_JjThis appeal arises from prolonged litigation pertaining to the succession of Manuel Duskin. Appellant appeals the trial
FACTUAL AND PROCEDURAL BACKGROUND
Manuel Duskin (“Mr. Duskin”) died testate on March 19, 2004. On June 23, 2004, his daughters, Lawandа Otis and Rose Duskin Champagne (“daughters”), filed a petition to probate their father’s March 12, 2004 testament and place them into possession of his estate. At the time of his death, Mr. Duskin owned twenty percent (equal to one hundred shares) of the Ma-halia Jackson Family Corporation (“the Corporation”). Mr. Duskin’s March 12, 2004 testament granted his ownership interest in the Corporation to his daughters. A judgment of possеssion was signed on June 24, 2004, and amended for a typographical error on September 27, 2004, awarding each daughter ten percent interest in the Corporation.
On May 9, 2007 appellant, Bishop Frank E. Lott, initiated a new action involving Mr. Duskin’s succession by filing a petition to probate, which was later denied for failure to “follow form required by law.” Appellant filed numerous other petitions over the next several months which were likewise denied for failure |ato follow form. On August 7, 2007, appellant filed an amended petition to probate a document from 1994 (“the 1994 Document”) allegedly executed by Mr. Duskin. An order granting this petition was signed and entered into the record on September 7, 2007. Appellant then filed a petition for nullification on September 13, 2007 seeking to invalidate the last will and testament the daughters probated. The petition for nullification was denied for its nonconformity with the mandates of La. C.C.P. art. 2931.
The court сonsolidated the two actions on its own motion on July 14, 2009. A contradictory hearing on appellant’s motion to nullify the testament was scheduled for July 17, 2009, but was continued without date at the appellant’s request. Appellant filed another petition to nullify the testament on May 3, 2011, to which appel-lees filed an exception of prescription. The exception was initially sustained, but the court grаnted a new trial on its own motion and ultimately overruled appellees’ exception.
On February 14, 2012, appellant instituted a new action by filing a petition for damages against appellees, alleging that the testament offered for probate by the daughters was forged and that he is a rightful legatee under the 1994 Document.
Appellant’s exceptions and appellees’ exceptions and motion were heard on September 6, 2013. On September 10, 2013, the trial court rendered judgment: (1) overruling appellant’s exceptions of prescription, no right of action, and no cause of action; (2) granting appellees’ motion to annul; (3) sustaining appellees’ exception оf no right of action; and (4) sustaining appellees’ exception of no cause of action concerning the contractual action. Appellant timely filed a motion for new trial, which was subsequently denied, and this appeal followed.
DISCUSSION
Appellant asserts ten assignments of error on appeal, the majority of which are less than clear and essentially challenge the law itself on a futile basis rather than contesting the trial court’s application of the applicable law. Rule 1-3 of the Uniform Rules of the Courts of Appeal, “Scope of Review,” dictates that a court of appeal may only review issues “which were submitted to the trial court and which are contained in specifications or assignments of error, unless the interest of justice clearly requires otherwise.” See KeyClick Outsourcing, Inc. v. Ochsner Health Plan, Inc., 11-0598, p. 6 (La.App. 4 Cir. 3/14/12),
Exceptions of no right of action and no cause of action present questions of law and are reviewed by this Court under a de novo standard of review. St. Pierre v. Northrop Grumman Shipbuilding, Inc., 12-0545, p. 7 (La.App. 4 Cir. 10/24/12),
No Right of Action
This Court recently discussed the concept of a peremptory exception of no right of action and stated that this exception assumes that the petition offers a valid cause of action and considers whether the instant plaintiff is a member of the class that has a legal interest in the underlying case. Weber v. Metro. Cmty. Hospice Found., Inc., 13-0182, p. 4 (La.App. 4 Cir. 12/18/13),
Here, appellant is not an heir or related to the decedent in any way. Appellаnt’s only avenue of establishing an interest in Mr. Duskin’s succession is through the 1994 Document. Appellant contends the 1994 Document is either a valid testament or, in the alternative and at the very least, an enforceable contract. Accordingly, in relation to the exception of no right of action, our consideration begins with determining whether the 1994 Document meets the requirements of a testament, and if not, turns tо whether it can stand as a contract.
