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 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.

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.