assets in compliance with Bud's Codicil.

Defendant opposed Plaintiffs’ petition, denying that the Codicil effected a modification of the Trust.

This matter proceeded to a hearing on the merits on September 9, 2024. The trial court heard testimony from Rhonda, Mr. Garofano, Roger, Paul, and Defendant. The following exhibits were introduced into evidence by Plaintiffs: the Trust; the revocation of Defendant's power of attorney; the Financial Power of Attorney in favor of Rhonda; the Will; the Codicil; the April 4, 2014 Act of Donation and Partial Revocation of Trust; an August 22, 2024 appraisal of the Saline property; a September 4, 2024 appraisal of the timber located on the property; a March 2023 report for Bud's Merrill Lynch (ML) account; an October-December 2021 monthly account of healthcare funds dispersed on behalf of Bobbie; Bud's and Bobbie's death certificates; the two judgments ordering the interdiction of Bobbie; and a valuation of the Trust's assets, consisting of Bud's ML account, the Trust's remaining Natchitoches Parish property, and Bobbie's estate. Defendant's exhibits consisted of May 17, 2023 appraisals of the Trust's three remaining Natchitoches Parish properties; the July 2024 report for Bud's ML account; and Bobbie's September 28, 1998 and July 31, 2009 testaments.

At the close of the hearing, the trial court took the matter under advisement. Thereafter, on December 26, 2024, it rendered judgment modifying the Trust to exclude Defendant as a beneficiary “based on the declaration by Bud Grant in his Codicil that Randall Lee Grant should not receive any further inheritance since he received the 2014 Donation of the Natchitoches Parish immovable property from the Trust.” The trial court further ordered the termination of the Trust and the distribution of the Trust's property to Paul, Pamela, Roger, and Rhonda.⁴ It is from this judgment that Defendant appeals.

On appeal, Defendant raises two assignments of error:

1. The Trial Judge was incorrect in her judgment that the change of beneficiaries of the Codicil to the will of Ramon Harold Grant should also apply to change the beneficiaries of the Trust.

2. If this Court deems that the Trial Judge was correct in this decision, then the Trial Judge was wrong in applying the change to all of the Trust rather than the portion as to Ramon Harold Grant.

OPINION

Under Louisiana law, “[a] trust ․ is the relationship resulting from the transfer of title to property to a person to be administered by him as a fiduciary for the benefit of another.” La.R.S. 9:1731. All “[p]roperty susceptible of private ownership ․ may be transferred in trust.” La.R.S. 9:1771.

The settlor, trustee, and beneficiary are the essential persons in the creation and maintenance of a trust. Bridges [v. Autozone Props., Inc., 04-814 (La. 3/24/05)], 900 So.2d [784,] 796. A settlor is a person who creates a trust. La. R.S. 9:1761. A trustee is a person to whom title to the trust property is transferred to be administered by him as a fiduciary. La. R.S. 9:1781. A beneficiary is a person for whose benefit the trust is created and may be a natural person, corporation, partnership, or other legal entity having the capacity to receive property. La. R.S. 9:1801.

A principal beneficiary is a beneficiary presently, conditionally, or ultimately entitled to the principal, which is the thing in trust. See La. R.S. 9:1725(4). An income beneficiary is a beneficiary to whom income is payable, presently, conditionally, or in the future, or for whom it is accumulated, or who is entitled to the beneficial use of principal presently, conditionally, or in the future, for a time before its distribution. La. R.S. 9:1725(2).

LeDoux v. LeDoux, 24-905, p. 9 (La.App. 1 Cir. 4/17/25), 409 So.3d 1127, 1133–34, writ denied, 25-641 (La. 9/24/25), 417 So.3d 54.

As Louisiana only allows express trusts, a settlor creates a trust by expressly stating the terms of the trust in a written document called the trust instrument. La.R.S. 9:1722; La.R.S. 9:1725(8); and La.R.S. 9:1761. However, once created, the terms of the trust can only be modified to the extent that the settlor expressly reserved the right to modify the trust. La.R.S. 9:2021. A reservation of an unrestricted right to modify allows the settlor to “change or amend the terms of the trust in any particular, or even revoke or terminate the trust.” La.R.S. 9:2023. Moreover, a “[r]eservation of the right to revoke includes the right to modify the trust.” La.R.S. 9:2022. Louisiana Revised Statutes 9:2051 provides that a trust can be modified either by authentic act or by testament:

A. A modification, division, termination, or revocation of a trust shall be by authentic act or by act under private signature executed in the presence of two witnesses and duly acknowledged by the person who makes the modification, division, or termination or by the affidavit of one of the attesting witnesses. The modification, division, termination, or revocation is not effective as to a trustee until a copy of the authentic act or a copy of the acknowledged act is received by him.

B. A modification, division, termination, or revocation of a trust may also be by testament. Such a modification, division, termination, or revocation is not effective as to a trustee until the trustee receives a copy of the testament and of the order probating it or ordering it filed and executed.