Before we determine whether the 1994 Document is a testament or perhaps a contract, a depiction of the document is warranted. The 1994 Document is a two-page, handwritten document titled “Irrevocable and Last Will and Testament.” The “testators” to the 1994 Document are Mr. Duskin and Mr. Edison Lazard,
A. Testament
There are two forms of testaments in Louisiana, olographic and notarial.
1. Olographic Testament
An olographic testament must be entirely written, dated, and signed in the handwriting of the testator. La. C.C. art. 1575. If an olographic testament is probated, at least two credible witnesses must testify that the handwriting on the instrument is that of the testator. La. C.C.P. art. 2883. ,
Although the 1994 Document is handwritten and bears the testators’ signatures, the only date present is from the notary stamp. This precise issue has been addressed by the Louisiana Supreme Court which reversed a ruling that upheld an olographic testament written entirely in the hand of the testator, but the only date
2. Notarial Testament
A notarial testament must be in writing, dated, and if the testator knows how to and is physically able to sign his name and read, the testator must declare or signify in the presence оf a notary and two witnesses that the instrument is his last will and testament. La. C.C. art. 1577. Additionally, the testator must sign his name at the end of the testament and on each separate page and the notary and two witnesses must sign a declaration in the presence of each other and the testator attesting that these formalities have been followed. Id. While a material deviation from the manner of execution prescribеd by La. C.C. art. 1577 will be fatal to the validity of the testament, the form of the attestation clause is not absolute. In re Succession of Holbrook, 13-1181, p. 9 (La.1/28/14),
The 1994 Document was only signed by one witness and, as previously acknowledged, is not dated. Appellant argues that despite the 1994 Document only bearing one witness’s signature, two witnesses actually observed Mr. Duskin sign the document and the two affidavits he submitted from these witnesses remedies any potential defect. Although the record contains the affidavits, this does not cure the deficiency because it remains that the witnesses never signed the declaration in the presence of each other, the notary, and the testator. Accordingly, we find that the 1994 Document falls short of complying with the formalities prescribed for a | snotarial testament. See In re Succession of Carlton, 09-1339, p. 4 (La.App. 3 Cir. 4/7/10),
B. Contract
In Louisiana, the four elements that are required for formation of a contract are: the capacity to contract, mutual consent, a certain object, and a lawful cause. In re Succession of Flanigan, 06-1402, p. 6 (La.App. 4 Cir. 6/13/07),
Considering these principles, we first find the 1994 Document is unilateral in that the accepting party (appellant) did not assume any reciprocal obligation; and second find it is gratuitous as the decedent obligated himself for appellant’s benefit without obtaining an advantage in return. When, as here, a contract is gratuitous, property can only be acquired or disposed of by donations inter vivos or mortis causa. La. C.C. art. 1467. A donation mortis causa can only be made in the form of an olographic or notarial testament. See Lа. C.C. arts. 1570 and 1574. |sThus, the 1994 Document does not purport to be a donation mortis causa as it fails to meet the formality requirements for both forms of testaments.
Because we find the 1994 Document is gratuitous and not a donation mor-tis causa, the document must satisfy the requirements of a donation inter vivos in order for it to prevail as a contract. A donation inter vivos is a “contract by which a person, callеd the donor, gratuitously divests himself, at present and irrevocably, of the thing given in favor of another, called the donee, who accepts it.” La. C.C. art. 1468. Pursuant to La. C.C. art., 1541, “[a] donation inter vivos shall be made by authentic act under the penalty of absolute nullity.” The requirements for an authentic act are specified in La. C.C. art. 1833, which states 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 рarty, 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.
