The opinion
SUCCESSION OF NO. 20-CA-308
DEAN ALLEN BRADLEY
FIFTH CIRCUIT
COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 769-667, DIVISION "D"
HONORABLE SCOTT U. SCHLEGEL, JUDGE PRESIDING
March 31, 2021
MARC E. JOHNSON
JUDGE
Panel composed of Judges Fredericka Homberg Wicker,
Marc E. Johnson, and Stephen J. Windhorst
REVERSED AND RENDERED
MEJ
FHW
SJW
COUNSEL FOR PLAINTIFF/APPELLANT,
VICKY LADNER AND THE SUCCESSION OF DEAN ALLEN BRADLEY
Ryan S. McBride
COUNSEL FOR INTERVENOR/APPELLEE,
DONALD R. BRADLEY, JR., IN HIS CAPACITY AS TRUSTEE OF THE
DONALD R. BRADLEY, JR. TESTAMENTARY TRUST
J. Geoffrey Ormsby
JOHNSON, J.
Appellant, Vicky Ann Ladner, appeals two summary judgments from the
24th Judicial District Court, Division “D,” concerning a testamentary trust that
dismissed her action, with prejudice, in favor of Appellee, Donald R. Bradley, Jr.,
in his capacity as a trustee of the Donald R. Bradley Testamentary Trust. For the
following reasons, we reverse the summary judgment of the trial court and render
summary judgment in favor of Vicky Ann Ladner.
FACTS AND PROCEDURAL HISTORY
On April 19, 2002, Donald R. Bradley, Sr. (hereinafter referred to as
“Donald, Sr.”) executed the “Will of Donald R. Bradley” (hereinafter referred to as
“Donald, Sr.’s Will”). The will established two separate trusts, consisting of equal
shares of his remaining estate for the principal benefit of his sons, Donald R.
Bradley, Jr. (hereinafter referred to as “Donald, Jr.”) and decedent, Dean Allen
Bradley. Dean Bradley was the principal beneficiary of one of the trusts—the
Dean Allen Bradley Testamentary Trust1 (hereinafter referred to as “the Trust”)—
created in Donald, Sr.’s will. Donald, Jr. is the principal beneficiary of the other
trust (hereinafter referred to as “Donald, Jr.’s trust”) created in Donald, Sr.’s Will.
The provision of Donald, Sr.’s Will that created the two trusts included the
following language:
5. Upon any termination of a trust, the principal of the trust and all
accumulated income, and all investments and reinvestments thereof,
shall be delivered by the trustee in full ownership and free of trust as
follows:
(a) if the termination occurs during the beneficiary’s life, then
to the beneficiary; or
(b) if the principal beneficiary dies before termination of the
trust, that beneficiary’s interest vests in the heirs or legatees of
the deceased beneficiary subject to this trust and, for a legitime
interest, subject to the provision of La. R.S. § 9:1841.
However, if the principal beneficiary dies without descendants,
to the maximum extent permitted under Louisiana law, that
1
The Trust is a presumed asset of the pending succession of Dean Bradley.
20-CA-308 1
interest shall vest in the principal beneficiary’s spouse,
provided that the principal beneficiary is married at the time of
his death and that no divorce proceedings are pending between
the principal beneficiary and his spouse at the time of the
principal beneficiary’s death. If, at that time, the principal
beneficiary has no spouse or divorce proceedings are pending,
that interest shall best in the remaining trusts created herein per
stirpes.
Many years later, on December 2, 2015, Dean executed his own last will and
testament. In Dean’s will, he declared the following legacy:
I declare that Vicky Ann Ladner is my universal legatee. I
bequeath my entire estate, immovable and movable, real and personal,
and trust property to Vicky Ann Ladner … as may be described in the
Judgment of Possession of the Succession of Donald R. Bradley … If
Vicky Ann Ladner predeceases me, my estate shall devolve under the
rules of intestacy. Pursuant to La. Civ. Code art. 1521, I specifically
provide that if Vicky Ann Ladner does not survive me by a period of
ninety (90) days, then all of my property must devolve as if she had
predeceased me.
