114 So. 3d 1260
La. Ct. App.2013Background
- Decedent Joseph C. Ferguson, Jr. died March 31, 2005; his will left all property to wife Linda Ferguson and their children, with no provision for Terry Ferguson (his daughter by a prior marriage).
- Probate opened July 2005; Linda designated executrix; affidavits claimed decedent domiciled in Caddo Parish and three competent children; November 2005 judgment of possession issued per the will.
- May 2011 Terry Ferguson filed a petition to reopen the succession and annul the judgment of possession, asserting the 2005 affidavits were false about her competency.
- Executrix filed an exception of prescription; district court granted, holding Terry’s petition was prescribed; new-trial motion denied; Terry appeals.
- Petitioner argues the judgment is null due to concealment of her forced-heir status; court analyzes fraud, contra non valentem, and executrix duties and affirms.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether petition to reopen is prescribed | Ferguson claims prescription should be tolled by concealment. | Executrix argues prescription run five years from probate filing. | Prescription affirmed; petition prescribed. |
| Whether affidavits' misrepresentation of competency constitutes fraud nullifying judgment | Ferguson alleges she was concealed as a forced heir by false statements. | Affidavits identified Ferguson as decedent’s child and competent; no fraud shown. | No fraud proven; no nullity of judgment. |
| Whether contra non valentem suspends prescription | Disability prevented discovery of a forced-heir claim. | No evidence of concealment or constitutional toll; condition did not bar diligence. | Contra non valentem not applicable; prescriptive period runs. |
Key Cases Cited
- Succession of Hearn, 412 So.2d 692 (La.App. 2d Cir. 1982) (fraud suspends prescription when concealed from adult child)
- Schoen v. Burns, 321 So.2d 908 (La.App. 1st Cir. 1975) (genuine issues of concealment on summary judgment)
- Kilpatrick v. Kilpatrick, 625 So.2d 222 (La.App. 2d Cir. 1993) (five-year prescriptive period begins when will is probated; contra non valentem)
- West v. Gajdzik, 425 So.2d 263 (La.App. 3rd Cir. 1982) (distinguishes concealment by executor from other concealment)