SUCCESSION OF ANNA HAMM DIAZ NO CA-0057 COURT OF APPEAL FOURTH CIRCUIT STATE OF LOUISIANA * * * * * * *

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1 SUCCESSION OF ANNA HAMM DIAZ NO CA-0057 COURT OF APPEAL FOURTH CIRCUIT STATE OF LOUISIANA APPEAL FROM ST. BERNARD 34TH JUDICIAL DISTRICT COURT NO , DIVISION D Honorable Kirk A. Vaughn, Judge Judge Dennis R. Bagneris, Sr. (Court composed of Judge Charles R. Jones, Judge Dennis R. Bagneris, Sr., and Judge Roland L. Belsome) BELSOME, J., CONCURS WITH REASONS J. Wayne Mumphrey Wayne B. Mumphrey MUMPHREY LAW FIRM, LLC 330 Oak Harbor Boulevard Suite D Slidell, LA AND- Carlos A. Zelaya II Machelle R. Lee Hall F. GERALD MAPLES, P.A. 365 Canal Street Suite 2650, One Canal Place New Orleans, LA COUNSEL FOR LOUIS DIAZ, AND TRISTAN DIAZ Elizabeth R. Carter Lisa Brener LUGENBUHL, WHEATON, PECK, RANKIN & HUBARD 601 Poydras Street, 27th Floor New Orleans, LA COUNSEL FOR DELMAS DIAS, ANNA DIAZ, KENT DIAZ AND KEITH DIAZ AFFIRMED

2 In this appeal, Louis Diaz, Jr. and Tristan Diaz, argue that the trial court erred when it held that the purported last will and testament of Anna Hamm Diaz was an absolutely nullity, for the reason that the attestation clause failed to comply with the prescribed requirements of La. C.C. art For the following reasons, we affirm. PROCEDURAL HISTORY AND FACTS On November 19, 2008, Louis P. Diaz, Jr. and Tristan P. Diaz, the son and grandson of Anna Hamm Diaz, filed an ex-parte petition to file the purported last will and testament of Ms. Diaz. In their petition, Louis Diaz and Tristan Diaz sought appointment as the Co-Executors of Ms. Diaz s estate, to serve without bond, in accordance with the terms of the will. On that same date, the district court signed an order, granting the filing and recording of the will, confirming the Co- Executors, and ordering that Letters Testamentary be issued to them, without bond. Thereafter, Ms. Diaz s other grandchildren - Keith Michael Diaz, Kent Anthony Diaz, Delmas Joseph Diaz, and Anna Marie Diaz - filed a Petition to Annul Probated Testament. In their petition, plaintiffs allege that the will was an absolute nullity because of deficiencies in the prescribed form for a notarial testament. 1

3 On September 30, 2009, a hearing was held. At the hearing, two witnesses testified: the Notary, Lance Licciardi, and one of the witnesses to the will, Bonnie Casanova. Mr. Licciardi testified that he neither wrote the will nor the attestation clause. Ms. Casanova, who was Mr. Licciardi s secretary, testified that she did not know who wrote the attestation clause. Following the hearing, the trial court held that the purported last will and testament of Anna Hamm Diaz was an absolute nullity. Specifically, the trial judge stated in his reasons for judgment the following: Mrs. Diaz s testament is also facially invalid because of its attestation clause. Civil Code article 1577 requires two declarations. First, there is a declaration by the testator before the notary and witnesses that the instrument is his testament. Second, the article requires the notary and the witnesses to declare that the testator has made the first declaration, that she signed it, and that the notary and witnesses have signed in the presence of the testator and one another. On appeal, Louis Diaz, Jr. and Tristan Diaz argue the following assignments of error: (1) that the declaration is sufficient and the will is valid because there is no rule that a declaration clause must be written in the first person to be valid; (2) that the trial judge erred in ruling that La. C.C. art requires the notary and the witnesses to declare that the testator has made the first declaration, that she signed it, and that the notary and witnesses have signed in the presence of the testator and one another; and (3) that the trial court erred in finding that the declaration failed as a matter of law and thus, disregarding the witness testimony showing that the requirements were met. DISCUSSION The issue is whether the trial court erred in declaring Ms. Diaz s will an absolute nullity. 2

4 La. C.C. Art Requirements of form. The notarial testament shall be prepared in writing and dated and shall be executed in the following manner. If the testator knows how to sign his name and to read and is physically able to do both, then: (1) In the presence of a notary and two competent witnesses, the testator shall declare or signify to them that the instrument is his testament and shall sign his name at the end of the testament and on each other separate page. (2) In the presence of the testator and each other, the notary and the witnesses shall sign the following declaration, or one substantially similar: In our presence the testator has declared or signified that this instrument is his testament and has signed it at the end and on each other separate page, and in the presence of the testator and each other we have hereunto subscribed our names this day of,. Accordingly, in order to be valid as to form, the testatrix must declare or signify in the presence of a notary and two witnesses that the instrument is her last will and testament; the testatrix must sign her 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 testatrix attesting that the formalities of Article 1577(1) have been followed. In this case, the attestation clause at issue reads as follows: Signed and declared by Anna Hamm Diaz, Testatrix above, declares that this is to be her last will and testament, and in the presence of the undersigned competent witnesses and herself, she declares that she has read the herein last will and testament and in the presence of each other they have hereinto subscribed their names on the 31 st day of October,

5 There are two signature lines for witnesses below this clause, and a signature line for Anna Hamm Diaz across the page from the signature lines for the witnesses. Below these three signature lines is a signature line for the Notary. However, there is no statement or declaration by the notary and/or the witnesses that is substantially similar to that set forth in La. C.C. art. 1577(2). This Court addressed this issue in In re Succession of Simno, , 948 So.2d 315, (La. App. 4 Cir. 12/29/06), whereby this Court affirmed the trial court s holding that a will was invalid because the required attestation clause under La. C.C. art. 1577(2) was missing from the will. The purported attestation clause read: I hereby sign my name in the presence of the two undersigned competent witnesses and notary public affirming that this is my last will and testament on the date aforementioned above. Id. This Court found that the will did not contain an attestation clause by the notary and the witnesses and that the attestation clause by the testator could not be a substitute. Id. This Court further found that because the will itself provided proof of the noncompliance with the necessary formalities, it was not necessary to introduce further evidence on the issue. Id. As this Court held in In re Succession of Simno, and as stated under La. C.C. article 1577, the law requires there be an attestation clause, or clause of declaration, signed by the notary and the two witnesses. We agree with the trial judge that this requirement was not met in this case. Thus, we find the trial court was correct in invalidating the testament. For these reasons, we hereby AFFIRM the judgment of the trial court. AFFIRMED 4