On February 28, 2017, Dean passed away without being remarried or fathering any
children.2
A petition to file and record notarial testament and for confirmation of
independent testamentary executor was filed on March 6, 2017 for Dean’s estate
by Crawford A. Rose, III.3 On April 21, 2017, Mr. Rose filed an ex parte motion
for appointment of dative testamentary executor and appointment of another
qualified person to the office. Ms. Ladner was appointed as the dative
independent executor of Dean’s succession, pursuant to Dean’s last will and
testament, on May 8, 2017, and Mr. Rose was relieved of his appointment.
On May 26, 2017, Donald, Jr. filed a petition for intervention. In his
petition, Donald, Jr. alleged that his trust, Donald, Jr.’s trust, had a vested interest
in the Trust because Dean died without descendants or a spouse. Ms. Ladner
2
Dean’s ex-wife, Melinda Elmer Bradley, filed a petition for intervention on November 2, 2017,
alleging that Dean was the presumed father of her son, Michael Blanchard. Dean’s will specifically
disavowed Michael, and Dean filed a disavowal proceeding. Mrs. Bradley’s intervention is not pertinent
to the resolution of the instant appeal and will not be further addressed.
3
Mr. Rose was originally the independent testamentary executor of Dean’s succession.
20-CA-308 2
answered Donald, Jr.’s petition as the dative independent executor for Dean’s
succession on September 7, 2017, asserting that Dean’s will determined who
inherited his portion of the Trust. In response, Donald, Jr., on behalf of Donald,
Jr.’s trust, also filed a petition for partial possession on October 10, 2017, wherein
he petitioned the court to vest Dean’s beneficiary interest in the Trust to Donald,
Jr.’s trust.
On August 9, 2019, Donald, Jr. filed a motion for partial summary judgment.
In his motion, Donald, Jr. again alleged that Dean’s beneficiary interest in the
Trust reverted to Donald, Jr.’s trust because Dean died without descendants or a
spouse. He argued that Ms. Ladner’s contention that she was entitled to receive
Dean’s interest in the Trust because she was Dean’s legatee was contrary to the
language of Donald, Sr.’s Will. Donald, Jr. contended that the language of the
Donald, Sr.’s Will clarified that the terms “heirs” and “legatees” were limited
solely to the decedent’s descendants and/or spouse, and any other interpretation of
those terms would render the contingency provisions contained in paragraph 5(b)
of the will superfluous and meaningless. Ms. Ladner filed her own motion for
partial summary judgment on August 20, 2019, alleging the language of Donald,
Sr.’s Will purposefully contained the terms “heirs” or “legatees” with the intention
of providing the beneficiaries with an option to bequeath the beneficiary interest to
a testate successor. Because Dean designated her as his universal legatee, Ms.
Ladner contended that she should inherit Dean’s beneficiary interest in the Trust,
to the exclusion of all others.
The parties’ cross-motions for partial summary judgment were heard on
November 19, 2019. On March 11, 2020, the trial court rendered a written
judgment that granted Donald, Jr.’s motion for partial summary judgment. The
judgment decreed that Dean’s beneficiary interest in the Trust reverted to Donald,
Jr.’s trust. The judgment further denied Ms. Ladner’s motion for partial summary
20-CA-308 3
judgment and dismissed her claims with prejudice. In its reasons for judgment, the
trial court found that the language of Donald, Sr.’s Will indicated the beneficiary
interest in the Trust would devolve to Dean’s heirs, specifically his children or
spouse. Because Dean died without a spouse or children, the trial court held that
Dean’s beneficiary interest in the Trust must devolve to the other trust created in
the will—Donald, Jr.’s trust. The instant appeal of Ms. Ladner followed.
ASSIGNMENTS OF ERROR
On appeal, Ms. Ladner alleges that the trial court erred: 1) by interpreting
the language of Donald, Sr.’s Will in a manner contrary to the intention of the
testator; 2) in ignoring the natural language of Donald, Sr.’s Will in toto; and 3) in
interpreting the language of Donald, Sr.’s Will in a manner that rendered the
testamentary language meaningless.
LAW AND ANALYSIS
General Summary Judgment Law
The summary judgment procedure is designed to secure the just, speedy, and
inexpensive determination of every action and is favored. La. C.C.P. art.