On appeal, a trial court's factual findings are reviewed pursuant to the manifest error-clearly wrong standard, ‘ “which precludes the setting aside of a trial court's finding of fact unless that finding is clearly wrong in light of the record reviewed in its entirety.’ ” Succession of Lanier, 17-540, p. 5 (La.App. 3 Cir. 5/30/18), 249 So.3d 1059, 1062 (quoting Hayes Fund for First United Methodist Church of Welsh, LLC v. Kerr-McGee Rocky Mountain, LLC, 14-2592, p. 8 (La. 12/8/15), 193 So.3d 1110, 1115), writ denied, 18-1091 (La. 10/15/18), 253 So.3d 1304. Statutory interpretations are questions of law, which are reviewed de novo and question whether the trial court's determination is legally correct. Johnson v. Allstate Prop. & Cas. Ins. Co., 21-552 (La.App. 3 Cir. 4/27/22), 338 So.3d 109. Mixed questions of law and fact are reviewed on appeal pursuant to the manifest error standard of review. Lakefront Mgmt. Auth. v. J & J Partners, L.L.C., 21-102 (La.App. 4 Cir. 11/10/21), 331 So.3d 434, writ denied, 21-1855 (La. 2/15/22), 332 So.3d 1188.

Assignment of Error Number One

In his first assignment of error, Defendant argues that the trial court erred in modifying the Trust as there was no change of circumstances from the time the Trust was created until Bud developed cancer in 2017.

Pursuant to La.R.S. 9:2233(A), “a beneficiary ․ may apply to the proper court for instructions concerning the trust instrument, the interpretation of the instrument, or the administration of the trust.” In response to such a request, “[t]he proper court may order the termination or modification of a trust, in whole or in part, if the continuance of the trust unchanged would defeat or substantially impair the purposes of the trust.” La.R.S. 9:2026(A).

The party seeking the modification of the trust must prove (1) the purpose or purposes of the trust; (2) that a change of circumstances has occurred; and (3) that “the change of circumstances ․ defeats or substantially impairs the purposes of the trust.” In re Mashburn Marital Trusts, 06-741, pp. 20–21 (La.App. 1 Cir. 12/28/06), 951 So.2d 1136, 1150–51;⁵ see also Edward E. Chase Jr., 11 Louisiana Civil Law Treatise, Trusts § 12:8 (3rd Ed. 2021).

In construing a trust, the settlor's intention controls and is to be ascertained and given effect, unless opposed to law or public policy. Thomas v. Kneipp, 43,228 (La.App. 2d Cir.05/28/08), 986 So.2d 175. Intent is an inherently factual finding. Klebanoff v. Haberle, 43,102 (La.App. 2d Cir.03/19/08), 978 So.2d 598. A court of appeal may not set aside a trial court's finding of fact in the absence of manifest error or unless it is clearly wrong. Thomas, supra. The issue to be resolved is not whether the trier of fact was right or wrong, but whether its conclusion was reasonable. Wood v. Spillers, 37,087 (La.App. 2d Cir.04/09/03), 843 So.2d 555. Where there are two permissible views of the evidence, the fact finder's choice between them cannot be manifestly erroneous or clearly wrong. Id.

In re Succession of Wilkerson, 44,213, p. 4 (La.App. 2 Cir. 4/8/09), 9 So.3d 1058, 1061, writs denied, 09-975, 09-994 (La. 6/19/09), 10 So.3d 741, 744.

“Parol or extrinsic evidence may be admitted to aid in construing a trust instrument only if the instrument is ambiguous or uncertain, and only to explain, and not to contradict, the instrument.” Thomas v. Kneipp, 43,228, p. 17 (La.App. 2 Cir. 5/28/08), 986 So.2d 175, 186 (citing Lelong v. Succession of Lelong, 164 So.2d 671 (La.App. 3 Cir. 1964)).

Regarding Plaintiffs’ request for modification and termination of the Trust, the judgment held:

3. The Bud and Bobbie Management Trust be and is hereby MODIFIED in part to show that the beneficiaries under Section 4.6(b)(1) therein shall exclude RANDALL LEE GRANT and include only PAUL PILKENTON, PAMELA CASEY, ROGER GRANT, and RHONDA HITTLE, based on the declaration by Bud Grant in his Codicil that Randall Lee Grant should not receive any further inheritance since he received the 2014 Donation of the Natchitoches Parish immovable property from the Trust.

4. The Bud and Bobbie Management Trust be and is hereby TERMINATED pursuant to Section 5.1 thereof and that the property of the trust [sic] be forthwith distributed to PAUL PILKENTON, PAMELA CASEY, ROGER GRANT, and RHONDA HITTLE[.]

