Will Formalities in Louisiana: Yesterday, Today, and Tomorrow

Louisiana Law Review Louisiana Law Review

Volume 80

Number 4

Summer 2020

Article 9

11-11-2020

Will Formalities in Louisiana: Yesterday, Today, and Tomorrow Will Formalities in Louisiana: Yesterday, Today, and Tomorrow

Ronald J. Scalise Jr.

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Ronald J. Scalise Jr.,

Will Formalities in Louisiana: Yesterday, Today, and Tomorrow

, 80 La. L. Rev. (2020)

Available at: https://digitalcommons.law.lsu.edu/lalrev/vol80/iss4/9

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Will Formalities in Louisiana: Yesterday, Today, and

Tomorrow

Ronald J. Scalise, Jr.



TABLE OF CONTENTS

Introduction ................................................................................ 1332

I. A (Very Brief) History of Wills in the United States................. 1333

A. Functions of Form Requirements ........................................ 1335

B. The Law of Yesterday: The Development of

Louisiana’s Will Forms ....................................................... 1337

II. Compliance with Formalities ..................................................... 1343

A. The Slow Migration from “Strict Compliance” to

“Substantial Compliance” to “Harmless Error”

in the United States.............................................................. 1344

B. Compliance in Other Jurisdictions,

Civil and Common............................................................... 1352

III. The Law of Today: Common Features of Notarial

and Olographic Wills in Louisiana............................................. 1356

A. Writing ................................................................................ 1356

B. Signature.............................................................................. 1361

1. What Is a Signature? ..................................................... 1363

2. Location of the Signature .............................................. 1367

C. Date….................................................................................. 1371

1. What Is a Date? ............................................................. 1371

2. Location of the Date...................................................... 1373

3. The Need for a Date? .................................................... 1374

 John Minor Wisdom Professor of Civil Law, Tulane University Law

School. The author also serves as the Reporter for both the Trust Code Committee

and the Successions and Donations Committee of the Louisiana State Law

to the author. The author wishes to express his gratitude to Sally Richardson,

Edward Chase, Raphael de Barros Fritz, Joseph Mengis, and Monica Wallace for

helpful comments on earlier drafts of this Article. An earlier version of this Article

was presented at the Louisiana State Bar Association seminar on Estate Planning.

Thanks are due to the participants and organizers of that conference.

Institute. The views expressed herein, as well as any errors, are attributable solely

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1332 LOUISIANA LAW REVIEW [Vol. 80

IV. Special Requirements of Olographic Wills................................ 1379

A. Handwriting ......................................................................... 1382

B. “Entirely” in the Testator’s Handwriting............................. 1383

V. Special Requirements of Notarial Wills..................................... 1386

A. Signed at the End of Each Page and at the

End of the Testament........................................................... 1386

B. Executed in the Presence of a Notary and

Two Witnesses..................................................................... 1391

1. The “Presence” Requirement ........................................ 1391

2. The Notarial Requirement............................................. 1396

3. The Witness Requirement ............................................. 1400

a. Capacity to Be a Witness........................................ 1400

b. “Disinterested” Witnesses ...................................... 1402

c. “Two” Witnesses and Supernumerary

Witnesses................................................................ 1405

C. Publication: Declared by the Testator to

Be His Will .......................................................................... 1407

D. The Attestation Clause......................................................... 1409

VI. Special Notarial Wills ................................................................ 1416

A. Literate and Sighted but Physically Unable to Sign ............ 1416

B. Unable to Read .................................................................... 1418

C. Braille… .............................................................................. 1420

D. Deaf or Deaf and Blind........................................................ 1420

VII. The Law of Tomorrow: The Coming of Digital or

Electronic Wills?........................................................................ 1424

A. What Is an Electronic Will?................................................. 1424

B. Existing Law........................................................................ 1425

1. Nevada and Florida ....................................................... 1425

2. Indiana and Arizona ...................................................... 1428

C. Uniform Electronic Wills Act.............................................. 1429

D. Conflicts of Law Issues ....................................................... 1430

Conclusion.................................................................................. 1433

NTRODUCTION

It is well known and commonly understood that Louisiana maintains

a mixed or hybrid legal system that blends both elements of common and

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civil law to form its unique juridical landscape.

Some have argued that

this hybridization allows Louisiana to maintain the “best of both worlds,”

and indeed in many instances that belief is entirely defensible. Perhaps it

is even so with respect to wills, but there is some doubt. Louisiana’s form

requirements for wills are a curious amalgam of civil and common law

rules. Although the current law, which provides that a will may be

executed in either olographic or notarial form, was premised upon good

intentions and designed with the goal of simplicity in mind, the current

state of affairs has regrettably resulted in law that is artificially and

unnecessarily complex and rigid. It is a unique Louisiana product that has

crystalized in the law and, in practice, results in many unnecessary

intestacies today. It is time for reform.

Only by understanding the Louisiana law on will formalities in the

broader context of both the civil and common law traditions can one see

most acutely the need for revision. To that end, this Article proceeds by

laying out a very brief history of wills against the backdrop of the purpose

of the form requirements for wills. It then utilizes comparative research

from other civil and common law jurisdictions to inform and historically

situate Louisiana’s law and to document the global shift away from

formalism in the will context. The bulk of this Article, however, is spent

dissecting each of the individual requirements necessary for the making of

a will in Louisiana with a goal not only of descriptive assessment but also

of ascertaining whether each requirement is still necessary. To do so, this

Article provides the history of Louisiana’s experience with will

formalities—the law of yesterday—along with a careful elaboration of all

current aspects of the form for wills—the law of today. Before concluding,

this Article also offers a glimpse into electronic wills—the law of

tomorrow—and provides some backdrop for what surely will be a future

issue that Louisiana and other states will have to address. This Article

suggests that many—perhaps most—of the current form requirements for

wills should be reconsidered, and it is hoped that this Article will provide

a basis for discussion of future revision.

A (V

ERY BRIEF) HISTORY OF WILLS IN THE UNITED STATES

Scholars have well documented the development of the American

system of will formalities elsewhere, and only the briefest sketch or outline

1. See, e.g., VERNON VALENTINE PALMER, MIXED JURISDICTIONS

WORLDWIDE: THE THIRD LEGAL FAMILY 257–328 (2001).

2. Joachim Zekoll, The Louisiana Private-Law System: The Best of Both

Worlds, 10 T

UL. EUR. & CIV. L.F. 1 (1995).

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1334 LOUISIANA LAW REVIEW [Vol. 80

will be provided here, mainly for context and as background for

understanding the modern system of will-making in Louisiana.

Academics have noted that when it comes to will-making, there are

“three core formalities” for traditional attested wills: (1) the writing;

(2) the signature; and (3) the attestation.

American law on will formalities

has been consistent in those requirements, but some variation has

historically existed among states. State-by-state variation is generally a

result of the differing choices made by states in basing their statutes either

upon the English Statute of Frauds of 1677 or the Wills Act of 1837. The

states that based their laws upon the Statute of Frauds historically required

a writing, a signature, and attestation by three witnesses.

The Wills Act,

which was enacted over a century later, simplified the attestation

requirement to merely two witnesses, in addition to the writing and

signature requirement, but it also mandated that the testator sign “at the

foot or end thereof.”

Still other states “cobbled provisions” from each

statute and sometimes added their own flourishes, such as New York,

which requires that a testator “publish” his will by declaring before the

witnesses that the act is his will.

As will be explained below, Louisiana

was generally immune from the above influences due to its civil law

heritage. In 1952, however, a change was made that brought a common

law style will into Louisiana practice. Although civil law influences still

exist today, Louisiana’s current law on will formalities is heavily

influenced by the above common law concepts.

3. For a recent exposition of this issue, see Bridget J. Crawford, Will

Formalities in the Twenty-First Century, 2019 W

ISC. L. REV. 269, 274–75.

4. R

OBERT H. SITKOFF & JESSE DUKEMINIER, WILLS, TRUSTS, AND ESTATES

148 (10th ed. 2017); R

ESTATEMENT (THIRD) OF PROPERTY: WILLS AND OTHER

DONATIVE TRANSFERS § 3.1 cmt. f (AM. LAW INST. 1999); 2 JEFFREY A.

CHOENBLUM, PAGE ON THE LAW OF WILLS §§ 19.3–19.4, at 7–18 (2003);

ILLIAM M. MCGOVERN, SHELDON F. KURTZ, AND DAVID M. ENGLISH, WILLS,

RUSTS AND ESTATES 197 (2010).

5. S

ITKOFF & DUKEMINIER, supra note 4, at 149; RESTATEMENT (THIRD) OF

PROPERTY: WILLS AND OTHER DONATIVE TRANSFERS § 3.1 cmt. f; SCHOENBLUM,

supra note 4, §§ 19.3–19.4, at 7–18; M

CGOVERN, ET AL., supra note 4, at 197.

6. S

ITKOFF & DUKEMINIER, supra note 4, at 149; RESTATEMENT (THIRD) OF

PROPERTY: WILLS AND OTHER DONATIVE TRANSFERS § 3.1 cmt. f; SCHOENBLUM,

supra note 4, §§ 19.3–19.4, at 7–18; M

CGOVERN, ET AL., supra note 4, at 197.

7. S

ITKOFF & DUKEMINIER, supra note 4, at 149; RESTATEMENT (THIRD) OF

PROPERTY: WILLS AND OTHER DONATIVE TRANSFERS § 3.1 cmt. f; SCHOENBLUM,

supra note 4, §§ 19.3–19.4, at 7–18; M

CGOVERN, ET AL., supra note 4, at 197.

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A. Functions of Form Requirements

Will formalities serve a number of functions. Most obviously,

requiring that a will be executed with certain formalities serves an

evidentiary function.

By requiring that a will be written rather than merely

spoken, the law increases the reliability that the effected disposition is

actually the one intended by the decedent. Oral testimony as to the

decedent’s intent is notoriously unreliable because of lapses in memory,

misinterpretations, or deliberate misrepresentations.

These concerns are

only exacerbated because the decedent—the person best equipped to

confirm his intent and to correct faulty recollections of others—is not

available.

In addition, will formalities also serve a ritual or cautionary function.

In other words, “[e]ven if the witnesses are entirely truthful and accurate,

what is a court to conclude from testimony showing only that a father once

stated that he wanted to give certain bonds to his son John?”

That is, “the

court needs to be convinced that the statements of the transferor were

deliberately intended to effectuate a transfer.”

Only those statements that

the decedent actually intended to have effect should be given the effect of

a transfer. By prescribing certain formalities or rituals for wills, the law

ensures that individuals and courts know which statements are to be taken

seriously and which ones are to be disregarded. The formalities for wills

then serve to impress upon the transferor the “significance of his

statements and thus justify[] the court in reaching the conclusion . . . that

they were deliberately intended to be operative.”

Similarly, there are clearly protective functions of formalities.

Requiring that witnesses attest to the will, for example, serves a

“prophylactic purpose of safeguarding the testator, at the time of the

execution of will, against undue influence or other forms of imposition.”

This purpose is clearly illustrated by the English Statute of Frauds, which

was enacted at a time when “wills were usually executed on the death bed”

and when a testator’s normal powers of judgment and cognizance were

impaired or improperly influenced.

In modern times, however, “wills are

8. See, e.g., Ashbel G. Gulliver & Catherine J. Tilson, Classification of

Gratuitous Transfers, 51 Y

ALE L.J. 1, 6–8 (1941).

9. Id.

10. Id. at 3.

11. Id. at 3.

12. Id. at 4.

13. Id. at 9.

14. Id. at 10.

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1336 LOUISIANA LAW REVIEW [Vol. 80

probably executed by most testators in the prime of life and in the presence

of attorneys.”

More recently, some scholars have observed that will formalities serve

a channeling function.

John Langbein has succinctly expressed the

importance of this idea by stating that “[c]ompliance with the Wills Act

formalities for executing witnessed wills results in considerable

uniformity in the organization, language, and content of most wills . . .

[such that] [c]ourts are seldom left to puzzle whether the document was

meant to be a will.”

This channeling function serves both the interests of

courts in terms of economy of judicial effort and those of the testator who

“does not have to devise for himself a mode of communicating his

testamentary wishes to the court.”

Although many transactions require

formalities, wills are somewhat unique insofar as they are of particular

importance and contemplate non-adversarial judicial enforcement.

Other scholars suggest that will formalities also provide an expressive

function.

Aside from merely disposing of property, a testament can

provide the testator with a unique opportunity to contemplate his mortality

and communicate to his heirs and legatees, in a particularly germane way,

either life lessons or final statements. Wills allow a testator to have one

“last conversation” with his descendants.

In fact, in an effort to mirror

the dispositive effect of wills, some have taken to exercising so-called

“ethical wills” in an attempt to transmit their values and last wishes to

close relatives.

These functions—evidentiary, ritual, protective, channeling, and

expressive—are important and not to be dismissed lightly. At the same

time, however, the above purposes should not be used as a shield against

criticism for continued blind adherence to antiquated formalities. James

Lindgren has observed that “[i]n early Bavaria, to convey property one had

to box the ears of young boys . . . . This strange formality served all the

15. Id. at 10.

16. John H. Langbein, Substantial Compliance with the Wills Act, 88 H

ARV.

L. R

EV. 489 (1975).

17. Id. at 494.

18. Id.

19. Id.

20. See, e.g., Mark Glover, A Therapeutic Jurisprudential Framework of

Estate Planning, 35 S

EATTLE U. L. REV. 427 (2012).

21. Karen J. Sneddon, Speaking for the Dead: Voice in Last Wills and

Testaments, 85 S

T. JOHN’S L. REV. 683, 696 (2011).

22. Zoe M. Hicks, Is Your (Ethical) Will in Order?, 33 ACTEC L.J. 33

(2008).

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main functions of formalities . . . ,” but it was both “perverse and silly.”

Ultimately, almost any formality can be justified by the above purposes.

The key, of course, is discovering the balance between promoting the

intent of the testator and doing so at “an acceptable administrative cost.”

After all, if most—or even many—wills failed for noncompliance with the

formal requirements for execution, the imposed cost would likely be too

high for the achieved benefit; thus, the prescribed rules likely ought to be

reconsidered.

B. The Law of Yesterday: The Development of Louisiana’s Will Forms

Although Louisiana today allows for only two forms of wills—

olographic and notarial—this innovation occurred in the late 1990s. At the

time of its first Civil Code, the Digest of 1808, Louisiana maintained three

distinct types of wills: (1) the nuncupative will; (2) the mystic will; and

(3) the olographic will.

At this point in time, Louisiana’s law on will-

making was entirely civilian. The Code Napoléon, enacted just four years

before, similarly provided that a “testament may be olographic, or made

by public act, or in the mystic form.”

In fact, Roman law had recognized

the olographic will since probably the 5th century.

Louisiana’s new Civil

23. James Lindgren, The Fall of Formalism, 55 ALB. L. REV. 1009, 1033

(1992).

24. Id. at 1033.

25. L

A. CIV. CODE art. 89 (1808). Louisiana and French law employ the term

“olographic” or “olographe,” whereas some other states and jurisdictions often

employ the “holograph” or “holographic.” This Article employs both terms

interchangeably and generally opts to use the spelling of the jurisdiction being

discussed. For a discussion of the different spellings used to describe handwritten

wills, see Elizabeth R. Carter, The Last Word: This Handwritten Will Is (Not)

Brought to You by the Letter “H,” 31 P

ROB. & PROP. 64 (2017).

26. C

ODE NAPOLÉON art. 969 (1804). In correspondence with article 89 of

the 1808 Code, the de la Vergne manuscript cross-references a great number of

civil law sources—including Domat, Pothier—but mainly Spanish and Roman

sources, such as the law of the Las Siete Partidas, the 13th century compilation of

various Spanish laws by Alphonso the Wise. The law of Las Siete Partidas,

however, is not entirely congruent with the law adopted by Louisiana in 1808. See

EPRINT OF MOREAU LISLET’S COPY OF A DIGEST OF THE CIVIL LAWS NOW IN

FORCE IN THE TERRITORY OF ORLEANS 226–227 (1971); see also 2 THE LAWS OF

LAS SIETE PARTIDAS, WHICH ARE STILL IN FORCE IN THE STATE OF LOUISIANA

Partida VI, Title 1, Law 1, at 961–962 (L. Moreau Lislet & Henry Carlton trans.,

1820) (providing that there were two types of wills, nuncupative and in writing).

27. Reginald Parker, History of the Holograph Testament in the Civil Law, 3

HE JURIST 1 (1943).

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1338 LOUISIANA LAW REVIEW [Vol. 80

Code also “abrogated” the “usage of . . . merely verbal” testaments that

were established by witnesses “without having committed it . . . to

writing.”

A nuncupative will, a moniker derived from the Latin verb

nuncupare, meaning to call or to take publicly, was so named because of

the public way in which the will was presented. Ironically, nuncupative

wills could be made either by public or private act.

A nuncupative will

by public act had to be dictated to a notary public in the presence of either

three witnesses residing in the place where the will was executed or five

witnesses residing elsewhere, and then it was read to the testator in the

presence of the witnesses and signed by him and the witnesses.

interruptions or intervening acts were permitted, and the will itself needed

to state the accomplishment of the formalities.

The nuncupative will by

public act was “the most formal of all wills,” but these wills engendered

“a considerable amount of litigation” and were frequently declared null for

lack of compliance with the many complexities.

Indeed, commentators

have noted that “some attorneys tend[ed] to shy away from nuncupative

wills by public act because the formalities were of such importance” as to

be raised almost to the level of “substance.”

The nuncupative will by private act did not involve a notary public.

Rather, this will could be written by the testator or declared by the testator

to be his will or written by another from the testator’s dictation.

The

writing or declaration needed to occur in the presence of either five

witnesses residing in the place where the will was executed or seven

witnesses residing elsewhere and thereafter signed by the testator and the

witnesses.

Although the nuncupative will by private act required a

significant number of formalities—indeed, enough to likely discourage its

use—it was “not as formal as the nuncupative will by public act.”

Most

notably, compliance with the formalities did not need to be stated in the

28. LA. CIV. CODE art. 90 (1808).

29. Id. art. 91.

30. Id. arts. 92–95.

31. Id.

32. Leonard Oppenheim, The Testate Succession, 36 T

UL L. REV. 1, 1–2 (1961).

33. Id. at 4.

34. L

A. CIV. CODE art. 96–97 (1808). The law did, however, contain an

exception relaxing the number of witnesses from five and seven to five and three

for nuncupative wills by private act “in the country.” Id. art. 98.

35. Id. art. 96.

36. Oppenheim, supra note 32, at 4–5.

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2020] WILL FORMALITIES IN LOUISIANA 1339

will itself.

Like the nuncupative will by public act, this will was read

before the witnesses, thus destroying any hopes of privacy of the act.

A mystic will was not open like a nuncupative will. Rather, this will

was closed or secret because it was written by the testator, or caused by

him to be written, and sealed in an envelope, which would then be

presented to a notary and seven witnesses.

Privacy was preserved

because the testator would merely declare the document to be his

testament, and the notary would “draw up an act of superscription” to be

signed by the notary, the testator, and the witnesses.

Although the

formalities were fewer for mystic wills than for nuncupative ones, the

mystic will had to be performed—like the nuncupative will by public act—

without intervening acts or interruptions, and the superscription had to

recite compliance with the formalities.

Debate in the courts, in fact,

existed as whether wax was necessary for the sealing of the mystic will.

Still, some noted that after having become “practically . . . obsolete,” the

mystic will experienced a resurgence in use because of its capability for

complex estate plans and its private nature.

One commentator noted that

it “proved to be most useful in a number of instances.”

Finally, the olographic will, as the name suggests, is “entirely written,

signed and dated with the testator’s hand.”

It is the simplest will and most

useful for “uncomplicated situations.”

It does not, however, easily

accommodate sophisticated estate plans or “lengthy trust[s].”

The

olographic will is a simple, do-it-yourself style will that has existed in

Louisiana from its earliest days.

The above will forms persisted in a relatively stable fashion from 1808

to 1997. In 1898, the requirement for mystic wills was changed from seven

37. Id. at 4.

38. Id. at 5.

39. L

A. CIV. CODE art. 99 (1808).

40. Id.

41. Id.

42. Oppenheim, supra note 32, at 5–6.

43. Id.

44. Id. Although Belgian law has since replaced the mystic will, it is still

retained in French law and Italian law today. Walter Pintens, Testamentary

Formalities in France and Belgium, in T

ESTAMENTARY FORMALITIES 51, 64

(Kenneth G.C. Reid, Marius J de Waal, & Reinhard Zimmermann eds., 2011);

Alexandra Braun, Testamentary Formalities in Italy, in id. at 133.

45. L

A. CIV. CODE art. 103 (1808); see also MCGOVERN, ET AL., supra note

4, at 212 (noting that the word “holographic” is derived from two Greek words

meaning “whole” and “written”).

46. Oppenheim, supra note 32, at 10.

47. Id.

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1340 LOUISIANA LAW REVIEW [Vol. 80

witnesses to three.

In 1952, a fourth form of will, the statutory will, was

introduced and so called because it was enacted by “statute” rather than by

an amendment to the Louisiana Civil Code.

This new statutory will was

based upon “the ordinary statutory will which exist[ed] with modifications

in all the common law states.”

The bill was a product of the efforts of the

Louisiana Bar Association and undeniably modeled not on the law in civil

law jurisdictions but on the laws in other American states.

The statutory will was not, however, a direct copy of American law at

the time. Indeed, there was no uniform law of wills in other American

states in 1952. Rather, the drafters appear to have made policy choices and

decisions among competing laws throughout the United States and, at the

same time, crafted a product that was unique to Louisiana. For instance,

although most American states in 1952 required only two witnesses for a

will, some required three.

The final draft of the Louisiana bill opted for

the lesser number to validate the new will and included in place of a third

witness a unique Louisiana requirement that a notary be present.

Similarly, some American states at the time—and in fact the original draft

of the Louisiana bill—also allowed a previously executed will to be valid

if subsequently acknowledged after execution before witnesses, but the

final product of Act 66 omitted this option in Louisiana.

Although only

a minority of states in the 1950s required a testator to “signify” that the

document was his will—that is, the so-called “publication” requirement—

the Louisiana drafters chose to include this requirement in the statutory

will, perhaps because of their familiarity at the time with the same

requirement for mystic wills and nuncupative wills by private act.

Although signing the will was a common requirement throughout the

48. La. Acts No. 88 (1898).

49. La. Acts No. 66 (1952) (enacting L

A. REV. STAT. § 9:2442–2444). Some

authors have observed that “[i]t is both unexpected and unfortunate that [the

statutory will] was not enacted as an amendment or addition to the Civil Code,

which contains the other methods for making a will.” Louisiana Legislation of

1952, 13 L

A. L. REV. 21, 32 (1952).

50. Louise Korns, Comment, The New Louisiana Wills Act, 29 T

UL. L. REV.

288, 288 (1954).

51. Id. at 291; see also Oppenheim, supra note 32, at 10 (noting that the bill

was drafted by the Immovable Property, Probate and Trust Section of the

Louisiana Bar Association).

52. Korns, supra note 50, at 291.

53. Id. at 291. Indeed, only recently has the Uniform Probate Code opted to

allow the use of a notary, but in place of, rather than in addition to, two witnesses.

See U

NIF. PROB. CODE § 2-502.

54. Korns, supra note 50, at 291.

55. Id.

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2020] WILL FORMALITIES IN LOUISIANA 1341

United States, the new Louisiana statute appears to have innovated from

whole cloth the requirement that the testator sign the will on every page.

Louisiana also adopted the minority approach of including a dual presence

requirement that the witnesses signed the will both in the presence of the

testator and each other.

Perhaps most bizarrely and unlike any state either

then or now, Louisiana enacted into positive law the requirement that the

will contain an attestation clause, in which the witnesses attest in the

document to compliance with the will formalities.

Common law wills,

known as “attested wills,” merely required some form of “signing which

show[ed] that it [was] done with the intent of acting as a witness”; “a

formal attestation clause [was] not necessary.”

Although attestation

clauses were not then and are not now uncommon in other states, their

omission is generally not fatal to the existence of the will—unlike in

Louisiana.

Despite the numerous technicalities and strictures for the new

statutory will, it was heralded at the time—and likely rightly so—as an

important innovation and liberalization of will formalities.

Olographic

wills, although important, have never been practical for detailed or

complicated estate plans.

Similarly, nuncupative wills were “highly

technical,” “difficult,” and had to “be read by quite a few witnesses,”

thereby eliminating any hope for secrecy.

Only the mystic will lent itself

to an estate plan with “complicated . . . provisions which the testator

preferred to keep private.”

This will too, however, was “technical” and

unforgiving if its formalities were not “rigidly observed.”

The statutory will was thus an innovation for Louisiana and was

predicted to be “of inestimable help to the attorney in the drafting of

testaments.”

The Louisiana Supreme Court even noted that “our

56. Id. at 295.

57. Id.

58. S

CHOENBLUM, supra note 4, § 19.140, at 248–249.

59. Korns, supra note 50, at 295. The one limitation observed for the statutory

will was that it could not be used by one who could not read. L

A. REV. STAT. §

9:2443 (repealed); Oppenheim, supra note 32, at 11.

60. Korns, supra note 50, at 296–297; see also Loretta Garvey Whyte,

Donations—Imperfect Compliance with the Formal Requirements of the Statutory

Will, 15 L

OY. L. REV. 362, 365 (1969); Oppenheim, supra note 32, at 10 (noting

that “the formalities to be observed are not onerous and seem to give adequate

protection against attack on the ground of fraud or forgery”).

61. Korns, supra note 50, at 296; see also Whyte, supra note 60, at 363.

62. Korns, supra note 50, at 296.

63. Id.

64. Id. at 297; see also Whyte, supra note 60, at 364.

65. Oppenheim, supra note 32, at 10.

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1342 LOUISIANA LAW REVIEW [Vol. 80

legislature authorized the statutory will, adopting it from the common law,

as a means of evading the rigid standards of form required of civil law

testaments.”

Some have suggested that “[i]t was the intention of the

legislature to provide a will form which was not complicated by rigid

formalities, which would be suitable even for long and intricate

testaments, and which would be executed without fear that it would be

declared null in probate proceedings.”

Others have noted that “there is

no doubt that the purpose of the 1952 legislation was to adopt a form of a

will free of many technicalities connected with the making” of previous

types of wills.

If such was the case, then it worked quite well, as

“relatively little litigation” was reported until the late 1960s.

One author

noted that “[i]t appears that the courts have been aware of the purpose of

the statute as they have, from the beginning, construed its provisions

liberally.”

A liberal approach to will construction was a notable change

from the past when courts strictly assessed compliance with the formal

requirements for wills authorized by the Louisiana Civil Code. In applying

the will formalities for the traditional civil law wills, scholars have

observed that “courts require[d] absolute compliance with the codal

provisions to form in the execution of a will as a prerequisite to formal

validity” and that “[f]ailure to comply exactly with the required formalities

. . . [served to nullify] the testament.”

Although a multitude of will forms previously existed in Louisiana,

today there are only two forms of wills: olographic and notarial.

The

olographic will must still be written, dated, and signed in the handwriting

of the testator.

The notarial will is essentially the old “statutory will” with

its governing law relocated from the Louisiana Revised Statutes to the

Civil Code and renamed to reflect its new placement.

Just as with the old

statutory will, the notarial will involves the use of a notary and two

witnesses, in addition to a number of other specific requirements.

66. Succession of Porche, 288 So. 2d 27, 30 (La. 1973).

67. See Whyte, supra note 60, at 365.

68. Carlos E. Lazarus, Successions and Donations, 24 L

A. L. REV. 184, 186

n.7 (1964).

69. Whyte, supra note 60, at 362. During the late 1960s, however, a

“relatively sudden upsurge of controversy” occurred. Id.

70. Id. at 366.

71. John Minor Wisdom & Paul O.H. Pigman, Testamentary Dispositions in

Louisiana Estate Planning, 26 T

UL. L. REV. 119, 121 (1952).

72. L

A. CIV. CODE. art. 1574.

73. Id. art. 1575.

74. Id. art. 1577.

75. Id.

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Although some civil law jurisdictions maintain “public wills”

executed by a notary and two witnesses, these are not the notarial wills of

Louisiana. The French or Belgian public will requires that the testator

dictate his will to the notary in the presence of the witnesses, which is then

read by the testator and signed by the testator, witnesses, and notary.

The

laws in various Latin American countries provide similarly,

as does

Italian law, under which a will can be received by a notary and two

witnesses or by two notaries.

The public wills of the civil law are more

reminiscent of the nuncupative will by public act, whereby Louisiana

citizens could dictate their wills to a notary public in the presence of a

varying number of witnesses. Louisiana’s notarial will, on the other hand,

is based upon the common law attested will with some civilian ornaments.

Spanish law allows for notarial wills, but the requirement of witnesses has

been discarded in most instances.

Indeed, even the Uniform Probate

Code today allows for a will executed before a notary, but in place of,

rather than in addition to, the two witnesses.