966(A)(2). Appellate courts review summary judgments de novo under the same
criteria that govern the trial court’s consideration of whether summary judgment is
appropriate. Stogner v. Ochsner Clinic Foundation, 18-96 (La. App. 5 Cir.
9/19/18); 254 So.3d 1254, 1257, citing Batiste v. United Fire & Casualty Co., 17-
485 (La. App. 5 Cir. 3/14/18); 241 So.3d 491, 496. Summary judgment shall be
granted “if the motion, memorandum, and supporting documents shows that there
is no genuine issue as to material fact and that the mover is entitled to judgment as
a matter of law.” Id., quoting La. C.C.P. art. 966(A)(3).
A material fact is one that potentially insures or prevents recovery, affects a
litigant’s ultimate success, or determines the outcome of the lawsuit. Populis v.
State Department of Transportation and Development, 16-655 (La. App. 5 Cir.
20-CA-308 4
5/31/17); 222 So.3d 975, 980, quoting Pouncy v. Winn-Dixie La., Inc., 15-189 (La.
App. 5 Cir. 10/28/15); 178 So.3d 603, 605. An issue is genuine if it is such that
reasonable persons could disagree. If only one conclusion could be reached by
reasonable persons, summary judgment is appropriate as there is no need for trial
on that issue. Id. Whether a particular fact in dispute is material for purposes of
summary judgment can only be determined in light of the substantive law
applicable to the case. Stogner, 254 So.3d at 1257, citing Jackson v. City of New
Orleans, 12-2742 (La. 1/28/14); 144 So.3d 876, 882, cert. denied, 574 U.S 869,
135 S.Ct. 197, 190 L.Ed.2d 130 (2014).
The party moving for summary judgment bears the burden of proof.
Stogner, supra, citing La. C.C.P. art. 966(D)(1). However, if the mover will not
bear the burden of proof at trial, the moving party must only point out that there is
an absence of factual support for one or more elements essential to the adverse
party’s claims. Id. Thereafter, the burden shifts to the adverse party to produce
factual support sufficient to establish that he will be able to satisfy his evidentiary
burden of proof at trial. Id. If the adverse party fails to meet this burden, there is
no genuine issue of material fact, and the mover is entitled to summary judgment
as a matter of law. Id. Once the motion for summary judgment has been properly
supported by the moving party, the failure of the adverse party to produce evidence
of a material factual dispute mandates the granting of the motion. Id., citing Babin
v. Winn Dixie La., Inc., 00-78 (La. 6/30/00); 764 So.2d 37, 40.
Interpretation of Donald, Sr.’s Will4
Ms. Ladner alleges that the trial court legally erred in granting summary
judgment in favor of Donald, Jr. She argues that the trial court erroneously
interpreted the natural language of Donald, Sr.’s Will and the intention of Donald,
4
All of Ms. Ladner’s assignments of error are interrelated, mainly arguing that the trial court
erred in its interpretation of the language of Donald, Sr.’s Will. As a result, we will address the
assignments in one analysis.
20-CA-308 5
Sr. She asserts that Donald, Sr.’s use of the word “legatees” in the will was not
merely a synonym to the word “heirs” because those words have very different
legal meanings; and, Donald, Sr.’s use of both terms meant that he clearly
understood the difference between their meanings.
Ms. Ladner also argues that the language of Donald, Sr.’s Will provides for
a substitute beneficiary designation, in the event Dean died intestate and without
heirs. She avers that Donald, Sr. intended to make his beneficiaries’ trust interests
part of their own estates, whereby they would have the opportunity to leave the
benefit to those interests to whom they deemed fit; and, Donald, Sr.’s intention to
afford Dean the ability to leave his interest to his legatees is clearly stated in
Donald, Sr.’s Will. She further avers that the phrase “however” and the language
that followed do not negate Donald, Sr.’s clear intent.
Last, Ms. Ladner argues that courts must seek to give meaning to all
testamentary language in a will and avoid any interpretation that would render the
language meaningless or reduce it to surplusage. She asserts that ignoring the
language “or legatees” renders the Donald, Sr.’s Will’s language meaningless or
reduces it to surplusage, and it retroactively deprives Dean of the right to designate
Ms. Ladner as his universal legatee—a right that his father intended to bestow
upon him.