In its written reasons rendered concurrently with its judgment, the trial court made the following pertinent findings of fact:

2. Under the Trust, upon the settlors’ deaths, remaining Trust assets are to be equally divided between the settlors’ children, Rhonda, Roger, Randall, Pamela, and Paul, all of whom survived their parents.

3. On July 16, 2029, Bud Grant executed a Last Will and Testament wherein he declared that upon his death, his residuary estate, if any, shall go into the Trust.

4. The initial trustee of the Trust was Bud Grant. Subsequently, Bud Grant was diagnosed with cancer which was deemed to be terminal. In preparation, Bud Grant executed the following legal documents that removed Randall Grant from any representative positions and made clear that Randall Grant had received all property that he was to receive from his parents, Bud and Bobbie Grant:

a. On February 28, 2017, Bud Grant executed a revocation of power of attorney, revoking his then existing power of attorney naming Randall Grant as agent.

b. On March 9, 2017, following said revocation, Bud Grant executed a financial power of attorney, naming Rhonda Hittle as his agent to act on his behalf to include the powers and authority to act on behalf of Bud Grant as both settlor and trustee of the Trust.

c. On March 1, 2017, Bud Grant executed a codicil to his will (“Codicil”) stating: “My son, RANDALL, has already received from me his inheritance as a result of the Donation and Partial Revocation of Trust recorded in the Natchitoches Parish Clerk of Court on November 5, 2014, under Registry No. 372865 in Conveyance Book 688, Page 623.” [Hereinafter, the “2014 Donation”] The 2014 Donation was subsequently corrected pursuant to that Act of Correction recorded on April 9, 2018, under [R]egistry [N]o. 401724, Conveyance Book 719, 613 for the records of Natchitoches Parish. The Codicil further declared:

i. That his descendants shall not include Randall Grant, but only include Rhonda Hittle, Roger Grant, Pamela Casey, and Paul Pilkington.

ii. [A] change of designated trustee of any testamentary trust under his will from Randall Grant to Rhonda Hittle.

iii. [A] change in the appointment of the independent executor from Randal [sic] Grant to Richard Paul Garofano.

iv. [A] “Consequences of Contest” clause providing that if anyone should contest the will, then any bequests made to that person contesting shall be nullified and rescinded, such that the person “should not receive any bequests, legacies or inheritance from me whatsoever.”

5. Most of the property that Bud and Bobbie Grant had accumulated was transferred to the Trust. Under Bud Grant's will, any residuary property in his estate transfers to the Trust; therefore, there is no property in the estate to go to the newly defined definition of “descendants” that excluded Randall Grant.

․

7. Under the Trust, upon the deaths of Bud and Bobbie Grant, Paul Pilkington, Pamela Casey, Roger Grant, Rhonda Hittle, and Randal [sic] Lee Grant became the income and principal beneficiaries of the Trust. Bud Grant failed to additionally amend the Trust to agree with the declarations made under the Codicil that removed Randal [sic] Lee Grant as a descendant.

․

9. Petitioners and Mr. Randal [sic] Grant have reached the age of 25 years and that the last Settlor to die was Bobbie Grant, thus the Trust became eligible for termination under its own terms at the end of the twelfth calendar month following the death of Bobbie Grant, or February 18, 2023. Randall Grant is the lone objector to the termination of the [T]rust.

10. Any “inheritance” from Bud Grant to his descendants, however defined, comes from the property in the Trust, as all property of Bud Grant transfers to the Trust whether it was from donations from Bud Grant to the Trust while he was alive or by donation mortis causa to the Trust to occur upon his death.

Purpose of the Trust

Regarding the purpose of the Trust, the trial court, in its written reasons, found as follows:

The testimonies of Rhonda Hittle and Roger Grant provided dependable insight as to the purpose of the Bud and Bobbie Grant Management Trust. They both testified that Bobbie Grant had previously suffered a debilitating stroke that required around-the-clock care costing thousands of dollars per month. The Trust was to provide income for her care and that any remainder that existed at her death would go to the children, including Randall Grant. The Trust text confirms this.

We find no manifest error in this finding.

Upon review, we find that the terms of the Trust are not ambiguous or uncertain, therefore, parole evidence was not required to aid the trial court in construing the Trust.⁶ The Trust's primary purpose was clearly “to provide for Settlors’ health, support, and maintenance, in order to maintain them in accordance with the standard of living to which they are accustomed at the time of the execution of’ the Trust. Article 4.1 of the Trust further provides:

[I]t is Settlors’ intention that, so long as feasible, should either or both Settlors require long-term custodial care, even should they be unable to communicate their wishes to the Trustee, that such care be provided in a manner to permit the Settlor(s) to continue to reside in their matrimonial residence or, if necessary, other personal residence, rather that in a nursing home or similar long-term care facility (“custodial facility”)[.]