II. COMPLIANCE WITH FORMALITIES

In light of the numerous requirements for the execution of a will in

Louisiana—both historically and presently—the jurisprudence is replete

with examples of defective compliance. The problem of defective

compliance with the will formalities is not, however, a problem isolated,

or even particularized, to Louisiana. In fact, the courts in all states have

faced this issue and have slowly and somewhat inconsistently moved away

from requiring “strict” compliance with will formalities to a more

permissive “substantial” compliance doctrine. Unfortunately, even courts

that have adopted a substantial compliance doctrine have, in many

instances, proceeded excessively cautiously. Nevertheless, legislatures in

some other states have raced ahead to adopt a permissive “harmless error”

approach, which allows courts to probate many wills that clearly do not

76. Pintens, supra note 44, at 62–63. French law also allows for wills

executed before two notaries without any further requirement for witnesses. See,

e.g., C.

IV. art. 971 (Fr.).

77. Jan Peter Schmidt, Testamentary Formalities in Latin America with

Particular Reference to Brazil, in T

ESTAMENTARY FORMALITIES, supra note 44,

at 101.

78. Braun, supra note 44, at 131.

79. Sergio Cámara Lapuente, Testamentary Formalities in Spain, in

ESTAMENTARY FORMALITIES, supra note 44, at 79.

80. U

NIF. PROB. CODE § 2-502 (2008).

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1344 LOUISIANA LAW REVIEW [Vol. 80

comply with the requisite formalities. The patchwork landscape in the

United States provides a fruitful ground for comparative assessment.

A. The Slow Migration from “Strict Compliance” to “Substantial

Compliance” to “Harmless Error” in the United States

Historically, courts have very strictly assessed the validity of wills and

their compliance with the prescribed formalities. As one scholar has noted,

“[u]nder traditional law, for a will to be admitted to probate it must be in

strict compliance with the formal requirements of the applicable Wills

Act.”

For instance, in In re Groffman, an English court refused to probate

a will that failed to strictly comply with the Wills Act because the testator

did not acknowledge his signature on the will to both witnesses at the same

time, as required by the English Wills Act of 1837.

In Groffman, one

night, after coffee and cakes, the testator summoned his companions to

witness his will. Unfortunately, one of his companions was “somewhat

cumbrous in his movements and was left behind.”

Because the testator

then proceeded to acknowledge his signature to the two witnesses at

different times, the court denied probate. After noting that it was “satisfied

that the document does represent the testamentary intentions of the

deceased,” the court declared that it was “bound to pronounce against th[e]

will” for noncompliance with the required formalities.

Two rationales, both of which make appearances in Louisiana judicial

decisions, support the above strict compliance approach. The first is the

floodgates argument. Form requirements exist for a reason—primarily to

prevent fraud, mistake, undue influence, and uncertainty.

To relax the

form requirements is to increase the risk for fraud: “The only safe rule is

to confine [wills to those that comply with the prescribed formalities]: if

we go one step beyond that, there is no reason why we should not go

fifty.”

The second explanation for strict compliance is one based upon

separation of powers and authority. The legislature writes the law, and the

courts interpret it. When the legislature has made its will clear, the court

cannot ignore the positive law in the pretense of pursuing its spirit or for

the purposes of pursing individual justice. If the required prerequisites for

81. SITKOFF & DUKEMINIER, supra note 4, at 146.

82. Id. at 147–47 (discussing In re Groffman, [1969] 1 W.L.R. 733 (PC)).

83. Id. (quoting In re Groffman, [1969] 1 W.L.R. 733 (PC)).

84. Id.

85. In re Estate of Chastain, 401 S.W.3d 612, 619 (Tenn. 2012).

86. Winterbottom v. Wright, 10 Meeson & Welsby 109, 115 (1842) (denying

recovery to an injured party based upon lack of privity of contract).

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the execution of a testament fail to achieve justice, it is the job and

responsibility of the legislature, not the court as a super-legislature, to

correct the law. Even as recently as 2012, the Tennessee Supreme Court

seemed to adopt the above argument and noted that “courts have

consistently interpreted statutes prescribing the formalities for execution

of an attested will as mandatory and have required strict compliance with

these statutory mandates.”

It continued by concluding, “we have no

authority to dispense with the statute mandating” the prescribed will

formalities.

Although both of the above arguments have some force, the dire

consequences predicted by the first have not come to pass. Courts in a

variety of jurisdictions around the world have loosened form requirements

without appreciable increase in the risk of fraud or uncertainty. Moreover,

although the reluctance of many courts to rewrite the law is admirable, it

is hard to ascribe deliberative legislative intent to some seemingly

insignificant and minor technical form requirements. In partial recognition

of this fact, many courts in modern times have adopted standards of

“substantial compliance” rather than absolute strict compliance.

Certainly, no one argument for “substantial compliance” has been

more influential in the wills context than that of John Langbein.

As far

back as 1975, he advocated for enforcement of noncomplying wills,

provided that the will demonstrates “testamentary intent” and fulfills the

purposes of the Wills Act.

Importantly, Langbein’s argument was not

one for forgiving only slight mistakes or technical violations of the form

requirements. Rather, he advocated for overlooking noncompliance in

general when the violation did not contravene the purpose of the relevant

wills law:

Attestation by two witnesses where the state calls for three, or by

or where it asks for two, is a less serious defect, because the

execution of the will was witnessed and the omission goes to the

quantity rather than the quality of the evidence. Other evidence of

finality of intention and deliberate execution might then suffice to

show that the missing witness was harmless to the statutory

purpose.

87. In re Estate of Chastain, 401 S.W.3d at 621.

88. Id. at 619.

89. Langbein, supra note 16, at 513–31.

90. Id. at 513.

91. Id. at 522.

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1346 LOUISIANA LAW REVIEW [Vol. 80

As popular as the phrase “substantial compliance” has become,

however, “the substantial compliance doctrine evolved into something

narrower than Langbein had intended.”

Many courts held that a

document could not be in substantial compliance if the deviation from the

form requirements was anything other than “minimal.”

For instance, in

Smith v. Smith, a Kentucky court—at clear odds with the doctrine of

substantial compliance as advocated by Langbein—concluded that

substantial compliance was “inapplicable” to a will signed by only one

witness when two were required.

As a result of a plethora of cases like

Smith and after a detailed review of cases in Queensland that employed

the “substantial compliance” doctrine, Langbein acknowledged that the

experiment with the doctrine was a “flop.”

The Louisiana experience with “substantial compliance” is no

different. Although Succession of Guezuraga is often credited as the

genesis of the “substantial compliance” doctrine in Louisiana,

its origins

date much further back. At least as early as 1838, the Louisiana Supreme

Court indicated a desire to flexibly apply many of the rigid form

requirements for wills and to enforce wills that may not strictly comply,

provided substantial compliance with the form requirements exists. For

example, in Segur’s Heirs v. Segur, et al., the Louisiana Supreme Court

evaluated a nuncupative will by public act that the notary had written not

from direct dictation but from a memorandum that itself was written in

part from the testator’s dictation.

Despite the requirement at the time that

the will be “written by the notary as it is dictated,” the Court upheld the

will and stated that due to “the manner in which it was written, it appears

to us there was substantially a compliance with the requisites of law.”

92. JESSE DUKEMINIER & ROBERT H. SITKOFF, WILLS, TRUSTS, AND ESTATES

180 (9th ed. 2013).

93. George Holmes, Comment, Testamentary Formalities in Louisiana;

Curing Notarial Will Defects Through a Likelihood-of-Fraud Analysis, 75 L

A. L.

EV. 511, 524 (2014); Leigh A. Shipp, Equitable Remedies for Nonconforming

Wills: New Choices for Probate Courts in the United States, 79 T

UL. L. REV. 723,

29–732 (2005).

94. Smith v. Smith, 348 S.W.3d 63 (Ky. App. 2011).

95. John H. Langbein, Excusing Harmless Errors in the Execution of Wills:

A Report on Australia’s Tranquil Revolution in Probate Law, 87 C

OLUM. L. REV.

1, 1 (1987).

96. Succession of Guezuraga, 512 So. 2d 366 (La. 1987).

97. Segur’s Heirs v. Segur, et al., 12 La. 25 (La. 1838).

98. Id. (emphasis added); see also Succession of Eubanks, 9 La. Ann. 147

(La. 1854) (in similar circumstances, finding that “there was a substantial

compliance with the requirements of Article 1574 of the Code”).

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In the 20th century, the Louisiana Supreme Court repeatedly

reaffirmed its commitment to the substantial compliance doctrine in dicta

in Succession of Crouzeilles by stating that although “the observance of

the legal formalities required by law in the drawing up of wills should be

rigidly enforced[,] . . . [i]t is not our duty to refuse the carrying out of the

wishes of deceased persons by pushing the requirements of the law to

extremes.”

Similarly, in Stephens v. Adger, the Court announced that

“[t]he tendency of our present day jurisprudence does not exact an

absolute, strict and literal application of the wording which prescribes the

observance of specified formalities, and that such exactitude should not be

pushed to extremes unless it be in those instances in which the law is

palpably violated.”

100

The Court observed that it was “in full accord and

ha[s] so announced, that a substantial compliance with the formalities

required in the execution of wills is sufficient to sustain its validity, more

especially where there is no suggestion or intimation of fraud, deception,

undue influence, or mental incapacity.”

101

Even though the early cases on “substantial compliance” concerned

nuncupative wills, the courts were aware that the purpose of the statutory

will, enacted in the 1950s, was to provide testators with flexibility, and

hence they “construed its provisions liberally.”

102

In Succession of Porche,

for example, Justice Tate, writing for the Court, upheld a will that was

signed by the testator at the end of the dispositive provisions but not after

the attestation clause.

103

The Court concluded that the will “substantially

complies with the statutory formalities and is therefore valid.”

104

The rationale of the Court in Porche was picked up over a decade later

in Succession of Guezuraga, where the Court even further amplified its

reasoning.

105

In Guezuraga, the Court evaluated a will in which the

testatrix failed to sign on the page that contained only the conclusion of

the attestation clause.

106

In upholding the will, the Court noted that

although the legislation required that a will be signed at the “end,” the

Court was not required “to give the statutory will a strict interpretation.”

107

The Court reasoned:

99. Succession of Crouzeilles, 31 So. 64, 67 (La. 1901).

100. Stephens v. Adger, 79 So. 2d 491, 494–95 (La. 1955).

101. Id. (emphasis added).

102. Whyte, supra note 60, at 366.

103. Succession of Porche, 288 So. 2d 27 (La. 1973).

104. Id. at 29.

105. Succession of Guezuraga, 512 So. 2d 366, 368 (La. 1987).

106. Id.

107. Id. at 368.

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1348 LOUISIANA LAW REVIEW [Vol. 80

Where the departure from form has nothing whatsoever to do with

fraud, ordinary common sense dictates that such departure should

not produce nullity. It was the intent of the legislature to reduce

form to the minimum necessary to prevent fraud. It is submitted

that in keeping with this intent, slight departures from form should

be viewed in light of their probable cause. If they indicate an

increased likelihood that fraud may have been perpetrated they

would be considered substantial and thus a cause to nullify the

will. If not, they should be disregarded.

108

Several decades later, the Court revisited substantial compliance in In

re Succession of Holbrook. Justice Guidry, writing for a unanimous Court,

appropriately concluded that a notarial will, which contained the date

within the body of the will, was still valid, even though the attestation

clause did not separately contain a date.

109

While noting that the model

attestation clause provided in the Louisiana Civil Code contains blanks

and language indicating that a date is required, the Court reiterated its

longstanding holding that “courts need not strictly adhere to the statutory

will, to the extent of elevating form over function.”

110

Up to this point, one might have reasonably concluded that Louisiana

had adopted an expansive version of “substantial compliance” along the

lines of which Langbein had advocated. In 2017, however, the Louisiana

Supreme Court in Successions of Toney indicated that such was not the

case. The Toney case involved a three-page will in which the first two

pages were initialed rather than signed and in which the attestation clause

on the third page contained a number of formal defects.

111

Although the

technical deviations were certainly numerous, the trial court made it a

point to observe that there did not seem to be any indication of fraud.

Nonetheless, the Louisiana Supreme Court found the deviations not to be

“slight departures” or “minor deviations,” but rather “significant and

material” ones.

112

Consequently, the will was invalid. The Toney case

provoked two persuasive dissents by Chief Justice Johnson and Justice

108. Id.

109. In re Succession of Holbrook, 144 So. 3d 845 (La. 2014).

110. Id. at 851.

111. Successions of Toney, 226 So. 3d 397 (La. 2017) (specifically, the

attestation clause did not state that the will was signed on each page, did not state

that the notary viewed the will being signed, did not state that the testator declared

to the notary that the instrument was the testator’s last will—although the

witnesses so stated—and did not state that the witnesses signed in the presence of

the notary).

112. Id.

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Weimer, both of whom argued for upholding the will based upon a

consideration of the substantial compliance doctrine in light of the lack of

evidence suggesting the existence of fraud.

113

As the latest expression of the substantial compliance doctrine from

the Louisiana Supreme Court, the Toney case is significant, albeit

lamentable. It repudiates the broader language in earlier cases that focused

upon the risk of fraud and the purposes of the formalities, substituting in

its place a narrower doctrine that upholds wills only when deviations from

the form requirements are minor or insignificant. The Court concluded that

any “material” deviation from the form requirements renders a will null,

“even in the absence of any indication of fraud. Any language in previous

jurisprudence which suggested otherwise is rejected.”

114

Indeed, even an

accumulation of insignificant deviations appears to amass to a material and

significant one that would be enough to invalidate a will.

As expected, the progeny following Toney has taken a narrow view of

substantial compliance. In Succession of Anderson, the Louisiana Second

Circuit invalidated a will in which “color copies of the testator’s signature

somehow appeared on the first two pages of the testament.”

115

Citing

Toney, the court noted that the Louisiana Supreme Court has held that “the

testator’s initialing each page did not substantially comply with the formal

requirements of the code article and was not merely a minor or a technical

deviation.”

116

The same court in Succession of Rogers invalidated two

wills because “[n]owhere on the final page of the wills is it indicated that

the notary and witnesses signed in the presence of the testator/testatrix and

each other.”

117

Relying upon Toney, the court noted that even though

“there does not appear to be any indication of fraud, we find the deviation

from the required testamentary form . . . [to be] significant and

material.”

118

Similarly, in Succession of Johnson, the First Circuit declared null a

will because the attestation clause did “not contain a declaration that it was

signed by the testator in the presence of the notary, or that the testator

declared it to be his last will and testament in the presence of the notary.”

119

Rather, the declaration merely stated that he “acknowledged to me [the

notary] that he . . . executed the instrument.”

120

Furthermore, in Succession

113. Id. at 408.

114. Id. at 407.

115. Succession of Anderson, 264 So. 3d 684, 692 (La. Ct. App. 2d Cir. 2019).

116. Id. (citing Successions of Toney, 226 So. 3d 397 (La. 2017)).

117. Succession of Rogers, 243 So. 3d 1209, 1215 (La. Ct. App. 2d Cir. 2017).

118. Id. at 1214.

119. Succession of Johnson, 2017 WL 658775 (La. Ct. App. 1st Cir. 2017).

120. Id.

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1350 LOUISIANA LAW REVIEW [Vol. 80

of Ivey, the Third Circuit invalidated a will when the attestation clause

failed to contain a statement that “the witnesses and notary declare in the

presences of the testator and each other that they signed their names on a

specified date.”

121

The court noted that “Mr. Ivey’s will does not

substantially comply with the requirements of a notarial will” and is

therefore “invalid and null.”

122

Despite a claim that there was no allegation

of fraud, the court noted that “[t]he supreme court rejected this argument

in Toney . . . , holding that the failure of an attestation clause to

substantially comply with the requirements . . . renders it absolutely null,

‘even in the absence of fraud.’”

123

Most recently, the Fifth Circuit invalidated a four-page will that had

been “signed . . . at the end of the testament and only initialed [on] the

other three pages.”

124

The court, relying on Toney, concluded that

deviation from the form requirements was “material and significant.”

125

Although the court noted that Toney involved multiple deviations and the

present case involved only one, the court concluded that “[t]here is no

indication that the result would have been different if only one deviation

was present.”

126

Of course, there is no way to tell, ex ante, which form deviations are

“significant and material” and which are not. Additionally, it is worth

remembering that the point of substantial compliance is not to distinguish

between excusable slight errors and inexcusable large ones. All formalities

should be considered in light of the purposes they serve. In Succession of

Pickett, from the 1960s, the First Circuit upheld a will even though the

attestation clause did not contain an “express declaration on the part of the

testator to the notary and the witnesses that the instrument was the

testator’s last will and testament.”

127

This result, of course, is directly

contrary to the recent case of Succession of Johnson, mentioned above. In

explaining its rationale, the Pickett court observed that:

We believe . . . that the attestation clause set out in [statute] is

permissive, and that the attestation clause in the instant case . . .

constitutes substantial compliance with the formalities required by

the statute in the execution of a will under its terms. The body of

121. Succession of Ivey, 238 So. 3d 532, 537 (La. Ct. App. 3d Cir. 2018).

122. Id.

123. Id.

124. Succession of Carter, __ So. 3d __, 2020 WL 2764372, at *1 (La. Ct.

App. 5th Cir. 2020).

125. Id. at *4.

126. Id. at *3.

127. Succession of Pickett, 189 So. 2d 670, 673 (La. Ct. App. 1st Cir. 1966).

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the will in this case . . . contains a recitation by the testatrix that

she signed the last will in the presence of the witnesses. There is

not present in this case any suggestion or intimation of fraud,

deception, undue influence, or mental incapacity.

128

In particular, the flexibility with which courts historically treated form

requirements for statutory—now notarial—wills seems to have been

forgotten. In Succession of Saarela, the testator’s will began with a

declaration that it was his last will and testament and ended with an

attestation clause that stated he had “signed this my last will and testament

in the presence of the witnesses and notary.”

129

In what would regrettably

be an almost unthinkable result today, the court upheld the will, finding it

“substantially similar to the form given as an example in the statute.”

130

Unfortunately, the wisdom of the courts in Pickett and Saarela seems

overlooked in many modern instances. Some commentators have rightly

“characterized Louisiana’s version of ‘substantial compliance’ as

‘substantially strict compliance.’”

131

They contend that courts should

probate a will “unless there is a likelihood of fraud or undue influence.”

132

Due in large part to the “unfulfilled promise” of the substantial

compliance doctrine, John Langbein largely abandoned the doctrine in

favor of a different approach. Writing in 1987, Langbein advocated for an

approach known as “harmless error,” which would permit the probate of a

defectively executed will, provided the proponents could establish that the

“will expresses the decedent’s testamentary intent.”

133

The rationale for

the “harmless error” approach was to allow for the distribution of “estates

of those who have committed innocuous execution errors” without at the

same time “engendering trumped-up claims.”

134

After studying the

experience of South Australian courts with this doctrine, Langbein argued

that “the rule works” and that “litigation levels have been astonishingly

low.”

135

In 1990, the Uniform Probate Code adopted a “harmless error”

rule for wills. Specifically, under the Uniform Probate Code, a document

that is not in compliance with the prescribed formalities “is treated as if it

had been executed in compliance . . . if the proponent of the document or

writing establishes by clear and convincing evidence that the decedent

128. Id.

129. Succession of Saarela, 151 So. 2d 144, 146 (La. Ct. App. 4th Cir. 1963).

130. Id.

131. Holmes, supra note 93, at 534.

132. Id.

133. Langbein, supra note 95, at 4–5.

134. Id. at 51–52.

135. Id.

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1352 LOUISIANA LAW REVIEW [Vol. 80

intended the document or writing to constitute . . . the decedent’s will.”

136

The Restatement is also “aligned with this modern trend” and “adopts the

position that a harmless error in executing a will may be excused if the

proponent establishes by clear and convincing evidence that the decedent

adopted the document as his or her will.”

137

At present, 11 states have

adopted some version of the “harmless error” rule for will formalities.

138

B. Compliance in Other Jurisdictions, Civil and Common

The United States is not the only jurisdiction to wrestle with the

tension between imposing strict compliance and allowing substantial

compliance with will formalities. As previously mentioned, the move

toward substantial compliance originated not in this country but from

comparative research based upon the experience of courts in various

Australian states. In fact, many jurisdictions— both civil and common—

have experienced a “flight from formalism,” but courts have implemented

it in differing ways.

In Australia, New Zealand, and South Africa, a document can be

probated as a will, even if it does not comply with the prescribed

formalities, if it can be shown that the testator intended it to be his will.

139

As Nicola Peart has written, “[i]n both Australia and New Zealand the

court has the power to admit documents to probate that do not satisfy the

formal requirements for execution of a will. South Australia initiated this

change in 1975 to save wills from technical failure to reduce the number

of unintended intestacies.”

140

In fact, the South Australian experience

served as the basis for John Langbein’s research and the foundation for his

proposal on “harmless error,” which is now in place in a number of U.S.

136. UNIF. PROB. CODE § 2-503.

137. R

ESTATEMENT (THIRD) OF PROPERTY: WILLS AND OTHER DONATIVE

TRANSFERS § 3.3 cmt. b (AM. LAW INST. 1999).

138. S

ITKOFF & DUKEMINIER, supra note 4, at 176. For further discussion of

the evolution of will formalities, see Crawford, supra note 3, at 280–85. For a

recent discussion of the cases that apply the harmless error rule in both the United

States and abroad, see Susan N. Gary, When Is an Execution Error Harmless?:

Electronic Wills Raise New Harmless Error Issues, 33 P

ROB. & PROP. 41 (2019).

As a result of the COVID-19 pandemic, Minnesota enacted, effective March 13,

2020, a temporary “harmless error” rule for wills executed between March 13,

2020, and February 15, 2021. M

INN. STAT. ANN. § 524.2-503.

139. Kenneth G.C. Reid, Marius J de Waal, & Reinhard Zimmermann,

Testamentary Formalities in Historical and Comparative Perspectives, in

ESTAMENTARY FORMALITIES, supra note 44, at 465.

140. Nicola Peart, Testamentary Formalities in Australia and New Zealand, in

ESTAMENTARY FORMALITIES, supra note 44, at 349.

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states. Other Australian states, such as Queensland and New South Wales,

followed suit in 1981 and 1989.

141

Tasmania is the outlier, insofar as it

adopted the dispensing power only in 2008, and it requires a higher burden

of proof, namely the proponent of the will must demonstrate that there is

“no reasonable doubt that the deceased intended the document to

constitute his will.”

142

Although some states have been conservative with

the dispensing power, South Australian courts have used it to probate even

“unsigned” documents, provided it can be shown that the testator intended

the document to serve as his will and that the omission was accidental.

143

South Africa—a mixed jurisdiction like Louisiana—also statutorily

provides that courts may probate noncompliant documents as wills. In

South Africa, this power is referred to as the “condonation power” because

courts can “condone formally defective wills under certain

circumstances.”

144

Specifically, “[i]f a court is satisfied that a document

. . . was intended to be [the testator’s] will . . . , the court shall order the

Master to accept that document . . . as a will, although it does not comply

with all the formalities for the execution . . . of wills.”

145

Israel, another

mixed jurisdiction, also maintains a version of the dispensing power, under

which courts may order probate of a document, notwithstanding defects in

form, provided the fundamental parts of the will are present.

146

Québec

includes a type of dispensing power in its civil code and provides that “[a]

holograph will or a will made in the presence of witnesses that does not

meet all the requirements of that form is valid nevertheless if it meets the

essential requirements thereof and if it unquestionably and unequivocally

contains the last wishes of the deceased.”

147

Even some more traditional civil law jurisdictions have taken a

flexible approach to will formalities. Some jurisdictions have made a

distinction between important or “core” formalities and less important or

141. Id. at 350.

142. Id.; T

ASMANIAN WILLS ACT § 10(1) (2008).

143. Peart, Testamentary Formalities in Australia and New Zealand, in

ESTAMENTARY FORMALITIES, supra note 44, at 350.

144. Marius J de Waal, Testamentary Formalities in South Africa, in

ESTAMENTARY FORMALITIES, supra note 44, at 396.

145. Id.; T

ASMANIAN WILLS ACT § 2(3) (2008).

146. See, e.g., Samuel Flaks, Excusing Harmless Error in Will Execution: The

Israeli Experience, E

STATE PLANNING & COMMUNITY PROP. L.J. (2011); Celia

Wasserstein Fassberg, Form and Formalism: A Case Study, 31 A

M. J. COMP. L.

627, 643–51 (1983).

147. Q

UÉBEC CIVIL CODE art. 714.

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1354 LOUISIANA LAW REVIEW [Vol. 80

“ancillary” ones. In Polish law

148

and under certain international wills,

noncompliance with formalities results in invalidity only if the defect

relates to a “core” formality, such as: (1) that the will be in writing; (2) that

the will be signed by the testator, witnesses, and notary; and (3) that the

will be declared by the testator as his will.

149

Other civil law jurisdictions have saved noncompliant wills by holding

that they are merely voidable or relatively null, as opposed to void or

absolutely null. For example, in Spain, Italy, Hungary, and the

Netherlands, a noncompliant document may be considered as voidable,

rather than void, meaning that it might still be given effect if no relevant

party objects.

150

Under Spanish law, a formally defective will is “void” in

principle, but commentators have noted that wills are occasionally rescued

by the distinction between absolute and relative nullity.

151

Although under Dutch law, as under Louisiana law, failure to meet the

formal requirements for a will traditionally rendered the transaction void

or absolutely null,

152

since 2003 Dutch law has become more lenient in

recognizing that many of the formalities associated with wills are designed

to protect private parties rather than being intrinsic to public order or the

nature of the act.

153

Consequently, “only failure of the notary or the testator

148. Fryderyk Zoll, Testamentary Formalities in the Poland, in

ESTAMENTARY FORMALITIES, supra note 44, at 277 (documenting the academic

debate for the argument that noncompliance by a notary with the rules prescribed

for wills may not in all cases result in invalidity of a will).

149. Reid, et al., Historical and Comparative, in T

ESTAMENTARY

FORMALITIES, supra note 44, at 466.

150. Id.

151. Lapuente, Testamentary Formalities in Spain, in

ESTAMENTARY

FORMALITIES, supra note 44, at 91.

152. Wilbert D. Kolkman, Testamentary Formalities in the Netherlands, in

ESTAMENTARY FORMALITIES, supra note 44, at 170.

153. Id. For critique of Louisiana’s law on nullity, see Ronald J. Scalise, Jr.,

Rethinking the Doctrine of Nullity, 74 L

A. L. REV. 663 (2014). As an interesting

note of comparison, a recent Louisiana case seems to have adopted this approach

in substance, if not in form. In Succession of Barbee, the court of appeal for the

Fourth Circuit reversed a trial court’s decision when the trial court, sua sponte,

denied probate to a will based upon the court’s observation that the signatures on

the decedent’s will varied to such an extent that the court believed they were not

authentic. 286 So. 3d 461 (La. Ct. App. 4th Cir. 2019). The court of appeal

concluded that the trial court “lacked standing to challenge the validity or veracity

of decedent’s signature when there was no such challenge raised by any party.”

Id. at 466. Although the court did not explicitly employ the distinction between

absolute and relative nullities, its decision clearly invokes the substance of that

dichotomy insofar as relative nullities can be raised only by the party in whose

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to sign the will has resulted in voidness; any other formal defects result

only in voidability.”

154

In fact, even before the change in the law in the

Netherlands, the Dutch Supreme Court “showed it was not in favour of

excessive adherence to formalities” in holding that a will that mentioned

the month and day but not the year was not void for formal defects but

only voidable.

155

Because the year could be established in other ways, the

will was upheld.

156

Italian law provides similar results.

157

Under the Italian Civil Code of

1865, all formal defects resulted in a transaction being void.

158

Today,

however, under article 606 of the current Italian Civil Code, the answer is

more complex.

159

An olographic will without a signature or not in the

handwriting of the testator is void.

160

Likewise, a notarial will is void if it

is not reduced “to writing” from the testator’s declaration or if “the testator

is incapable of signing . . . [and] there is no declaration indicating the

reason.”

161

In all other cases of formal defects, however, the will is merely

voidable and can only be set aside if challenged within five years.

162

Similarly, Hungarian law employs the concept of voidability (relative

nullity) rather than the concept of voidness (absolutely nullity) for formal

defects in wills.

163

Of course, “[t]he idea is that defects should not be

penalized unless they affect another person who objects to the defective

interest the nullity is established, whereas absolute nullities can be invoked by

anyone, even the court on its own initiative. Compare L

A. CIV. CODE art. 2030,

with art. 2031. In light of article 1573 declaring that “[t]he formalities prescribed

for the execution of a testament must be observed or the testament is absolutely

null,” the court’s conclusion is certainly suspect. L

A. CIV. CODE art. 1573. Given

the legislative dictate of article 1573, it seems the preferable way to resolve the

Barbee case would have been to reverse the trial court by concluding that there

was insufficient factual evidence to sustain the trial court’s decision.

154. Kolkman, Testamentary Formalities in the Netherlands, in

ESTAMENTARY FORMALITIES, supra note 44, at 170.