Conversely, Donald, Jr. alleges the trial court correctly interpreted Donald,
Sr.’s intent and properly granted summary judgment against Ms. Ladner. He
contends the language in Donald, Sr.’s Will is unambiguous that the beneficiary
interest in Dean’s testamentary trust reverts to the Donald R. Bradley, Jr.
Testamentary Trust, in the event Dean died without any descendants. He
maintains that, notwithstanding Donald, Sr.’s Will’s provision stating that heirs
and legatees are first in line to inherit the trust property of a deceased principal
beneficiary, the verbiage is immediately followed by unequivocal language
20-CA-308 6
JOHNSON, J.
Appellant, Vicky Ann Ladner, appeals two summary judgments from the
24th Judicial District Court, Division “D,” concerning a testamentary trust that
dismissed her action, with prejudice, in favor of Appellee, Donald R. Bradley, Jr.,
in his capacity as a trustee of the Donald R. Bradley Testamentary Trust. For the
following reasons, we reverse the summary judgment of the trial court and render
summary judgment in favor of Vicky Ann Ladner.
FACTS AND PROCEDURAL HISTORY
On April 19, 2002, Donald R. Bradley, Sr. (hereinafter referred to as
“Donald, Sr.”) executed the “Will of Donald R. Bradley” (hereinafter referred to as
“Donald, Sr.’s Will”). The will established two separate trusts, consisting of equal
shares of his remaining estate for the principal benefit of his sons, Donald R.
Bradley, Jr. (hereinafter referred to as “Donald, Jr.”) and decedent, Dean Allen
Bradley. Dean Bradley was the principal beneficiary of one of the trusts—the
Dean Allen Bradley Testamentary Trust1 (hereinafter referred to as “the Trust”)—
created in Donald, Sr.’s will. Donald, Jr. is the principal beneficiary of the other
trust (hereinafter referred to as “Donald, Jr.’s trust”) created in Donald, Sr.’s Will.
The provision of Donald, Sr.’s Will that created the two trusts included the
following language:
5. Upon any termination of a trust, the principal of the trust and all
accumulated income, and all investments and reinvestments thereof,
shall be delivered by the trustee in full ownership and free of trust as
follows:
(a) if the termination occurs during the beneficiary’s life, then
to the beneficiary; or
(b) if the principal beneficiary dies before termination of the
trust, that beneficiary’s interest vests in the heirs or legatees of
the deceased beneficiary subject to this trust and, for a legitime
interest, subject to the provision of La. R.S. § 9:1841.
However, if the principal beneficiary dies without descendants,
to the maximum extent permitted under Louisiana law, that
1
The Trust is a presumed asset of the pending succession of Dean Bradley.
20-CA-308 1
interest shall vest in the principal beneficiary’s spouse,
provided that the principal beneficiary is married at the time of
his death and that no divorce proceedings are pending between
the principal beneficiary and his spouse at the time of the
principal beneficiary’s death. If, at that time, the principal
beneficiary has no spouse or divorce proceedings are pending,
that interest shall best in the remaining trusts created herein per
stirpes.
Many years later, on December 2, 2015, Dean executed his own last will and
testament. In Dean’s will, he declared the following legacy:
I declare that Vicky Ann Ladner is my universal legatee. I
bequeath my entire estate, immovable and movable, real and personal,
and trust property to Vicky Ann Ladner … as may be described in the
Judgment of Possession of the Succession of Donald R. Bradley … If
Vicky Ann Ladner predeceases me, my estate shall devolve under the
rules of intestacy. Pursuant to La. Civ. Code art. 1521, I specifically
provide that if Vicky Ann Ladner does not survive me by a period of
ninety (90) days, then all of my property must devolve as if she had
predeceased me.
On February 28, 2017, Dean passed away without being remarried or fathering any
children.2
A petition to file and record notarial testament and for confirmation of
independent testamentary executor was filed on March 6, 2017 for Dean’s estate
by Crawford A. Rose, III.3 On April 21, 2017, Mr. Rose filed an ex parte motion
for appointment of dative testamentary executor and appointment of another
qualified person to the office. Ms. Ladner was appointed as the dative
independent executor of Dean’s succession, pursuant to Dean’s last will and
testament, on May 8, 2017, and Mr. Rose was relieved of his appointment.