Additionally, Article 4.3 provides that upon the death of the “First Spouse”:

[I]t is Settlors’ intention that, so long as feasible, should the Surviving Spouse require long-term custodial care, even should the Surviving Spouse be unable to communicate his or her wishes to the Trustee, that such care be provided in a manner to permit the Surviving Spouse to continue to reside in Settlors’ matrimonial residence or, if necessary, other personal residence, rather than in a nursing home or similar long-term care facility (“custodial facility”)[.]

It is further clear that the Trust's secondary purpose was to distribute any assets remaining after the death of the settlors equally between the five children. Article 4.5 provides that upon the death of the “Surviving Spouse,” “the successor income beneficiaries of the trust shall be the principal beneficiaries of the trust (or such respective successor trusts, as applicable) in proportion to their respective interests in principal.” Article 4.6 provides the manner in which Trust assets are to be distributed to the principal beneficiaries:

Upon the death of a Deceased Spouse, the principal beneficiaries of the Deceased Spouse's Trust shall be determined as follows:

(a) Net Forced Portion․

(b) Remainder of Deceased Spouse's Property. Any remaining Deceased Spouse's Property not allocated as provided in (a) above (“Remaining Trust Assets”) shall be allocated as follows:

(1) Child's Shares. The Remaining Trust Assets shall be divided into and allocated to the number of undivided fractional shares (“Child Shares”, or separately “Child's Share”) represented by the sum of the number of (a) those of our children, namely, Rhonda, Roger, Randall, Pamela, and Paul, who shall survive the Deceased Spouse․ Thus, for example, if all of our children shall survive the Deceased Spouse (or, if only one of our children shall not survive the Deceased Spouse but any descendants of such predeceased child shall survive the Deceased Spouse), there shall be five (5) Child's Shares[.]

Accordingly, we find no manifest error in the trial court's finding regarding the Trust's primary and secondary purposes.

Change of Circumstances

Regarding the change-in-circumstances element, the testimony presented at trial is summarized as follows:

Rhonda testified that following Bobbie's stroke, Defendant, who lived in Marshall, Texas, stayed a lot in Saline after Bud, with the help of two caregivers, began caring for her at home. It was understood that Defendant would receive the Saline Property “if he would take care of Bobby [sic] and leave her where she could stay in her home and be taken care of by the nurses and stuff and nothing changed for her[.]” However, after Bud's cancer diagnosis, he decided to transfer his power of attorney from Defendant to her because he did not trust Defendant and was afraid of him. Rhonda testified that Bud “was fearful of Randy[,] and Randy was very aggressive[.]” Defendant was greatly upset when Bud revoked his power of attorney, which led to tension between the two. Bud had previously told her that he “thought that Randy was taking advantage of him[,]” and when he was hospitalized, he asked her and Roger “to go back to the house and hide the guns because otherwise they'd disappear.” Bud was clear that the only inheritance Defendant was to receive was the Saline property, as evidenced by the Codicil.

Rhonda testified that Bud's mental acuity was unimpaired when he executed the Codicil and when he transferred his power of attorney from Defendant to her. Regarding the length of time Defendant lived with and helped Bud with Bobbie's care, she stated:

Well, Randy would come over and stay, you know, over there, but he lived in Marshall. But he would come over periodically, mostly to go hunting and stuff. But I don't believe he took care of dad as far as taking, I mean dad was more active than Randy was.

Rhonda, who lived in Missouri, testified that prior to Bud's cancer diagnosis, she only visited Louisiana once or twice a year. However, she was able to spend more time with Bud after he was diagnosed with cancer because her husband had died and she was retired. She stated that Bud was a general contractor, which involved constructing things.

Mr. Garofano, who was from New England, had a close relationship with Bobbie and Bud, his aunt and uncle. He was contacted by Bud after he was diagnosed with cancer:

He specifically called me up because he was concerned that that [sic] his will, his personal desire would not be pursued. He had discovered that his son owned the land. He opened up, he found it by looking at the tax bill and when he realized that the property was in the name of his son, he had concerns about his son not [sic] having too much control over the estate and he had nobody other [sic] to trust. He didn't know, he was in a situation where the son, he didn't trust anymore and he didn't know who to call. So, he called me to see if I could help rectify his concerns.

Mr. Garofano believed that Bud had not understood that he was transferring ownership of the Saline property when it was donated to Defendant. He said that “ultimately [Bud] loved all the children and wanted to make sure everybody received a fair share[,]” and he did not believe that Defendant would be fair with his siblings and step-siblings. After he helped Bud find an attorney, Mr. Garofano was present when Bud executed his Codicil. Bud changed his Will and named Rhonda as his independent executor because he “no longer trusted Randy [.]” Bud was adamant that Defendant was to receive no further inheritance from him, and the Codicil exactly matched the changes that he intended. Bud initially considered reversing the donation but he ultimately concluded “that he would leave the property, the farm .. . to Randy and, as his sole, as his sole inheritance, and the rest was to take care of his wife and to be shared by the rest of the children.” The donated property “had much more value than the rest of the assets.”

