247 So. 3d 746
La. Ct. App.2018Background
- Decedent Nettie Dean (d. 2010) owned 10,000 Class A (voting) and ~25,000 Class B (nonvoting) units in family company EBI; she had executed wills in 2007 (olographic), March 29, 2010 (olographic), and August 20, 2010 (notarial). The August will materially reallocated her EBI units to company executives Ken Serigne and Walter Cure (and others).
- Nettie was terminally ill with metastatic brain cancer and debilitated when she signed the August will at home with multiple beneficiaries and company officers present; Cherry (sister) was appointed independent executrix and later intervened to challenge the August will; Lenda (sister) sought to probate the March will and annul the August will.
- Trial court found Nettie had testamentary capacity but concluded Cure and Serigne (and Serigne’s daughter Henderson for related bequests) exercised undue influence; it invalidated the specific legacies to them but otherwise affirmed the will’s validity.
- Defendants Serigne, Cure, and Henderson appealed the undue-influence finding and also challenged (1) denial of their exception of no right of action against Cherry’s intervention as independent executrix, (2) denial of their motion to remove Cherry as executrix, and (3) the trial court’s allocation of costs.
- On en banc review the court: affirmed the undue-influence ruling and the denial of the motion to remove the executrix; reversed the denial of the exception of no right of action (holding an executor acting in her official capacity lacks procedural right to attack the will) and dismissed Cherry’s intervention claims with prejudice; assessed appeal costs to Serigne, Cure, and Henderson.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Undue influence invalidating certain legacies | Lenda/Cherry: Cure (and indirectly Serigne) unduly influenced vulnerable Nettie at bedside to change dispositions of EBI units; evidence of control, isolation, and drastic departure from prior will | Serigne/Cure: interactions were benign assistance; Nettie had capacity; March will was the aberration; no substitution of Nettie’s volition | Court: affirmed trial court — preponderance standard applied (relationship of confidence existed); factual record supports undue influence as to legacies to Serigne, Cure, Henderson; not manifestly erroneous |
| Executor’s standing: exception of no right of action to Cherry’s intervention (executrix in her official capacity) | Cherry/Lenda: amended pleadings and facts gave notice; executor may join to protect estate | Serigne/Cure/Henderson: an executor must defend the will, not attack it; no statutory right to challenge will in official capacity | Court: reversed denial of exception — an executor in official capacity lacks procedural right to challenge the will; Cherry’s intervention in that capacity dismissed with prejudice; Succession of Scott overruled to extent inconsistent |
| Motion to remove independent executrix | Serigne/Cure: Cherry’s filing of an intervention attacking the will shows breach of fiduciary duty / disqualification warranting removal | Cherry: acted to protect estate; no proof of mismanagement or statutory grounds for removal | Court: affirmed denial of removal — petitioner failed to show convincing evidence of breach/mismanagement; bringing the intervention (though improperly filed in official capacity) alone did not justify removal |
| Allocation of costs | Lenda/Cherry: costs equitable to assess against those whose legacies were voided | Serigne/Cure: they prevailed on some aspects and should not bear all costs | Court: affirmed costs assessed against Serigne, Cure, Henderson as equitable given litigation focused on EBI unit bequests and undue-influence result |
Key Cases Cited
- Hayes Fund for First United Methodist Church of Welsh, LLC v. Kerr-McGee Rocky Mountain, LLC, 193 So.3d 1110 (La. 2015) (articulating Louisiana manifest-error standard of review for factual findings)
- Stobart v. State through Dept. of Transportation and Development, 617 So.2d 880 (La. 1993) (standards for appellate review of factual findings)
- In re Succession of Holbrook, 144 So.3d 845 (La. 2014) (presumption of will validity and testator competence)
- Succession of Fisher, 970 So.2d 1048 (La. App. 1 Cir.) (discussing undue influence principles under La. Civ. Code art. 1479)
- In re Succession of Reno, 202 So.3d 1147 (La. App. 1 Cir.) (executor has no duty to attack wills; recounts limits on reimbursement and executor’s role)