On May 26, 2017, Donald, Jr. filed a petition for intervention. In his
petition, Donald, Jr. alleged that his trust, Donald, Jr.’s trust, had a vested interest
in the Trust because Dean died without descendants or a spouse. Ms. Ladner
2
Dean’s ex-wife, Melinda Elmer Bradley, filed a petition for intervention on November 2, 2017,
alleging that Dean was the presumed father of her son, Michael Blanchard. Dean’s will specifically
disavowed Michael, and Dean filed a disavowal proceeding. Mrs. Bradley’s intervention is not pertinent
to the resolution of the instant appeal and will not be further addressed.
3
Mr. Rose was originally the independent testamentary executor of Dean’s succession.
20-CA-308 2
answered Donald, Jr.’s petition as the dative independent executor for Dean’s
succession on September 7, 2017, asserting that Dean’s will determined who
inherited his portion of the Trust. In response, Donald, Jr., on behalf of Donald,
Jr.’s trust, also filed a petition for partial possession on October 10, 2017, wherein
he petitioned the court to vest Dean’s beneficiary interest in the Trust to Donald,
Jr.’s trust.
On August 9, 2019, Donald, Jr. filed a motion for partial summary judgment.
In his motion, Donald, Jr. again alleged that Dean’s beneficiary interest in the
Trust reverted to Donald, Jr.’s trust because Dean died without descendants or a
spouse. He argued that Ms. Ladner’s contention that she was entitled to receive
Dean’s interest in the Trust because she was Dean’s legatee was contrary to the
language of Donald, Sr.’s Will. Donald, Jr. contended that the language of the
Donald, Sr.’s Will clarified that the terms “heirs” and “legatees” were limited
solely to the decedent’s descendants and/or spouse, and any other interpretation of
those terms would render the contingency provisions contained in paragraph 5(b)
of the will superfluous and meaningless. Ms. Ladner filed her own motion for
partial summary judgment on August 20, 2019, alleging the language of Donald,
Sr.’s Will purposefully contained the terms “heirs” or “legatees” with the intention
of providing the beneficiaries with an option to bequeath the beneficiary interest to
a testate successor. Because Dean designated her as his universal legatee, Ms.
Ladner contended that she should inherit Dean’s beneficiary interest in the Trust,
to the exclusion of all others.
The parties’ cross-motions for partial summary judgment were heard on
November 19, 2019. On March 11, 2020, the trial court rendered a written
judgment that granted Donald, Jr.’s motion for partial summary judgment. The
judgment decreed that Dean’s beneficiary interest in the Trust reverted to Donald,
Jr.’s trust. The judgment further denied Ms. Ladner’s motion for partial summary
20-CA-308 3
judgment and dismissed her claims with prejudice. In its reasons for judgment, the
trial court found that the language of Donald, Sr.’s Will indicated the beneficiary
interest in the Trust would devolve to Dean’s heirs, specifically his children or
spouse. Because Dean died without a spouse or children, the trial court held that
Dean’s beneficiary interest in the Trust must devolve to the other trust created in
the will—Donald, Jr.’s trust. The instant appeal of Ms. Ladner followed.
ASSIGNMENTS OF ERROR
On appeal, Ms. Ladner alleges that the trial court erred: 1) by interpreting
the language of Donald, Sr.’s Will in a manner contrary to the intention of the
testator; 2) in ignoring the natural language of Donald, Sr.’s Will in toto; and 3) in
interpreting the language of Donald, Sr.’s Will in a manner that rendered the
testamentary language meaningless.
LAW AND ANALYSIS
General Summary Judgment Law
The summary judgment procedure is designed to secure the just, speedy, and
inexpensive determination of every action and is favored. La. C.C.P. art.
966(A)(2). Appellate courts review summary judgments de novo under the same
criteria that govern the trial court’s consideration of whether summary judgment is
appropriate. Stogner v. Ochsner Clinic Foundation, 18-96 (La. App. 5 Cir.