155. Id. at 171.

156. Id.

157. Braun, Testamentary Formalities in Italy, in T

ESTAMENTARY

FORMALITIES, supra note 44, at 138.

158. Id.

159. Id.

160. Id.

161. Id.

162. Id.

163. Lajos Vékás, Testamentary Formalities in Hungary, in

ESTAMENTARY

FORMALITIES, supra note 44, at 267.

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1356 LOUISIANA LAW REVIEW [Vol. 80

will . . . mean[ing] that neither a notary public nor a court can take into

account ex officio a formal mistake in the drawing up of a will.”

164

Despite the variety of approaches, one thing is clear: Formalism is

waning in favor of promoting testamentary intent. Whether it is through

substantial compliance, harmless error, the dispensing or condonation

power, the distinction between core and peripheral formalities, or the

differences between relative and absolute nullities, both civil and common

law jurisdictions alike show a disdain for invalidating wills with some

level of formal defect. Although not all doctrines are equally permissive,

the trend is clear. Even though Louisiana, in some sense, is in the

prevailing trend, it has much work to be done, as the recent trend in

Louisiana jurisprudence seems to be to invalidate wills that fail to strictly

comply with the will formalities.

III.

HE LAW OF TODAY: COMMON FEATURES OF NOTARIAL AND

OLOGRAPHIC WILLS IN LOUISIANA

With the above background in mind, this Part considers in detail each

of the formalities prescribed for the making of wills under Louisiana law.

Of the two types of wills recognized in Louisiana—olographic and

notarial—some common characteristics exist. That is, one can speak of

basic or core requirements for either type of will in Louisiana before

proceeding to the specific or additional requirements for a particular type

of will. Namely, three common formalities exist for all wills in Louisiana:

(1) that they be in writing; (2) that they be signed; and (3) that they be

dated.

A. Writing

At first glance, the requirement that a will must be in writing seems

obvious. Oral wills are not legally enforceable. Ordinarily, the formality

of writing—without more—is imposed for proof purposes and satisfies the

evidentiary function. A writing is more reliable than witness testimony.

No classic swearing contests can be allowed when the matter involves the

disposition of one’s estate after death; the requirement of a writing

forestalls any such disputes. But suppose one could establish the contents

of a decedent’s last wishes without any dispute and by unequivocal and

unrebutted testimony. With reliability beyond doubt as to the decedent’s

desires, what reason exists not to enforce the undisputed desires of the

decedent?

164. Id. at 267.

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Unlike testimonial proof, a writing is more permanent. Its proof exists

as long as the writing itself exists, and it outlives the memory of both

witnesses and the parties themselves. For these reasons, land

transactions—that is, the transfer of immovable property—must, at a

minimum, be in writing.

165

Such transactions are far too important and

durable to leave up to the recollection of mere mortals.

Some jurisdictions, in extreme cases, allow oral wills. Prior to 1999,

Louisiana law contained special rules for testaments made by military

personnel in the field, by sick or wounded military personnel, and by

sailors at sea.

166

Although these “special” wills could be “received” by

officers, physicians, or the master of the vessel, they thereafter had to be

“reduced to writing” and signed by the testator “if he could write” and by

the person who received it and any witnesses. In other words, the testator

would “dictate” his will to the relevant recipient who would then write it

down, and the relevant parties would sign the document. All such

“irregular” wills, however, were of limited duration—six months after the

return of the testator for military wills and three months from return for

wills made at sea.

167

These wills were always considered “extraordinary,”

and deviations from the regular form were tolerated only because of the

lack of ability to make a regular will and only for such time as the testator

could be expected to make a regular will after his return.

Writing in the 1920s, Judge Saunders stated that “[t]hese instruments

have no practical value whatever . . . and that [he could not] recall . . . that

one of these irregular wills has ever been presented to probate in the courts

of Louisiana.”

168

Indeed, the present author could not find a single reported

case in which any of the above “extraordinary” wills was ever discussed

or even mentioned. In any event, Louisiana no longer has such rules. All

wills must be in writing.

Despite the clarity of the “writing” rule, its content still remains

murky. After all, what constitutes a writing? As obvious as this issue may

seem, it has been, and is again, subject to debate. Under the prior law,

which allowed for nuncupative wills by public act to be dictated to and

“written” by a notary, the question arose as to whether a will “typewritten”

by the notary qualified as “written.” In Prudhomme v. Savant, over a

strenuous dissent, the Louisiana Supreme Court concluded that a

typewritten document constitutes a writing.

169

Consequently, in 1952,

165. LA. CIV. CODE art. 1839 (2018).

166. L

A. CIV. CODE arts. 1597–1604 (1870).

167. Id. arts. 1600, 1604.

168. E

UGENE D. SAUNDERS, LECTURES ON THE CIVIL CODE OF LOUISIANA 325

(1925).

169. Prudhomme v. Savant, 90 So. 640 (La. 1922).

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1358 LOUISIANA LAW REVIEW [Vol. 80

when the legislature first allowed for statutory wills, the law provided that

“a will shall be valid if in writing (whether typewritten, printed,

mimeographed, or written in any other manner).”

170

Aside from the

obvious semantic problem of defining a “writing” as something “written

in any other manner,” scholars have suggested that the parenthetical was

wisely included in the legislation to remove “any doubt regarding the

meaning of the word ‘written.’”

171

The law is the same today. Comment (d) to article 1577 provides that

for notarial wills, “the form of the writing (typewritten, mimeographed or

any other form) is immaterial.”

172

Black’s Law Dictionary defines a

writing as “[a]ny intentional recording of words in a visual form, whether

in handwriting, printing, typewriting, or any other tangible form that may

be viewed or heard with or without mechanical aids.”

173

Although wills in Louisiana are most often written in English, “there

is no requirement that the testament be in the English language, or even in

Roman characters.”

174

Older examples in Louisiana jurisprudence provide

examples of enforceable wills written in French.

175

Indeed, wills could

presumably be written in any language, even in code or a made-up

language, such as Esperanto or even Klingon.

176

As the comments to the

Louisiana Civil Code indicate, “[s]o long as it is written in a language that

the testator can read and understand, the protections to assure verity of the

provisions are satisfied.”

177

Despite the clarity of the current “writing” requirement, an oral will

could still have some effect today. An often forgotten provision in the

Louisiana Civil Code provides that a natural obligation exists “[w]hen the

universal successors are not bound by a civil obligation to execute the

donations and other dispositions made by a deceased person that are null

for want of form.”

178

Thus, oral testaments—and indeed any testament null

for want of form—impose a natural obligation upon the testator’s

universal successors to execute the donations mortis causa that the

170. LA. REV. STAT. § 9:2442 (repealed).

171. Louisiana Legislation, supra note 49, at 32.

172. L

A. CIV. CODE art. 1577 cmt. (d).

173. Writing, B

LACK’S LAW DICTIONARY (10th ed. 2014).

174. L

A. CIV. CODE art. 1577 cmt. (d). This is a notable improvement over the

Roman requirement that “the whole will must be in Latin.” B

ARRY NICHOLAS, AN

INTRODUCTION TO ROMAN LAW 258 (1962).

175. See, e.g., Lagrave v. Merle, 5 La. Ann. 278 (La. 1850).

176. See T

HOMAS E. ATKINSON, HANDBOOK OF THE LAW OF WILLS 251

(1937).

177. L

A. CIV. CODE art. 1577 cmt. (d).

178. Id. art. 1762(3).

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decedent intended. It is consequently worth noting that although a

disappointed legatee could not successfully sue for enforcement of such a

donation, any performance by the decedent’s universal successors could

not be reclaimed, and promises by them to the legatees to discharge the

legacies could be enforceable as onerous contracts without need of

complying with the form requirements for donations.

179

The same is true

today in France.

180

So too in Italy, where article 590 of the Italian Civil

Code “prevents a challenge to a will by a person who, having been

informed as to the cause of invalidity, nonetheless confirms the disposition

or voluntarily executes it after the testator’s death.”

181

Natural obligations aside, written wills come in a variety of styles, and

examples of unconventional writings that courts have accepted include

wills written on a corncrib, scratched into a bedpost, written on an empty

eggshell, or etched into a fender of a tractor.

182

As there is no requirement

in Louisiana law that a will be written on paper—certainly the most

common medium—all of the above wills should be acceptable in

Louisiana, provided the other formalities are met. Although not explicitly

stated, it certainly seems reasonable that the writing must take place in a

medium of some level of permanence.

183

Waving a finger in the air would

likely be an insufficient “writing,”

184

as would a writing in sand or

“scratched on a cake of ice.”

185

There seems no reason, however, that a

will could not be tattooed onto a person, as some novelists have

suggested.

186

The specifications provided by Atkinson in the 1940s seem

equally apt today: “Ordinary wills must be in writing but may be in any

language and inscribed with any material or device on any substance

which results in a readable and fairly permanent record.”

187

Although it is clear today that the term “writing” is broad and includes

handwritten, typewritten, and similar types of permanent recordation of

words, the advent of new technology has created both new opportunities

179. Id. arts. 1760–61.

180. M

ICHEL GRIMALDI, DROIT CIVIL: LIBÉRALITÉS PARTAGE

D’ASCENDANTS 259–60 (2000).

181. Braun, Testamentary Formalities in Italy, in T

ESTAMENTARY

FORMALITIES, supra note 44, at 139.

182. A

TKINSON, supra note 176, at 250; SITKOFF & DUKEMINIER, supra note

4, at 202.

183. R

ESTATEMENT (THIRD) OF PROPERTY: WILLS AND OTHER DONATIVE

TRANSFERS § 3.1 cmt. i (AM. LAW INST. 1999).

184. Id.

185. A

TKINSON, supra note 176, at 249.

186. Id. at 250; S

ITKOFF & DUKEMINIER, supra note 4, at 164.

187. A

TKINSON, supra note 176, at 249.

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1360 LOUISIANA LAW REVIEW [Vol. 80

and new questions. For example, in In re Estate of Julian Castro, an Ohio

court found that a testator validly executed a will from a hospital bed when

the testator dictated his will to a friend who transcribed it onto a Samsung

Galaxy tablet. The testator then signed the electronic document with a

stylus. The court found that the writing requirement for a will was

satisfied, even though the will was written only on an electronic medium

and not on physical paper.

188

Under Louisiana law, this method should also

be acceptable as a writing, provided the testator complies with the other

necessary formalities.

189

Although a will written on an electronic tablet seems to plausibly

constitute a writing, some jurisdictions go even further and allow for the

probate of computer files and video recordings as wills. South African

courts have accepted electronic documents as wills, including emails and

an unprinted computer file labeled as follows:

“C:WINDOWS/MYSTUFF/MYWILL/PERSONAL.”

190

Documents or

writings in Australia include “not only standard paper wills, but also

computer files and discs, microfiches, photographs, text messages on

mobile phones, emails, as well as video and audio tapes.”

191

New Zealand

law is similarly expansive, but it excludes “video and audio-taped

wills.”

192

Even in the United States, courts have had to consider whether a

will recorded on video is a “writing” under the wills statute. Namely, in In

re Estate of Reed, the Wyoming Supreme Court considered whether the

holographic will statute allowed the probate of a tape recording that the

testator sealed in an envelope upon which the testator had written, “Robert

Reed To be played in the event of my death only! (signed) Robert G.

Reed.”

193

First, the court disregarded the envelope, noting that “[t]his

writing standing alone has no testamentary consequence, and cannot be

considered a will.”

194

Although voice recordings may demonstrate many

of the same identifying functions as a writing, the court noted that:

188. In re Estate of Javier Castro, No. 2013ES11140 (Lorain Cnty. Ohio Ct.

Com. Pl. June 19, 2013).

189. For discussion of this issue under German law, see Cyril H. Hergenröder,

Testieren 2.0: Errichtung eines digitalen eigenhändigen Testaments mittels Touch-

oder Smartpen?, 1 Z

EITSCHRIFT FÜR ERBRECHT UND VERMÖGENSNACHFOLGE 7

(2018).

190. de Waal, Testamentary Formalities in South Africa, in T

ESTAMENTARY

FORMALITIES, supra note 44, at 396–97.

191. Peart, Testamentary Formalities in Australia and New Zealand, in

Testamentary Formalities in Austria, supra note 44, at 351.

192. Id. at 351.

193. In re Estate of Reed, 672 P.2d 829 (Wyo. 1983).

194. Id.

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The use of a tape recording or other type of voice print as a

testamentary instrument is a decision for the legislature to make.

We will not enlarge, stretch, expand or extend the holographic will

statute to include a testamentary device not falling within the

express provisions of the statute.

195

The court reached this conclusion, even though the Wyoming law of

evidence defines a “writing” or “recording” as “letters, words, sounds or

numbers, or their equivalent, set down by handwriting, typewriting,

printing, photostating, photographing, magnetic impulse, mechanical or

electronic recording, or other form of data compilation.”

196

This definition,

in the court’s view, was not intended to change the meaning of similar

terms in the law of wills.

In Austria, it is “not possible to establish a will in electronic form.”

197

It is doubtful under Louisiana law that one could stretch the meaning of

the term “writing” to include a video recording, although the requirement

of a signature would likely prove even more problematic.

198

Even though

a video recording could achieve the same level of permanence as a writing

and could plausibly identify the testator’s intent for the recording to be his

will, such an expansion of the term seems outside the purview of the courts

and better addressed at the legislative level.

B. Signature

In addition to the writing requirement, all wills—olographic and

notarial—must be signed by at least the testator, although notarial wills

require additional signatures of a notary and two witnesses. Once again,

however, one must pause to consider the purpose of the testator’s signature

in addition to its parameters. In terms of purpose, this requirement seems

benign. After all, every instrument under “private signature” must be

signed,

199

and the signature requirement seems reasonable because it, at a

minimum, helps “link the will with the testator” and fulfills the evidentiary

and cautionary functions.

200

195. Id.

196. Id.

197. Christiane C. Wendehorst, Testamentary Formalities in Austria, in

ESTAMENTARY FORMALITIES, supra note 44, at 225.

198. A

TKINSON, supra note 176, at 250.

199. Pintens, Testamentary Formalities in France and Belgium, in

ESTAMENTARY FORMALITIES, supra note 44, at 60.

200. M

CGOVERN, ET AL., supra note 4, at 202

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1362 LOUISIANA LAW REVIEW [Vol. 80

To be sure, the testator’s signature serves at least three important

purposes. First, a signature helps to identify the testator as the author of

the document. If a will were drafted but not signed, the question would

exist as to whom the will was connected with. Second, the existence of a

signature indicates that the author not only has drafted the document but

also has adopted it and taken ownership of it. An unsigned painting, for

example, could be evidence that a painter, although the creator of the work,

is dissatisfied with the work and does not wish to be associated with it.

The signature on the will, in the words of one court, is necessary “to make

certain that [the document] constitute[s] [the decedent’s] last will.”

201

Third, a signature communicates finality and indicates that the testator has

completed the document. Again, analogizing to a painting, when the

painter signs his work he indicates in some form that he is content with his

creation, and it has achieved some level of finality. The signature “serves

to distinguish the final will from a preliminary draft, an incomplete

document, or scribbled thoughts about how the will might take shape in

the future.”

202

Louisiana law has been relatively consistent on this topic. A will

without a signature has no effect. European civil law systems are generally

in accord.

203

Common law sources generally agree as well. The

Restatement, which takes a permissive approach to will formalities, notes

that “[a]mong the defects in execution that can be excused, the lack of a

signature is the hardest to excuse. An unsigned will raises a serious but not

insuperable doubt about whether the testator adopted the document as his

or her will.”

204

Although some courts in extreme cases have probated

unsigned wills,

205

Louisiana courts generally have not. This is true even if

the testator has sealed his unsigned will inside of an envelope and

thereafter signed the envelope. Such an action has been held “not [to]

constitute a sufficient signature to the will.”

206

Only in a very idiosyncratic

case has a Louisiana court allowed the probate of a document as a will if

the document does not contain a signature. For example, in Hamilton v.

Kelley, the siblings of a testator removed the signature from his olographic

will to prevent its probate in favor of one nephew and in a putative attempt

201. Succession of Fitzhugh, 127 So. 386 (La. 1930).

202. R

ESTATEMENT (THIRD) OF PROPERTY: WILLS AND OTHER DONATIVE

TRANSFERS § 3.1 cmt. j (AM. LAW INST. 1999).

203. Fassberg, supra note 146, at 639.

204. R

ESTATEMENT (THIRD) OF PROPERTY: WILLS AND OTHER DONATIVE

TRANSFERS § 3.3 cmt. b.

205. See, e.g., In re Anton, 2015 WL 6085394 (N. J. Super. Ch. Div. 2015).

206. In re Poland’s Estate, 68 So. 415 (La. 1915).

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to preserve familial harmony.

207

The court concluded that “[i]n the absence

of a showing that the signature was removed pursuant to the testator’s

request to revoke the will, the removal of the signature is ineffective in

law.”

208

Consequently, the court probated the unsigned olographic will

because “the removal of a testator’s signature by a third party cannot

operate to invalidate the olographic testament.”

209

1. What Is a Signature?

The mere existence of the testator’s name on a will is not necessarily

a signature. The typewritten title of a document indicating that it is “The

Last Will and Testament of John Smith” is not necessarily a signed will

merely because John Smith’s name is printed in the title. In fact, not even

“[a] person’s name written in his or her own handwriting is . . . necessarily

a signature.”

210

One may include one’s name in print or in handwriting in

the exordium to a will, which may or may not constitute a signature. For

example, a will that begins, “I, John Smith, being of sound mind and body,

hereby make this my last will and testament” may or may not be signed.

If there is evidence that the testator adopted the document as his will and

viewed it as complete, then the name in the exordium should be treated as

a signature.

211

Such could be the case when the testator asks witnesses to

sign the document and indicates that he adopts the document as his will.

212

In other instances, such as when the document is merely found in a desk

drawer, the same writing may not be a signature. In short, “[t]o be a

signature, the testator must write his or her name with the intent of

adopting the document as his or her own.”

213

Ideally, a testator would sign his full legal name at the end of the

testament with the intent of adopting the document as his will.

Unfortunately, “best practices” are often not followed, and courts are

frequently left to interpret the testator’s name written in some abbreviated

form in a place other than at the bottom of the testament. Undoubtedly,

“John Smith” could be a sufficient signature, even if the testator’s full legal

name is “John Robert Smith III.” In fact, “Jack Smith” or “J. Smith” could

also be sufficient and meet the above requirements of a signature. Without

207. Hamilton v. Kelley, 641 So. 2d 981 (La. Ct. App. 2d Cir. 1994).

208. Id.

209. Id.

210. R

ESTATEMENT (THIRD) OF PROPERTY: WILLS AND OTHER DONATIVE

TRANSFERS § 3.1 cmt. j (AM. LAW INST. 1999).

211. Id. § 3.1 cmt. k.

212. Id.

213. Id. § 3.1 cmt. j.

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1364 LOUISIANA LAW REVIEW [Vol. 80

exactly equating a “signature” and a “mark,” the Louisiana Civil Code

allows a testator to “affix his mark . . . where his signature would otherwise

be required” in instances where a testator cannot sign his name, indicating

perhaps a flexible and liberal approach to the signature requirement.

214

The

Restatement provides similarly in stating that “[s]ignature by mark or

cross is sufficient . . . . So also is a signature by a term of relationship (such

as ‘Dad,’ ‘Mom,’ or ‘Auntie’), abbreviation, nickname, pet name, a first

name, a last name, initials, or pseudonym, or even by fingerprint or

seal.”

215

Black’s Law Dictionary also provides that a signature is a

“person’s name or mark written by that person or at the person’s direction;

esp., one’s handwritten name as one ordinarily writes it, as at the end of a

letter or a check, to show that one has written it.”

216

Atkinson similarly

observes that “[l]etters have been sustained as [signed] holographic wills

though signed with an abbreviation of the first name, or initials. Even

letters signed ‘mother,’ or with other familiar term have been held

sufficient.”

217

Common law authorities have declared that “[t]he testator

may sign his name by writing it out in full or by abbreviating it, or by

writing his initials, . . . or by using an assumed name where not done with

intent to deceive.”

218

Civil law systems are also in accord. Under Brazilian law, a signature

by “a pseudonym may also be sufficient if it is a name which the testator

generally uses.”

219

Italian law has a similar approach:

[A] signature is valid even without the forename and surname so

long as it designates with certainty the person of the testator . . . .

Accordingly, . . . it is possible to sign the will by using, for

instance, only the surname or the first name (whether with or

without the initial of the surname) or a nickname if that is

habitually used to identify the testator or even the initials of the

first name and surname.

220

Originally, French law was rigid with respect to the signature,

requiring a “proper signature” and providing that merely mentioning the

214. LA. CIV. CODE art. 1579.

215. R

ESTATEMENT (THIRD) OF PROPERTY: WILLS AND OTHER DONATIVE

TRANSFERS § 3.1 cmt. j.

216. Signature, B

LACK’S LAW DICTIONARY (10th ed. 2014).

217. A

TKINSON, supra note 176, at 310; see also id. at 252.

218. S

CHOENBLUM, supra note 4, §19.41, at 89; see also id. § 20.7, at 737–38.

219. Schmidt, Testamentary Formalities in Latin America with Particular

Reference to Brazil, in T

ESTAMENTARY FORMALITIES, supra note 44, at 103.

220. Braun, Testamentary Formalities in Italy, in T

ESTAMENTARY

FORMALITIES, supra note 44, at 129.

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“surname and first name in the text of the will does not suffice.”

221

In the

modern day, however, both French and Belgian courts have taken a more

flexible approach and have allowed a mere “reference to [a] family

function, such as mother or grandmother” to be enough.

222

In addition,

“French law is untroubled by first names or initials” as signatures.

223

number of lower court decisions in Louisiana suggested similarly. For

example, in Succession of Squires, the Third Circuit upheld a will that was

signed on the last page but only initialed on the first.

224

The Fourth Circuit

in Succession of Armstrong encountered the same situation and concluded

the same by stating that “initials suffice for his signature . . . . There is little

formality required for signatures which come in all shapes and sizes.”

225

In Balot y Ripoll v. Morina, the Louisiana Supreme Court upheld a will of

Sebastian Ripoll, who signed his will under a pseudonym, Francisco

Ballesta, which he adopted for political purposes when he moved to

Louisiana.

226

The Court observed: “We are not prepared to say that the

testator’s signature of an assumed name is sufficient in itself to vitiate the

will; it is at least a sufficient descriptio personae, and perhaps more so

here, than if he had signed it under his real name.”

227

Other legislation in Louisiana also adopts a broad definition of the

signature. The Louisiana Uniform Electronic Transactions Act broadly

defines an electronic signature as “an electronic sound, symbol, or process

attached to or logically associated with a record and executed or adopted

by a person with the intent to sign the record.”

228

Notably, however, both

the federal Electronic Signatures Act and Louisiana’s version of the

Uniform Electronic Transactions Act are inapplicable to wills.

229

Interestingly, the same exclusion applies in the Netherlands, where the

scope of the legislation on electronically signed documents also excludes

wills.

230

221. Pintens, Testamentary Formalities in France and Belgium, in

ESTAMENTARY FORMALITIES, supra note 44, at 61.

222. Id.

223. Id.; see also P

HILIPPE MALAURIE & CLAUDE BRENNER, DROIT DES

SUCCESSIONS ET DES LIBÉRALITÉS 297 (8th ed. 2018).

224. Succession of Squires, 640 So. 2d 813 (La. Ct. App. 3d Cir. 1994).

225. Succession of Armstrong, 640 So. 2d 1109, 1110 (La. Ct. App. 4th Cir.

1994).

226. Balot y Ripoll v. Morina, 12 Rob. 552, 558 (La. 1846).

227. Id.

228. L

A. REV. STAT. § 9:2602(8) (2018).

229. 15 U.S.C. §§ 7001, 7003(a)(1); L

A. REV. STAT. § 9:2603(B)(1).

230. Kolkman, Testamentary Formalities in the Netherlands, in

ESTAMENTARY FORMALITIES, supra note 44, at 166–67.

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1366 LOUISIANA LAW REVIEW [Vol. 80

In Successions of Toney, however, the Louisiana Supreme Court cast

doubt upon the flexibility with which courts had previously treated

signatures when it invalidated a will that was initialed rather than signed.

Although the testator’s full signature appeared on the final page of the will

and upon an affidavit attached to the will, the testator merely initialed—

rather than fully signed—the first two pages. In invalidating the will in

Toney, the Louisiana Supreme Court reasoned as follows:

Although signatures come in a variety of forms, and although a

few appellate courts have upheld wills where some pages were

initialed rather than signed, we note that La. Civ. Code art.

1557(1) unambiguously requires the testator to “sign his name at

the end of the testament and on each other separate page,” and

merely initialing undoubtedly falls short of this requirement.

231

In this case, the first two pages of the will are not signed, but are

only initialed “R.T.” Further, the initials are in print rather than

cursive writing . . . . Particularly where, as here, the initials are

written in easily imitable print rather than cursive, we are hesitant

to find that this deviation from the codal requirement is merely

minor or technical.

232

The above statements should not be read broadly by subsequent courts.

There is clearly no requirement that a testator’s signature be either his full

legal name or that it be written in cursive.

233

Unfortunately, the Fifth

Circuit has already given a broad reading to Toney and invalidated a will

that was signed at the end but only initialed in cursive on the other three

pages.

234

According to the court, “this deviation [from the requirements of

the Civil Code] is material and significant.”

235

In light of the prevailing

understanding of the meaning of the term “signature,” it is hard to imagine

how this deviation was either material or significant. It is hoped that the

Louisiana Supreme Court will soon clarify and realign Louisiana

jurisprudence with a broad and permissive interpretation of the signature

requirement that prevails in the law elsewhere. A strict interpretation of

the signature requirement is a notable deviation from the law in civil law

systems, common law courts, and other laws in Louisiana.

231. Successions of Toney, 226 So. 3d 397, 404 (La. 2017).

232. Id. at 404 (emphasis in original).

233. Rainey v. Entergy Gulf States, Inc., 35 So. 3d 215, 225 (La. 2010).

234. Succession of Carter, __ So. 3d __, 2020 WL 2764372 (La. Ct. App. 5th

Cir. 2020).

235. Id. at *4.

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2. Location of the Signature

Moreover, Louisiana law imposes yet another signature requirement,

namely, that the signature appear “at the end of the testament.”

236

This

requirement, however, is not a deeply historical one and does not originate

in Louisiana’s civil law heritage. Under Brazilian law, for example,

“[n]ormally the signature is placed at the end of the document, but it is

also permissible to place it elsewhere, for example at the top, in the

margin, or even on the other side of the document.”

237

French law contains

no rules for the location of the signature, nor did early English law.

238

The

English Statute of Frauds—and thus the law in many states—similarly

contained no requirement as to where the signature should be placed.

239

Under such authority, in the leading case of Lamayne v. Stanley, an

English court upheld as validly signed a will that stated as follows: “I, John

Stanley, make this my last will.”

240

Of course, a number of other states

followed the later enacted English Statute of Wills, which required that a

will be subscribed—from the Latin subscrire, meaning “to sign or write

under.”

241

Some other states, including Louisiana with its original

statutory will and now its notarial will, have followed this approach. Prior

to the most recent revision, however, Louisiana law historically imposed

no such requirement regarding the location of the signature for an

olographic will. The 1870 Louisiana Civil Code merely provided that

“[t]he olographic testament is that which is written by the testator himself.

In order to be valid, it must be entirely written, dated and signed by the

hand of the testator. It is subject to no other form, and may be made

anywhere, even out of the State.”

242

Today, however, for all types of wills,

Louisiana requires a signature to appear “at the end of the testament.”

243

Thankfully, Louisiana courts have interpreted this requirement liberally.

244

236. LA. CIV. CODE arts. 1575, 1577.

237. Schmidt, Testamentary Formalities in Latin America with Particular

Reference to Brazil, in T

ESTAMENTARY FORMALITIES, supra note 44, at 103.

238. Italian law, however, requires a signature at the end so as to indicate a

“‘conscious seal of the intent manifested in the document.’” Braun, Testamentary

Formalities in Italy, in T

ESTAMENTARY FORMALITIES, supra note 44, at 129.

239. Statute of Frauds, 1677, 29 Car. II, c.3 (Eng.); A

TKINSON, supra note 176,

at 255.

240. Lamayne v. Stanley, 83 Eng. Rep. 545 (1681).

241. A

TKINSON, supra note 176, at 256–57.

242. L

A. CIV. CODE art. 1588 (1870).

243. Id. arts. 1575, 1577.

244. A

TKINSON, supra note 176, at 309; see also Succession of Fitzhugh, 127

So. 386 (La. 1930).

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1368 LOUISIANA LAW REVIEW [Vol. 80

Given the new placement requirement for the signature on olographic

wills, the Civil Code has adopted a permissive approach and makes clear

that if the signature does appear at the end, “the testament shall not be

invalid.”

245

Rather, any writing appearing after the signature “may be

considered by the court, in its discretion, as part of the testament.”

246

For

notarial wills, however, no such flexibility for the courts is written into the

Civil Code. Article 1577 merely states that the testator “shall sign his name

at the end of the testament and on each other separate page.”

