Article by Milton J. Hernandez, IV
Will formalities establish the necessary requirements that must be met for an individual's “last will and testament” to be found valid by courts and eventually probated. Each state's will form requirements, with some variation, generally demand that the will be: (1) in writing, (2) signed, and (3) attested to. Louisiana, a mixed legal system, did not adopt a will form akin to that of the attested will type found in other states until much later. In that adoption, the Louisiana Legislature required that the “statutory” or ““notarial” will must, among other things, be signed by the testator on each page and at the end of the testament; be witnessed by two witnesses and one notary; and contain a completed “attestation clause,” wherein the witnesses and notary attest that all form requirements for the notarial will were satisfied.
Despite the Legislature's original intention of creating a simple will form that was easy to use, Louisiana courts have inconsistently applied the laws for notarial wills over the course of the seven decades since the adoption of the notarial will form. As a result, fellow courts, lawyers, notaries, and testators are left with a bewildering picture of what a valid notarial will needs to survive confirmation by a court. Courts across the state have applied standards of “strict compliance,” “substantial compliance,” or something in between with little reliability. In 2021, in Succession of Liner, the Louisiana Supreme Court sought to give a clear standard for lower courts to use when determining the validity of attestation clauses in notarial wills. Even more recently in late 2024, in Succession of Frabbiele, the Court offered guidance on what constituted a signature for purposes of a notarial will. Despite much recent attention by Louisiana courts, unanswered questions still remain and courts, lawyers, and testators will continue to fail at properly interpreting the requirements of a notarial will.
Current Louisiana law on notarial wills needs clarity. By simplifying Louisiana's notarial will form requirements, the Louisiana Legislature and courts can finally see their goals--ensuring predictability and eliminating needless will invalidations--come to fruition. This Article will challenge the Legislature and courts to provide that simplicity.
First, in Part II, this Article discusses will form requirements generally and how will form requirements developed over time in the United States and Louisiana. Next, in Part III, this Article examines how courts interpret their respective will form requirements through theories of “strict compliance,” ““substantial compliance,” or “harmless error.” Within this Part, the Article walks through the history of Louisiana's most recently created will form--the ““statutory” or “notarial” will--and how Louisiana courts have, over time, inconsistently treated defects in notarial wills.
Then, in Part IV, this Article critiques Louisiana's current notarial will jurisprudence and challenge Louisiana lawmakers to simplify the form requirements for notarial wills. This Part recommends that Louisiana courts acknowledge the current confusion surrounding the notarial will jurisprudential tests and the harshness of recent Louisiana cases. Finally, Part IV suggests that the Legislature amend the Civil Code to textually broaden the permissions of what satisfies the “signature” requirement and to eliminate the “attestation clause” requirement.
The Article concludes that change must occur if Louisiana is to achieve the generally accepted goal of validating wills wherever possible while maintaining a connection between its jurisprudence and its honored civilian tradition.
About the Author
Milton J. Hernandez, IV. Assistant Professor of Law, Co-Director of the Center for Civil Law Studies, Mississippi College School of Law; J.D./D.C.L., Paul M. Hebert Law Center, Louisiana State University.
Citation
99 Tul. L. Rev. 713