Testamentary Formalism in Louisiana: Curing Notarial Will Defects Through a Likelihood-of-Fraud Analysis

• Author: George Holmes
• Position: J.D./D.C.L., 2015, Paul M. Hebert Law Center, Louisiana State University.
• Pages: 511-541

Testamentary Formalism in Louisiana: Curing Notarial Will Defects Through a Likelihood-of-Fraud Analysis INTRODUCTION Before James Holbrook died, he thought that his last will and testament was valid. 1 The document that he prepared for probate appeared to have all of the requisite formalities for a notarial will required by Louisiana Civil Code article 1577. 2 Unfortunately for Mr. Holbrook’s potential legatees, the date recorded on the attestation clause of the will included the year and the month, but not the day—contrary to the strict requirements of Louisiana law. 3 Although the will was properly dated on every other page, the omission of the date on the attestation clause was due to the fault of the notary who executed the document. 4 Mr. Holbrook’s daughter challenged the validity of the will on the basis of its lack of form; she did not claim the existence of another will. 5 Although the document complied with the statutory formalities of a notarial will in every other respect, a Louisiana circuit court declared his will null for lack of form because of a seemingly minor flaw. 6 Many people die leaving behind instruments that, although intended to be wills, contain errors that deviate from the statutory requirements. Much like the circuit court that decided Mr. Copyright 2014, by GEORGE HOLMES. 1. See In re Succession of Holbrook, 144 So. 3d 845, 848 (La. 2014). 2. See LA. CIV. CODE art. 1577 (2014): The notarial testament shall be prepared in writing and dated and shall be executed in the following manner. If the testator knows how to sign his name and to read and is physically able to do both, then: (1) In the presence of a notary and two competent witnesses, the testator shall declare or signify to them that the instrument is his testament and shall sign his name at the end of the testament and on each other separate page. (2) In the presence of the testator and each other, the notary and the witnesses shall sign the following declaration, or one substantially similar: “In our presence the testator has declared or signified that this instrument is his testament and has signed it at the end and on each other separate page, and in the presence of the testator and each other we have hereunto subscribed our names this ____ day of _________, ____.” 3. Holbrook , 144 So. 3d at 848. 4. Id. at 847–48. 5. Id. at 846–47. 6. Id. at 847. The purpose of this Comment is not to undermine the roles that various will formalities serve in succession law. Instead, this Comment presents Louisiana courts with the means to validate formally deficient wills in cases where the testator was properly protected against fraud or undue influence despite the defect. See infra Part IV. 512 LOUISIANA LAW REVIEW [Vol. 75 Holbrook’s case, courts across the United States have historically regarded any deviation from the formal requirements of wills as fatal to a will’s validity. 7 One basis for these decisions is that will formalities exist to provide unequivocal evidence of testamentary intent. 8 A conflict arises, however, when the testator’s intent is evident despite the testator’s non-compliance with the formalities. In such cases, wills are often invalidated notwithstanding the clear intent of the testator to leave a will. 9 Fortunately, the many inequities caused by strict adherence to testamentary formalities have led to a reform in the law. 10 Judges and scholars criticized the traditional approach—known as strict compliance—for prioritizing form over substance. 11 As a result of this criticism, state legislatures, scholars, and courts worked to devise methods to protect testamentary intent without belittling the importance of will formalities. 12 Those who advocated for reform offered two potential solutions: reduce the number of will formalities 13 or replace strict compliance with a more equitable doctrine. 14 Although reducing the number of formalities resulted in some success, a conflict still remained as to how courts should remedy the divide between testamentary intent and testamentary 7. See John H. Langbein, Substantial Compliance with the Wills Act , 88 HARV. L. REV. 489, 489 (1975) (“The law of wills is notorious for its harsh and relentless formalism. . . . The most minute defect in formal compliance is held to void the will, no matter how abundant the evidence that the defect was inconsequential.”). 8. See generally id. at 492 (“When the court is asked to implement the testator’s intention, he ‘will inevitably be dead’ and unable to authenticate or clarify his declarations, which may have been made years, even decades past. The formalities are designed to perform functions which will assure that his estate really is distributed according to his intention.” (footnote omitted)). 9. See infra Part I.B. 10. See generally infra Part I.B (discussing the flaws of the strict compliance doctrine and subsequent reform). 