9/19/18); 254 So.3d 1254, 1257, citing Batiste v. United Fire & Casualty Co., 17-
485 (La. App. 5 Cir. 3/14/18); 241 So.3d 491, 496. Summary judgment shall be
granted “if the motion, memorandum, and supporting documents shows that there
is no genuine issue as to material fact and that the mover is entitled to judgment as
a matter of law.” Id., quoting La. C.C.P. art. 966(A)(3).
A material fact is one that potentially insures or prevents recovery, affects a
litigant’s ultimate success, or determines the outcome of the lawsuit. Populis v.
State Department of Transportation and Development, 16-655 (La. App. 5 Cir.
20-CA-308 4
5/31/17); 222 So.3d 975, 980, quoting Pouncy v. Winn-Dixie La., Inc., 15-189 (La.
App. 5 Cir. 10/28/15); 178 So.3d 603, 605. An issue is genuine if it is such that
reasonable persons could disagree. If only one conclusion could be reached by
reasonable persons, summary judgment is appropriate as there is no need for trial
on that issue. Id. Whether a particular fact in dispute is material for purposes of
summary judgment can only be determined in light of the substantive law
applicable to the case. Stogner, 254 So.3d at 1257, citing Jackson v. City of New
Orleans, 12-2742 (La. 1/28/14); 144 So.3d 876, 882, cert. denied, 574 U.S 869,
135 S.Ct. 197, 190 L.Ed.2d 130 (2014).
The party moving for summary judgment bears the burden of proof.
Stogner, supra, citing La. C.C.P. art. 966(D)(1). However, if the mover will not
bear the burden of proof at trial, the moving party must only point out that there is
an absence of factual support for one or more elements essential to the adverse
party’s claims. Id. Thereafter, the burden shifts to the adverse party to produce
factual support sufficient to establish that he will be able to satisfy his evidentiary
burden of proof at trial. Id. If the adverse party fails to meet this burden, there is
no genuine issue of material fact, and the mover is entitled to summary judgment
as a matter of law. Id. Once the motion for summary judgment has been properly
supported by the moving party, the failure of the adverse party to produce evidence
of a material factual dispute mandates the granting of the motion. Id., citing Babin
v. Winn Dixie La., Inc., 00-78 (La. 6/30/00); 764 So.2d 37, 40.
Interpretation of Donald, Sr.’s Will4
Ms. Ladner alleges that the trial court legally erred in granting summary
judgment in favor of Donald, Jr. She argues that the trial court erroneously
interpreted the natural language of Donald, Sr.’s Will and the intention of Donald,
4
All of Ms. Ladner’s assignments of error are interrelated, mainly arguing that the trial court
erred in its interpretation of the language of Donald, Sr.’s Will. As a result, we will address the
assignments in one analysis.
20-CA-308 5
Sr. She asserts that Donald, Sr.’s use of the word “legatees” in the will was not
merely a synonym to the word “heirs” because those words have very different
legal meanings; and, Donald, Sr.’s use of both terms meant that he clearly
understood the difference between their meanings.
Ms. Ladner also argues that the language of Donald, Sr.’s Will provides for
a substitute beneficiary designation, in the event Dean died intestate and without
heirs. She avers that Donald, Sr. intended to make his beneficiaries’ trust interests
part of their own estates, whereby they would have the opportunity to leave the
benefit to those interests to whom they deemed fit; and, Donald, Sr.’s intention to
afford Dean the ability to leave his interest to his legatees is clearly stated in
Donald, Sr.’s Will. She further avers that the phrase “however” and the language
that followed do not negate Donald, Sr.’s clear intent.
Last, Ms. Ladner argues that courts must seek to give meaning to all
testamentary language in a will and avoid any interpretation that would render the
language meaningless or reduce it to surplusage. She asserts that ignoring the
language “or legatees” renders the Donald, Sr.’s Will’s language meaningless or
reduces it to surplusage, and it retroactively deprives Dean of the right to designate
Ms. Ladner as his universal legatee—a right that his father intended to bestow
upon him.
Conversely, Donald, Jr. alleges the trial court correctly interpreted Donald,
Sr.’s intent and properly granted summary judgment against Ms. Ladner. He
contends the language in Donald, Sr.’s Will is unambiguous that the beneficiary
interest in Dean’s testamentary trust reverts to the Donald R. Bradley, Jr.