247

The discrepancy between olographic wills in article 1575 and notarial

wills in article 1577 did not always exist. In 1999, when the revision to the

law on donations went into effect, article 1575 read:

An olographic testament is one entirely written, dated, and signed

in the handwriting of the testator. It is subject to no other

requirement as to form.

Additions and deletions on the testament may be given effect only

if made by the hand of the testator.

This language, of course, is substantively the same as the 1870 Civil Code

and, in fact, prior versions of the Civil Code as well. Under the prior law,

the jurisprudence had imposed yet another requirement—that the will be

signed at the end—and the court in Succession of King held invalid an

olographic will that the decedent had not signed at the end.

248

Although

the court observed that the Louisiana Supreme Court had relaxed the

formalities for wills, the court noted that “the requirement that the

testatrix’s signature be affixed to the end of an olographic will has not been

relaxed by the Louisiana Supreme Court.”

249

Far from being an idle

formality, the requirement that the testator’s signature be at the end of the

will, according to the court, is “to show that the provisions preceding the

signature are approved by the testatrix. Furthermore, the placement of the

signature at the end conclusively demonstrates that there are no other

provisions.”

250

In light of this requirement, the court concluded that it

245. LA. CIV. CODE art. 1575.

246. Id.

247. Id.

248. Succession of King, 595 So.2d 805, 809 (La. Ct. App. 2d Cir. 1992),

overruled on other grounds by Act. No. 824, 2001 La. Acts 1718.

249. Id.

250. Id.

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could “only speculate as to whether or not there were any other provisions

in Mrs. King’s will.”

251

Consequently, an amendment to article 1575 was necessary to reverse

the outcome of Succession of King.

252

In 2001, article 1575 was amended

to include the following language:

Although the date may appear anywhere in the testament, the

testator must sign the testament at the end of the testament. If

anything is written by the testator after his signature, the testament

shall not be invalid and such writing may be considered by the

court, in its discretion, as part of the testament . . . . The date is

sufficiently indicated if the day, month, and year are reasonably

ascertainable from information in the testament, as clarified by

extrinsic evidence, if necessary.

253

For both olographic and notarial wills, though, the requirement

remains that the will should be signed at the end. But “[w]here is the end

of a will?”

254

For olographic wills, the answer may be clearer, namely, at

a place on the document with no writing that follows or, put simply, the

“part that is furthest from the beginning.”

255

For a notarial will, however,

the answer is a bit murkier. Certainly, “if a dispositive provision is clearly

below or after the testator’s signature, the will is not signed at the end.”

256

But a notarial will in Louisiana must also include an attestation clause

signed by the witnesses and the notary, which almost always follows the

dispositive provisions of the testator’s will. If the testator signs after the

dispositive provisions, but not after the attestation clause, has he signed

the will at the end?

Both the comments to Civil Code article 1577 and the jurisprudence

from the Louisiana Supreme Court suggest that the end of the will is after

the dispositive or appointive provisions of the will, not after the attestation

clause. Specifically, comment (b) to article 1577 states that “[t]he testator

need not sign after both the dispositive or appointive provisions of th[e]

testament and the declaration, although the validity of the document is not

affected by such a ‘double’ signature . . . . He need only sign at the end of

the dispositive, appointive or directive provisions.”

257

251. Id.

252. L

A. CIV. CODE art. 1575 cmt. (2001).

253. La. Acts 2001, No. 824.

254. A

TKINSON, supra note 176, at 257.

255. Id.

256. Id. at 258.

257. L

A. CIV. CODE art. 1577 cmt. (b).

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1370 LOUISIANA LAW REVIEW [Vol. 80

In Succession of Guezuraga, the Louisiana Supreme Court considered

the validity of a will that had been signed at the end of the dispositive

provisions but not on the last page, which contained “only the conclusion

of the attestation clause.”

258

Citing common law commentators, the Court

noted that the attestation clause is not regarded as part of the testator’s

will.

259

Thus, the Court concluded, “[t]he testator does not have to sign

again following the attestation clause.”

260

An earlier decision by the

Louisiana Supreme Court on the same issue regarding statutory wills was

similarly decided,

261

although the lower courts had indicated to the

contrary.

262

The result in Guezuraga is to be celebrated as a sensible and

flexible application of the rules on will formalities. Strictly speaking,

however, one may well question the rationale. An attestation clause for a

common law will is not part of the testator’s will because the attestation

clause is not required in other states. Under article 1577, however, it is an

absolute requirement for the validity of a notarial will.

Nevertheless, one would hope that for both olographic or notarial

wills, a court would uphold the will irrespective of the location of the

signature—for example, the beginning, the middle, the end, the exordium

clause, or the margin—if the court “is convinced that the instrument is the

complete will intended by the testator.”

263

The Restatement suggests a

reasonable approach, namely, “[t]he testator’s handwritten name in

freestanding form at the end of the document unquestionably satisfies the

signature requirement. The testator’s handwritten name in freestanding

form at any other place on the document raises an inference that the

testator ‘signed’ the document.”

264

The Uniform Law on International

Wills also requires a signature at the end, but it does not consider it a core

formality; thus, its placement elsewhere does not affect the validity of the

will.

265

258. Succession of Guezuraga, 512 So. 2d 366 (La. 1987).

259. Id.

260. Id.

261. Succession of Porche, 288 So. 2d 27 (La. 1973).

262. Succession of Wilson, 213 So. 2d 776 (La. Ct. App. 2d Cir. 1968).

263. A

TKINSON, supra note 176, at 310.

264. R

ESTATEMENT (THIRD) OF PROPERTY: WILLS AND OTHER DONATIVE

TRANSFERS § 3.1 cmt. j (AM. L. INST. 1999).

265. U

NIF. INT’L WILLS ACT arts. 1, 6; see also Zimmermann, Testamentary

Formalities in Germany, in T

ESTAMENTARY FORMALITIES, supra note 44, at 466.

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C. Date

Finally, the requirement of a date is clearly stated as a prerequisite for

both notarial and olographic wills.

266

This prerequisite is perhaps the most

curious of the common formality requirements. Although legal

documents—for obvious reasons—are commonly dated, few transactions

specifically require the existence of a date as a condition of the validity of

the transaction.

267

In the context of wills, however, the law is clear—an

olographic testament has to be “entirely written, dated, and signed in the

handwriting of the testator,”

268

and a notarial will “shall be prepared in

writing and dated.”

269

Although Louisiana law has always required a date

for an olographic will, the same is not true for notarial wills. The date

requirement was mysteriously added in 1999. Prior to then, the statutory

will, on which the notarial will is based, did not require a date.

270

1. What Is a Date?

In the etymological sense, the word “date” derives from the Latin word

datum, referring to “both the time and place of the execution of an act.”

271

Today, however, it is commonly accepted that the word “date” refers only

to the time of an act, not the place.

272

Civil law sources agree with this

modern definition, although Spanish law still requires the notary to state

266. LA. CIV. CODE arts. 1575 & 1577.

267. Importantly, the Louisiana Supreme Court has recently upheld an undated

revocation of a will because “there is no requirement in La. C.C. art. 1833 or any

other article of the Louisiana Civil Code that requires an authentic act contain the

date on which it was executed.” Succession of Robin, 286 So. 3d 396, 402 (La.

2019).

268. L

A. CIV. CODE art. 1575.

269. Id. art. 1577.

270. Lemuel E. Hawsey, III, Louisiana’s Statutory Will: The Role of Formal

Requirements, 32 L

A. L. REV. 452, 459 (1972):

Although neither the statute nor the jurisprudence make the date a formal

requirement for validity of a statutory will, it is still necessary to

determine whether some general principle at either common or civil law

necessitates inclusion of the date of execution in order for a testament to

be valid. The Louisiana Wills Statute had as its origin similar statutes

existing in all of the common law states. It is well settled at common law

that, in the absence of an express statutory requirement, the date of

execution is not essential to the validity of a statutory will.

271. K.A.

ROSS, CROSS ON SUCCESSIONS 200 (1894).

272. See Date, B

LACK’S LAW DICTIONARY (10th ed. 2014) (defining “date” as

“[t]he day when an event happened or will happen”).

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1372 LOUISIANA LAW REVIEW [Vol. 80

the place of execution.

273

Although the Code Napoléon was silent on how

specific the temporal indication must be, an ordinance from 1735, which

has been kept in force by the jurisprudence, prescribes the inclusion of “the

day, month, and year.”

274

Louisiana law provides the same for olographic

wills but does not specifically provide what constitutes a “date” in the

context of a notarial will.

275

Reasoning in pari materia, one may assume

the requirements are the same, especially in light of the attestation clause

requirement for notarial wills, which requires the execution of a statement

by the witnesses regarding compliance with the formalities and the

“subscri[ption] [of their] names this __ day of __, ____.”

276

The date may be written in a number of forms, including: (1) words—

for example, the first day of January in the year 1999; (2) numerals, such

as 1/31/99, 1-31-99, or 1.31.99; (3) some combination of words and

numerals—for instance, January 31, 1999, January 31, ’99’, or Jan. 31,

’99; and even (4) colloquial expressions, such as “New Year’s Day ’99.”

277

Questions, however, may exist as to the exact date when slash or numeric

dates are used and when both the first and second numbers are below 12.

For example, does “2/3/99” reference February 3, 1999, or March 2, 1999?

Although it is customary in Europe and elsewhere to write the month in

the second place, the custom in the United States is the opposite, and one

should presume that 2/3/99 refers to February 2 and not March 3 of the

year 1999.

278

In fact, an early Louisiana Attorney General Opinion

counseled that “[t]he date of an olographic will should not be written in a

way so frequently used in dating letters. For example, today’s date should

273. 3 MARCEL PLANIOL, CIVIL LAW TREATISE, pt. 2. No. 2711, at 318 (La.

State L. Inst. trans., 1959); Lapuente, Testamentary Formalities in Spain, in

ESTAMENTARY FORMALITIES, supra note 44, at 79; Pintens, Testamentary

Formalities in France and Belgium, in T

ESTAMENTARY FORMALITIES, supra note

44, at 465.

274. P

LANIOL, supra note 273, at 318 n.27.

275. Compare L

A. CIV. CODE art. 1575, with LA. CIV. CODE art. 1577.

276. L

A. CIV. CODE art. 1577.

277. P

LANIOL, supra note 273, at 318 n.27. See also Succession of Heinemann,

136 So. 51 (La. 1931) (holding that an olographic will was valid when the date

was written as “Jan 2-1930,” despite a challenge that the month should be written

in full and that the word “Jan” was written “without even a period to denote the

abbreviation”). The Court in Heinemann noted that “‘Jan 2-1930,’ means January

2, 1930, and cannot mean anything else . . . . The absence of the period to denote

the abbreviation is of no importance. The abbreviation is sufficiently manifest

without it.” Id.

278. See also R

ESTATEMENT (THIRD) OF PROPERTY: WILLS AND OTHER

DONATIVE TRANSFERS § 3.2 cmt. (e) (AM. LAW INST. 1999).

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not be written ‘7/10/42,’ but should be written ‘July 10, 1942.’”

279

Eminent

authority has posited that “[a]bbreviations are permissible, unless they

render the date uncertain. Thus, the abbreviation 9/8/18 is insufficient

because according to certain usage this would refer to September 8

and

by other custom to August 9

.”

280

And, in fact, early Louisiana courts

invalidated wills with slash dates, such as “10/3/50,”

281

“12.10.1934,”

282

and “9/8/18,”

283

because in all such cases the date was uncertain.

Happily, under current Louisiana law, extrinsic evidence may be

admitted to clarify an ambiguous date.

284

Extrinsic evidence, however,

must render the day, month, and year “reasonably ascertainable.”

285

Succession of Raiford, the Louisiana Supreme Court considered an

olographic will dated “Monday.8 1968.”

286

Even after the admission of

extrinsic evidence, the Court concluded that “[t]he only certain thing about

the date here is the year 1968. The figure 8 could reflect either the day or

the month,” and Louisiana law requires the establishment of a day, month,

and year.

287

Thus, “the will [was] invalid.”

288

Other decisions from the

Louisiana Supreme Court have been equally clear that “the month, without

the day, is no date” at all.

289

2. Location of the Date

Originally, there was some dispute regarding where the date must

appear. Many French sources held the view that the date could appear

anywhere in the will—the beginning, the end, or the body.

290

Some

sources, however, called this into question.

291

The Louisiana Supreme

Court, relying on French sources, clarified the matter and held that the date

279. La. Att’y Gen. Op. 1942, 773.

280. A

TKINSON, supra note 176, at 308–09.

281. Succession of Mayer, 144 So. 2d 896 (La. Ct. App. 4th Cir. 1962).

282. Succession of Lasseigne, 181 So. 879 (La. Ct. App. 1st Cir. 1938).

283. Succession of Beird, 82 So. 881 (La. 1919).

284. L

A. CIV. CODE art. 1575 (2018).

285. Id.

286. Succession of Raiford, 404 So. 2d 251, 253 (La. 1981).

287. Id. at 253.

288. Id.

289. Succession of Holloway, 531 So. 2d 431, 433 (La. 1988); Heffner v.

Heffner, 20 So. 281 (La. 1896).

290. P

LANIOL, supra note 273, at 318.

291. C

ROSS, supra note 271, at 201–02 (arguing that “[t]here would be even

room to fear that the testament would be declared null if the signature precedes

the date”).

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1374 LOUISIANA LAW REVIEW [Vol. 80

could appear anywhere in an olographic will.

292

Subsequent cases

reaffirmed this conclusion and held that the date was sufficient if it was

contained in the head of the will, at the foot, or in the body.

293

Other courts

classified the location of the date in an olographic will as “immaterial.”

294

Still other courts held that the date could appear even on the “reverse side”

of the page on which the testator disposed of her property.

295

It is now

beyond doubt that the location of the date in an olographic will is

unimportant and that the date “may appear anywhere in the testament.”

296

In fact, article 1575 of the Louisiana Civil Code was revised in 2001 to

codify jurisprudence holding that the location of the date in a testament is

irrelevant. One presumes that the same rule would and should apply in a

notarial will, although the Civil Code is silent on this matter.

3. The Need for a Date?

Although the rules for the location and specificity of a date are clear,

what remains to be ascertained is why a date is required at all. Some

justifications that scholars have offered include the importance of

ascertaining the order of multiple wills and the need to “determine whether

the will was made while the testator was competent.”

297

Although these

justifications are undoubtedly valid, many questions remain. For instance,

suppose a testator makes two wills on the same day. Should the exact time

be required as part of the date to avoid uncertainty as to the order?

298

importantly, why should a will be invalid due to the absence of a date or

an imperfect date when no question exists regarding the testator’s capacity

or the existence of another will? Perhaps most bizarrely, Louisiana courts

have found that as long as a will is dated, it does not matter if the date is

correct.

299

In Succession of Roniger, the court allowed oral testimony to

292. Succession of Fuqua, 27 La. Ann. 271, 273 (1875) (stating that “[i]t is not

essential that the date to an olographic will should precede the signature; it may

be placed below”).

293. Jones v. Kyle, 123 So. 306 (La. 1929).

294. Zerega v. Percival, 15 So. 476 (La. 1894).

295. Succession of Barnett, 245 So. 2d 418 (La. Ct. App. 2d Cir. 1971).

296. L

A. CIV. CODE art. 1575 (2019).

297. P

LANIOL, supra note 273, at 319; see also MALAURIE & BRENNER, supra

note 223, at 295.

298. Pintens, Testamentary Formalities in France and Belgium, in

ESTAMENTARY FORMALITIES, supra note 44, at 59 (noting that the hour is not

required as part of the date for a holographic will).

299. Succession of Roniger, 706 So. 2d 1025 (La. Ct. App. 4th Cir. 1998). But

see P

LANIOL, supra note 273, at 319 (“A false date and an incomplete date are

equivalent in that they both cause a nullity of the will. The case law is well

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establish that a will dated December 12, 1996—10 months after the

decedent died—was actually executed on January 12, 1996.

300

Similarly,

in Succession of Dawson, the court probated a will and allowed testimony

from the drafter of a notarial will that was dated February 28, 2103.

301

One

wonders what help a false date would be in ascertaining the order of

multiple wills or the timing of the testator’s capacity. If extrinsic evidence

is allowed when a date is wrong, incomplete, or unclear, why is it not

similarly allowed when a date is absent? Louisiana courts should be

praised for thinking expansively and avoiding unnecessary formalism in

many instances, but the approach on this issue has not always been

consistent. Some courts have held invalid wills that contain dates if the

dates are illegible.

302

Other courts, however, have been more liberal with

this requirement and found that a will can be valid even if it is dated after

the will is completed

303

or if it contains multiple dates because it was

written on different days.

304

Be that as it may, Louisiana law still requires a date, although this was

not always the case in every instance. In Succession of Gordon, the

Louisiana Supreme Court considered “whether the omission of the day of

the month in the attestation clause invalidates” a statutory will.

305

Although the Court noted that it is “not only desirable but legally

advantageous that this type of will and all wills be dated,” it held that

statutory wills did “not require a date in the testament” for the will to be

valid.

306

Shortly thereafter, however, the legislature amended the statute to

provide that a statutory will “shall be dated.”

307

Today, Louisiana

jurisprudence is clear that a date is still essential for a will.

308

Although

“[e]xtrinsic evidence may be considered to clarify an ambiguous date, . . .

established in that sense. It has been criticized acidly as formalism and

legalism.”).

300. Roniger, 706 So. 2d at 1028.

301. Succession of Dawson, 210 So. 3d 421 (La. Ct. App. 2d Cir. 2016).

302. Succession of Wenling, 135 So. 21 (La. 1931).

303. Jones v. Kyle, 123 So. 306 (La. 1929); Succession of Picard, 155 So. 11

(La. 1934).

304. Succession of Fitzhugh, 127 So. 386 (La. 1930); Oroszy v. Burkard, 158

So. 2d 405 (La. Ct. App. 3d Cir. 1963).

305. Succession of Gordon, 245 So. 2d 319, 320 (La. 1971).

306. Id.

307. La. Acts 1974, No. 246; see also Succession of Holloway, 531 So. 2d 431

(La. 1988).

308. Succession of Aycock, 819 So. 2d 290 (La. 2002); Succession of Boyd,

306 So. 2d 687 (La. 1975); Succession of Lefort, 71 So. 215 (La. 1916); In re

Succession of Lain, 147 So. 3d 1204 (La. Ct. App. 2d Cir. 2014); Succession of

Holloway, 531 So. 2d 431 (La. 1988).

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1376 LOUISIANA LAW REVIEW [Vol. 80

extrinsic evidence may not be provided for an absent date.”

309

Twice now,

in fact, the Louisiana Supreme Court has agreed in stating that “[a]n absent

date cannot be supplied.”

310

In fact, for an olographic will, a date written

by one other than the testator, such as by a notary, is not valid and results

in an invalid will.

311

When the issue of a date was debated in the Louisiana State Law

Institute in 1972, the Council rejected the Successions and Donations

Committee’s proposal and voted not to require a date in a will as a matter

of substance. Wood Brown spoke eloquently and noted that to require a

date for a statutory will would be “a step backward” because

“[n]uncupative wills and mystic wills do not require a date.”

312

The Uniform Probate Code has also entirely abandoned the date

requirement for wills.

313

The Québec Civil Code similarly no longer

requires a date for a witnessed or an olographic will.

314

Common law

authority has also stated that a “date is not an essential part of the will,”

and thus a “will is not rendered invalid” by an erroneous date or no date at

all.

315

Louisiana law, however, still clings to the requirement of a precise

date that specifies the day, month, and year.

316

Although French law in

principle contains the same requirement, the modern tendency of French

courts is to require a date “only if there is a problem concerning capacity

or chronology, and the will is only void when, due to an incomplete date,

it is impossible to determine if the will was written when the testator had

capacity or to chart the order of competing wills.”

317

Although the

Louisiana Civil Code allows for the date to be “clarified by extrinsic

309. In re Succession of Lain, 147 So. 3d 1204 (La. Ct. App. 2d Cir. 2014).

310. Succession of Boyd, 306 So. 2d 687, 692 (La. 1975); Succession of

Aycock, 819 So. 2d 290 (La. 2002).

311. Succession of Aycock, 819 So. 2d 290 (La. 2002) (invalidating an

olographic will where the notary had filled in the date).

312. Minutes of the April 7–8, 1972 Meeting of the Council of the Louisiana

State Law Institute at 3–4; see also Succession of Holloway, 531 So. 2d 431, 435

(La. 1988) (C.J. Dixon, dissenting).

313. U

NIF. PROB. CODE § 2-502.

314. Q

UÉBEC CIVIL CODE arts. 726–30; see also Judy Martin, La Pertinence

de l’Article 714 du Code Civil du Québec ou le Paradoxe d’un Formalisme Sujet

à la Libre Interprétation des Tribunaux, 113 R

EVUE DU NOTARIAT 431, 486

(2011) (“Au Québec, la date ne constitue pas un élément essentiel du testament

olographe ou devant témoins.”).

315. S

CHOENBLUM, supra note 4, § 19.7, at 22.

316. L

A. CIV. CODE arts. 1575, 1577 (2018).

317. Pintens, Testamentary Formalities in France and Belgium, in

Testamentary Formalities, supra note 44, at 59.

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evidence, if necessary,”

318

the French Cour de Cassation has demonstrated

a willingness to accept even a completely undated will “when, on the basis

of extrinsic evidence confirmed by intrinsic evidence, it can be

demonstrated that the will dates from a particular period.”

319

Specifically,

the French court noted that despite the absence of a date, the olographic

will was valid because it was not demonstrated that the will was written

during a period when the testator was incapable or that the testator

executed a revocatory or incompatible will.

320

Some Belgian courts have

followed the French lead on this issue, and it is hoped that a Louisiana

court would act similarly.

Perhaps the best approach can be observed in German law, which

requires a holographic will to be “written and signed in [the testator’s] own

hand,” but then recommends that the “testator should state in the

declaration the time when (day, month and year) and the place where he

wrote it down.”

321

German law also sensibly provides that if the will “does

not contain any information about the time when it was made and where

this causes doubts about its validity, the will is to be deemed to be valid

only if the necessary ascertainments about the time when it was made can

be established in some other manner.”

322

The Uniform Law on

International Wills also requires a date but does not consider it a core

formality, so its absence does not affect the validity of the will.

323

Italian

law requires a handwritten date for a holographic will to be valid but treats

a will as merely voidable, rather than void, in the absence of a date.

324

Louisiana’s codal insistence on a date, although motivated by good

reasons, now seems overly strict and out of step with the modern approach

to will formalities in both civil and common law jurisdictions. Unlike other

requirements that ensure validity and authenticity of the testament, the date

requirement seems useful, but it is only necessary in isolated cases.

Accordingly, “when the date is not needed to guarantee validity, because

there are no problems concerning capacity or competing wills, it does not

318. LA. CIV. CODE art. 1575.

319. Pintens, Testamentary Formalities in France and Belgium, in

Testamentary Formalities, supra note 44, at 60.

320. Cass. 1re civ., 10 Mai. 2007, No. 05-14366.

321. B

ÜRGERLICHES GESETZBUCH [BGB] § 2247(1), (2).

322. Id. § 2247(5).

323. U

NIF. INT’L WILLS ACT arts. 1, 7; see also Zimmermann, Testamentary

Formalities in Germany, in T

ESTAMENTARY FORMALITIES, supra note 44, at 466.

324. Braun, Testamentary Formalities in Italy, in T

ESTAMENTARY

FORMALITIES, supra note 44, at 128.

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1378 LOUISIANA LAW REVIEW [Vol. 80

make sense to insist on its presence.”

325

Some have characterized this

approach as a “logical consequence of an evolution from an absolute

formal requirement to an additional guarantee of validity.”

326

Justice

Lemmon, dissenting in the Raiford case, observed similarly in concluding

that a will dated only by the year ought to be valid when the purposes for

which the date is required—that is, competency of the testator and order

of multiple wills—are not thwarted.

327

Commentators have likewise

criticized a strict rule requiring a date and argued that “[o]ne need only say

that the ‘date’ must be sufficient to resolve those controversies present in

the case for which the date was intended.”

328

In short, the hypothetical

value of the date requirement is far exceeded by the litigation cost imposed

on challenging wills. In reviewing over a dozen cases involving challenges

to wills due to an insufficient date, Justice Dixon aptly explained:

It is interesting to note that in none of the cases involving dates in

olographic wills were the dates of any significance or relevance,

except to fulfill the codal requirement that the will be written,

dated, and signed by the testator. It is easy to see that, without a

history, it might be assumed by early jurists in Louisiana that there

would be occasions the correct date of a will would be of

significance, to decide, for example, it was written before or after

the birth of a child, or whether it was the last of two wills, or

whether it was written when the decedent had testamentary

capacity. That occasion surely will arise, but it has not yet proved

a significant reason for requiring precision in the date.

329

The date requirement and the other common formalities for wills in

Louisiana have been longstanding formalities for wills. The times,

however, have changed. So too have the laws in other jurisdictions. It is

time for the law in Louisiana to change as well to keep up not only with

325. Pintens, Testamentary Formalities in France and Belgium, in

ESTAMENTARY FORMALITIES, supra note 44, at 60.

326. Id.

327. Succession of Raiford, 404 So. 2d 251 (La. 1981) (Lemmon, J.,

dissenting).

328. H. Alston Johnson, Successions and Donations, 43 L

A. L. REV. 585, 601

(1982).

329. Succession of Boyd, 306 So. 2d 687 (La. 1975); see also Succession of

Raiford, 404 So. 2d at 254 (Lemmon, J., dissenting) (arguing that a will dated

“1968” should be valid because it establishes “the point in time of its making

sufficiently to show that this will was made later than the 1963 will in which the

decedent left the property to her brother”).

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societal developments but also with the changes in the laws in similar

states and countries.

IV. S

PECIAL REQUIREMENTS OF OLOGRAPHIC WILLS

In addition to the general requirements of a writing, a date, and a

signature by the testator, Louisiana’s rules on olographic wills also contain

some additional special requirements. Specifically, under Louisiana law,

an olographic will must be “entirely written, dated and signed in the

handwriting of the testator . . . . The olographic testament is subject to no

other requirement as to form.”

330

The ease of execution for an olographic

will is a notable—and somewhat surprising—departure from the strictures

of any of Louisiana’s prior will forms and, in fact, even from the current

alternative, the notarial will. Unlike the notarial will and its “statutory”

predecessor, the olographic will is purely a civil law product. Only about

half of the states in the United States have adopted the “holographic”

form,

331

which is common in civil law countries.

332

As explained by one scholar:

The dominant theory today appears to be that holographic wills as

we now know of them today probably originated in the customs

of the people of France during the later Middle Ages, and that

these merely customary institutes were given lasting sanction in

the sixteenth century when customary law was written down.

333

After olographic wills were sanctioned by the Code Napoléon, they

gradually passed into the civil law of other countries and eventually into

selected common law regimes.

334

Olographic wills, however, were not unknown even to Roman

lawyers.

335

From the 5th century, the concept of a olographic will existed

330. LA. CIV. CODE art. 1575 (2018).

331. R

ESTATEMENT (THIRD) OF PROPERTY: WILLS AND OTHER DONATIVE

TRANSFERS § 3.2, Statutory Note (AM. LAW INST. 1999); SCHOENBLUM, supra

note 4, § 20.2.

332. See, e.g., C.

IV. art. 970 (Fr.); BÜRGERLICHES GESETZBUCH [BGB] §

2247; C

ODICE CIVILE art. 602; GREEK CIVIL CODE art 1721 (Constantin

Taliadoros trans., 2000); C

IVIL CODE OF SPAIN art. 688 (Julio Romanach Jr. trans.,

2994); Q

UÉBEC CIVIL CODE 726e; but see Kolkman, Testamentary Formalities in

the Netherlands, in T

ESTAMENTARY FORMALITIES, supra note 44, at 147–61.

333. Richard Helmholtz, The Origins of the Holographic Will in English Law,

15 J.

EG. HISTORY 97, 98 (1994).

334. Id. at 98.

335. See, e.g., Parker, supra note 27, at 1.

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1380 LOUISIANA LAW REVIEW [Vol. 80

in parts of the Roman empire.

336

An imperial constitution by Valentinian

III provided that a will “could be made without the presence of witnesses

. . . if it was written in its entirety by the testator in his own hand.”

337

This

new form of will, however, was of “little consequence” because it was

“only valid in the western part of the empire, and it did not make it into

Justinian’s codes.”

338

Later, however, in Novel 114, Justinian provided

that:

If anyone who knows how to write should wish to divide his estate

among his children, he must first put down the date with his

signature; next he must inscribe the names of his children with his

own hand; and then he must indicate the shares for which he

appoints them heirs by completely writing them out, and not by

merely expressing them in numerals, in order that said shares may

be exactly known and free from all doubt.

339

Despite early recognition of the olographic will under Roman law, it

was not universally received early on by civil law jurisdictions. In fact,

there was limited use of the olographic will in the pays de droit écrit, that

is, the area of France governed by written, rather than customary, law prior

to enactment of the Code Napoléon.

