Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Monday, August 9, 2021

Louisiana Supreme Court Reverses Itself And Abandons Overly Strict Construction Of Standards For Creating Valid Notarial Will

Estate planningIn Succession of James Conway Liner III, the Louisiana Supreme Court vacated its original opinion and "clarified the analytical framework for determining whether a notarial will is in substantial compliance with the provisions of the Louisiana Civil Code." 

James executed two notarial instruments, one in 2013 and one in 2015. The 2015 testament was invalidated by the district court on the basis that the provisions of the attestation clause were not "substantially similar to those set forth in La. C.C. art. 1579(2), which governs the requirement of the attestation clause for a notarial will and testament when a testator is unable to read." The appellate court reversed the decision. 

The Louisiana Supreme Court reversed the Court of Appeal's decision in a January 2021 Opinion and reinstated the trial court's judgment invalidating the 2015 testament. The Louisiana Supreme Court then granted a Motion for Rehearing and issued a new opinion. 

Generally, the intention of the testator as expressed in the will must govern. However, the Supreme Court noted that, "the formalities of a notarial will provide a protective function of guarding the testator against the risk of fraud." 

The Louisiana Supreme Court established a clarified standard: 

Courts must determine if a notarial will, with all formalities and evidence taken into consideration, reflects the testator was sufficiently protected against the risk of fraud. Holmes, supra, at 541. This involves a contextual analysis of the protective function of a will’s formalities in light of the 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. If not, the deviations are slight and should be disregarded. Guezuraga, 512 So.2d at 368. Whether the deviating language sufficiently protects against the risk of fraud is construed liberally in favor of maintaining the validity of the will. Id.; Holbrook, 13-1181, p. 11, 144 So.3d at 853. Mere allegations of fraud are not outcome determinative.

The Louisiana Supreme Court ultimately found that the attestation clause of James' 2015 testament was executed in substantial compliance with La. C.C. art. 1579(2), emphasizing the importance of substantial compliance as the governing standard as opposed to strict compliance. 

See Louisiana Supreme Court Reverses Itself And Abandons Overly Strict Construction Of Standards For Creating Valid Notarial Will, Probate Stars, July 14, 2021. 


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