A Testament to Inefficacy: Louisiana s New Legislation Allowing for the Admissibility of Videotape Evidence in the Probate Process

• Author: Alison V. Nunez
• Pages: 872-901

The author wishes to thank Ronald J. Scalise, Jr., Profesor of Law, Paul M. Hebert Law Center, Louisiana State University, for his invaluable assistance and continuing support and guidance in drafting this comment. Also, many thanks to Max Nathan, Jr. of Sessions, Fishman, and Nathan, LLP, in New Orleans, Louisiana, and to Gerry W. Beyer, Governor Preston E. Smith Regents Professor of Law, Texas Tech University, for their helpful comments and suggestions.

I Introduction

Technology constantly encourages the legal system to adapt to ever-changing advancements. No area of the law is immune from this prodding, as these advancements have spurred incredible changes in both procedural and substantive law. In particular, legislators have been called upon to implement new developments in the area of civil procedure. From newly suggested electronic discovery procedures to the possibility of executing a will through e- mail, change is on the horizon. While the arguments in favor of technological advancement are sound, the resulting changes to the practice of law require practitioners to question whether legislators are looking with an appropriately discerning eye to the effect that these developments will and already are exhibiting.¹

Newly enacted Louisiana Code of Civil Procedure article 2904 provides for the admissibility at trial of a videotape of a testament's execution.² Videotape evidence may be entered in a contradictory trial to probate a testament or in an action to annul a probated testament.³ The videotape is to serve as proof of a number of factors associated with a will's execution.⁴

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.⁵ To develop this argument, Page 872 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.

II Videotape Evidence

A Grounds for Videotape Admissibility in the Probate Process

Commentators initially conceived of the role videotape should play in the probate process during the early 1980s.⁶ Prior to that time, videotapes were extensively utilized in other areas of the law, particularly criminal law.⁷ For example, practitioners made use of tapes to capture defendants' statements, to aid in the conducting of line-ups, and to film crime scenes.⁸ In the civil setting, video depositions were frequently introduced.⁹ Despite this widespread application, the use of videotape evidence in the probate arena did not receive similar approval.¹⁰ This absence of jurisprudence derives from the newness of the idea, as well as from the ever- present controversy surrounding the use of videotape evidence in this context. In effect, those individuals who are willing to sit in front of the video camera and who have found a lawyer willing to stand behind it simply have not yet died.¹¹ Undoubtedly, though, as individuals who have grown up with video technology begin the process of preparing a will, there will be more instances in which videotape evidence plays a part in the probate process.

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When videotape evidence has been introduced in the probate process, courts generally require some, but not all, of the following elements to be proven: a voluntarily made tape, proper functioning of the equipment, competency of the equipment operator, accuracy of the recording, proper preservation of the recording, absence of videotape alteration, and accurate identification of the participants of the execution of the will.¹²

As to the purpose served by videotape admissibility, courts often look to the tape as evidence of "objective" factors, such as proper execution and authenticity of the testament, as well as more "subjective" factors, including the existence of testamentary capacity and the absence of undue influence.¹³ Regarding the objective factors, a videotape can document the presence of the witnesses required for proper execution.¹⁴ The video can also serve as proof that the testator signed the document himself in the presence of the witnesses¹⁵ and can insure against subsequent alterations of the document's contents by individually recording each page of the testament.¹⁶ This forestalling of physical alteration also exists in cases where the testator reads the entire will aloud.¹⁷

The controversial nature of videotape admissibility arises with respect to the subjective factors. As will be explained in greater detail below, videotape evidence has been touted for its ability to reveal both the existence of testamentary capacity and the absence of undue influence in will executions. Commentators argue that a videotape of the will execution ceremony would allow the testator to appear "personally" before the court and state his or her intentions directly.¹⁸ This approach, however, is too simplistic in that it fails to consider the possibility that the testator's words may not be an Page 874 accurate reflection of his intentions, no matter how "directly" he states them.

B The Approaches of Other States to Videotape Admissibility in the Probate Process

Several states have adopted different approaches to videotape admissibility. Some states have ethical guides on the use of videotaped wills. Others have considered legislation on the matter and rejected it. Still others have adopted specific laws with standards for admissibility of videotaped wills.

The Supreme Court of Ohio put forth its attitude toward the use of videotape evidence in the probate process through an advisory opinion issued in 1988. Opting to treat the matter as one involving the duty of care owed by lawyers to clients, the Board of Commissioners on Grievances and Discipline confirmed that videotaping the reading and execution of a will does not violate the Ohio Code of Professional Responsibility.¹⁹ The board directed all interested lawyers to a reference manual for continuing legal education published by the Ohio Legal Center Institute.²⁰ The manual guides lawyers in their decision to videotape a will execution ceremony by outlining the advantages and disadvantages of videotaping a will and providing guidelines as to what should be included in the videotape itself.²¹

Other states, such as Texas and New Jersey, approach the matter more as an evidentiary issue than an ethical one. In 1985, the Texas Legislature drafted a bill seeking to amend the Texas Probate Code to allow for the admissibility of videotape as evidence of the testator's identity, competency, and "any other matter relating to the will and its validity."²² Similarly, the New Jersey House of Representatives drafted a bill in 1986 that would have allowed videotape to serve not only as evidence of proper execution and Page 875 testamentary capacity, but also as a will itself as long as a written version was also created.²³ Neither bill, however, was ever enacted by the respective state legislatures.

The New York State Senate also proposed a bill in 1987 that would have added section 1407-a to the Surrogate's Court Procedure Act.²⁴ This new section provided for the admissibility of videotape to prove the validity of a will.²⁵ Despite the legislature's refusal to enact this video-will statute, the Supreme Court of New York in 1994 jurisprudentially determined that the videotape of a will execution ceremony is admissible in circumstances where the videotape is offered not as a will to be probated, but rather as evidence of the decedent's testamentary capacity.²⁶

In 1988, Indiana became the first state to enact legislation allowing for the admissibility of videotape evidence in the probate process. The new section of the Indiana Probate Code provided: "Subject to the applicable Indiana rules of trial procedure, a videotape may be admissible as evidence of the proper execution of a will."²⁷ Following an amendment in 1989 expanding the use of videotape evidence,²⁸ the current language of the provision reads:

(c) Subject to the applicable Indiana Rules of Trial Procedure, a videotape may be admissible as evidence of the following:

(1) The proper execution of a will.

(2) The intentions of a testator.

(3) The mental state or capacity of a testator.

(4) The authenticity of a will.

(5) Matters that are determined by a court to be relevant to the probate of a will.²⁹

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In other words, videotape is admissible as proof that all of the statutory requirements for a testamentary instrument have been met.³⁰ One commentator explained that the Indiana Legislature was willing to adopt this provision based...