340

Such olographic wills existed in

French customary law and were further endorsed in France via the

Ordonnance of 1735.

341

When the Code Civil was enacted, article 969

provided that “[a] testament may be olographic, or made by public act, or

in the mystic form.”

342

An olographic will under the Code Napoléon was

stated to be one that was “entirely written, dated, and signed by the hand

of the testator.”

343

It was “subject to no other form.”

344

The olographic will

also made its way into Scottish law, the Austrian Civil Code, and the

336. Id.

337. Thomas Rüfner, Testamentary Formalities in Roman Law, in

ESTAMENTARY FORMALITIES, supra note 44, at 19.

338. Id.

339. J

USTINIAN NOV. CONSTIT. 114, in S.P. SCOTT, THE CIVIL LAW (1932);

Nils Jansen, Testamentary Formalities in Early Modern Europe, in

ESTAMENTARY FORMALITIES, supra note 44, at 42.

340. See also G

RIMALDI, supra note 180, at 271.

341. Jansen, Testamentary Formalities in Early Modern Europe, in

ESTAMENTARY FORMALITIES, supra note 44, at 43.

342. C. C

IV. art. 969 (1804) (Fr.).

343. Id. art. 970.

344. Id.

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Italian Civil Code.

345

Although it was originally resisted in German law,

346

today § 2247 of the German Civil Code allows olographic wills.

347

In the

modern day in France, the olographic will is heralded as the most practical

form of will in France.

348

Olographic wills also exist in Latin American

counties, such as Brazil, Argentina, Paraguay, Uruguay, Mexico, Panama,

and Peru.

349

From French law, the olographic will was exported to Louisiana and

was enacted as part of the Digest of 1808. The drafters of the 1808 Digest,

however, appended additional language providing that the olographic will

could be “open or sealed,” but when sealed it needed to contain a

“superscription” signed by the testator stating that the document was “my

olographic will or codicil.”

350

Although not required, the Digest of 1808

suggested that it would be “prudent to deposit [the will] with a notary to

prevent its being purloined.”

351

Interestingly, when the Civil Code was

revised in 1825, the original proposal of the drafters was to impose

additional requirements that an olographic will “have the signatures of two

witnesses, to whom the testator [had] declared that the paper which he

offers them to sign is his testament.”

352

The drafters explained their

thought process as follows:

It appears to us, as the art of counterfeiting writing has been

carried to such an extent, that it is no longer safe to admit as certain

a testament, which has no other proof of its verity than the hand-

writing of the testator. A testament may be made in one or two

lines . . . . To be beyond the reach of this danger, we require that

the olographic testament should have the signature of two

witnesses; and in order that the testator be not bound to reveal to

them its contents, we do not oblige him to read it to them.

353

The above proposal, however, was never enacted. Instead, the 1825 Civil

Code adopted a streamlined version of the prior article and modeled it

345. Jansen, Testamentary Formalities in Early Modern Europe, in

ESTAMENTARY FORMALITIES, supra note 44, at 43.

346. Id.

347. B

ÜRGERLICHES GESETZBUCH [BGB] § 2247.

348. M

ALAURIE & BRENNER, supra note 223, at 254 (describing the olographic

will as “beaucoup la plus pratiquée en France”).

349. Schmidt, Testamentary Formalities in Latin America with Particular

Reference to Brazil, in T

ESTAMENTARY FORMALITIES, supra note 44, at 109–10.

350. L

A. CIV. CODE art. 103 (1808).

351. Id.

352. 1 L

OUISIANA LEGAL ARCHIVES 214 (1937).

353. Id.; see also Parker, supra note 27, at 23–28.

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1382 LOUISIANA LAW REVIEW [Vol. 80

heavily on the French Civil Code, which requires that the will be “entirely

written, dated, and signed by the hand of the testator” with no other form

requirements.

354

The same provision was retained in the 1870 revision

355

and is largely reflected in current law today.

356

A. Handwriting

Obviously, what distinguishes an olographic will from others is that

the olographic will is in the handwriting of the testator.

357

Webster’s Third

New International Unabridged Dictionary defines handwriting as a

“writing in which the hand forms the letters with a pen, pencil, stylus, or

similar writing implement.”

358

Black’s Law Dictionary similarly defines

handwriting as a “person’s chirography; the cast or form of writing

peculiar to a person, including the size, shape, and style of letters, and

whatever gives individuality to one’s writing.”

359

Some have posited that

the “use of hand printing or block lettering satisfies the handwriting

requirement.”

360

Pen, pencil, or a combination of the two should suffice as

long as the testator himself utilized the medium for writing.

361

Typewritten

documents or documents confected with stamps are clearly insufficient.

362

From the Anglo-American perspective, in which attested wills are the

norm, the reason for allowing holographic wills is that the “testator’s

handwriting provides an adequate substitute for the presence of

witnesses.”

363

From a civil law perspective, olographic wills are not

second-best substitutes to attested wills. They developed over a thousand

years ago in Roman times and have long been present in civil law.

354. LA. CIV. CODE art. 1581 (1825).

355. Id. art. 1588 (1870).

356. Id. art. 1575.

357. For a recent case in which the court denied probate of a purported

olographic will on the basis that the will was written by another who tried to

simulate the handwriting of the testator, see Succession of Olsen, __ So.3d __,

2020 WL 465560 (La. Ct. App. 5th Cir. 2020).

358. 2 W

EBSTER’S THIRD NEW INTERNATIONAL DICTIONARY, UNABRIDGED,

1028 (1986).

359. Handwriting, B

LACK’S LAW DICTIONARY (10th ed. 2014).

360. S

CHOENBLUM, supra note 4, § 20.5, at 275.

361. Id.; Succession of Smart, 36 So. 2d 639 (La. 1948).

362. S

CHOENBLUM, supra note 4, § 20.5, at 275–76.

363. Helmholtz, supra note 333, at 97.

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B. “Entirely” in the Testator’s Handwriting

Under the Louisiana Civil Code, an olographic will must be “entirely”

written, dated, and signed in the testator’s hand.

364

Consequently, in

addition to the dispositive provisions and, obviously, the signature, the

date must be in testator’s handwriting.

365

Although decided under the prior

version of the Louisiana Civil Code, the Louisiana Supreme Court has

noted that if part of the date is completed by someone other than the

testator, the entire will is invalid.

366

In fact, courts have been quite rigid in

requiring the date to be in the handwriting of the testator. In Succession of

Robertson, the Court held invalid an olographic will in which the first three

digits of the date—that is, 189—were in print, and the testator merely

supplied the last numeral.

367

The Court reasoned that “when the printed

matter is ignored,” it “rendered the date nonexistent.”

368

Although this

result seems dictated by legislation, the policy underlying it is

questionable, especially in light of the general insignificance of the date.

A question has also arisen as to the exact meaning of the word

“entirely.” Scholars have characterized olographic will laws that require

the will to be “entirely” written in the testator’s handwriting—like

Louisiana’s Civil Code article—as “first-generation” provisions,

presumably because these types of provisions were the first kinds of

olographic will statutes adopted in the United States. Obviously, the

dispositive provisions, the date, and the signature—the essential elements

of the will—must be in the testator’s handwriting, but what if the will

contains nonessential or superfluous elements that are typewritten or

preprinted? Louisiana has adopted the “surplusage” approach to this

problem, which, stated briefly, provides that “the portions of the document

in the testator’s handwriting are given effect as a holographic will if they

make sense as a will standing alone.”

369

One of the earlier Louisiana cases on this matter is Andrew’s Heirs v.

Andrew’s Executors, in which the Louisiana Supreme Court stated that the

presence of witness signatures on an olographic will did not invalidate it

merely because of the presence of writing not in the hand of the testator.

The Court upheld the validity of an olographic will to which the witnesses

364. LA. CIV. CODE art. 1575 (2018).

365. Id.

366. Succession of Robertson, 21 So. 586 (La. 1897); see also A

TKINSON,

supra note 176, at 308 (citing similar court decisions from other states).

367. Succession of Robertson, 21 So. 586.

368. Id.

369. R

ESTATEMENT (THIRD) OF PROPERTY: WILLS AND OTHER DONATIVE

TRANSFERS § 3.2 cmt. a (AM. LAW INST. 1999).

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1384 LOUISIANA LAW REVIEW [Vol. 80

attested because their signatures, which were at the bottom of the will and

“ma[d]e no part of it,” could be ignored as surplusage, and the remainder

of the document in the testator’s handwriting could be probated.

370

Similarly, in Heirs of McMichael v. Bankston, the plaintiff alleged that

an olographic will was invalid because it was not “wholly written” by the

testator.

371

Specifically, there were two words in the will, the word “to” in

the sixth line and the word “acres” in the eighth line, which were

apparently written by someone else.

372

Nonetheless, the Court enforced the

will because “the presence or absence of the two words can have no

material effect upon the meaning or contents of the will.

373

The Court

noted that “we may safely . . . consider them as not written, and not impair

the validity or effect of the will.”

374

Similarly, in Succession of

Heinemann, the children of the deceased, who were omitted from his

olographic will, sought to annul the will on, among other grounds, the

basis that the will was written on letterhead of the New Orleans Baseball

and Amusement Company and the place, “New Orleans, La.” was in print

rather than handwritten.

375

In evaluating the arguments of the plaintiff, the

Court noted that the printing of the location was not challenged by the

plaintiff because the plaintiff “correctly recognized that the place where

the will is written is properly no part of the date of the will and may be

disregarded, as not appearing, without affecting the validity of the will.”

376

The surplusage approach, however, does not universally mandate the

deletion of all preprinted material and the probate of the remaining

handwritten parts of a will. In some instances, the handwritten material is

insufficient to constitute an olographic will and thus cannot be given

effect. In Succession of Plummer, the plaintiff sought to probate as an

olographic will a revocable living trust with handwritten instructions

designating the beneficiaries and directing the management and division

of the trust upon his death.

377

The court found that the handwritten material

alone did not evidence testamentary intent.

378

Unlike prior cases, the court

noted that the trust instrument consisted of “several pages of printed words

that are an essential part of the trust instrument.”

379

The handwritten

370. Andrew’s Heirs v. Andrew’s Executors, 12 Mart. (o.s.) 713 (La. 1823).

371. Heirs of McMichael v. Bankston, 24 La. Ann. 451 (La. 1872).

372. Id.

373. Id. at 452.

374. Id.

375. Succession of Heinemann, 136 So. 51 (La. 1931).

376. Id. at 52.

377. Succession of Plummer, 847 So. 2d 185 (La. Ct. App. 2d Cir. 2005).

378. Id. at 187.

379. Id. at 189–90.

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portion was “inseparable” from the trust, and “all pages are essential to the

confection of the trust document.”

380

In distinguishing it from previous

cases involving preprinted stationery or letterhead, the court concluded

that it could not “ignore the printed words of the trust document because

they are inextricably tied to and form an integral part of the entire

document, thus negating the formal requirement that the will be entirely

written in the hand of the testator.”

381

Louisiana’s “surplusage” approach, however, is not the only way in

which preprinted matter in olographic wills could be handled. Second-

generation holographic will statutes tend to be modeled on the original

Uniform Probate Code provision and require only that the “signature and

the material provisions” of the olographic will be in the handwriting of the

testator.

382

This approach breaks from first-generation statutes and makes

clear that the will need not be “entirely” in the testator’s handwriting and

that both the handwritten and non-handwritten portions are part of the

will.

383

Even under this more permissive approach, however, questions

exist as to validity of a provision disposing of property to a legatee where

a boilerplate portion of the provision contains typewritten words of

disposition, such as “give, devise, and bequeath,” and only the name of the

legatee and the identity of the property are handwritten.

To address the above problem, some states have enacted so-called

third-generation statutes that are modeled upon a newer version of the

Uniform Probate Code, promulgated in 2008. These statutes require only

that the “signature and material portions of the document” be in the

testator’s handwriting.

384

As explained in the Restatement:

[T]he purpose of changing from “material provisions” to “material

portions” was to leave no doubt about the validity of a will in

which immaterial parts of a dispositive provision—such as “I

give, devise, and bequeath”—are not in the testator’s handwriting.

The material portion of a dispositive provision—which must be in

the testator’s handwriting under the Revised Uniform Probate

Code—are the words identifying the property and the devisee.

385

380. Id. at 190.

381. Id.

382. R

ESTATEMENT (THIRD) OF PROPERTY: WILLS AND OTHER DONATIVE

TRANSFERS § 3.2 cmt. a (AM. LAW INST. 1999).

383. Id. § 3.2 cmt. b.

384. Id. § 3.2 cmt. a.

385. Id. § 3.2 cmt. b.

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1386 LOUISIANA LAW REVIEW [Vol. 80

Just as with the common will formalities, the particular will

formalities for olographic wills have been part of the Louisiana law for

decades, if not centuries. Louisiana’s interpretation of these additional

formalities is somewhat traditional and has largely remained unchanged.

Although comparative research does not mandate the adoption by

Louisiana of the more permissive approaches taken elsewhere, practical

wisdom suggests that the Louisiana experience should at least be informed

by these alternative approaches.

PECIAL REQUIREMENTS OF NOTARIAL WILLS

Just as for olographic wills, additional special requirements exist for

notarial wills in Louisiana. Although many, if not all, of these

requirements can be traced back to the statutory will, the formalities

imposed for statutory wills were intended to make will execution easy and

efficient, and the requirements were historically interpreted liberally to

further that purpose. Despite this purpose and approach, as far back as the

1960s, commentators have noted that “the formalities prescribed [for

statutory and now notarial wills] . . . continue[] to be a source of

litigation.”

386

A. Signed at the End of Each Page and at the End of the Testament

The requirement that every page of the notarial will be signed appears

to be a somewhat unique Louisiana rule copied, most likely, from the same

innovation imposed upon statutory wills. As with the requirement of a

date, it is no doubt good practice—perhaps, best practice—to sign every

page of the will to eliminate any doubt as to the authenticity of the entirety

of the will. One court has observed that “[t]he purpose of the requirement

is to prevent fraud by the substitution of one typewritten page for another

after the execution of the will by the testator.”

387

Some scholars have

similarly noted that “[t]he logic behind this rule is to make it impossible

to remove or exchange pages.”

388

Although a laudable goal, indeed, once

again, Louisiana’s codification of this best practice has served as an enemy

of the good.

In addition, if the signing of each page of a notarial will is an absolute

requirement, why then is the testator of an olographic will required to sign

386. Carlos E. Lazarus, Successions and Donations—The Work of the

Appellate Courts—1968–1969, 30 L

A. L. REV. 197, 205 (1969).

387. Succession of Hoyt, 303 So. 2d 189 (La. Ct. App. 1st Cir. 1974).

388. Vékás, Testamentary Formalities in Hungary, in T

ESTAMENTARY

FORMALITIES, supra note 44, at 260.

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2020] WILL FORMALITIES IN LOUISIANA 1387

only at the end? Perhaps the handwritten nature of an olographic will is

enough protection to ensure validity and authenticity, and, no doubt,

olographic wills are much less likely than notarial ones to be multi-paged.

But surely the existence of the notary—if not the two witnesses—provides

a similar safeguard in the context of a notarial will, especially when a

lawyer or notary may retain a copy of the will and could testify as to the

authenticity of each page. Nonetheless, this requirement exists solely for

notarial wills,

389

and, although good practice, the requirement that each

page be signed has wrought substantial havoc in Louisiana law. For

instance, in Succession of Hoyt, a Louisiana court declared invalid a two-

page will that was signed only on the last page.

390

The court noted that

“[t]he failure of the testator to sign each sheet is fatal to the validity of the

will.”

391

Similarly, in Land v. Succession of Newsom, the court found that

failure to sign each page of a two-page will was “fatal” to the validity of

the entire will.

392

More recently, in In re Hendricks, the testator executed a multi-page

notarial will in which it was “undisputed that [the testator] did not sign one

of the pages of the . . . testament that contained dispositive provisions in

favor of his three sisters.”

393

In distinguishing Succession of Guezuraga,

in which the Louisiana Supreme Court upheld a will not signed on the page

containing only the “conclusion of the attestation clause,” the court in

Hendricks noted that the “attestation clause is a certificate to a will and not

part of the will itself,” whereas the dispositive provisions are of primary

concern to the testator.

394

Thus, the court concluded that “the formalities

prescribed for the execution of a testament [we]re not observed, [and,

consequently,] the [entire] testament [wa]s absolutely null.”

395

Additionally, in Successions of Toney, the Louisiana Supreme Court

invalidated a will that admittedly contained a number of deviations from

the requirements for notarial wills prescribed in the Louisiana Civil Code.

Notable for present purposes, however, was the Court’s following

observation:

389. Pintens, Testamentary Formalities in the France and Belgium, in

ESTAMENTARY FORMALITIES, supra note 44, at 61 (noting in the context of a

holographic will that a testator is not required to sign every page of the will).

390. Succession of Hoyt, 303 So. 2d 189.

391. Id.

392. Land v. Succession of Newsom, 193 So. 2d 411 (La. Ct. App. 2d Cir.

1966).

393. In re Hendricks, 28 So. 3d 1057, 1060 (La. Ct. App. 1st Cir. 2009).

394. Id. at 1063.

395. Id.

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1388 LOUISIANA LAW REVIEW [Vol. 80

[I]n this case, the first two pages of the will are not signed, but are

only initialed “R.T.” Further, the initials are in print rather than

cursive writing. Although signatures come in a variety of forms,

and although a few appellate courts have upheld wills where some

pages were initialed rather than signed, we note that La. Civ. Code

art. 1557(1) unambiguously requires the testator to “sign his name

at the end of the testament and on each other separate page,” and

merely initialing undoubtedly falls short of this requirement.

Particularly where, as here, the initials are written in easily

imitable print rather than cursive, we are hesitant to find that this

deviation from the codal requirement is merely minor or

technical.

396

Given the general flexibility of the signature requirement and the

traditionally liberal application of this requirement, the outcome of

Successions of Toney is puzzling. It is even more concerning when one

realizes that the liberality with which courts have treated signatures is

longstanding. Before the change to the law in 1999, Louisiana Revised

Statutes § 9:2442 required that the testator “sign each separate sheet of the

instrument.”

397

Several Louisiana courts interpreted the signature

requirement permissively. In fact, in Succession of Butler, the court was

clear that any mark or X can constitute a signature. The court explained

that “[w]e are of the opinion that the words ‘signed’ and ‘signature’

appearing in this statute do not mean that a testator must literally write his

or her name. An ‘X’ mark, properly witnessed, fulfills the requirement

thereof in this respect.”

398

Another court in Succession of Anderson echoed

this sentiment by holding:

[W]e think an “X” mark placed on the will by the testator, with

the intent that the affixing of that mark constitutes a signing of the

will, fulfills the requirement that the will be signed by the testator.

This is particularly true in a case such as this where the testator

does not know how or is not able to sign his name.

399

Curiously, in neither Toney nor Hendricks was there even a hint or

suggestion that foul play was involved. No claim was made that someone

inserted the unsigned page in the will in place of another page.

Nonetheless, the courts strictly followed the written law. In fact, in both

396. Successions of Toney, 226 So. 3d 397, 404 (La. 2017).

397. L

A. REV. STAT. § 9:2442 (repealed).

398. Succession of Butler, 152 So. 2d 239 (La. Ct. App. 4th Cir. 1963).

399. Succession of Anderson, 159 So. 2d 776 (La. Ct. App. 3d Cir. 1964).

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Hendricks and Toney, the courts noted the absence of any argument of

impropriety, other than, of course, failure to follow the form requirements.

The Hendricks court, like so many courts before it, recognized the

hardship but expressed concern about the slippery slope:

The fact that there is no fraud, or even suggestion or intimation of

it, will not justify the courts in departing from the codal

requirements, even to bring about justice in the particular instance,

since any material relaxation of the codal rule will open up a

fruitful field for fraud, substitution, and imposition.

400

Similarly, the Louisiana Supreme Court in Toney observed that

“[a]lthough fraud was not alleged at the trial court level, signing one’s

name on each page of the will undoubtedly offers more heightened

protection from surreptitious replacement of pages than mere initialing,

particularly when the initialing is in print rather than cursive as is found

here.”

401

Although some of the above judicial interpretations are undoubtedly

stricter than one might hope, one can hardly fault the courts for following

the law. Nevertheless, it is hard not to be reminded of the colloquy between

Mr. Brownlow and Mr. Bumble in the famous novel, Oliver Twist,

whereby the former accuses the latter of being responsible for conduct that

Mr. Bumble attributes to his own wife. After being accused by Mr.

Brownlow of being “the more guilty of the two, in the eye of the law; for

the law supposes that your wife acts under your direction,” Mr. Bumble

emphatically responds: “If the law supposes that . . . the law is a ass—a

idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish

the law is, that his eye may be opened by experience—by experience.”

402

So too should the law, in this instance, have its eyes opened by experience.

Experience has shown that although good practice would encourage

the signing of every page, it should hardly be an absolute bar to a will’s

validity. This approach holds true especially when no fraud or similar

allegation is made and when the testator made some identifying mark, such

as initialing, to indicate his assent to the will’s provisions. Some out-of-

state practitioners explain:

[I]t is a common or “best” practice, but not required by law, for

the testator to sign or initial every page of a traditional paper will,

as a low-tech safeguard against later substitution of an altered

400. In re Hendricks, 28 So. 3d 1057 (La. Ct. App. 1st Cir. 2009).

401. Toney, 226 So. 3d at 404–05.

402. C

HARLES DICKENS, OLIVER TWIST 403 (1867) (Bantam Classic ed. 1981).

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1390 LOUISIANA LAW REVIEW [Vol. 80

page. A more extreme safeguard is to fasten the pages of the paper

will together, before signing, using brass rivets or eyelets along

the top.

403

Experience from other jurisdictions and conventions is likewise

illuminating. The Uniform Law on International Wills also requires a

signature on every page, but it does not consider it a core formality; thus,

its absence does not affect the validity of the will.

404

Similarly, Hungarian

law requires that the pages be “consecutively numbered and signed by the

testator,” although only partial invalidity is the consequence under

Hungarian law for failing to sign every page.

405

Spanish law requires that

a testator sign each page only for closed or secret wills, which have all but

disappeared in practice.

406

Brazilian law also requires that multi-page

typed documents be only initialed on every page.

407

Dutch law provides

that every page of a notarial deed must “be initialed, except, of course, for

the last page which must be signed.”

408

Although the French Civil Code

does not require that a public will be initialed on every page by the testator,

French notarial law requires that “each page be initialed by the notary and

the signatories to the act under the penalty of nullity of pages of the act not

initialed.”

409

A recent case from the Cour de Cassation has made clear that

in executed wills, notaries must comply not only with the French Civil

Code, but also with French notarial law.

410

Thus, the court held invalid a

public will that had not been initialed by the testator.

411

Louisiana law is

perhaps the harshest, insofar as failure to sign, rather than initial, every

single page results in complete invalidity of the will.

412

Although perhaps

403. Jeffrey S. Dible, “Electronic Wills” in Indiana: Answers to Frequently-

Asked Questions at 6, (on file with author).

404. U

NIF. INT’L WILLS ACT arts. 1, 6; see also Zimmermann, Testamentary

Formalities in Germany, in T

ESTAMENTARY FORMALITIES, supra note 44, at 466.

405. Vékás, Testamentary Formalities in Hungary, in T

ESTAMENTARY

FORMALITIES, supra note 44, at 260.

406. Lapuente, Testamentary Formalities in Spain, in T

ESTAMENTARY

FORMALITIES, supra note 44, at 82, 89.

407. Schmidt, Testamentary Formalities in Latin America with Particular

Reference to Brazil, in T

ESTAMENTARY FORMALITIES, supra note 44, at 103.

408. Kolkman, Testamentary Formalities in the Netherlands, in

ESTAMENTARY FORMALITIES, supra note 44, at 167.

409. Decret, No. 71-941, art. 9, 26 Nov. 1971.

410. Cass. 1re civ., 10 Oct. 2012, No. 11-20702.

411. Id.; see also M

ALAURIE & BRENNER, supra note 223, at 300 (“S’il

comporte plusiers feuillets, tous doivent ȇtre paraphés.”).

412. Successions of Toney, 226 So. 3d 397, 404 (La. 2017).

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2020] WILL FORMALITIES IN LOUISIANA 1391

some jurisdiction may impose an even more rigid formality on this matter

than Louisiana, the present author has not found such a place or rule.

B. Executed in the Presence of a Notary and Two Witnesses

The requirements of a notary and two witnesses for notarial wills are

easy to state but deceptively complex in practice. As explained below,

there is ambiguity in the meaning of term “presence,” which is only

magnified by the double requirement of Louisiana law that the testator sign

in the presence of the notary and witnesses and that they sign in the

presence of the testator and each other. In addition, Louisiana wills have

at times been plagued by the problem of unqualified notaries. Finally, the

law has had to grapple with the correct number of qualified and

disinterested witnesses.

1. The “Presence” Requirement

In Louisiana, the requirement that a notarial will be signed by a notary

and two witnesses does not merely require that they must sign the will;

rather, they must sign in the “presence” of the testator and each other, and

the testator must sign in their “presence” as well. Although civil law

nuncupative wills historically had to be dictated by the testator and written

in the presence of witnesses,

413

the dual presence requirement of the

current law was likely taken from statutes in other states at the time of

enactment of the statutory will and probably owes its genesis to the

English Wills Act of 1837.

414

The current law, however, leaves many unanswered questions. First,

why must the testator sign in the presence of the witnesses and the notary?

Under prior law, a testator could execute a nuncupative will by private act

outside of the presence of the witnesses if he “presented the paper” on

which it was written and “declar[ed] to them that that paper contain[ed]

his last will.”

415

The requirement that the testator sign in the presence of

the witnesses and the notary is, perhaps, the easiest of the unanswered

questions to explain. It is not an uncommon requirement that documents

be executed before a notary and two witnesses, commonly known as an

413. Richard v. Richard, 57 So. 28 (La. 1912) (holding a will invalid when it

was not “dictated by the testator or written by the notary in the presence of the

witnesses”).

414. R

ESTATEMENT (THIRD) OF PROPERTY: WILLS AND OTHER DONATIVE

TRANSFERS § 3.1 cmt. p (AM. LAW INST. 1999).

415. L

A. CIV. CODE art. 1581 (1871) (repealed).

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1392 LOUISIANA LAW REVIEW [Vol. 80

authentic act.

416

The purpose behind this requirement is to instill an “air of

solemnity and formality created by the execution of an act before a notary

and witnesses, designed to fulfill a cautionary function and induce the

parties to a final reflection on the wisdom of the act.”

417

Although a strong

argument could be made for allowing a testator to sign his will in private

and thereafter acknowledge it before a notary—or even a notary and two

witnesses—such a formality, commonly known as an act duly

acknowledged, would not receive the same level of proof as an authentic

act

418

and cannot currently “substitute for an authentic act.”

419

The

Louisiana Supreme Court has held similarly in Succession of Pope, a case

in which the testator signed his will while in his office and in the presence

of two witnesses.

420

The testator thereafter “repaired to the courthouse

(about two or three blocks away from the office of the deceased)

where . . . [the notary] affixed his signature in the presence of the testator

and . . . one of the witnesses.”

421

The Court, with little discussion, declared

the will invalid for failure to follow the “mandatory provisions of the

statute.”

422

Second, why must the witnesses and the notary, after having witnessed

the testator sign, then sign in the presence of the testator? Some have

suggested that the purpose of this requirement is to make certain that the

will being signed is the will of the testator. Although this argument might

sound facially appealing, it does not withstand scrutiny. If the concern is

that the witnesses have signed a forged document not actually signed by

the testator, surely allowing the testator to acknowledge his will to the

witnesses would suffice. The fact that the testator happens to be out of the

room when the witnesses sign, after having heard the testator’s

acknowledgement and after having seen him sign, seems irrelevant. If the

concern is that the “entire transaction is fictitious, it is as easy to testify to

the presence of the testator as to any other facts which did not happen.”

423

Moreover, “[i]f the will is the real expression of testator’s wishes and his

name thereto is genuine, it is difficult to see what opportunity there is for

substitution by permitting the witnesses to sign out of [the testator’s]

416. See LA. CIV. CODE art. 1833.

417. S

AÚL LITVINOFF, THE LAW OF OBLIGATIONS § 12.7, in 5 LOUISIANA

CIVIL LAW TREATISE (2001).

418. Compare L

A. CIV. CODE art. 1835, with LA. CIV. CODE art. 1836.

419. L

A. CIV. CODE art. 1836.

420. Succession of Pope, 89 So. 2d 894, 898 (La. 1956), overruled on other

grounds by Succession of Jenkins, 481 So. 2d 607 (La. 1986).

421. Id.

422. Id.

423. S

CHOENBLUM, supra note 4, § 19.120, at 210–11.

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presence.”

424

The real effect of this requirement, it is suggested, is to

“render invalid a great many wills which are genuine expressions of the

testator’s wishes.”

425

Third, why must the witnesses and the notary sign in the presence of

each other? Imagine a scenario in which a testator signs his will in the

presence of a notary and two witnesses, after which one witness signs in

the presence of all other parties but is then called away by an emergency.

