Tuesday, February 23, 2021
Two Louisiana Supreme Court Cases Examine When Attestation Clauses In A Notarial Will Substantially Comply With The Law, and When They Don’t
"In the January 2021 cases of Succession of James Conway Liner III and Succession of Peggy Blackwell Bruce, the Louisiana Supreme Court examined the attestation clauses in two notarial testaments (wills) and determined that one substantially complied with the requirements for executing a valid will, and one did not."
Requirements for a notarial testament under Louisiana law include (1) must be in writing, (2) must be dated, and (3) executed by the testator in the presence of a notary and two competent witnesses.
The Louisiana Supreme Court took a look at attestation clauses in the cases Liner and Bruce.
In Liner, the testator executed two notarial testaments, which apparently revoked any prior testaments. The 2013 testament divided testator's property equally between his three children. The 2015 testament was executed under La. C.C. art 1579, which covers testators that are unable to read whether or not they are able to sign their name. This testament divided the property between only two of the children and excluded the third.
The 2015 testament was invalidated by the district court after they found that the provisions of the attestation clause were different than those under La. C.C. art. 1579.
The appellate court reversed the decision, finding La. C.C. art. 1579(2) governs when a testator is unable to read, despite whether or not the are able to sign their name.
The Louisiana Supreme Court reversed the Court of Appeal and invalidated the 2015 testament.
In Bruce, the Louisiana Supreme Court held that La C.C. art. 1577(2) applies when the testator is able to read and sign their name.
The main takeaway from this cases is to comply with the requirements laid out in the code so that you can avoid litigation.
See Two Louisiana Supreme Court Cases Examine When Attestation Clauses In A Notarial Will Substantially Comply With The Law, and When They Don’t, Probate Stars, February 16, 2021.