Testamentary Trust, in the event Dean died without any descendants. He
maintains that, notwithstanding Donald, Sr.’s Will’s provision stating that heirs
and legatees are first in line to inherit the trust property of a deceased principal
beneficiary, the verbiage is immediately followed by unequivocal language
20-CA-308 6
mandating that the deceased principal beneficiary’s interest shall vest in the
beneficiary’s spouse or in the remaining trust created in the will, in the event the
beneficiary dies without descendants or a spouse. Donald, Jr. argues that, if “heirs
and legatees” are to be interpreted as Ms. Ladner suggests there would have been
no reason to include the contingency provisions in Donald, Sr.’s Will, and those
provisions would be rendered wholly ineffective and superfluous.
Donald, Jr. further contends that the language of Donald, Sr.’s Will mirrors
the Louisiana Trust Code. He contends that only if a legitime interest is affected
does any shift of a principal beneficiary require the beneficiary to die both intestate
and without descendants. He maintains that the trial court recognized the law’s
provision for the shifting of a principal beneficiary, and moreover, the will’s use of
the term “however” to carry out that substitution of the principal beneficiary.
Because Dean died without descendants or a spouse, Donald, Jr.’s trust interest
was then vested in the remaining trust created by Donald, Sr.’s Will—the Donald
R. Bradley, Jr. Testamentary Trust.
According to La. R.S. 9:2252, trusts that are created and any provisions or
dispositions therein shall be governed by the laws in effect at the time of their
creation. A testamentary trust is created at the moment of the settlor’s death. La.
R.S. 9:1821. Inter vivos trusts are created upon execution of the trust instrument.
La. R.S. 9:1822. However, a court presumes the settlor used the words in the trust
according to their common, ordinary meaning, and that the settlor knew the
applicable law at the time the trust was drafted. 90 C.J.S. Trusts § 208 (2021).
The court will strive to reconcile, by reasonable interpretation, any provisions that
apparently conflict before adopting a construction that would nullify any provision.
Id. In this matter, although the Trust is a testamentary trust and was not created
until Donald Sr.’s death, it was executed on April 19, 2002. Thus, in order to
determine the proper beneficiary of the Trust’s interest, we must look to the laws
20-CA-308 7
that were in effect on April 19, 2002 and interpret them in conjunction with
Donald, Sr.’s Will.5
Pursuant to the version of La. R.S. 9:1972 in effect in 2002,6 “[u]pon a
principal beneficiary’s death, his interest vests in his heirs or legatees, subject to
the trust; provided, however, that the trust instrument may stipulate otherwise to
the extent permitted by the following Sections of this Subpart and R.S. 9:1895.”
When setting forth the requirements for shifting interest in principal, La. R.S.
9:19737 provided,
A. The trust instrument may provide that the interest of either an
original or a substitute principal beneficiary who dies intestate and
without descendants during the term of the trust or at its
termination vests in some other person or persons, each of whom
shall be substitute beneficiary.
B. Except as to the legitime in trust, the trust instrument may provide
that the interest of either an original or a substitute principal
beneficiary who dies without descendants during the term of the
trust or at its termination vests in some other person or persons,
each of whom shall be substitute beneficiary.
(Emphasis added).
In Baxter v. Roth, 19-113 (La. App. 1 Cir. 6/24/20); 307 So.3d 1047, the
Louisiana First Circuit thoroughly explained the shifting of the principal’s interest
in the older versions of La. R.S. 9:1972 and 9:1973. The court concluded:
5
Questions of law, such as the proper interpretation of a statute, are reviewed under the de novo
standard of review. City of Gretna v. Morice, 14-301 (La. App. 5 Cir. 12/30/14); 167 So.3d 823, 827.
6
La. R.S. 9:1972 was amended by Acts 2016, No. 544, § 1, which became effective on August 1,
2016.
7
La. R.S. 9:1973 was amended by Acts 2010, No. 390, § 1 and Acts 2016, No. 544, § 1. The
statute currently provides:
A. (1) Except as to the legitime in trust, the trust instrument may provide that the interest of an
original or a substitute principal beneficiary of an irrevocable trust vests in one or more of his
descendants upon the death of the beneficiary either during the term of the trust or at its
termination. The trust instrument may provide that the interest vests in another person if the
beneficiary dies without descendants.