After the first witness leaves, the second witness signs in the presence of

the testator and the notary, and the notary signs in the presence of the

testator and the remaining witness. Under Louisiana law, the above will

would be invalid because the second witness and the notary did not sign

in the presence of the first witness, and article 1577 requires that each

witness and the notary sign “[i]n the presence of the testator and each

other.”

426

Again, it is worth remembering that this presence requirement is taken

from the English Wills Act as it was adapted into the law of other states in

the mid-20th century. Prior law on nuncupative wills did not require the

witnesses to sign the will in the presence of each other. In fact, in

Succession of Bush, the plaintiff alleged that the will was invalid because

“the witnesses did not affix their names in the presence of each other.”

427

The Court noted that although the requirement that the witnesses sign in

each other’s presence had been stated in dicta, there was “no specific

provision of the Civil Code obligating the witnesses to sign in the presence

of each other.”

428

Nevertheless, the Court quickly dismissed the argument,

as “the preponderating evidence establishe[d] that the witnesses signed in

the presence of each other.”

429

In Stephens v. Adger, the Court even more

emphatically declared that a nuncupative will by private act “does not

require the signing of the will by the witnesses in each other’s presence”

because there is “no provision requiring the witnesses to affix their

signatures to the will at the same time, or that it shall be signed

simultaneously or that the witnesses shall act in concert with each

other.”

430

Fourth and finally, what is meant by the term “presence”? As noted by

the Restatement, “[t]here are two interpretations of the presence

requirement, the line-of-vision presence and the conscious-presence

424. Id.

425. Id.

426. L

A. CIV. CODE art. 1577.

427. Succession of Bush, 67 So. 2d 573, 578 (La. 1953).

428. Id.

429. Id.

430. Stephens v. Adger, 79 So. 2d 491 (La. 1955).

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1394 LOUISIANA LAW REVIEW [Vol. 80

test.”

431

Under the line-of-sight test, “the witnesses [and notary] must sign

within the testator’s ‘line of vision,’” as well as the line of vision of each

other.

432

If the line-of-sight test is adopted, it is noteworthy that the literal

language of article 1577—that is, “in the presence”—does not require the

parties “to have watched [each other] sign, as long as [they] could have

watched [each other] sign.”

433

The jurisprudence, however, suggests that

the presence requirement may require that the parties actually witness the

signing, rather than merely finding that they could have witnessed it. In

Succession of Daigle, the court noted that “the record supports the trial

court’s finding that the purported witnesses did not actually witness the

testatrix’s signature nor did they sign in the presence of the notary, the

testatrix, and each other.”

434

In discussing the line-of-sight test, some authority has suggested that

acts done in the same room should be prima facie evidence that they are

done in the presence of the parties, whereas those done in different rooms

should be prima facie evidence of the opposite.

435

Under the line-of-sight

test, however:

Two persons are [also] in the presence of each other if they are in

the adjoining offices separated by a window which is raised, and

through which each can see the other; or if one of them is outside

the office on the street, but they can see each other through the

office window.

436

In contrast, the Restatement adopts the “conscious presence” test,

rather than the “line-of-sight” test.

437

In explaining its rationale, the

drafters note that:

A person can sense the presence or actions of another without

seeing the other person. If the testator and the witnesses are near

enough to be able to sense each other’s presence, typically by

being within earshot of one another, so that the testator knows

431. RESTATEMENT (THIRD) OF PROPERTY: WILLS AND OTHER DONATIVE

TRANSFERS § 3.1 cmt. p (AM. LAW INST. 1999).

432. Id.

433. Id.

434. Succession of Daigle, 601 So. 2d 10, 13 (La. Ct. App. 3d Cir. 1992)

(emphasis added).

435. S

CHOENBLUM, supra note 4, § 19.122, at 215.

436. Id.

437. R

ESTATEMENT (THIRD) OF PROPERTY: WILLS AND OTHER DONATIVE

TRANSFERS, § 3.1 cmt. p.

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what is occurring, the presence requirement is satisfied.

438

At least one case in Louisiana appears to have explicitly adopted the

line-of-sight test. Namely, in Succession of Smith, a Louisiana court of

appeal reversed a trial court that held invalid a will that was confected by

a testator from a hospital bed and that was witnessed by two nurses, one

of whom observed the testator sign not from the room itself but while

standing in the doorway.

439

The court stated: “When a testator signs a will

in a small hospital room, a witness may see the signing more clearly from

outside of the doorway than if a testator signed the document in a much

larger room in which the witness was standing at the other end.”

440

Nonetheless, the court still found the will to be invalid because the notary

and the witnesses signed the will later at the nurses’ station and outside of

the presence of the testator. Thus, even though they observed the testator

sign the will, the “presence” requirement for notarial wills was not met.

441

Whichever type of presence interpretation the Louisiana courts adopt, the

matter is doubly important in this state, which requires both that the

testator be “[i]n the presence of the notary and two competent witnesses”

and that the notary and the witnesses be “[i]n the presence of the testator

and each other.”

442

The Uniform Probate Code has, by and large, eliminated the

“presence” requirement altogether. Under § 2-502, the will must be signed

by two witnesses, “each of whom signed within a reasonable time after the

individual witnessed either the signing of the will . . . or the testator’s

acknowledgment of that signature or acknowledgement of the will.”

443

Thus, not only does the Uniform Probate Code allow for witnesses to sign

after they have witnessed the event, but it even allows them—as many

states do—to sign as witnesses when the testator has only acknowledged

his signature or will to them after he has executed it.

444

Moreover, the

comments to the Uniform Probate Code are clear that signing “within a

reasonable time after” witnessing the testator’s signing or

438. Id.

439. Succession of Smith, 806 So. 2d 909 (La. Ct. App. 5th Cir. 2002)

(invalidating a will that was signed by two witnesses when one of the witnesses

testified that the witnesses were not present at the time the testator signed the will

and that they signed the will later in their respective homes outside the presence

of the testator).

440. Id. at 912.

441. Id.

442. Id.

443. U

NIF. PROB. CODE § 2-502.

444. Id.

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acknowledgment could be satisfied by a signing that occurs after the death

of the testator.

445

After all, “[t]here is . . . no requirement that the witnesses

sign before the testator’s death.”

446

In one instance, however, the Uniform

Probate Code retains a “presence” requirement, namely, if the will is

signed at the testator’s direction by someone other than the testator. If such

is the case, the person signing on behalf of the testator may only do so if

he signs in the testator’s “conscious presence” and at the “testator’s

direction.”

447

2. The Notarial Requirement

A notarial will, as its name suggests, requires the presence and signing

by a notary. The office of notary is a public office appointed by the

governor and conferred after an applicant has met various qualifications.

448

Notaries, as a general matter, maintain a parish-wide commission and are

authorized to perform certain legal functions within the jurisdiction of

their parishes.

449

Persons licensed to practice law in Louisiana and those

notaries who have taken and passed the notarial examination after June 13,

2005, however, may exercise the functions of a notary public in every

parish in this state.

450

The requirement of a notary is common in Louisiana, especially for

gratuitous transfers. The general rule for donations inter vivos is that they

must be executed before a notary and two witnesses. The notarial will, of

course, adds even more formalities, such as signing on every page and the

requirement of an attestation clause. Be that as it may, some basic notarial

rules are applicable for wills just the same. The notary must sign in his

official capacity and not in his private capacity as a mere witness.

451

Similarly, a private witnessed writing that is subsequently acknowledged

before a notary will not suffice to meet the requirements of a notarial

will.

452

Despite the commonality of the notary requirement in Louisiana, two

matters merit consideration: (1) the problem of unqualified notaries; and

(2) the problem of interested notaries. On occasion, courts have had to

consider the effects of a notary who exercises notarial functions outside of

445. Id. § 2-502 cmt.

446. Id.

447. Id. § 2-502.

448. L

A. REV. STAT. § 35:1 (2019).

449. Id. § 35:2.

450. Id. at 35:191(P).

451. Spanier v. De Voe, 27 So. 174 (La. 1900).

452. Id.

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his jurisdiction or of attorneys who are disbarred or suspended from the

practice of law who persist in exercising notarial functions.

453

The Civil

Code purports to answer the question in article 1834 by stating that “[a]n

act that fails to be authentic because of the lack of competence or capacity

of the notary public . . . may still be valid as an act under private

signature.”

454

Eminent authority has concurred in stating that “an act

executed before a notary without jurisdiction in the parish where the act

takes place is not an act executed before a competent notary and therefore

is not authentic.”

455

Nonetheless, courts have created a safety net for some

transactions pursuant to the “de facto officer” doctrine, which allows some

individuals to be treated as notaries and other officers, even though “under

the law . . . [they have] no right or title to that office.”

456

The idea of de

facto officers is well rooted in Louisiana jurisprudence and, as some have

noted, dates back to 1830.

457

As stated in jurisprudence, the de facto officer doctrine generally has

three requirements: (1) “[t]he office involved must exist as a de

jure office”; (2) “the holder must have attained that office under some

color of title”; and (3) the holder “must be in actual physical possession of

the office.”

458

Under the first requirement, the party claiming to occupy a

de facto office can only do so if a de jure office of the same title exists.

For example, one cannot claim to occupy the de facto position of Holy

Roman Emperor because such an office no longer exists. More pertinently,

the Louisiana Supreme Court in Garnier v. Louisiana Milk Commission

evaluated a claim by a party that he occupied a position on the Milk

Commission because the statute named, as an ex officio member, the

Secretary of the Louisiana State Live Stock Sanitary Board, a position to

which he had been appointed.

459

Because no such position actually existed,

453. See, e.g., LA. REV. STAT. § 35:14:

Any attorney at law, or person who was an attorney at law, who is

disbarred or suspended from the practice of law due to charges filed by

the Committee on Professional Responsibility of the Louisiana State Bar

Association or who has consented to disbarment shall not be qualified or

eligible nor shall he exercise any functions as a notary public in any

parish of the state of Louisiana as long as he remains disbarred or

suspended from the practice of law in Louisiana.

454. L

A. CIV. CODE art. 1834 (2019).

455. L

ITVINOFF, supra note 417, § 12.21.

456. Henry J. Dauterive, Jr., Comment, De Facto Public Officers in Louisiana,

12 L

A. L. REV. 200, 200 (1952).

457. Id.

458. Succession of Wafer, 715 So. 2d 672, 674 (La. Ct. App. 2d Cir. 1998).

459. Garnier v. Louisiana Milk Commission, 8 So. 2d 611 (La. 1942).

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1398 LOUISIANA LAW REVIEW [Vol. 80

the plaintiff claimed that that he was a de facto, rather than de jure, member

of the commission, as he was in possession of the office “under apparent

color of title.”

460

The Court denied the claim on the basis “that one may

not claim to be a de facto officer unless there is a de jure office in

existence.”

461

In the context of wills, however, this element is rarely a

problem, “given that the office of Notary Public exists by statute, [such

that this] first requirement is clearly met.”

462

Under the second requirement, the holder must have attained that

office under some color of title. In other words, the doctrine is only

applicable for individuals who “have achieved this position . . . by virtue

of some appointment or election, however irregular or informal.”

463

Thus,

a usurper with no legitimate claim or color of title to an office cannot

utilize the de facto officer doctrine. The policy behind this requirement is

that the individual claiming de facto status has some reputation for holding

the office he now assumes, and the general public has acquiesced to his

authority.

464

A private citizen with no colorable claim to or reputation for

holding the office of notary public who takes it upon himself to notarize

wills is likely not the type of person who could benefit from the de facto

notary doctrine.

Under the third and final requirement, the claimant must be in actual

physical possession of the office.

465

The jurisprudence has not extensively

discussed this requirement, but it appears that “actual physical possession”

requires a “good faith[] and faithful exercise of the functions of the

office.”

466

Thus, those who innocently or perhaps negligently exercise

notarial functions after their right to do so has ceased likely have a valid

claim to a “good faith” exercise of the functions of the notarial office.

The de facto doctrine has received regular application in relation to

notarization, especially in the context of wills. For example, in Succession

of Wafer, a notary commissioned in Natchitoches Parish notarized a

statutory will in Bienville Parish—a parish where she did not have de jure

authority.

467

The court noted that the prerequisites for the de facto notary

doctrine were met and that the notary had on at least one other occasion

notarized documents in Bienville Parish.

468

Similarly, in Succession of

460. Id.

461. Id.

462. Succession of Wafer, 715 So. 2d at 674.

463. Dauterive, supra note 456, at 204; Succession of Wafer, 715 So. 2d at 674.

464. Dauterive, supra note 456, at 204.

465. Succession of Wafer, 715 So. 2d at 674.

466. Dauterive, supra note 456, at 205; Succession of Wafer, 715 So. 2d at 674.

467. Succession of Wafer, 715 So. 2d at 674.

468. Id.

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Sampognaro, the court held valid a will notarized by a disbarred lawyer

by virtue of his exercise of the powers of a de facto notary.

469

In so holding,

the court noted that the disbarred lawyer had applied for and received a

notarial commission after his disbarment, and there was no evidence

indicating that the decedent understood that the disbarred attorney was

unqualified to notarize her will.

470

The de facto notary doctrine, although routine in its application in

these contexts, is not universally accepted by courts. For example, in

Succession of Plauche, the court rejected application of the de facto notary

doctrine and found invalid a will executed by an attorney who was

suspended from the practice of law.

471

The court noted that the attorney

remained suspended when he notarized the will—an action in violation of

the law, which prohibited him from exercising notarial functions.

472

Because the attorney was prohibited from acting as a notary on the day

that the will was executed, the will was not properly executed and was

therefore invalid.

473

Assuming the notary is validly commissioned, another potential

stumbling block exists, namely, the prohibition that the notary to the will

may not be a legatee to the will that is being notarized.

474

This issue is not

new in Louisiana law. Even before a Civil Code article on the topic

existed, the jurisprudence was clear that a notary to the will could not also

be a legatee. In Succession of Purkert, the Louisiana Supreme Court

explained that, even in the absence of an express prohibition in the Civil

Code, a “notary public cannot serve as such in any deed to which he is a

party or which is made directly to him personally,” as he “acts in a quasi-

judicial capacity, not only in the making of nuncupative wills by public

act, but in many proceedings which are had before notaries public.”

475

Cases, however, were clear that the will itself was not invalid, but the

legacy to the notary was ineffective.

476

Additionally, if the notary

renounced his legacy, the defect in the will was cured.

477

Current law

continues the prohibition on interested notaries and now makes abundantly

clear that the will is not invalid, but the legacy to the notary or the spouse

469. Succession of Sampognaro, 890 So. 2d 704 (La. Ct. App. 2d Cir. 2004).

470. Id.

471. Succession of Plauche, 866 So. 2d 1063 (La. Ct. App. 5th Cir. 2004).

472. Id.

473. Id.

474. L

A. CIV. CODE art. 1582 (2018).

475. Succession of Purkert, 167 So. 444 (La. 1936).

476. Succession of Killingsworth, 194 So. 2d 331 (La. Ct. App. 1st Cir. 1966).

477. Succession of Rome, 478 So. 2d 1270 (La. Ct. App. 5th Cir. 1985).

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1400 LOUISIANA LAW REVIEW [Vol. 80

of the notary is not valid.

478

There is no rule, as exists for witnesses

(discussed below), that allows notaries who would otherwise be intestate

heirs of the testator to continue to inherit. As the comments to article 1582

observe, the notary “performs a more solemn function than the witnesses

and is a public officer. The notary remains prohibited from taking under

the testament.”

479

3. The Witness Requirement

Just as with authentic acts in general, notarization alone is not

sufficient for a notarial will; it also requires the signatures of two

witnesses. The witness requirement for notarial wills is directly connected

with the statutory will, which was a product of the Anglo-American

attested will that required a will to be attested by two witnesses. The

requirement of attestation by witnesses became prevalent with the Statute

of Frauds of 1677.

480

Prior to then, the only requirement under the Statute

of Wills of 1540 was that devises be in writing, but even then this

requirement pertained only to personal property. Land was not subject to

probate at all in 1677.

481

The Statute of Frauds was passed to curb fraud

and forgery, which were prevalent in the 16th century, and to create a

reliable substitute to probate land.

482

Despite the obvious change in the

legal landscape between 1677 and the present day, two witnesses are still

required today under Louisiana law. Just as with notaries, however, issues

of qualifications exist, as does the concern for interested witnesses.

a. Capacity to Be a Witness

Stated simply, “[a] person cannot be a witness to any testament if he

is insane, blind, under the age of sixteen, or unable to sign his name.”

483

This capacity requirement is clearly designed to ensure that witnesses to

wills have some minimum level of understanding of the role, an ability to

read the necessary attestation clause, and the capability of signing the same

attestation clause. Nonetheless, the terminology employed in article 1581

is somewhat antiquated and cryptic, particularly the reference to insanity.

Although standards for capacity are common throughout the Louisiana

478. Id.

479. L

A. CIV. CODE art. 1582 cmt. (b).

480. A

TKINSON, supra note 176, at 17.

481. James Lindgren, Abolishing the Attestation Requirement for Wills, 68

N.C.

L. R

EV. 541, 551 (1990); see also Lindgren, supra note 23, at 1029–30.

482. Lindgren, supra note 481, at 552.

483. L

A. CIV. CODE art. 1581.

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Civil Code, the standard for insanity is not. Other provisions of law

disqualify those who are interdicted from performing certain legal acts,

but the Louisiana Supreme Court, in interpreting prior law, has held that

the standards for insanity and interdiction are not the same.

484

Although

article 1581 was revised as recently as 1997, the “insanity” standard

appears to be a throwback from old law and prior days.

The capacity rule for witnesses in Louisiana is not derived from

French law, which provides that “[w]itnesses called to be present at

testaments must understand the French language and be majors, know how

to sign and have the enjoyment of their civil rights. They may be of one or

the other sex but a husband and a wife may not be witnesses to the same

act.”

485

The capacity rule in Louisiana is also different from other states

where no special qualities are required, and witnesses need only be

“generally competent.”

486

Although some states set a minimum age of 14

or 18 to witness wills, most do not and generally allow anyone who is

“able to understand the significance of an oath” to be a witness, even if the

witness is a minor.

487

Additionally, for wills executed by testators who are

unable to read, a witness “who is competent but deaf or unable to read

cannot be a witness to [that testator’s] notarial testament under Article

1579.”

488

This approach seems sensible enough, as witnesses under article

1579 must listen to the reading of the will and follow along on a copy.

The rules on witness competency today are based on the rules under

article 1591 from 1870.

489

Prior law made clear that the prohibition

imposed was one of “absolute incapa[city],” such that violation of the rule

results in an absolute nullity.

490

The same should be true today because an

incompetent witness to a notarial will would mean that the will was not

executed in compliance with the prescribed formalities. Unlike the de facto

484. Succession of Koerkel, 76 So. 2d 730 (La. 1954).

485. C. C

IV. art. 980. The original provision in the Code Napoléon also fails

to correspond to Louisiana law on this topic. See C

ODE NAPOLÉON art. 980 (1804).

The de la Vergne manuscript references Spanish law and Domat, but neither are

particularly good matches. See, e.g., A

EPRINT OF MOREAU LISLET’S COPY OF A

DIGEST, supra note 26, at 230-32; see also 2 THE LAWS OF THE SIETE PARTIDAS,

supra note 26, at 964.

486. U

NIF. PROB. CODE § 2-505(a); MCGOVERN, ET AL., supra note 4, at 205;

ESTATEMENT (THIRD) OF PROPERTY: WILLS AND OTHER DONATIVE TRANSFERS

§ 3.1 cmt. o (A

M. LAW INST. 1999).

487. M

CGOVERN, ET AL., supra note 4, at 205; RESTATEMENT (THIRD) OF

PROPERTY: WILLS AND OTHER DONATIVE TRANSFERS, § 3.1 cmt. (o).

488. Id.

489. L

A. CIV. CODE art. 1591 (1870).

490. See id.

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1402 LOUISIANA LAW REVIEW [Vol. 80

officer doctrine for incompetent notaries, there is no de facto doctrine for

witnesses. The consequence is harsh, but a will witnessed by an

incompetent witness is absolutely null.

b. “Disinterested” Witnesses

In addition to capacity, Louisiana law also requires witnesses to a will

to be disinterested. Specifically, a witness may be neither a legatee nor a

spouse of a legatee.

491

This prohibition is longstanding in Louisiana law.

Prior to current article 1582, article 1592 of the Louisiana Civil Code of

1870 declared that for nuncupative wills, “[n]either can testaments be

witnessed by those who are constituted heirs or named legatees, under

whatsoever title it may be.”

492

The question remained, however, as to the

applicability of this prohibition to statutory wills, which originally

contained no such explicit prohibition in Title 9. The Court in Evans v.

Evans held that the prohibition in the prior article 1592 applied equally to

statutory wills, and thus the entire will was invalid when a witness was

interested.

493

The Court reasoned that it had previously held in Succession

of Eck that the provisions of the Louisiana Civil Code should be

incorporated into the law on statutory wills.

494

As such, the prohibition on

interested witnesses applied with equal force to a statutory will.

495

In so

holding, the Court reversed the lower courts, which had held merely that

the legacy to the witness was invalid. The Court noted, however, that the

sanction provided in the Civil Code for noncompliance with the

formalities of wills is that the will is “null and void.”

496

It is not an uncommon requirement that a witness not be a legatee.

French law has long prohibited interested witnesses.

497

The same is true in

common law courts, where “a person who had a direct pecuniary interest

in the outcome of the litigation[] was incompetent to testify.”

498

The result,

491. LA. CIV. CODE arts. 1582, 1582.1.

492. L

A. CIV. CODE art. 1592 (1870).

493. Evans v. Evans, 410 So. 2d 729, 731–32 (La. 1981).

494. Id. (citing Succession of Eck, 98 So. 2d 181 (La. 1957)).

495. Id.

496. Id. (citing L

A. CIV. CODE art. 1595 (1870)); see also Johnson, supra note

328, at 602–03 (suggesting that the solution of the court, although properly

reasoned, may be “too extreme” and that perhaps legislative attention is required).

497. C.

IV. art. 975 (Fr.); see also Pintens, Testamentary Formalities in

France and Belgium, in T

ESTAMENTARY FORMALITIES, supra note 44, at 62;

LANIOL, supra note 273, at 330.

498. S

CHOENBLUM, supra note 4, § 19.80, at 152; EUNICE L. ROSS & THOMAS

J. REED, WILL CONTESTS § 5:4 (2d ed. 1999).

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of course, was that the entire will could not be probated. This harsh result

was changed in England by statute in 1752, such that the will was not

invalid, but the legacy to the witness was voided.

499

This same approach

continued in the English Wills Act of 1837.

500

These so-called “purging”

statutes, which upheld the will but purged the interested legatee of his

legacy, became popular throughout the United States.

501

Of course, the “purging” rule may also be excessively onerous because

children or descendants of the testator who witness a will would, even in

the absence of the will, inherit from the decedent. Thus, their status as

“interested” witnesses seems weaker or even nonexistent in the context in

which a witness may receive more in intestacy than he would have

received under the will. In fact, a witness who does not receive more under

the will than he would under intestacy arguably is not an “interested”

witness at all.

502

As a result:

[M]ost American purging statues provide a partial exception for a

devisee who is also an heir of the testator or a devisee under the

testator’s prior will. Under this exception, an heir or devisee

forfeits only that portion of his or her devise that exceeds the

amount that he or she would have taken by intestacy or under a

prior will if the will in question were invalid.

503

Even this prohibition, however, has been subject to criticism by scholars

who have argued that “[s]ome requirements, like the one that witnesses be

disinterested, probably do more harm than good; for every attempted fraud

which these rules prevent, hundreds of genuine wills may be defeated by

them.”

504

The Uniform Probate Code has abandoned the requirement of

disinterested witnesses and now provides that “[t]he signing of a will by

an interested witness does not invalidate the will or any provision of it.”

505

The drafters explain their rationale, which is not to “foster the use of

interested witnesses,” but to delete the previous penalty associated with

499. SITKOFF & DUKEMINIER, supra note 4, at 157.

500. Wills Act, 7 Will. 4 & I Vict. c. 26 (1837).

501. S

ITKOFF & DUKEMINIER, supra note 4, at 157; RESTATEMENT (THIRD) OF

PROPERTY: WILLS AND OTHER DONATIVE TRANSFERS § 3.1, at 175 (AM. LAW

INST. 1999); MCGOVERN, ET AL., supra note 4, at 206; SCHOENBLUM, supra note

4, § 19.87, at 160–62.

502. M

CGOVERN, ET AL., supra note 4, at 207; SCHOENBLUM, supra note 4, §

19.86, at 160.

503. R

ESTATEMENT (THIRD) OF PROPERTY: WILLS AND OTHER DONATIVE

TRANSFERS § 3.1 cmt. o, at 176.

504. M

CGOVERN, ET AL., supra note 4, at 199.

505. U

NIF. PROB. CODE § 2-505(b).

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1404 LOUISIANA LAW REVIEW [Vol. 80

the formality because it does “not increase appreciably the opportunity for

fraud or undue influence.”

506

After all, a legatee who is a witness to a will

is “itself a suspicious circumstance” that could likely be challenged on the

grounds of undue influence.

507

Louisiana, however, goes even further in prohibiting not only legatees

from witnessing wills but also spouses of legatees from witnessing wills.

The prohibition on a spouse of a legatee was originally enacted in 2003 in

Civil Code article 1582.1. It was not part of the prior law, and, in fact, the

jurisprudence was previously clear that a legacy to the husband of a

witness was not prohibited.

508

Moreover, this new prohibition was not

included in the revision to the law of donations proposed by the Louisiana

State Law Institute in 1997. Rather, it was added later without the input of

the Law Institute. In fact, the original prohibition on spouses of witnesses

was done quite inartfully and was even more restrictive than the

prohibition on legacies to witnesses. It provided that “[a] spouse of a

legatee may not be a witness to any testament. The fact that a witness is

the spouse of a legatee does not invalidate the testament; however, a legacy

to a witness’ spouse is invalid.”

509

The next year, the provision was

modified to adopt the purging rule that was applicable for legacies to

witnesses.

510

The article contains no comments to explain its rationale, and

the rule contained within it is certainly not prominent in other states.

English courts, however, have held that the interested witness statute

applies to spouses of legatees, and the statutory law was amended to make

that clear.

511

The English Wills Act provides that:

If any person shall attest the execution of any will to whom or to

whose wife or husband any beneficial devise, legacy, estate,

interest, gift, or appointment . . . shall be thereby given or made,

such devise, legacy, estate, interest, gift, or appointment shall, so

far only as concerns such person attesting the execution of such

will, or the wife or husband of such person, or any person claiming

under such person or wife or husband, be utterly null and void,

and such person so attesting shall be admitted as a witness to prove

the execution of such will, or to prove the validity or invalidity

506. Id. § 2-505(b) cmt.

507. Id.

508. Succession of Eck, 98 So. 2d 181 (La. 1957).

509. La. Acts 2003, No. 707.

510. La. Acts 2004, No. 231.

511. R

ESTATEMENT (THIRD) OF PROPERTY: WILLS AND OTHER DONATIVE

TRANSFERS § 3.1 cmt. o (AM. LAW INST. 1999); see also 7 Wm. 4 & 1 Vict., c.

26, § 15.

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thereof, notwithstanding such devise, legacy, estate, interest, gift,

or appointment mentioned in such will.

512

In the United States, however, “the spouse of a devisee is not an

‘interested’ witness unless the purging statute expressly voids all or a

portion of a devise to a devisee if his or her spouse serves as an attesting

witness.”

513

Few states in the United States extend their purging statute as

far. One exception is Connecticut, which provides that:

Every devise or bequest given in any will or codicil to a

subscribing witness, or to the husband or wife of such subscribing

witness, shall be void unless such will or codicil is legally attested

without the signature of such witness, or unless such devisee or

legatee is an heir to the testator.

514

Louisiana, of course, does the same. Few cases, however, seem to have

arisen in Louisiana in which witnesses or spouses of witnesses have

abused their position to obtain an improper disposition from the

testator. Surely, the notary serves some protective function against

witness misconduct, and one wonders whether the “interested”

witnesses rule should be reexamined or at least tempered in Louisiana

in light of experience both at home and in other states.

c. “Two” Witnesses and Supernumerary Witnesses

The idea of two witnesses signing the testator’s will reminds one of

the requirements of an authentic act, but it likely originated in the English

Wills Act of 1837, which required “two or more witnesses” to attest to the

testator’s signing.

515

Modern American legislation almost universally

requires two witnesses, although three were previously not uncommon,

516

and “a will which [wa]s subscribed by a less[er] number of competent

witnesses [wa]s invalid.”

517

Extra witnesses, sometimes called

“supernumerary” witnesses, are acceptable,

518

and they may also receive

512. Wills Act, 7 Will. 4 & I Vict. c. 26 (1837).

513. R

ESTATEMENT (THIRD) OF PROPERTY: WILLS AND OTHER DONATIVE

TRANSFERS§ 3.1 cmt. o.

514. C

ONN. GEN. STAT. § 45a-258 (2019).

