
    IN THE MATTER OF THE SUCCESSION OF WILLIAM EWELL COOPER, JR.
    NO. 2017-CC-1700
    Supreme Court of Louisiana.
    12/15/2017
   ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF EAST BATON ROUGE

GENOVESE, J.,

would grant and assigns reasons.

hi disagree with the majority’s denial of this writ. The appellate court reversed the trial court and ruled that “because more than five years have elapsed since the decedent’s will was filed for probate, Evan Cooper’s claims against defendants-in-intervention, Sarah Cooper and Burton Cooper, are prescribed.” In the Matter of the Succession of Cooper, Jr., 17-310, p. 1 (La. App. 1 Cir. 7/7/17), 2017 WL 2889247 (emphasis added). In my view, the five-year liberative prescriptive period for annulment of a testament pursuant to La.Civ. Code art. 3497 is five years from the date of the probate (not filing) of the will. See Succession of Dancie, 191 La. 518, 186 So. 14 (1939), and Kilpatrick v. Kilpatrick, 625 So.2d 222 (La.App. 2 Cir. 1993), writ denied, 93-2655 (La. 1/7/94), 631 So.2d 445. The filing of the will is of no moment. It is the probate of the will which gives it ef-feet; hence, the five-year prescriptive period for annulment should commence upon probate, not filing of the will.  