SUCCESSION OF CHARLES GEORGE HARLAN v. << (2018)

I dissent and would affirm the appellate court's decision. In this case, the decedent, Charles George Harlan (“Mr. Harlan”), executed a document titled “Last Will and Testament of Charles Harlan Sr.” on June 5, 2012 (“2012 document”). Within the 2012 document, Mr. Harlan included a provision revoking his prior testaments. The parties do not dispute that the 2012 document was invalid as a notarial testament. I agree with the appellate court that the 2012 document remains a valid authentic act under the plain language of the applicable Louisiana Civil Code articles and, thus, effectively revoked Mr. Harlan's prior testaments. In my view, the law does not afford discretion for this Court to find otherwise.

Under Louisiana law, prior testaments can be revoked by authentic act. La.Civ.Code art. 1607(2). ¹ In this case, the 2012 document includes all of the required elements for a valid authentic act: (1) it was executed before a notary public; (2) in the presence of two witnesses; and, (3) signed by Mr. Harlan, the notary public, and the two witnesses to the act. La.Civ.Code art. 1833.² As enunciated by the appellate court, there is no requirement 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.” Succession of Harlan, 16-1345, p. 5 (La.App. 1 Cir. 6/6/17) 2017 WL 2445187 (unpublished). Nor does the law require that the person executing an authentic act sign every page of the document. Id. Thus, there is no legal basis for the majority's finding that the 2012 document does not constitute a valid authentic act.

The second sentence of the 2012 document states, “Any prior wills are hereby revoked.” With this provision, the 2012 document validly revokes Mr. Harlan's prior testaments. Prior to 1999, the law required that revocations of testaments be in the same form as prescribed for testaments. See, Succession of Ryan, 228 La. 447, 452, 82 So.2d 759, 761 (La.1955). However, the law was changed with the revision of Article 1607, which provides that an entire testament can be revoked when the testator so declares in an authentic act. La.Civ.Code art. 1607(2).

In this case, the appellate court did not rule that an absolutely null notarial testament can revoke prior testaments. Instead, the appellate court ruled that a valid authentic act can revoke prior testaments. See also, In re Hendricks, 08-1914 (La.App. 1 Cir. 9/23/09), 28 So.3d 1057, 1058–59, writ not considered, 10-480 (La. 3/26/10), 29 So.3d 1256. A testament and an authentic act are distinct instruments under Louisiana law. The validity of one does not depend upon the validity of the other. An invalid testament is absolutely null; thus, it has no power to render an authentic act invalid. La.Civ.Code art. 1573.

Additionally, though it is true that the testator's intent controls the interpretation of a testament, it is appropriate to look to the testator's intent only when the testament is valid and in proper form. See, e.g., In re Succession of Duskin, 14-236, p. 12 (La.App. 4 Cir. 11/19/14), 153 So.3d 567, 575, writ not considered, 15-0137 (La. 4/10/15), 163 So.3d 800. Here, the 2012 purported testament is not a valid testament; however, the 2012 document serves as a valid authentic act revoking Mr. Harlan's prior testaments, since the revocation provision remains intact, and all elements of a valid authentic act are met.

The majority's assertion that an authentic act revoking a testament must be found in a separate document is flawed. I agree with the majority's assessment that La.Civ.Code art. 1607 must be read together with La.Civ.Code art. 1833 to determine the requirements for a valid authentic act for the purposes of revoking an entire testament. I also agree that the word “or” as found in La.Civ.Code art. 1607(2) must be given a disjunctive meaning—that is, the provision authorizes a testamentary revocation in either “one of the forms prescribed for testaments or in an authentic act.” (Emphasis added.) However, the 2012 document clearly fell into only one of these categories, namely that of an authentic act, as the form prescribed for testaments was not satisfied in this case. The plain language of La.Civ.Code art. 1607(2) does not prohibit a revocation clause within a valid authentic act from serving as an effective revocation of prior testaments. Moreover, if the Legislature intended for a revocation to occur only via a valid testament or a separate authentic act, it could have specified as such. The Legislature has not done so; therefore, this Court has a duty to apply La.Civ.Code arts. 1607 and 1833 as written. “When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.” La.Civ.Code art. 9. The plain language of these articles as applied to this case results in the revocation of the decedent's prior testament via a valid authentic act, regardless of the fact that the act is contained within an otherwise invalid testament rather than in a separate document.

For the foregoing reasons, I would affirm the appellate court's judgment upholding the 2012 document as a valid authentic act revoking Mr. Harlan's prior testaments.

FOOTNOTES

1.   Louisiana Civil Code article 1607 states (emphasis added):Revocation of an entire testament occurs when the testator does any of the following:(1) Physically destroys the testament, or has it destroyed at his direction.(2) So declares in one of the forms prescribed for testaments or in an authentic act.(3) Identifies and clearly revokes the testament by a writing that is entirely written and signed by the testator in his own handwriting.

2.   Louisiana Civil Code article 1833 provides, in pertinent part: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 of the act.

GENOVESE, JUSTICE, dissents.