515. Wills Act, 7 Will. 4 & 1 Vict. c. 26, § 9 (Eng).

516. S

CHOENBLUM, supra note 4, § 19.75, at 144; RESTATEMENT (THIRD) OF

PROPERTY: WILLS AND OTHER DONATIVE TRANSFERS § 3.1 cmt. o.

517. S

CHOENBLUM, supra note 4, § 19.75, at 144.

518. M

CGOVERN, ET AL., supra note 4, at 207.

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legacies without the will being jeopardized or the legacy being purged.

519

By the same rationale, “if a will can be probated as a holograph, a devise

to a subscribing witness is valid.”

520

French law still requires that public wills be executed before a notary

and two witnesses, unless two notaries are present, in which case no

witnesses are needed.

521

Québec law has separate types of wills, some of

which can be notarized with one witness and others that can be witnessed

but without the need of a notary.

522

German law does not require witnesses

and allows wills under holographic form or by declaration to a notary.

523

Spanish law has virtually abolished the witness requirement for notarized

wills since 1991, save very exceptional cases. The logic behind the

abolition of witnesses is that “the presence of a notary more than

sufficiently cover[s] the ritual role that was previously filled by

witnesses.”

524

Furthermore, although witnesses originally were viewed as

a check on the testator in Dutch law, “this role was increasingly seen as

being redundant . . . [and] the requirement of the presence of witnesses

constituted a failure to appreciate the role of the notary.”

525

In the

Netherlands, the requirement of two witnesses was abolished for notarial

deeds, other than wills, in 1971.

526

In 2003, “this requirement was finally

also abolished for wills; deeds are now only executed in the presence of

two witnesses if the notary so requires.”

527

In a subsequent case involving

a will under the old law, the Dutch Supreme Court also upheld a will

executed before a notary when the witnesses were in an adjacent room and

not present at the time of execution.

528

In so ruling, the court

acknowledged the significance of the notary insofar as his presence, rather

than that of the witnesses, was “a sufficient guarantee that the will is not

void or voidable just because the witness rule has not been obeyed in the

correct way.”

529

519. Id.

520. Id.; Succession of Morgan, 938 So. 2d 196 (La. Ct. App. 1st Cir. 2006).

521. C.

IV. art. 971 (Fr.).

522. Q

UÉBEC CIV. CODE arts. 716 & 727.

523. B

ÜRGERLICHES GESETZBUCH [BGB] §§ 2231–2247.

524. Lapuente, Testamentary Formalities in Spain, in T

ESTAMENTARY

FORMALITIES, supra note 44, at 87–88.

525. Kolkman, Testamentary Formalities in the Netherlands, in

ESTAMENTARY FORMALITIES, supra note 44, at 168–69.

526. Id.

527. Id.

528. Id. at 172.

529. Id.

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Even model legislation in America—a culture without the same

historically significant role for notaries as in civil law countries—now

provides that a will executed before a notary needs no witnesses at all.

530

Statutes to this effect have been adopted in Colorado and North Dakota.

531

The rationale is that the professional notary serves the same protective

function under the law as witnesses, perhaps even more so. Some have

even called for the abolition of witness attestation altogether because the

purposes for which it was established have changed. “Fraud is rare,” James

Lindgren writes, “nor is attestation likely to prevent it.”

532

Other scholars

have noted that the witnessing requirement is not apt to prevent the fraud

or forgery it is designed to prevent.

533

C. Publication: Declared by the Testator to Be His Will

In addition to the myriad other requirements for a notarial will,

Louisiana is one of the small number of states to require “publication” of

a will.

534

Publication, simply stated, is “the declaration by the testator that

the instrument is his will.”

535

Today, publication is required only by very

few states.

536

No major statutory enactment has ever required it, and it is

difficult to understand today why this formality remains. Specifically,

publication was not required by the English Wills Act, the Statute of

Frauds, or by any version of the Uniform Probate Code.

537

Although

English courts imposed such a requirement at one point, the courts have

long since abandoned it.

538

Of course, there is nothing inherently wrong with having the testator

declare to the witnesses that the document is his will. In fact, it generally

seems like good practice for that to occur. But why would a document that

evidences testamentary intent by, among other things, stating that it is the

530. UNIF. PROB. CODE § 2-502.

531. C

OLO. REV. STAT. § 15-11-502; N.D. CENT. CODE § 30.1-08-02.

532. Lindgren, supra note 481, at 573.

533. Gulliver & Tilson, supra note 8, at 10–12.

534. R

ESTATEMENT (THIRD) OF PROPERTY: WILLS AND OTHER DONATIVE

TRANSFERS § 3.1 cmt. h (AM. LAW INST. 1999) (noting that only a few states

require publication of will to the attesting witnesses).

535. A

TKINSON, supra note 176, at 278.

536. R

ESTATEMENT (THIRD) OF PROPERTY: WILLS AND OTHER DONATIVE

TRANSFERS, § 3.1 cmt. h; see generally ARK. CODE § 28-25-103; IOWA CODE §

633.279; N.Y E

ST. POWER & TRUST LAW § 3-2.1; OKLA. STAT. ANN. § 84:55;

ENN. CODE § 32-1-104.

537. R

ESTATEMENT (THIRD) OF PROPERTY: WILLS AND OTHER DONATIVE

TRANSFERS § 3.1 cmt. (h).

538. A

TKINSON, supra note 176, at 278.

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testator’s last will and testament be invalid because the testator forgets to

declare or signify this to the witnesses? Finding a valid policy reason

strains the imagination because no other witnessed transaction requires the

witnesses to know the character of the document they are witnessing. The

witnesses, after all, are not attesting to the substantive contents or validity

of the will. They are merely attesting to the signing by the testator. A

testator’s acknowledgement of his signature, however, does not meet the

publication requirement, nor does a mere request by the testator that the

witnesses sign the instrument.

539

Why would it be relevant for the witnesses to know that the signature

they are witnessing is on a will rather than a real estate contract? Some

have suggested that perhaps the “publication” by the testator “tend[s] to

fix the transaction in the witnesses’ minds to call their attention to the

question of mental competency of the testator.”

540

But witnesses are not

expected to know or understand the various nuances and differences in the

substantive law of consent or capacity for wills versus real estate

transactions.

541

Others suggest that some American states require

“publication” in an effort to “drive home to the testator that the document

being signed is the testator’s will.”

542

But this too is odd because ordinarily

the draftsman of the will, such as a lawyer, could achieve this same end by

explaining to his client that this is a will, rather than having the testator

declare it to the witnesses. Writing in the 1940s, Atkinson astutely

observed that any value achieved by publication “is more than overcome

by the undesirability of overturning a will because the testator has omitted

to declare the testamentary character or because the witnesses fail to

remember this.”

543

Regrettably, however, Atkinson reports that in the few

states that do require publication, “absence of this formality is fatal to the

validity of the will.”

544

Somewhat ironically, the publication requirement harkens back to the

forms of will that Louisiana previously abrogated as unnecessarily strict

and overly burdensome. Specifically, the nuncupative will—that is, the

will by public declaration—surely impressed upon the testator and the

witnesses that the document was the testator’s will. In early Roman times,

this type of will also required wax tablets and a fictitious sale, as well as a

piece of bronze that was used to strike a balance prior to a declaration that

the testator made before five Roman citizens beyond the age of puberty,

539. Id. at 280.

540. Id. at 279.

541. Id.

542. M

CGOVERN, ET AL., supra note 4 at 209.

543. A

TKINSON, supra note 176, at 279.

544. Id.

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whereby he stated: “I do give and bequeath, and declare that I do so,

everything written in these tablets and this wax, and do you, Roman

citizens bear witness to my act.”

545

Happily, the Roman system of will-making had changed completely

before the end of the Republic.

546

Even more happily, in the few states that

maintain the publication requirement, the courts have read the requirement

so broadly as to almost jurisprudentially eradicate it. Some commentators

note that there “need be no express publication in the form of ‘this is my

will.’ Acts and signs may be sufficient.”

547

Cases from other states indicate

that for the declaration to be sufficient, the witnesses must know that the

document is the testator’s will by some act of the testator, including

acquiescence by the testator to the statement of another that the document

is the testator’s will.

548

Mere “[k]nowledge from another source will not

suffice.”

549

Despite its seeming insignificance, the publication requirement

endures, and, much like the human appendix, its function and purpose

remain unknown.

D. The Attestation Clause

Whereas the publication requirement seems unnecessary but

innocuous, the requirement that a will contain an attestation clause has

been problematic in Louisiana for over 50 years. It is time—beyond

time—that this issue be remedied. Because the attestation clause is one of

the necessary prerequisites to the validity of a notarial will in Louisiana, it

is easy to lose sight of its general insignificance. It is a boilerplate

statement signed, but probably rarely read, by the witnesses and the notary

“attesting” to compliance with the will formalities. Under Civil Code

article 1577, the attestation clause must state: (1) that the testator indicated

that the relevant document was his will; (2) that the testator signed it at the

end of each page and at the end of the will; and (3) that the notary and

witnesses signed the stated attestation on the stated date in the presence of

the testator and each other. Although it would always be nice to have such

information spelled out in a will, it is hard to fathom the policy rationale

for invalidating a will that otherwise complies with all of the formalities

545. THE COMMENTARIES OF GAIUS ON THE ROMAN LAW 2.104 at 303–04

(1869); see also M

CGOVERN, ET AL., supra note 4, at 209.

546. N

ICHOLAS, supra note 174, at 254–55.

547. A

TKINSON, supra note 176, at 280; RESTATEMENT (THIRD) OF PROPERTY:

ILLS AND OTHER DONATIVE TRANSFERS § 3.1 cmt. h (AM. LAW INST. 1999).

548. A

TKINSON, supra note 176, at 280; RESTATEMENT (THIRD) OF PROPERTY:

ILLS AND OTHER DONATIVE TRANSFERS, § 3.1 cmt. h.

549. A

TKINSON, supra note 176, at 280.

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but incorrectly recites the talismanic formula in the attestation clause. In

other words, imagine that the testator did actually (1) indicate that the

document was his will; (2) sign the will at the end of each page and at the

end of the will; and that (3) the notary and witnesses actually signed the

will in the presence of the testator and each other. Assume further that the

attestation clause was missing certain magic words, but that the witnesses

and the notary all testified that the will was otherwise properly executed.

Still, under article 1577, the will would be invalid, and the testator would

likely die intestate.

Similar circumstances occurred in Howard v. Gunter, a case from the

1960s in which a statutory will that was otherwise valid contained a

statement by the notary indicating only that the will was “Sworn to and

signed in the presence of me, Notary, and the [sic] these competent

witnesses on this the 10th day of June, 1953. L.H. Mizell Notary

Public.”

550

In adopting the language and rationale of the lower court, the

court of appeal noted that “‘[i]n the present case, there is in reality no

attestation clause within the apparent contemplation of the statute that such

clause embrace a certification on behalf of all parties, the testator,

witnesses, and notary. Instead, there is only the certification of the

notary.’”

551

Accordingly, the will was held invalid.

552

Citing an earlier appellate court case, Succession of Brown, the

Louisiana Supreme Court in Successions of Toney made clear that a proper

attestation clause contains three requirements:

The attestation clause set forth in the statute . . . requires the notary

and witnesses to declare (1) the testator signed the will at its end

and on each separate page, (2) the testator declared in the presence

of the notary and witnesses that it (the instrument) was his will,

and [(]3) in the presences of the testator and each other, they (the

notary and witnesses) signed their names on a specified date.

553

To the extent that an attestation clause fails to include one of the above

elements, it is defective and noncompliant. In Toney, the testator’s will

failed to fully meet each of the three requirements because: (1) the testator

initialed the pages rather than signed them; (2) the notary failed to attest

that the testator declared the instrument to be his will, but the witnesses

did; and (3) the witnesses failed to declare that they signed in the presence

550. Howard v. Gunter, 215 So. 2d 222, 223 (La. Ct. App. 3d Cir. 1968).

551. Id. at 225.

552. Id.

553. Successions of Toney, 226 So. 3d 397, 405 (La. 2017).

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of the notary.

554

Although all of these deviations seem incredibly

insignificant, the Court found the deviations to be “significant and

material” and thus invalidated the will.

555

Thankfully, two very recent court opinions from the same court on the

same day have taken a very practical and sensible approach to

noncompliance.

556

In Succession of Hanna, decided on June 26, 2019, the

Second Circuit upheld a will that contained the following attestation

clause:

SIGNED AND DECLARED by testator above named in our

presence to be his last will and testament and in the presence of

the testator and each other we have hereunto subscribed our names

on the 18th day of October, 2012 at Jonesboro, Louisiana.

Most notably, the attestation clause “does not contain a declaration by the

witnesses and notary that the testator signed the will at its end and on each

of its separate pages.”

557

In distinguishing prior cases, including Toney, the

court noted that there was only a single minor deviation in this case and

not a multitude of errors, as in previous cases. Moreover, the court

appropriately observed that there was no suggestion of fraud in this case,

that the testator’s signature appeared at the end of the will and on each

separate page, and that the witnesses and notary were present at the

execution ceremony.

Similarly, in Succession of Pesnell, also decided on June 26, 2019, by

the Second Circuit, the court upheld a will containing the following

attestation clause:

The Testator, THOMAS EDROE PESNELL, has signed this his

Last Will and Testament at the end thereof, and has declared or

signified in our presence that it is his Last Will and Testament and

554. Id.

555. Id.

556. See also Succession of Pelfrey, 248 So 3d 607 (La. Ct. App. 2d Cir. 2018)

(upholding a will and concluding that the attestation clause was in substantial

compliance, even though the will “contained two attestation clauses, one for the

decedent and one for the notary and two witnesses”). The Pelfrey case is

consistent with prior jurisprudence. See Succession of Hebert, 101 So. 3d 131 (La.

Ct. App. 3d Cir. 2012) (upholding a will with a split attestation clause), overruled

on other grounds by Successions of Toney, 226 So. 3d 397; Succession of

Edwards, 619 So. 1249 (La. Ct. App. 3d Cir. 1993) (“[I]t is well settled in

Louisiana jurisprudence that a ‘split’ attestation clause can be valid if it complies

with the requirements” of the law.); Succession of Eck, 93 So. 2d 181 (La. 1957).

557. Succession of Hanna, 277 So. 3d 438, 441 (La. Ct. App. 2d Cir. 2019).

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in the presence of the Testator and each other we have hereunto

subscribed our names on this the 19th day of November, 2014.

558

Once again, what is clearly missing is a statement attesting that the testator

signed each page of the will in the presence of the witnesses and the notary.

The reasoning by the court is rather abbreviated. In total, the court stated

as follows:

We note that although it is the best practice to use the sample

declaration provided in La. C.C. art. 1577(2), the legislature does

not mandate that this language be used. Although the attestation

clause does not contain the phrase “on each other separate page,”

we find that this deviation is non-material in this case where the

Testator’s signature appears on each page of the three-page

document and where the notary and witnesses attested to the

Testator signing at the end of the document. We emphasize that

there is a presumption in favor of the validity of testaments and

find that the nonobservance of formalities in this case is not

exceptionally compelling as to rebut that presumption.

Just a few months later, the Second Circuit Court of Appeal affirmed

its commitment to the holdings in Hanna and Pesnell. In Succession of

Liner, the court upheld the validity of a will, despite an attestation clause

that did not recite that the will had been signed “at the end and on each

other separate page.”

559

The court reasoned that the testator had actually

signed the will at the end and on each page and that the attestation clause

“substantially complies” with the requirements of article 1579 of the

Louisiana Civil Code.

560

Although well-reasoned and agreeable in outcome, these cases do not

contain evidence of testimony that the witnesses saw the testator sign each

page, and one is left wondering if signatures on each page were added at

the ceremony or thereafter. Moreover, if deviation for one “minor” error

is allowable, why would additional “minor” errors that are equally

insignificant produce a different result? After all, in Toney, the Court in

assessing the mistakes made by the testator, noted that “although the third

page of the will states it ‘was signed in our [the three witnesses’] sight and

558. Succession of Pesnell, 2019 WL 2607614 (La. Ct. App. 2d Cir. 2019).

559. Succession of Liner, 285 So. 3d 63 (La. Ct. App. 2d Cir. 2019), writ

granted, 2020 WL 965666 (La. 2020).

560. Id. at 68.

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presence,’ it does not mention that the will was signed on each separate

page as specified in the sample attestation clause.”

561

Despite the progressive approach taken by the Second Circuit in the

above cases, Hanna, Pesnell, and Liner unfortunately should not be read

as the beginning of a new age of liberalization in will formalities. In

October of 2019, just days after the Liner opinion was decided, the

Louisiana Supreme Court issued a brief per curiam opinion reversing the

court of appeal in Hanna and, based upon Successions of Toney, concluded

that “the attestation clause . . . materially deviated from the requirements

of La. C.C. art. 1577(2) so as to render the testament invalid.”

562

To make

matters even more confused, the Court denied the writ application in

Pesnell a mere 10 days before issuing its opinion in Hanna, leaving the

court of appeal opinion in Pesnell to stand.

563

Subsequent appellate court cases have also unfortunately continued

the approach of rigid adherence to the wording of the attestation clause

found in the Civil Code. In Succession of Booth, the Third Circuit reversed

a trial court’s judgment ordering that the wills of two testators were “valid”

and “executed according to law.”

564

According to the court, both wills

were absolute nullities because “the attestation clauses . . . lack[ed] the

language that the wills were signed in the presence of the witnesses and

the notary on each page.”

565

Furthermore, in Succession of Bruce, the

Third Circuit invalidated a will merely because the attestation clause did

not recite that the testator signed the will “at the end.”

566

Somewhat

unbelievably, the court came to this conclusion even though the testator

had actually signed the will at the end and on every page.

567

Nonetheless,

561. Successions of Toney, 226 So. 3d 397, 405 (La. 2017) (emphasis in

original).

562. Succession of Hanna, 283 So. 3d 493 (La. 2019). But see id. (Weimer, J.,

dissenting) (noting that the Hanna case involved a single legal issue, unlike

Toney, which involved multiple issues of noncompliance, and suggesting that the

case should be docketed for full consideration).

563. Succession of Pesnell, 280 So. 3d 600 (La. 2019). On February 26, 2020,

the Louisiana Supreme Court granted certiorari in Liner. See 2020 WL 965666

(La. 2020).

564. Succession of Booth, 285 So. 3d 1, 2 (La. Ct. App. 3d Cir. 2019).

565. Id. at 6. Importantly, in Booth, the court noted that there was “no dispute

that Mr. and Mrs. Booth [also] failed to sign two pages of their wills.” Id.

566. Succession of Bruce, __ So. 3d __, 2020 WL 283525 (La. Ct. App. 3d

Cir. 2020). The Louisiana Supreme Court granted certiorari in this case on June

22, 2020. See Succession of Bruce, __ So. 3d __, 2020 WL 3446903. It is hoped

that the Court will help realign Louisiana law from “strict” compliance to

“substantial” compliance in this area.

567. Succession of Bruce, 2020 WL 283525 at *4.

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1414 LOUISIANA LAW REVIEW [Vol. 80

according to the court, “strict adherence regarding the will’s attestation

clause is required for a will to be found to be in compliance,” and the

“words ‘at the end’ do not appear in the will’s attestation clause.”

568

The strict compliance by courts to the talismanic language of the

attestation clause is curious for multiple reasons. First, article 1577 itself

provides that the exact words contained in the article are not required and

that a clause that is “substantially similar” will suffice.

569

Although rules

are rules, nothing requires these rules to be applied in a rigid way that

disregards the practical consequences of doing so. Second, the Louisiana

Supreme Court has long ago noted that the attestation clause has only

“evidentiary,” rather than substantive, value.

570

In Succession of Porche,

the Court noted that “the purpose of the attestation clause is primarily to

evidence, at the time the will was executed, that the statutory formalities

have been satisfied.”

571

The Court continued by noting that when “the

instrument as a whole shows that these formalities have been satisfied, we

see no reason why technical variations in the attestation clause—which is

designed merely to evidence compliance with the formalities—should

defeat the dispositive portions of an otherwise valid will.”

572

Moreover,

“[t]he principal function of the witnesses in the attestation requirement is

to supply a source of proof that the testator signed what he formally

indicated to be his testament.”

573

Alas, Louisiana seems to have lost sight

of this function. The notarial will—and the statutory will from which the

notarial will was taken—was meant as “a means of evading the rigid

standards of form required of civil law testaments.”

574

Today, however,

the notarial will seems to have taken on a rigid stricture of its own.

Louisiana is the only state to require an attestation clause as a

condition of validity for a will.

575

The attestation clause originated in the

568. Id. But see id. (Perry, J., dissenting) (arguing that the deviation in this

case was “minor”). See also Succession of Simms, __ So. 3d __, 2020 WL 859937

(La. Ct. App. 1st Cir. 2020) (Although the court of appeal dismissed the case and

remanded it because the judgment failed to contain proper “decretal language,”

the trial court’s judgment annulled a judgment probating a will where “the

attestation clause failed to sufficiently comply with the requirements” of

Louisiana Civil Code article 1577.).

569. L

A. CIV. CODE art. 1577(2).

570. Succession of Porche, 288 So. 2d 27 (La. 1973).

571. Id. at 29.

572. Id.

573. Id.

574. Id. at 30.

575. See R

ESTATEMENT (THIRD) OF PROPERTY: WILLS AND OTHER DONATIVE

TRANSFERS § 3.1 cmt. h (AM. LAW INST. 1999) (mistakenly stating that “no state

requires a will contain an attestation clause”); M

CGOVERN, ET AL., supra note 4,

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statutory will requirements in the 1950s and derives from the common, but

not required, practice in other states in the 1950s when the statutory will

was adopted.

576

Writing as far back as the 1940s, Atkinson, as a “practical

hint regarding [will] execution,” recommended that “every will should

contain an attestation clause,” but at the same time, he was quick to note

that “an attestation clause is not required for the validity of a will.”

577

Rather, it can merely be “a valuable and desirable aid in the proof of facts

or execution.”

578

According to the Restatement, the use of an attestation

clause “raises a rebuttable presumption of the truth of the recitals.”

579

The

reason that the attestation clause was common, but not required, in the

common law was because “the attestation clause is prima facie evidence

of the facts which are recited therein.”

580

The original statutory will legislation and the current law on notarial

wills requires that the notary and witnesses sign a statement that the

testator appropriately signed the will and declared the instrument to be his

will in the presence of the witnesses and notary and that the witnesses and

notaries signed their names in the presence of the testator and each other.

581

The usual common law form of attestation in the 1950s was as follows:

On this 28

day of March, 1950, the foregoing instrument was

signed, sealed, published and declared by John W. Jones, the

above-named testator, as and for his last will and testament, in our

presence and the presence of each of us, and we thereupon, at his

request, in his presence and in the presence of each other, have

hereunto subscribed our names as witnesses.

582

The closest civil law analogue to the common law attestation clause is

the notarial paraph often included before the notary’s signature on

notarized documents. Spanish law requires a notary to state the place,

month, and day of the document and to certify that he knows or has

at 212 (“No state requires that wills contain an attestation clause, but their use is

generally recommended by attorneys.”).

576. See W

ILLIAM J. GRANGE ET AL., WILLS, EXECUTORS, AND TRUSTEES: A

RACTICAL WORK ON THE LAW, ADMINISTRATION, AND ACCOUNTING OF

ESTATES AND TRUSTS 47 (1950).

577. A

TKINSON, supra note 176, at 296, 301.

578. Id. at 296.

579. R

ESTATEMENT (THIRD) OF PROPERTY: WILLS AND OTHER DONATIVE

TRANSFERS § 3.1 cmt. q (AM. LAW INST. 1999).

580. Id.; S

CHOENBLUM, supra note 4, § 19.141, at 250; RESTATEMENT (THIRD)

PROPERTY: WILLS AND OTHER DONATIVE TRANSFERS § 3.1 cmt. q.

581. L

A. REV. STAT. § 9:2442; LA. CIV. CODE art. 1577.

582. G

RANGE, supra note 576, at 47.

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1416 LOUISIANA LAW REVIEW [Vol. 80

identified the testator, who he believes has capacity.

583

Italian law also

requires that the notary state that the parties complied with all of the

formalities and provide the date and time of the signature and the place

where the will was received.

584

Although Hungarian law previously

required an attestation clause, the Hungarian Civil Code of 1960 abolished

the requirement.

585

Louisiana, in its rigid insistence on an overly technical

attestation clause, appears to stand alone.

VI. S

PECIAL NOTARIAL WILLS

Articles 1578 to 1580.1 of the Louisiana Civil Code provide for

various alternative forms of notarial wills for testators with certain

disabilities that would prevent them from otherwise making a notarial will

under article 1577. Many of these articles are undoubtedly beneficial

additions that make wills available to those who, under prior law, may

have had difficulty executing the proper will forms.

A. Literate and Sighted but Physically Unable to Sign

Because the signature requirement is so important in Louisiana law, a

special provision was needed to accommodate someone who was unable

to sign because of physical infirmity. The basic requirements of a signed

writing from article 1577 are still required, but the execution of the will is

altered. Under article 1578, in place of a signature, a testator may “affix

his mark” or “direct another to assist him in affixing a mark, or to sign his

name in his place.”

586

Similarly, the language in the required attestation

clause that is signed by the witnesses and the notary is altered to reflect

the modification in the procedure for execution.

587

The declaration required by the testator and the specifics of the

attestation clause in article 1578 are held by courts to be quite important.

In Succession of Bilyeu, the court, in applying the substantially similar

provision of prior law, noted that the testator is required to “declare or

signify his physical inability and that the attestation clause reflect his

583. Lapuente, Testamentary Formalities in Spain, in TESTAMENTARY

FORMALITIES, supra note 44, at 79.

584. Braun, Testamentary Formalities in Italy, in T

ESTAMENTARY

FORMALITIES, supra note 44, at 132. Even in Italy, however, failure to comply

with these requirements makes the will only voidable, not void. Id.

585. Vékás, Testamentary Formalities in Hungary, in

ESTAMENTARY

FORMALITIES, supra note 44, at 268.

586. L

A. CIV. CODE art. 1578.

587. Id.

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2020] WILL FORMALITIES IN LOUISIANA 1417

declaration.”

588

The declaration was easily established in Bilyeu when the

attorney publicly questioned the testator, and the testator, after becoming

exasperated by trying to sign his name, declared that he could not.

589

other cases, however, courts have noted that the declaration can be “a sign

or gesture, such as a nod, a grunt, or a series of eye movements.”

590

In Succession of Maquar, the court invalidated a will executed less

than six months after the new provision in article 1578 took effect. In

Maquar, a testator, who was unable to sign his name and instead signed

with an “X,” failed to declare to the notary and witnesses that he could see

and read and failed to include a statement that he could see and read in the

attestation clause.

591

In invalidating the will, the court noted that the

attestation clause in the testator’s will complied with the requirements of

the prior law for executing wills, but it failed to include the phrase “see

and read” as required by the new law.

592

The harshness of the result in the

Maquar case is compounded by the fact that, as is so often the case, there

were “no allegations of fraud, mistake, undue influence, or that the testator

was unable to see or read at the time the testament was executed.”

593

Nonetheless, the will was held invalid.

Far from being an outlier, the same holding was reaffirmed in

Succession of Breaux, whereby the court invalidated a testament made

pursuant to article 1578 by a testator who had brain cancer.

594

In Breaux,

the testator appeared to have included an appropriate attestation clause

pursuant to article 1578, but the evidence suggested that the testator did

not, as was required, “declare or signify that he was able to see, read, and

knew how to sign his name but was unable to do so because of a physical

infirmity.”

595

Acknowledging that its decision “may seem to be harsh,” the

court followed the reasoning of Maquar and concluded that the result was

“legislatively mandated.”

596

588. Succession of Bilyeu, 681 So. 2d 56 (La. Ct. App. 2d Cir. 1996).

589. Id; see also Succession of Fletcher, 653 So.2d 119 (La. Ct. App. 3d Cir.

1995) (finding that a testator executing a statutory will was required to declare or

signify his inability to sign due to a physical impairment but was not required to

provide further information in the testament itself).

590. Succession of Bilyeu, 681 So. 2d at 58; see also Succession of Chopin,

214 So. 2d 248 (La. Ct. App. 4th Cir. 1968) (finding that the declaration regarding

impairment may be by sign or gesture).

591. Succession of Maquar, 849 So. 2d 773 (La. Ct. App. 4th Cir. 2003).

592. Id.

593. Id.

594. Succession of Breaux, 992 So. 2d 497 (La. Ct. App. 1st Cir. 2008).

595. Id.

596. Id.

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1418 LOUISIANA LAW REVIEW [Vol. 80

Unlike in Maquar and Breaux, the court in Succession of Watson

upheld a will in which the decedent stated that she wished to avail herself

of the provisions of article 1578, but she failed to write the prescribed

wording of the altered attestation clause from that article.

597

Instead, the

testator appeared to properly execute a will under article 1577, in which

she signed at the end and at the bottom of every page.

598

The court noted

that because “the decedent could sign her full name, and in fact, did,” it

declined to find the will invalid under article 1578, as it was valid pursuant

to article 1577.