Despite the foregoing rules, appellant contends an authentic act is not necessary because only “an express and unconditional acceptance” is required. While appellant is correct in that not all donations inter vivos must be executed by | inauthentic act,
Therefore, having found the 1994 Document does not meet the formality requirements of a contract or testament, it follows that аppellant does not belong to “the class of persons that has a legal interest in the subject matter of the litigation.” J-W Power Co. v. State ex rel. Dep’t of Revenue & Taxation, 10-1598, pp. 7-8 (La.3/15/11),
No Cause of Action
A peremptory exception of no cause of action tests the legal sufficiency of a pеtition by determining whether the law affords the plaintiff a remedy based upon the facts alleged in the pleading. Meckstroth v. Louisiana Dep’t of Transp. & Dev., 07-0236, p. 2 (La.App. 4 Cir. 6/27/07),
Having determined the 1994 Document fails to meet the formality requirements of a contract pretermits any discussion of appellant’s claim that the trial court erroneously sustained appellees’ exception of no cause of action. Accordingly, this assignment is without merit.
Motion to Vacate and/or Annul Order
The final ruling appellant is challenging is the trial court’s ruling granting appellees’ motion to annul the September 7, 2007 order probating the 1994 Document. When reviewing the trial court’s finding on an action in nullity, the appellate court should determine whether the trial court’s finding was reasonable, not whether the finding is right or wrong. West v. Melancon, 05-1183, p. 3 (La.App. 4 Cir. 4/26/06),
| ^Appellant argues granting the motion to annul was error because it runs afoul to Mr. Duskin’s intent as evidenced in the 1994 Document. This contention is misguided as it is well established that a testator’s intent is not reached unless the testament is in proper form. See La. C.C. art. 1573; In re Succession of Dunaway, 11-1747, pp. 4-5 (La.App. 1 Cir. 5/2/12),
Appellant also asserts that not admitting the videotape which portrays Mr. Duskin signing the 1994 Document was error. It is important to note that La. C.C.P. art. 2904, the article relating to the admissibility of videotapes to prove the validity of a testament, was not enacted until 2005. The document that appellant is attempting to probate was executed in 1994, at which time no means existed to prove a testament through a videotape. Therefore, this article is inconsequential to the instant document and, despite appellant’s argument otherwise, the trial court’s failure to admit the videotape was not error.
After reviewing the record before, us, we find the trial court’s judgment granting appellеes’ motion to annul the September 7, 2007 order probating the 1994 Document was reasonable as an order cannot give legal effect to a testament that is absolutely null. This final assignment of error is without merit.
DECREE
For the foregoing reasons, we find the trial court did not err in overruling appellant’s exceptions, granting appellees’ motion to annul, and sustaining appellees’ exceptions. The triаl court judgment is affirmed.
AFFIRMED.
Notes
. La. C.C.P. art. 2931 provides: "A probated testament may be annulled only by a direct action brought in the succession proceeding against the legatees, the residuary heir, if any, and the executor, if he has not been discharged. The action shall be tried as a summary proceeding.”
. This action was consolidated with the earlier consolidated action.
. It should be noted that althоugh the 1994 Document bestows certain property rights of Mr. Duskin and Mr. Lazard, from our review of the record it appears that appellant only takes issue with Mr. Duskin’s succession and has not challenged anything relating to Mr. Lazard's estate.
. The validity of a testament is determined under the laws in effect when written. See La. C.C. art. 1574 cmt. (c); see also former La. R.S. 9:2445. At the time the 1994 Document was executed, only statutory and olo-graphic testaments existed. See La. C.C. art. 1574 cmt. (a); see also fоrmer La. R.S. 9:2442. Notarial testaments replaced statutory testaments in 1997, and for all intents and purposes, the terms are interchangeable. See La. C.C. art. 1577 cmt. (a) ("This article reproduces the substance of R.S. 9:2442. It does not change the law.”). Despite the fact that notarial testaments were not recognized at the time the 1994 Document was created, this opinion refers to the testament form as notаrial, considering there is no substantive difference between the two.
. La. C.C. art. 1541 cmt. (b) states: "Donations of both immovable and movable property must be made by notarial act unless a particular exception applies. There are numerous exceptions to this Article including Article 1543 (manual gift) and Article 1550 (stock certificates and negotiable instruments)."
. La. C.C. art. 1543 provides: "The donation inter vivos of a corporeal movable may also be made by delivery of the thing to the donee without any other formality.” (emphasis added).