Mr. Garofano was also present when Bud revoked Defendant's power of attorney and granted it to Rhonda. He stated that Bud “had a trust problem. He needed to be able to trust that his will was, her personal will was fulfilled.” Bud felt that he could trust Rhonda. He stated that at the time these changes were made, Bud was “absolutely cognizant of everything he was doing.” “There was a sense of urgency in Bud's mind that he had to deal with this because he was sick at that point.” When asked if “[a]t any time during that period of time, was there any indication that the will or codicil applied to the trust[,]” Mr. Garofano testified, “I'm gonna [sic] say yes, yes.” He explained, “It was a response to, to, to [sic] what was at the moment.” He testified that although he was asked by Bud to be his agent, he declined for personal reasons.

Roger, who lived in Oklahoma, testified he and his wife traveled to Louisiana as often as they could after Bud's diagnosis. During that time, he was told by Bud that Defendant would stay up all night playing video games and then sleep until noon and that he wished that Defendant would go home. Additionally, when Bud would give him some item, such as a meat turner, he would say “here you can have this but don't tell Randy[.]” He confirmed that Bud told him and Rhonda to collect the guns so Defendant could not take them. Roger testified that Bud appeared to be afraid of Defendant. He recounted what happened when Defendant learned that Bud had revoked his power of attorney:

Oh, when Randy found out that he wasn't power of attorney, he flipped out and went and jumped on dad [sic]. And dad's [sic] sitting in his recliner, Randy got right in his face and told, you know, just was screaming at him. He was really terrible. And, and, and then him and his wife goes and straps on a .45 on their waist and is, you know, just being hostile, you know. And it was really, it was really embarrassing, you know, for me. And, I, cause I just, you know, I've always admired my brother, he went to Vietnam. And I really respected him for years, but I just, he's, I, Randy's changed.

Roger testified that Bud learned from his property tax statement that his home was in Defendant's name, and he explained what he wanted to happen after he died:

[H]e said there was enough money, Bobby [sic] was gonna [sic] take care of, live in the home, and when she passed, but there was enough money to take care of her while she was alive, and when she passed, then the home would go to Randy. But it, you know, and he said that after, you know, after Bobby [sic] passes, there might be something left for you, the rest of you kids, you know. But he said Randy's got what Randy, Randy's, you know, he's already got his.

Roger was aware that Bud had changed his Will, and he felt that Bud “had his full mental faculties[ ]” at the time and was fully aware of what he was doing. He stated:

I figured, you know, dad [sic] had, like I say [sic] full faculties, knew what he was doing. And Mr. Garofano was helping him and everything and I knew they had it under control and whatever dad [sic] wanted, dad [sic] was telling him what he wanted and that's what I expected to happen.

Paul learned about the 2014 donation to Defendant much later after the fact. It was his understanding that the only inheritance Defendant was to receive from Bobbie was the Saline property, and that following Bobbie's death, any remaining Trust assets were to be divided between him, Rhonda, Pamela, and Roger. Paul stated that Bobbie suffered her stroke in 2006, after which she required constant care. She was cared for at home by Bud prior to his death, but was interdicted and then moved into a nursing home afterwards.

Defendant testified he stayed with and helped care for Bud and Bobbie for approximately twenty-five years prior to Bud's death. He was there nearly all the time, especially after Bobbie's stroke, except when he returned home to Marshall on the weekends. He helped Bud by doing whatever he requested, including cleaning, mowing, and caring for their lake house and boats. He also helped Bud, who was a general contractor, build a meat house and a storage building, including the required plumbing and electrical work. After Bobbie's stroke, she was cared for by his wife and Pamela for the first two months, after which they hired two sitters to care for her. He stated that none of his siblings or step-siblings helped care for Bud or Bobbie until after Bud was diagnosed with cancer.

Defendant did not know that Bud intended to donate the Saline property to him until they arrived at the office of Mr. Grant's accountant, and he was told to sign the donation. Bud later informed him that the donation was in recompense for all the years he stayed and cared for him and Bobbie. He testified that “he just told me that, you know, the property was mine and I should, if there's anything left over, it's divided five ways.” Based on this statement, he believed that he should receive one-fifth of the remaining trust assets, including Bobbie's estate, in addition to the property donated to him.

Although he is the trustee of the Trust, Defendant did not know that the Trust, by its terms, was supposed to terminate twelve months after Bobbie's death. He further was unsure about the Trust's current status. He is also the current executor of Bud's succession, which has not yet been finalized. It was Defendant's position that only the Will was modified by the Codicil, not the Trust. He testified that Bud's temperament and attitude changed after his cancer diagnosis in that “[h]e'd just get sharp.” When asked if this “might have something to do with the fact that he had been diagnosed with cancer[,]” Defendant stated, “Well, you figure a man that's got five tumors in his brain plus part of his lungs gone, he don't think right all of the time.” However, he admitted that Bud “was pretty upset about the fact that he had found out he had gotten cancer[.]”

