### STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 

### NO. 2022 CA 0606 

### SUCCESSION OF JOHN G. OTILLIO, IV

Frank J. DiVittorio Hammond, LA Judgment Rendered: , 

### AN 10 2023

On Appeal from the 21 st Judicial District Court In and for the Parish ofTangipahoa

State ofLouisiana Trial Court No. 20200030372 

### Honorable Brian Abels, Judge Presiding



### Attorney for Plaintiff -

Appellee, Bonnie Otillio 

### Amanda Shively Attorneys for Defendant - Appellant, Kathryn A.E. Sunseri Diana " Susie" Schnauder J. Douglas Sunseri Metairie, LA

Mwazws

BEFORE: THERIOT, CHUTZ, AND HESTER, JJ.

1i. 

### eov,RESTER, J.



### Diana "Susie" Schnauder seeks appellate review ofthe trial court's December 

### 2, 2021 judgment, as amended on November 14, 2022, finding that the purported LastWill andTestament ofJohn G. Otillio, IV dated July31, 2020 (hereinafter,the 2020 Will") 

### was not in valid form and decreeing that the probate ofthe 2020 Will was absolutely null and void, setting aside any order probating the 2020 Will. For the reasons that follow, we affirm thejudgment ofthe trial court. FACTS AND PROCEDURAL HISTORY Bonnie Otillio (hereinafter, " Bonnie"), who was married to John G. Otillio, IV (hereinafter, " John"), 

### instituted this action on September 28, 2020 by the filing ofa petition forprobate and confirmation oftestamentary independent executrix in the 21' Judicial District Court ( hereinafter, " JDC") in and for the Parish of 

### Tangipahoa. According to the petition,John was domiciled in Tangipahoa Parish at the time of his death on August 23, 2020. 

### Bonnie and John physically separated 

### prior to his death, with John initially moving into a jointly owned house in St. Bernard Parish and then moving into a separate residence in St. Charles Parish after being placed onhospice care. However,Bonnie maintainedthatJohn never intended to change his domicile. Through the petition, Bonnie sought to probate the Last Will and Testament of John G. Otillio, IV dated August 6, 2014 ( hereinafter, the " 2014 Will") but acknowledged that John' s aunt, Diana " Susie" Schnauder ( hereinafter, " Susie"), maintained that John executed the subsequent 2020 Will. Bonnie was appointed and 

### confirmed as testamentary independent executrix, and the 2014 Will was ordered filed and recorded in accordance with La. Code Civ. P. art. 2891. On October 13, 2020, Susie sought to probate the 2020 Will in the 29t' JDC 

### in and forthe Parish ofSt. Charles, maintaining thatJohn was domiciled and " had a fixed place of residence" in St, Charles Parish. The 29' JDC issued an order 2

### appointing and confirming Susie as the independent administrator and directing

letters of independent administration to be issued. A " 

### Statutory Will Order" was also issued in the 29' JDC proceedings in accordance with La. Code Civ. P. art, 2891. 1 Thereafter, Susie filed multiple exceptions, 

### including the peremptory exception raising the objection of improper venue, in the 21St JDC proceedings. 

### Ultimately,the parties entered into a consentjudgment in the 21"1 JDC proceedings, 

### signed by the court on June 18, 2021, in which the parties agreed that Susie' s exceptions would be withdrawn as moot and the 29`' JDC proceedings would be transferred to the 2111 JDC. The consent judgment further provided that Bonnie 

### would not contest the validity of the will on the basis of capacity and that the 

### appointment ofSusie as independent administratorwould be recognized bythe 21St JDC. Subsequent to the transfer of the 29th JDC proceedings to the 21st JDC 

### proceedings, Bonnie filed a petition to annul the probated 2020 Will, attaching the 2020 Will as an exhibit to the petition. Bonnie maintained that the 2020 Will failed to comport with the required elements ofform set forth in La. Civ. Code art. 1577. No opposition to the petition to annul is contained within the record, and no 

### appearance by or on behalfofSusie was made atthe hearing. At the conclusion of 

### the hearing, the trial court granted the petition to annul and signed ajudgment on December 2, 2021. 

### It is from thisjudgment Susie appeals, maintaining thatthe trial court erred in granting the petition to annul in contravention ofthe supreme court's decision in Succession of Liner, 2019-02011 ( La. 6130121), 320 So.3d 1133. 

### Afterthis courtexamined the record, an interim orderwas issued,pointing out that the December 2, 2021 judgment did not name the party in favor ofwhom the

t Louisiana Code of Civil Procedure article 2891, provides that "[ a] notarial testament, a nuncupative testament by public act, and a statutory testament do not need to be proved. Upon production ofthe testament, the court shall order it filed and executed and this order shall have the effect ofprobate." 3

## ruling is ordered orthe partyagainstwhomthe ruling is ordered. See Succession of

Simms, 2019-0936 ( La. 