(2) With respect to the legitime in trust, the trust instrument may provide that the interest of
an original or a substitute principal beneficiary vests in another person upon the death of the
beneficiary either during the term of the trust or at its termination, only if a beneficiary dies
intestate and without descendants.
B. The trust instrument may provide that the interest of a designated principal beneficiary of a
revocable trust shifts to another person, if the substitution occurs no later than the date when
the trust becomes irrevocable.
20-CA-308 8
Collectively, LSA-R.S. 1973 and 1997 Comment (a) to LSA-
R.S. 9:1978 state four different times that the exceptions to LSA-R.S.
9:1972 provided for by LSA-R.S. 9:1973 require that the principal
beneficiary die without descendants. When considered together
according to the rules of statutory interpretation, it is clear that LSA-
R.S. 9:1972 and LSA-R.S. 9:1973 do not restrict a principal
beneficiary from shifting his interest in a trust unless the beneficiary
dies without descendants. Rather, LSA-R.S. 9:1972 and LSA-R.S.
9:1973 restrict a trust instrument – and thereby a settlor – from
shifting a principal beneficiary’s interest in a trust to substitute
beneficiaries unless the beneficiary dies without descendants.
This interpretation of LSA-R.S. 9:1972 and LSA-R.S. 9:1973 is
supported by Breazeale, 2017 WL 3573991, and Lewis v. Williams,
622 So.2d 281, 282 (La.App. 1 Cir. [1993]), writ denied, 629 So.2d
1170 (La. 1993). The Breazeale Court clearly stated that LSA-R.S.
9:1973(A) provides, by operation of law, that a principal beneficiary
must die “intestate and without descendants” as a “prerequisite” for
the settlor’s substitution of a principal beneficiary’s interest in a trust.
This Court was even more clear in Lewis, wherein this Court
considered whether a trust instrument could allow the trust corpus to
bypass the succession of the principal beneficiary, when the
beneficiary died testate and with descendants. The Lewis Court
held…[t]he language of the Trust Instrument does not overcome or
circumvent the requirement of the Trust Code that the beneficiary die
intestate and without descendants in order for substitutions to be valid.
(Internal citations omitted).
In the case at bar, Dean, the principal beneficiary of the Trust, died without
any descendants. However, Dean died testate. In his last will and testament, Dean
bequeathed his entire estate and trust property to Ms. Ladner. Thus, under La. R.S.
9:1973(A), any substitution provided for by the Trust was necessarily predicated in
every instance on the requirement that the original or substitute principal
beneficiary die intestate and without descendants. Because Dean died testate, we
find that his interest in the Trust vests in his legatee, Ms. Ladner. Furthermore, we
find the language of Donald, Sr.’s Will cannot overcome or circumvent the
requirement of the Trust Code that the beneficiary die intestate and without
descendants in order for substitutions to be valid. See, Baxter, supra. Therefore,
we pretermit consideration of the parties’ arguments regarding interpretation of the
language of Donald, Sr.’s Will as unnecessary.
20-CA-308 9
DECREE
For the foregoing reasons, we reverse the summary judgment rendered by
the trial court in favor of Donald R. Bradley, Jr., in his capacity as a trustee of the
Donald R. Bradley Testamentary Trust. Furthermore, we find that Dean Bradley’s
principal beneficiary interest in the Donald R. Bradley Testamentary Trust vests in
his legatee, Vicky Ann Ladner; render summary judgment in favor of Vicky Ann
Ladner; and, dismiss the intervening action of Donald R. Bradley, Jr., in his
capacity as a trustee of the Donald R. Bradley Testamentary Trust, with prejudice.
Donald R. Bradley, Jr., in his capacity as a trustee of the Donald R. Bradley
Testamentary Trust, is assessed the costs of this appeal.
REVERSED AND RENDERED
20-CA-308 10
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
NANCY F. VEGA
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
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I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
MARCH 31, 2021 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
20-CA-308
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HON. SCOTT U. SCHLEGEL (DISTRICT JUDGE)
RYAN S. MCBRIDE (APPELLANT) J. GEOFFREY ORMSBY (APPELLEE) RANDALL A. SMITH (APPELLEE)
MAILED
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