Although the trial court did not specifically state that the Codicil resulted in a change of circumstances, it clearly found that it had such an effect. By comparing the terms of the Will, the Codicil, and the Trust, the trial court found that the Codicil “unequivocally restates Paragraphs 1.2.2, 5.1.1, [and] 6.1.1 of the original will, specifically and conspicuously removing Randall Grant from any inheritance or further obligation to the estate[.]” The trial court further held:

Comment 2015(a) to La.R.S. 9:2026 directs that the court order distribution of the Trust property to the beneficiaries in the way that would conform as closely as possible to the intent of the settlor. Here, Bud Grant's intent was expressed in the Codicil wherein he made it clear that any inheritance was to go to the four children, but not Randal [sic] Grant, because he had already received his inheritance as a result of the 2014 Donation of the Home property from the Bud and Bobbie Grant Management Trust. The testimonies of the witnesses establish this. The focus is not on Bud's intent to modify the will as to whom his legatees are, for the remainder of Bud Grant's estate falls to the Trust and not to any legatee(s). His intent was clearly to modify the Trust to reflect that Randall Lee Grant had previously received his inheritance.

In finding that Bud's intent to modify the Trust was clearly expressed via the Codicil, the trial court stated:

Further, and most persuasive, is that the Codicil unequivocally references the Trust. Louisiana Revised Statutes 9:2051(B) allows a [sic] “[a] modification, division, termination, or revocation of a trust may also be by testament.” However, the revision comment (2003) to La.R.S. 9:2051 states that[:]

Subsection B allows the settlor of an inter vivos trust, who has reserved the power to modify, divide, terminate, or revoke the trust, to do so by testament. The testament must clearly identify the trust in order to have any effect on it. (Emphasis added)

․

Here, the [sic] Bud Grant's Codicil does, in fact, identify the Trust:

My son, RANDALL, has already received from me his inheritance as a result of the donation and partial revocation of trust recorded in the Natchitoches Parish Clerk of Court on November 5, 2014 under Register 3 72865 in Book 688, page 623. Where used in this will, the term “our descendants” is hereby replaced with the term “our remaining descendants” which shall refer to RHONDA, ROGER, PAMELA and PAUL. I will and bequeath to my remaining descendants, RHONDA, ROGER, PAMELA and PAUL in equal undivided fractional shares of an undivided one-fourth (1/4) interest to each any or all legacies left in this will to “our descendants” which shall [now] read “our remaining descendants.” [Emphasis added]

As all inheritances to the children of Bud and Bobbie Grant comes exclusively from the Trust, the term “his inheritance” can only be referencing the Trust itself. Bud Grant's reference to the donation to Randall Grant as being “already received” and that it was Trust property at the time of the donation to him (“partial revocation of trust”) establishes that he has received his inheritance from the only source of inheritance, the Trust, which Bud Grant identifies in the same paragraph as one “recorded in the Natchitoches Parish Clerk of Court on November 5, 2014 under Register 372865 in Book 688, page 623.

Both the Will and the Trust were executed on July 16, 2009. Pursuant to Article 1.2.2. of the Will, “ ‘our descendants’ ” referred to Rhonda, Roger, Defendant, Pamela, and Paul. It further provided that “any legacy to ‘our descendants’ ․ shall be given equally by roots from me as if all of them were my descendants․ in equal undivided fractional shares of an undivided one-fifth (l/5th) interest each[.]” Under the Trust's distribution provisions, which mirrored those in the Will, the principal beneficiaries, Rhonda, Roger, Defendant, Pamela, and Paul, would each receive an undivided fractional or 1/5 share of each spouse's remaining Trust assets.

On March 1, 2017, Bud amended Article 1.2.2 of the Will via the Codicil, by replacing the term “ ‘our descendants’ ” with “ ‘our remaining descendants’ ” based on his declaration that Defendant had “already received from me his inheritance as a result of the donation and partial revocation of trust[.]” The Codicil further provided that the remaining descendants, Rhonda, Roger, Pamela, and Paul, would each receive “equal undivided fractional shares of an undivided one-fourth (1/4) interest to each any or all legacies left in this will[.]” The Codicil also inserted Rhonda and Mr. Garofano as trustee and independent administrator, respectively, in place of Defendant. Thus, the Codicil effectively deleted Defendant from the Will by eliminating his status as a legatee and removing him from any administrative position.

The only trust in existence prior to Bud's death was the Trust, and Bud, as settlor, reserved the unrestricted right to revoke or modify the Trust.⁷ Article 3.2 provided that “during their joint lives prior to termination of the community, both Settlors, or if either Settlor is incapacitated, then the other competent Settlor must concur in a modification of the trust[.]” In fact, Bud was the Trust's only competent settlor at the time it was created as Bobbie had already suffered a stroke. Bud created the Trust and executed the October 23, 2014 Act of Donation and Partial Revocation of Trust, both on his own behalf and as Bobbie's agent and attorney-in-fact. Thus, Bud, as the only competent settlor, had the authority to modify the Trust at the time he executed the Codicil.