### App. 1st Cir. 2/21/ 20), 297 So.3d 110, 115 ( To be 

### considered a final, appealable judgment, the specific relief should be determinable 

### from thejudgment without reference to any extrinsic source orto other documents in the record.). The matter was remanded to the trial court for the limited purpose 

### ofinstructing the trial courtto sign an amendedjudgment pursuantto La. Code Civ. 

### P. art. 1951 correctingthe deficiency and complyingwith La.Code Civ.P. art. 1918. 

## Subsequently,the record was supplemented with an amendedjudgment signed by the trial court on November 14, 2022, in which the deficiencies were corrected. LAW AND ANALYSIS At issue in this appeal is whether the 2020 Will should be annulled on the 

### basisthat itfailed to sufficiently complywith the requirements set fora notarial will pursuant to La. Civ. Code art. 1577. Louisiana Civil Code article 1577 provides: 

### The notarial testament shall be prepared in writing and dated and shall 

### be executed in the following manner. Ifthe testator knows how to sign 

### his name and to read and is physically able to do both,then: 

### 1) Inthe presence ofanotaryandtwo competentwitnesses, the testator shall declare orsignifyto them thatthe 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 ofthe 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 ofthe testator and each other we have hereunto subscribed our names this 

### day of , i 

### Additionally, La. Civ. Code art. 1573 provides, "[ t]he formalities prescribed for the 

### execution ofa testament must be observed orthe testament is absolutely null." In Liner, 320 So.3d 1133, the supreme court reexamined under what 

### circumstances awill maybe considered amaterial deviation fromthe requisite form and, consequently, 

### absolutely null. 

### According to Liner, strict compliance with 4

### formal requirements for notarial testaments is not necessary. Rather, an attestation



### clause need only be " substantially similar" to the language provided in the Civil Code. Liner,320 So.3d at 1137. The court in Liner stated that an attestation clause 

## is to be construed liberallyto determine whether it sufficiently evinces the requisite formalities to serve the protective function ofguarding againstthe riskoffraud. Id. at 1138. 

### Moreover,the supreme court overruled the prevailing case ofSuccessions ofToney, 201.6- 1534 (La. 5/3/ 17), 

### 226 So.3d 397, insofar as Toney stood for "the proposition that an aggregate of slight deviations constitute a material deviation regardless oftheir cumulative effect on the risk offraud." Id. 

### Specifically,the court in Liner stated:

Courts must determine ifa notarial will, with all formalities and 

### evidence taken into consideration, reflects the testatorwas sufficiently protected against the risk of fraud. This involves a contextual analysis ofthe protective function ofa will' s formalities in light ofthe document itself. ... If the court' s analysis reveals an increased likelihood that 

### fraud may have been perpetrated,the deviations are material and cause to nullify the will exists. Ifnot, the deviations are slight and should be disregarded. 

### Whether the deviating language sufficiently protects 

### against the risk offraud is construed liberally in favor ofmaintaining the validity of the will. Mere allegations of fraud are not outcome determinative. Id. at 1138. ( Internal citations omitted.) It is under this framework that deviations in attestation clauses should be reviewed. Succession of Simms, 2022-0186 ( La. 

### App. 1 Cir. 10/ 19/22), So.3d , 2022 WL I 1119403, at * 3 ( relying on Liner, 320 So.3d at 1138). 

### However, no attestation was made byeitherthe witnesses orthe notary in this

case. 

### The 2020 Will only contains the following declaration byJohn,thetestator:

This my Last Will and Testament, which I have signed on the date hereinabove stated, in the presence of the undersigned Notary Public and witnesses this, afterdue presentation and declaration by me, Testator,thatthis is my Last Will and Testament. WITNESSES: signature of witnesses] [ signature ofJohn] signature of notary]

5

### No other attestation ordeclaration ofany kind appears on the one-page document in



### any form. There appears to be no question that "[ 

### i]n the presence ofa notary and two competent witnesses," the testator,John, declaredto them thatthe 2020 Will was his testament and that John signed his name at the end ofthe testament.' La. Civ. Code art. 1577( 1). 

### However, La. Civ. Code art. 1577(2) requires that the witnesses and 

### notary make a declaration, 

### which need only be " substantially similar" to the 

### language provided in the Civil Code. Liner, 320 So.3d at 1137. In the absence of 

### a declaration of any kind made by the witnesses and notary, we find that the 

### deviation is material, and the 2020 Will fails to comply with La. Civ. Code art. 1577(2). The rule of liberal construction set forth in Liner, 320 So.3d at 1138, cannot create a declaration where none exists. 

### Accordingly, we do not find merit in Susie's assignment oferror. CONCLUSION For the reasons set forth above, the trial court' s December 2, 2021 judgment, 

### as amended bythe November 14, 2022judgment, is affirmed. All costs ofthe appeal

are assessed to defendant - appellant, Diana " Susie" Schnauder. MMI' Mal" 1

2 It is noted that testator herein signed the end ofthe one-page testament and signed again at the bottom ofthe page belowthe signatures ofthe witnesses and notary. 6