Testamentary Formalism in Louisiana: Curing
Notarial Will Defects Through a Likelihood-of-Fraud
Before James Holbrook died, he thought that his last will and
testament was valid.
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.
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.
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.
daughter challenged the validity of the will on the basis of its lack
of form; she did not claim the existence of another will.
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.
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 th is
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.
One basis for these decisions is that will
formalities exist to provide unequivocal evidence of testamentary
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.
Fortunately, the many inequities caused by strict adherence to
testamentary formalities have led to a reform in the law.
and scholars criticized the traditional approach—known as strict
compliance—for prioritizing form over substance.
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.
Those who advocated for reform
offered two potential solutions: reduce the number of will
or replace strict compliance with a more equitable
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
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
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.