The trial court found as a matter of fact that “the Codicil unequivocally references the Trust[,]” noting that this fact was “most persuasive[.]” We find no manifest error in this conclusion. “A codicil is an addition or qualification to a will and is considered part of the will.” In re Succession of Cannon, 14-59, p. 5 (La.App. 1 Cir. 3/25/15), 166 So.3d 1097, 1101, writ denied, 15-816 (La. 6/5/15), 171 So.3d 948. “To be valid, a codicil must be made in one of the forms prescribed for a valid testament and clothed with the same formalities.” Id. Additionally, “[a] notarial testament․ do[es] 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 of probate.” La.Code Civ.P. art. 2891.

Here, the trial court held that both the Will and the Codicil were proved and ordered that they be filed and executed according to law. Thus, the Codicil is considered part of Bud's Will, which clearly identifies “the Bud and Bobbie Grant Management Trust, of which my spouse and I are settlors, established by trust instrument dated July 16, 2009[.]” The Codicil further references the Trust by stating, “My son, RANDALL, has already received from me his inheritance as a result of the donation and partial revocation of trust recorded in the Natchitoches Parish Clerk of Court on November 5, 2014[.]” Accordingly, we find no manifest error in the trial court's finding that a change of circumstances occurred as a result of Bud's declaration in his Codicil that Defendant had already received his inheritance.

Moreover, we would point out that pursuant to La.R.S. 9:2051(A), a trust may also be modified by authentic act, which is one of the two ways by which an inter vivos trust can be created.⁸ La.R.S. 9:1752. Thus, as the Codicil was executed pursuant to the form required for a notarial testament, it satisfied the requirements of an authentic act. La.Civ.Code art. 1833(A). In fact, Bud, individually and as Bobbie's agent, had previously modified the Trust by authentic act when he removed the Saline property from the Trust and donated it to Defendant. This resulted in a change in circumstances as it ultimately upset the Trust's secondary purpose which was to distribute the settlors’ remaining property equally between the five children. Accordingly, we find no manifest error in the trial court's finding that the donation, as evidenced by Bud's declaration in the Codicil caused a change of circumstances subsequent to the Trust's creation.

Impairment of Trust Purposes

In finding that the change of circumstances caused by the Codicil/donation substantially impaired the Trust's secondary purpose, the trial court held, “To continue the Trust unchanged impairs the purpose of the Trust which [is] to have the assets of the trust to [sic] go to the four children as beneficiaries of the Trust, namely, Rhonda, Roger, Pamela, and Paul.

We find no manifest error in this finding. As stated, the Trust's secondary purpose was to distribute any remaining Trust assets equally between the settlors’ five children. As noted previously, Bud, as settlor and Bobbie's agent and attorney-in-fact, partially revoked the Trust as a result of the 2014 donation to Defendant. The Act of Donation and Partial Revocation of Trust provided:

TO HAVE AND TO HOLD said naked ownership interest in property to Donee, on behalf of said Donee and his heirs, successors, and assigns forever.

The parties acknowledge that the naked ownership of immovable property hereinabove described, and hereby donated by Donors to Donee, is among certain assets heretofore donated by Donors to a certain revocable inter vivos trust bearing the name “Bud and Bobbie Grant Management Trust” (hereinafter sometimes referred to as the “Trust”), created by a certain trust instrument (the “Trust Instrument”), executed by the Donors, as Settlors, and appearer, Ramon Harold (“Bud”) Grant, as Trustee, referred to in a certain “Extract of Trust Instrument” dated July 16, 2009 recorded in the conveyance records of Natchitoches Parish, Louisiana under file no. 32673, and Donors, as Settlors, respectively, further intervening and appearing herein in such capacity, and, as permitted under Section 3.1 of the Trust instrument, hereby revoke the Trust with respect to the ownership of the Trust of any right, title or interest in the immovable property hereinabove described or any other immovable property situated in Natchitoches Parish, Louisiana, and all other rights, ways, privileges, servitudes and appurtenances thereto belonging, and said Settlors and the said Trustee of the Trust, also intervening herein in such capacity, hereby acknowledge, join in, ratify and affirm said partial revocation of the Trust and the donation of the naked ownership of said property hereby made and accepted by Donors and Donee, respectively.