11. See generally infra Part I.B; see also Leigh A. Shipp, Comment, Equitable Remedies for Nonconforming Wills: New Choices for Probate Courts in the United States , 79 TUL. L. REV. 723, 729 (2005) (citing Stevens v. Casdorph, 508 S.E.2d 610, 611 (W. Va. 1998)) (“The dissent criticized the majority for ‘slavishly worshiping form over substance’ . . . .”). 12. See, e.g. , UNIF. PROBATE CODE § 2-503 (amended 1997), 8 U.L.A. 218 (Supp. 2013). 13. See, e.g. , LA. CIV. CODE art. 1577 (2014). The notarial will is based on the Louisiana statutory will, which was enacted in the 1950s to create a will more simple in form. KATHRYN VENTURATOS LORIO, SUCCESSIONS AND DONATIONS § 12:1, in 10 LOUISIANA CIVIL LAW TREATISE 392 (2d ed. 2009). 14. See Mark Glover, Decoupling the Law of Will-Execution , 88 ST. JOHN’S L. REV. (forthcoming 2014) (manuscript at 13), available at http://papers.ssrn.com/sol3 /papers.cfm?abstract_id=2341748, archived at http://perma.cc/EN9T-NA8Z. 2014] COMMENT 513 formalities. 15 Thus, scholars in the last quarter of the 20th century attempted instead to formulate replacements for the strict compliance doctrine: the substantial compliance doctrine and the harmless error rule. 16 As opposed to strict compliance, the substantial compliance doctrine provides courts with a method to validate wills even if the document deviates from the testamentary formalities required by state law. 17 Under substantial compliance, courts must analyze the formally invalid will and determine if the purpose of the formal requirement is adequately satisfied despite the defect. 18 The harmless error rule presents a simplified version of substantial compliance: instead of performing a functional analysis, courts may validate a formally defective will if the document reflects the intent of the testator through clear and convincing evidence. 19 Unfortunately, the results under both the substantial compliance and harmless error doctrines have been underwhelming. Few courts apply these doctrines as scholars envisioned, perhaps because the doctrines, in some ways, present more complications than those presented by strict compliance. 20 The analyses required of courts in applying the curative doctrines do not lend themselves to hard rules; in theory, a court applying substantial compliance or harmless error must do so on a contextual, case-by-case basis. 21 As a result, courts have struggled to understand and consistently apply these doctrines. 22 Nowhere has this failure been more pronounced than in Louisiana, where the Louisiana Supreme Court purportedly adopted the substantial compliance doctrine in Succession of Guezuraga in 1987. 23 In Guezuraga , the Court held that a formally defective will is in substantial compliance with the statutory requirements if the document adequately guards the testator against 15. See id. at 13–16. 16. Id. 17. See generally Langbein, supra note 7, at 513. 18. See generally id. 19. See Glover, supra note 14, at 14. Both the Restatement (Third) of Property: Wills and Donative Transfers and the Uniform Probate Code adopted the harmless error rule. Id. 20. See Stephanie Lester, Admitting Defective Wills to Probate, Twenty Years Later: New Evidence for the Adoption of the Harmless Error Rule , 42 REAL PROP. PROB. & TR. J. 577, 600–02 (2007). 21. See generally Langbein, supra note 7, at 494. 22. On the failures of the substantial compliance doctrine and harmless error rule, see infra Part I.C.2 and accompanying discussion. 23. See Lloyd Bonfield, Reforming the Requirements for Due Execution of Wills: Some Guidance From the Past , 70 TUL. L. REV. 1893, 1901–02 (1996); Succession of Guezuraga, 512 So. 2d 366 (La. 1987). 514 LOUISIANA LAW REVIEW [Vol. 75 fraud. 24 Problematically, Louisiana courts have applied Guezuraga inconsistently and with mixed results. 25 One concern is that what some Louisiana courts call substantial compliance is, in application, more akin to a strict compliance standard; 26 many of these courts adhere to a rule that any deviation is fatal to the validity of the will. 27 Another issue is that some courts apply the Guezuraga standard inconsistently with the analysis articulated by the Louisiana Supreme Court. 28 These approaches leave the validity of the document, regardless of the evidence reflecting testamentary intent, contingent on arbitrary decisions by each court. Such violations of testamentary intent are precisely the types of injustices that the remedial doctrines of substantial compliance and harmless error were designed to prevent. 29 Moreover, this ambiguity in judicial approaches leads to conflicting decisions and uncertainty in the law. 30 Considering the unfeasibility of the historically recognized curative doctrines, this Comment advocates for Louisiana courts to continue to apply the doctrine propagated by Guezuraga , but specifically to apply the standard as articulated . To properly understand Guezuraga , it should be noted that the Louisiana 24 . See Guezuraga , 512 So. 2d at 368 (citing Loretta Garvey Whyte, Note, Donations—Imperfect Compliance With the...