Saturday, June 30, 2007
Alison V. Nunez (J.D. 2007, Louisiana State University Law Center) has recently published her comment entitled A Testament to Inefficacy: Louisiana's New Legislation Allowing for the Admissibility of Videotape Evidence in the Probate Process, 67 La. L. Rev. 871 (2007).
Here are some excerpts from the article's introduction and conclusion:
Newly enacted Louisiana Code of Civil Procedure article 2904 provides for the admissibility at trial of a videotape of a testament's execution. Videotape evidence may be entered in a contradictory trial to probate a testament or in an action to annul a probated testament. The videotape is to serve as proof of a number of factors associated with a will's execution.
This comment addresses several issues raised by the enactment of article 2904. Specifically, it argues that article 2904 requires substantial revision before it can effectively serve the evidentiary purposes intended by the legislature. To develop this argument, Part II explains the grounds for videotape admissibility in the probate process. Part III focuses specifically on the Louisiana approach by giving an in-depth analysis of article 2904's shortcomings, providing corresponding suggestions for legislative revision, and suggesting the proper interpretation courts should give to the article. Part IV concludes by offering practical advice to practitioners who rely on the article's provisions. * * *
The legislators failed to debate thoroughly all possible issues when they unanimously voted to approve new Louisiana Code of Civil Procedure article 2904. The resulting article is in great need of assistance. Aside from its potential ability to aid in a court's determination of whether the testamentary execution was carried out according to proper codal requirements, the article does not add any additional support to a beneficiary's action to probate a testament or a challenger's action to annul a probated testament. As a result, Louisiana courts should not grant article 2904 undue importance. Likewise, practitioners must be wary of its potential effects. One commentator warns that the process of videotaping will “likely require longer office appointments and greater preparation [resulting in larger bills to clients] than presently needed to execute wills.” Practitioners must also be aware of the risk that article 2904 could exacerbate malpractice actions for failure to videotape.
The fact remains, the vast majority of other states that have considered similar legislation did so in the late 1980s. The only state to enact legislation was Indiana in 1988, while all other states that proposed legislation opted not to do so. Why, then, did Louisiana choose to take action in 2005, nearly twenty years later? Such action was not well considered, as evidenced by the deficiencies associated with the article; the legislature must make amends.