Pursuant to an August 22, 2024 appraisal, the Saline property was valued at $403,500.00, and a September 4, 2024 appraisal valued the timber located on the property at $44,565.00. Accordingly, the property donated to Defendant was valued at $448,065.00 at the time of trial. The Trust's remaining assets were valued at $1,339,158.80. These consisted of Bud's ML account ($920,158.85 as of July 31, 2024), the remaining 104 acres in Natchitoches Parish (valued at $182,000.00 as of May 17, 2023), and Bobbie's estate (valued at $237,000.00). Divided equally between the five children, each child would receive $267,831.76. However, Defendant's portion, including the value of the Saline property, would total $715,896.76.⁹ If the Trust is modified to exclude Defendant as a principal beneficiary, then the remaining four children will each receive $334,789.70, which is still approximately $113,275.30 less than Defendant received via the 2014 donation. Accordingly, we find no manifest error in the trial court's finding that the change of circumstances caused by the Codicil/donation substantially impaired the Trust's secondary purpose to distribute the remaining Trust assets equally between the five children. The judgment of the trial court modifying the Bud and Bobbie Management Trust to exclude Defendant as a beneficiary of the Trust is affirmed.

Assignment of Error Number Two

Here, Defendant argues that if this court affirms the trial court's order modifying the Trust based on the Codicil, then the modification should only apply to Bud's trust and not to Bobbie's trust. We disagree.

Louisiana Revised Statutes 9:2026(A) requires that upon the termination of a trust, the trust's property must be distributed “to the beneficiaries in a manner that conforms as nearly as possible to the intention of the settlor.” In this instance, the trial court held that it was Bud's intention, as expressed in the Codicil, that the Trust assets be distributed equally to Rhonda, Roger, Pamela, and Paul because Defendant had already received his inheritance via the 2014 donation.

We find no manifest error in this finding. As stated, the Trust was the only trust in existence when Bud, the only competent settlor, expressed his intent via the Codicil to modify the Trust. Thus, the modification applied not only to the Trust but also to any subsequent trust created under the terms of the Trust, including, upon the termination of the community, the “Husband's Trust” and the “Wife's Trust.” Accordingly, we find no manifest error in the trial court's finding that the distribution of the Trust assets to Paul, Pamela, Roger, and Rhonda includes those assets comprising Bobbie's estate.

DECREE

For the foregoing reasons, the judgment of the trial court modifying the Bud and Bobbie Management Trust to exclude Randall Lee Grant as a named beneficiary and ordering the termination of the Trust and the distribution of the remaining Trust assets to Paul Pilkington, Pamela Casey, Roger Grant, and Rhonda Hittle, is affirmed. The costs of this appeal are assessed to Randall Lee Grant.

AFFIRMED.

FOOTNOTES

1.   Based on Plaintiffs’ appellee brief, Roger passed away subsequent to the hearing in this matter, and his estate is now represented by Letha Grant, the administrator of his estate.

2.   Article II dealt with forced heirs.

3.   On April 4, 2018, David L. Sigler, the attorney who prepared the October 23, 2014 Act of Donation and Partial Revocation of Trust, executed an affidavit pursuant to La.R.S. 35:2.1, to correct a clerical error in the original donation. The correction replaced “Beauregard Parish” with “Natchitoches Parish” in the first property description and added the description of a mobile home that was already permanently attached to property “located in Section 10, Township 13, Range 6 or with an address of 609 Highway 9, Saline, LA 71070, Natchitoches Parish, Louisiana.”

4.   The judgment further found Defendant in contempt of court for refusing to allow an appraiser onto the donated property and ordered him to pay expenses and attorney fees in relation to Plaintiffs’ motion for contempt of court and motion to compel. However, as Defendant has not appealed these judgments, these issues are not pertinent to this appeal.

5.   Although In re Mashburn Marital Trusts lists four elements that must be considered by the trial court in order to modify a trust, the 1997 comment indicates that the original third element, “whether the result of the change of circumstances was anticipated by the settlor[,]” was done away with following the amendment of La.R.S. 9:2026(A) by 1997 La. Acts No. 252, § 1, which deleted “[o]wning to circumstances not known to a settlor and not anticipated by him” from what subsequently became subsection “A.” after La.R.S. 9:2026 was further amended by 2015 La. Acts No. 219, § 1.

6.   Although the trial court based its finding regarding the Trust's purposes, in part, on Rhonda's and Roger's testimony, no objection was made to the introduction of this parol evidence or to any of the extrinsic evidence introduced into the record.

7.   Article 2.2 of the Trust provided:Upon termination of the community, the Trustee is directed to divide the Joint Management Trust into two separate trusts, hereafter sometimes referred to as the “Wife's Trust”, and the “Husband's Trust”, respectively to which shall be allocated the trust property then representing the Wife's Property and the Husband's Property, respectively, so that each thereafter shall be administered in a single trust.

8.   A trust may also be created “by act under private signature executed in the presence of two witnesses and duly acknowledged by the settlor or by the affidavit of one of the attesting witnesses.” La.R.S. 9:1752.

9.   The Plaintiffs’ summary of assets, introduced as Plaintiffs’ Exhibit O, listed the value of the property donated to Randall, including improvements, as $450,000.00. Including one-fifth of the Trust assets, the summary values the assets Randall will receive as $717,800.00.

VAN H. KYZAR JUDGE