599

B. Unable to Read

Just as the law provides special rules for those who are unable to sign

their name, so too does it prescribe rules for will-making for those unable

to read. The jurisprudence is replete with cases indicating that the ability

to read is a requirement of testamentary capacity.

600

As a result, a special

rule for testators who are either sight impaired or illiterate was needed.

Article 1579 fills that gap.

601

Like article 1578, article 1579 builds upon

article 1577 on notarial wills and provides a special execution procedure

for a testator who “does not know how to read, or is physically impaired

to the extent that he cannot read, whether or not he is able to sign his

name.”

602

Unlike article 1578, which merely tweaks the declaration and

attestation clause, article 1579 provides a separate procedure whereby the

will of a testator is read aloud in his presence because the testator is unable

to read the document for himself.

603

The witnesses follow along, and, after

597. Succession of Watson, 253 So. 3d 867 (La. Ct. App. 2d Cir. 2018).

598. Id.

599. Id.

600. Succession of Young, 692 So. 2d 1149 (La. Ct. App. 3d Cir. 1997);

Succession of Barranco, 657 So. 2d 708 (La. Ct. App. 1st Cir. 1995); Succession

of Fletcher, 653 So. 2d 119 (La. Ct. App. 3d Cir. 1995); Succession of Dorand,

596 So. 2d 411 (La. Ct. App. 4th Cir. 1992); Succession of Littleton, 391 So. 2d

944 (La. Ct. App. 2d Cir. 1980); Succession of Arnold, 375 So. 2d 157 (La. Ct.

App. 2d Cir. 1979).

601. Article 1579 encourages wide application by noting that a testator who

could utilize either article 1577 or article 1578 to make a will can also utilize the

procedure proscribed in article 1579 to execute a notarial testament. L

A. CIV.

ODE art. 1579(4).

602. L

A. CIV. CODE art. 1579.

603. Id. Current law no longer requires the notary to read the will to the testator

but acknowledges that someone other than the notary may perform the reading.

Under prior law, the jurisprudence had held that the reading of a will by a witness

rather than the notary substantially complied with the requirements of a statutory

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2020] WILL FORMALITIES IN LOUISIANA 1419

the reading, the testator declares that he heard the reading and that it

accords with his wishes.

604

He then signs the will in the ordinary process,

and the notary and the witnesses sign a modified attestation clause

reflecting what occurred at the will execution ceremony.

605

This type of will is based upon the prior law in Louisiana Revised

Statutes § 9:2443.

606

The jurisprudence has made clear that inability to

read does not mean that the testator has vision problems or merely a

difficulty in reading. A “testator who can only read his will with his

eyeglasses is ‘able to read’ within the statute, and the testator who can only

read his will with a five-power or stronger magnifying lens is also ‘able to

read.’”

607

A court has found that a testator was able to read if, although his

eyesight is failing, he is able to “get around in his house and in his hospital

room” and he can “see well enough to sign his name properly on the

designated line of the will.”

608

Also, in Succession of Lanasa, the court

held that a testator who was “unable to read with the naked eye or with

glasses due to his severe macular degeneration” but who could read with

a reading machine was not required to make a will utilizing the special

procedure in article 1579. Instead, the testator could make an ordinary

notarial will under article 1577.

609

Because the general notarial will

provision—and the statutory one before it—does not require a testator to

read his will, it is “immaterial that [the will’s witnesses] testified that the

testator did not use any magnifying device in order to read the will at the

time of its signing.”

610

If, however, the testator is actually unable to read

and does not utilize the procedure provided in article 1579, then his will is

absolutely null.

611

will when the notary testified that he had allergies and an asthma condition that

prevented him from reading the testament to the testator. See Succession of

Harvey, 573 So. 2d 1304 (La. Ct. App. 2d Cir. 1991).

604. L

A. CIV. CODE art. 1579.

605. Id.

606. L

A. REV. STAT. § 9:2443 (repealed). Interestingly, in instances in which

the testator was also unable to sign, prior law required that he “declare or signify

the cause that hinders him from signing.” Id.

607. Succession of Harris, 329 So. 2d 493 (La. Ct. App. 4th Cir. 1976).

608. Succession of Smith, 261 So. 2d 679 (La. Ct. App. 2d Cir. 1972).

609. Succession of Lanasa, 948 So. 2d 288 (La. Ct. App. 5th Cir. 2006).

610. Succession of Polk, 940 So. 2d 895, 910 (La. Ct. App. 3d Cir. 2006).

611. Succession of Graham, 803 So. 2d 195 (La. Ct. App. 5th Cir. 2001). See

also Succession of Armand, __ So. 3d __, 2020 WL 944473 (La. Ct. App. 3d Cir.

2020) (disqualifying lawyers who drafted the will from testifying as to the

decedent’s ability to read when the validity of the decedent’s will was challenged

by asserting that the decedent was legally blind and the attestation clause did not

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1420 LOUISIANA LAW REVIEW [Vol. 80

C. Braille

Article 1580 of the Louisiana Civil Code allows for a will to be

executed in braille. This article thus allows those who are sight impaired

but can read braille to execute a will. This new article “reproduces the

substance of R.S. 9:2444,” which allowed for statutory wills in braille

form.

612

There are no reported cases under this article and very little

secondary commentary. It is uncertain to what extent this type of will has

been utilized.

D. Deaf or Deaf and Blind

By its terms, article 1580.1 purports to provide a mechanism for the

execution of a will by one who is either deaf or deaf and blind. Although

the goal of article 1580.1 is laudable, its applicability remains unclear. The

current article was added in 1999, but after the law of donations revision,

which occurred in 1997. Due to the delayed effective date of the general

revision to the law of donations, article 1580.1 took effect at the same time

as the other revisions—July 1, 1999.

Prior to the effective date of the donations revision, the Louisiana State

Law Institute recognized a gap in the law for testators who were unable to

both hear and see.

613

Consequently, a “technical corrections bill” for a

number of overlooked items was prepared in the form of House Bill 932

of 1999.

614

The text of House Bill 932 seemed sensible enough. It provided

as follows:

A testator who is unable to hear and is also unable to read may

execute a notarial testament in the form provided in this Article if

he can communicate his intention to execute a testament and the

dispositions of his testament to a notary public in the presence of

two competent witnesses in a manner of communication that is

understood by the notary and the witnesses.

615

In other words, House Bill 932 did not prescribe a particular form of

communication between the testator and the notary and witnesses, but it

recite that the will was read aloud in the presence of the testatrix and the

witnesses).

612. Succession of Graham, 803 So. 2d 195; L

A. CIV. CODE art. 1580 cmt.

613. Kathryn Venturatos Lorio, Successions and Donations § 12.4, in 10

OUISIANA CIVIL LAW TREATISE (2d ed. 2009).

614. H.B. 932, 1999 Leg., Reg. Sess. (La. 1999).

615. Id.

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instead allowed for flexibility in any manner that “is understood by the

notary and the witnesses.”

616

The testator’s desires would then be “reduced

to writing” and “read aloud” by the notary to the witnesses, who would

follow along on copies.

617

Of course, the testator would not be able to hear

the reading, given his impairment, but the witnesses would hear it, and the

testator had communicated his original intentions in the witnesses’

presence.

618

After the reading, the notary and the witnesses were required

to communicate to the testator that the dispositions recited were the same

as those he communicated to them.

619

The testator was then required to

communicate his satisfaction, and all the respective parties would sign the

document with an appropriate attestation clause.

620

Some scholars have

noted that this “bill appeared uncontroversial and passed the House of

Representatives by a vote of 91-0, [but] it died without a hearing in the

Senate Judiciary Committee.”

621

Instead, Act 745 of 1999, which was not a Law Institute product, was

prepared by Senator Landry and ultimately enacted as article 1580.1.

622

Because article 1580.1 was added outside of the Law Institute process, the

article contains no comments to aid in its interpretation or application. If

the point of article 1580.1 is to cover the gap for testators who cannot hear

and see, it is unclear how it accomplishes its purpose. By its terms, it

applies “only [to] a person who has been legally declared physically deaf

or deaf and blind and who is able to read sign language, braille, or visual

English.”

623

First, it is unclear why a “legal declar[ation]” of deafness or deafness

and blindness is required. As explained below, article 1580.1 is not the

only type of will that can be made by those who are sight impaired. So,

why create an alternative method of will-making only for those for who

have been “legally declared” deaf or deaf and blind? Because article

1580.1 purports to provide a method available “only” to a person who has

been “legally declared physically deaf or deaf and blind,” it is presumably

not available to those who are deaf or deaf and blind but do not possess a

legal declaration to that effect.

Second, although the article purports to provide how such a will “shall

be prepared,” it does anything but provide clarity. Whereas articles 1578

616. Id.

617. Id.

618. Id.

619. Id.

620. Id.

621. Lorio, supra note 613, § 12.4.

622. La. Acts. 1999, No. 745.

623. L

A. CIV. CODE art. 1580.1.

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1422 LOUISIANA LAW REVIEW [Vol. 80

to 1580 build upon the foundational requirements for a notarial will

provided in article 1577 and establish special execution requirements for

the various alternatives, article 1580.1 is different insofar as it states both

a method of preparation and execution of a will. It states that “[t]he

notarial testament shall be prepared and shall be dated and executed in the

following manner.”

624

Notably absent is a statement that the will must be

“prepared in writing,” although, once again, the strange obsession with the

date appears.

625

One might infer a writing requirement from other

requirements that the “instrument” be “sign[ed] . . . at the end of the

testament and on each other separate page,” but inference is hardly a

preferable way to delineate the drafting requirements for wills, which must

be observed under the penalty of nullity. Although the article purports to

provide a will that is available to someone who is “legally declared

physically deaf or deaf and blind” and “who is able to read sign language,

braille, or visual English,” it does not provide that a will can be

communicated to the notary and witnesses in sign language, braille, or

visual English and then transcribed by them into writing. In fact, the article

provides no method of preparation at all. Rather, article 1580.1 lists a

series of specific requirements for the testator’s declaration and for the

witnesses’ and notary’s attestation clause, all of which presuppose that

there is some “instrument” to be “signed” by the testator. In fact,

subsection (C) of article 1580.1 seems to suggest that the only virtue of

this article is not that it allows a method of preparation or execution of a

will for a testator who is deaf or deaf and blind, but that it provides a

special way for the testator to communicate with the notary and witnesses

that the relevant instrument is the testator’s will.

626

Subsection (C) of

article 1580.1 provides that “the testator shall declare or signify by sign or

visual English to [the notary and two competent witnesses] that the

instrument is his last testament.”

627

But nothing in legislation or

jurisprudence, however, prescribes a particular method of communication

by a testator who executes a notarial will under article 1577.

Third, it is unclear why “blind[ness]” is included in this article at all.

At the time of enactment of article 1580.1, the revision already contained

two proposals for the execution of wills for those who had difficulty

reading. Under article 1579, a will can be read aloud in the presence of the

testator and the witnesses, who would then all sign, with the testator

624. Id.

625. Compare L

A. CIV. CODE art. 1580.1, with id. art. 1577.

626. But see id. art. 1580.1(D) (stating that attestation clause “shall be prepared

in writing,” suggesting, perhaps, by a contrario reasoning that the rest of will need

not be).

627. Id. art. 1580.1(C)(1)–(2).

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attesting that the reading constituted the substance of his will and the

witnesses attesting to the testator’s attestation. Similarly, article 1580, as

previously mentioned, allows for the execution of a will in braille for those

able to read braille. For those who are deaf and blind, clearly article 1579

would not be appropriate because they would be unable to hear the

reading. Provided, of course, a testator could read braille, a will under

article 1580 is available. Nonetheless, article 1580.1 purports to make

available another form of will for those who are “legally declared deaf or

deaf and blind and who [are] able to read sign language, braille, or visual

English.”

628

For those can read braille, this article seems duplicative. For

those who are deaf, but not blind, the traditional notarial will is available,

which requires reading and signing, but not hearing. For those who are

deaf and blind, it is unclear how they would still be able “to read sign

language . . . or visual English.”

Although article 1580.1 appears to make available another form of

will-making for those who are “legally declared physically deaf”—that is,

sign language—it should be remembered that there is no requirement

under article 1577 for the ordinary notarial will that the testator be able to

hear. He needs only to know how and be able to read and sign his name

and, in some way, signify that the instrument he is signing is his will.

Worse yet, article 1580.1 imposes additional requirements for the drafting

of the attestation clause, including the signification by the testator that the

document is his will by sign language or visual English and that at least

one of the witnesses be “a certified interpreter for the deaf.”

629

These

requirements are unfortunate because many people may know and

understand sign language and be able to communicate with a hearing-

impaired testator. Nothing requires a testator who speaks only French, for

example, to execute his will with an attestation clause reciting that he

communicated with the notary and witnesses in French. Then why impose

this requirement on testators who communicate by sign language?

Moreover, nothing requires a witness to a will executed by a French-

speaking testator to be certified or credentialed in the French language.

Then, why impose this requirement on hearing-impaired testators?

Perhaps the only virtue of article 1580.1 is that it does not require a

hearing-impaired testator to make use of it to effectively execute a will.

Article 1580.1, as written, is an alternative to article 1577 for certain

hearing-impaired testators, not an exclusive provision that must be utilized

by them. It is difficult to imagine why a hearing-impaired testator would

choose the more onerous route of 1580.1 rather than the ordinary one

628. LA. CIV. CODE art. 1580.1.

629. Id.

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1424 LOUISIANA LAW REVIEW [Vol. 80

under article 1577. There are no reported cases applying or interpreting

article 1580.1 and no secondary commentary that sheds light upon its

usage. Its application and necessity remain elusive.

VII.

HE LAW OF TOMORROW: THE COMING OF DIGITAL OR

ELECTRONIC WILLS?

As should be evident from the above discussion, the laws on will

formalities in Louisiana are some of the most restrictive and detailed in

the United States. As such, it is unlikely that Louisiana would legislatively

embrace a broad conception of an electronic will at this time, although four

states and now a uniform act specifically provide for the regulation and

use of this new form of will.

630

The laws among this handful of states

recognize that electronic wills exhibit a substantial amount of variation,

some of which is explored below. Suffice it to say, however, that before

embarking upon a review of these laws, an understanding of what

constitutes an electronic will is necessary.

A. What Is an Electronic Will?

The term “electronic will” is subject to a variety of interpretations and

could include a range of transactions from a document written on a tablet

with a stylus to a typed document that is electronically stored and signed

not with a traditional cursive signature, but with a symbol, process, or

identifying key.

631

Under one state law, an electronic will is defined as a

will that “is initially created and maintained as an electronic record; . . .

contains the electronic signatures of . . . the testator . . . and . . . the attesting

witnesses; and . . . contains the date and times of the electronic signatures”

previously described.

632

Some of the instances of what can be considered

an electronic will, such as in the Castro case, mentioned above, can be

adequately handled under the traditional law by undertaking an

examination of whether the testator has adequately “signed” a document

630. NEV. REV. STAT. § 133.085; FLA. REV. STAT. § 732.522; ARIZ. STAT. §

14-2518; I

ND. CODE § 26-2-8-102; UNIF. ELECTRONIC WILLS ACT (July 17,

2019).

631. See What Is an “Electronic Will”?, 131 H

ARV. L. REV. 1790, 1791 (2018)

(noting that “[a]s used today, an electronic will could mean any writing along a

broad spectrum from a will simply typed into a word-processing program by the

testator on a computer and stored on its hard drive to a will signed by the testator

with an authenticated digital signature, witnessed or notarized via webcam, and

stored by a for-profit company.”) (footnote omitted).

632. I

ND. STAT. § 29-1-21-3(10).

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or whether the act executed by the testator constitutes a “writing.” Other

situations involving wills hosted on various platforms and utilizing

identifying data or markers in place of signatures do not easily fit within

existing law and might necessitate special legislation, if they are to be

allowed. It is the latter situation that most of the new legislation addresses.

B. Existing Law

To date, only a few states have undertaken to enact special legislation

concerning electronic wills. Although legislatures in other states have

introduced legislation, cautionary forces have prevailed, and the proposals

have not been enacted.

633

Even in some of the states with legislation on

electronic wills, the path to legislation has not always been a smooth one.

In several cases, legislation was enacted only after having been defeated

the year before. Irrespective of past practices, it seems likely that with the

advance of technology and now a new uniform act, enactment of special

legislation is likely to grow.

1. Nevada and Florida

In 2001, Nevada was the first adopter of the electronic will

legislation—perhaps as an example of the law getting ahead of the needs

and desires of the citizenry. One scholar has noted that the original Nevada

law was “groundbreaking,” but “the technology necessary to create an

electronic will in compliance with the law was not yet in existence.”

634

a result, the law was “never used.”

635

Commentators have observed that

the statute was designed with tech-savvy California clients in mind, but

the technology that the legislature had envisioned did not materialize until

years later.

636

To begin with, the original Nevada statute required that the

will be “written, created and stored in an electronic record” and that it

633. See, e.g., S.B. 40, 2017 N.H. Leg. Sess.; H.B. 1403, 2018 Va. Leg. Sess.

For an overview of the various state statutes and proposals, see Jennifer L. Fox,

Twenty-First Century Wills, 33 P

ROB. & PROP. 52 (2019). For a critical

assessment of electronic wills and a proposal to allow them only in emergency

situations, see Adam J. Hirsch, Technology Adrift: In Search of a Role for

Electronic Wills, 61 B.C.

L. R

EV. 827 (2020).

634. Gerry W. Beyer & Katherine V. Peters, Sign on the [Electronic] Dotted

Line: The Rise of the Electronic Will, W

ILLS, TRUSTS, & ESTATES LAW EJOURNAL

(Nov. 29, 2018).

635. Id. at 2.

636. Gerry W. Beyer & Claire G. Hargrove, Digital Wills: Has the Time Come

for Wills to Join the Digital Revolution, 33 O

HIO N.U. L. REV. 865, 888 (2007).

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1426 LOUISIANA LAW REVIEW [Vol. 80

contain “the date and the electronic signature of the testator and which

includes, without limitation, at least one authentication characteristic of

the testator.”

637

An “authentication characteristic” meant something that

was “capable of measurement and recognition in an electronic record as a

biological aspect of or physical act performed by that person,” such as “a

fingerprint, a retinal scan, voice recognition, facial recognition, a digitized

signature or other authentication using a unique characteristic of the

person.”

638

Although such technology exists today, it was not readily

available in 2001. Moreover, the statute required that “only one

authoritative copy” exist, which was defined as “the original, unique,

identifiable and unalterable electronic record of an electronic will.”

639

Writing in 2007, one commentator noted that “[b]ecause computers are the

perfect copying machine, every copy is a perfect copy, indistinguishable

from the original, making it very easy to make changes and very hard to

prove which version of a file is the original.”

640

The Nevada legislation,

which was “developed during the tech boom of the 1990s [] anticipated

that the necessary software would soon be available,” but such was not the

case.

641

The Nevada law was amended in 2017, in part to make the law more

attractive, easy to use, compatible, and accessible. The new law still

requires an “authentication characteristic” of the testator, but now

fingerprint technology and facial recognition software are commonplace.

Moreover, the “authentication characteristic” is no longer a requirement in

addition to witnesses and a signature of the testator, but as an alternative

method of validation.

642

The new law has also abandoned the idea that

there must be one and only one “authoritative copy.” Although the exact

number of electronic wills is unclear, at least one has been executed: An

organization known as Trust & Will issued a press release on January 24,

2019, announcing that they had executed “the first digital will for Cory

McCormick, a police officer in Nevada.”

643

Although Nevada was the first, it is no longer the only jurisdiction to

authorize electronic wills. Florida law also now permits electronic wills.

637. NEV. REV. STAT. § 133.085 (2001).

638. Id.

639. Id.

640. Beyer & Peters, supra note 651, at 2.

641. Id.

642. N

EV. REV. STAT. § 133.085.

643. Danny Tabatabai, Trust & Will Closes First Electronic Will in the US (Plus

$2m Investment), E

XTRA CRUNCH DAILY, https://techcrunch.com/2019/01/24/trust-

will-closes-first-electronic-will-in-the-us-plus-2m-investment/ [https://perma.cc/5

ARX-HH3Y].

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2020] WILL FORMALITIES IN LOUISIANA 1427

The introduction of the electronic will into Florida law was not, however,

without controversy. In June of 2017, the Florida legislature approved

House Bill 277, which authorized electronic wills. The governor at the

time, Rick Scott, vetoed the bill and published a letter explaining his

reservations with the proposed legislation.

644

In his letter, Governor Scott

outlined three concerns. First, he stated that “the remote notarization

provisions in the bill do not adequately ensure authentication of the

identity of the parties” and thus increase the likelihood of fraud or

exploitation of vulnerable citizens utilizing the legislation.

645

Second, the

proposed legislation would increase the burden on the Florida court

system, especially if, as proposed, the Florida law allowed for the probate

of the wills of non-Floridians who utilized the law.

646

Third, the bill had a

delayed effectiveness date so as to address “substantive changes and

outstanding questions,” which the governor felt should be addressed in a

comprehensive bill during the next session.

647

Over the objection of the Real Property Probate and Trust Section of

the Florida Bar,

648

in June of 2019, the Florida Legislature again passed a

bill, House Bill 409, authorizing electronic wills. Governor Scott,

however, had since left his post and taken up a position as a United States

Senator for Florida. The new governor, Ron DeSantis, signed the bill,

which has now become law. Under the new law, which is a comprehensive

enactment on electronic signatures, an individual can execute a will that is

witnessed by individuals who are not physically present with the testator

but are in communication with the testator through “audio-video

communication technology.”

649

In place of witnesses, a Florida testator

may validly execute an electronic will before a notary who is in audio-

video communication with the testator, provided the testator provides

“verbal answers” to a series of questions regarding his location, age,

mental status, free consent, and the names of “everyone you know in the

room with you.”

650

The Florida statute is unique, however, in providing

that “[t]he execution of an electronic will of a testator who is a vulnerable

adult . . . may not be witnessed by means of audio-video communication

644. Letter from Rick Scott to Ken Detzner (June 26, 2017) (on file with

author).

645. Id.

646. Id.

647. Id.

648. See Real Property, Probate and Trust Law Section of The Florida Bar,

White Paper on Proposed Enactment of the Florida Electronic Wills Act

(regarding the 2018 bill).

649. F

LA. REV. STAT. § 732.522(3)(a).

650. Id. § 732.522(3)(b).

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1428 LOUISIANA LAW REVIEW [Vol. 80

technology.”

651

Under Florida law, the definition of a “vulnerable adult”

is quite expansive and includes those “whose ability to perform the normal

activities of daily living or to provide for his or her own care or protection

is impaired due to a mental, emotional, sensory, long-term physical, or

developmental disability or dysfunction, or brain damage, or the

infirmities of aging.”

652



2. Indiana and Arizona

Like Florida and Nevada, Indiana and Arizona also adopted electronic

will laws in 2018. Both the Indiana law and the Arizona law are more

conservative in approach. Just as in Florida, it took two attempts to get the

legislation passed in Indiana. Although the bill was not successful in 2017,

the governor of Indiana signed that state’s electronic wills law into effect

in March of 2018. Under the Indiana law, wills can be executed by means

of an “electronic signature,” defined as “an electronic sound, symbol, or

process attached to or logically associated with an electronic record and

executed or adopted by a person with the intent to sign the electronic

record.”

653

This description is broader than the traditional definition of a

signature usually employed for wills. Unlike in Florida and Nevada,

however, in the execution of an electronic will in Indiana, “[t]he testator

and the attesting witnesses must be in each other’s actual presence when

the electronic signatures are made in or on the electronic will,” and “[t]he

testator and witnesses must directly observe one another as the electronic

will is being signed by the parties.”

654

Similarly, Arizona passed an electronic wills act in 2017, but the

effectiveness of the act was delayed until July 1, 2019. Like the Indiana

law, the Arizona act allows for the will to be exclusively in electronic form

and to be electronically signed by the testator and two witnesses.

655

electronic signature is defined as a “method or process that . . . [i]s attached

or logically associated with an electronic record and that is executed or

adopted by a person with intent to sign the electronic record” and that

“[u]ses a security procedure that allows a determination that the electronic

signature” sufficiently identifies the signer.

656

The Arizona law is similar

to the Indiana law—and unlike the Florida and the Nevada laws—in

651. Id. § 732.522(3)(c).

652. F

LA. STAT. § 415.102(28).

653. I

ND. CODE § 26-2-8-102.

654. I

ND. CODE § 29-1-21-4 (emphasis added).

655. A

RIZ. STAT. § 14-2518.

656. Id. § 14-1201(20).

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2020] WILL FORMALITIES IN LOUISIANA 1429

requiring that the witnesses be “physically present,” rather than merely

electronically present, when the testator signs or acknowledges the will.

657

C. Uniform Electronic Wills Act

In July of 2019, the Uniform Law Commission approved a new

Uniform Electronic Wills Act.

658

The drafting committee first met in

October of 2017 and gave three reasons for proceeding with the project:

(1) people want electronic wills for various reasons, including ease of

execution and cost savings; (2) people will try to execute wills

electronically anyway, as some cases had already started to percolate on

this issue, and electronic wills “are the new version of” holographic wills;

and (3) companies will draft bills for legislatures, and a uniform law

approach “could lead to some coherence around the country.”

659

In the

words of the committee: “The Uniform Electronic Wills Act retains core

wills act formalities of writing, signature and attestation, but adapts them.

The will must exist in the electronic equivalent of text when it is

electronically signed.”

660

The electronic will must be signed or

acknowledged in the presence of two witnesses or a notary.

661

Additionally, the act adopts the traditionally broad definition of signing

associated with electronic documents. Namely, signing means executing,

adopting, affixing, or associating—with the present intent to authenticate

or adopt—a sound, symbol, or process to an electronic record.

662

The new

act leaves it to states, however, to decide if they will require the witnessing

or notarization to be in either physical or electronic presence.

663

In short,

the Uniform Electronic Wills Act does not dramatically alter the

foundational law for will-making but merely adapts it so that its provisions

are compatible with electronic execution.

657. Id.

658. U

NIF. ELECTRONIC WILLS ACT (July 17, 2019).

659. Id.

660. Suzanne Brown Walsh, Turney P. Berry, & Susan N. Gary, Electronic

Wills Act (May 30, 2019), available at https://www.uniformlaws.org/Higher

Logic/System/DownloadDocumentFile.ashx?DocumentFileKey=13b336c4-b84

2-c792-fe57-03eb3d97ef96&forceDialog=0 [https://perma.cc/VY9A-FBGD]

661. U

NIF. ELECTRONIC WILLS ACT § 5.

662. Id. § 2(6).

663. Id.

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1430 LOUISIANA LAW REVIEW [Vol. 80

D. Conflicts of Law Issues

The above discussion is important in Louisiana for two distinct

reasons. First, it foreshadows what may be in Louisiana’s future. As

technology continues to progress, it would be myopic to suggest that the

law on wills, or the law on any topic, will not or should not change to

accommodate this progress. Nonetheless, one must be careful not to rush

headlong into unchartered and potentially choppy waters without a good

reason to do so. Just because technology changes does not mean that the

law should necessarily incorporate these changes if the point or purpose

of the law is not served. After all, Betamax tapes and floppy disks were at

one point seen as cutting edge technology; it now seems wise that the law

did not change to allow wills to be executed through these media because

such a will would be almost unreadable today due to continued

technological change. Nonetheless, decisions on whether to change the

law to suit the latest technological advance should be thoughtfully

considered. Only by knowing what other states and technology provide

can one fully engage in such consideration.

The second, and perhaps more immediate, reason for electronic wills

to concern Louisiana lawyers is because courts and lawyers may encounter

them today, even without a specific Louisiana law on this topic.

Specifically, article 3528 of the Louisiana Civil Code on conflicts of law

provides that many wills executed outside of Louisiana may be probated

in Louisiana after the death of a testator.

664

It states as follows:

A testamentary disposition is valid as to form if it is in writing and

is made in conformity with: (1) the law of this state; or (2) the law

of the state of making at the time of making; or (3) the law of the

state in which the testator was domiciled at the time of making or

at the time of death.

665

Consider, for instance, a domiciliary of Florida, Nevada, Arizona, or

Indiana who executes an electronic will under the laws of his state and

then moves to Louisiana, where he subsequently establishes a domicile

and dies. Under article 3528, such a will would be valid in form and would

be subject to probate by a Louisiana court because the testator executed a

will in writing that was in compliance with the “law of the state in which

the testator was domiciled at the time of making.”

666

Similarly, consider a

second testator who is a Louisiana domiciliary but decides to visit Florida,

664. LA. CIV. CODE art. 3528.

665. Id.

666. Id.

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Nevada, Arizona, or Indiana. While visiting, this Louisianian avails

himself of the laws of those particular states, executes an electronic will,

and then returns home and subsequently dies. Once again, under article

3528, the electronic will executed outside of Louisiana would be subject

to probate in Louisiana by a Louisiana court because the testator executed

a will in writing that was in compliance with “the law of the state of

making at the time of making.”

667

The conflicts provision under the

Uniform Electronic Wills Act retains the above outcomes and notes that

an electronic will executed in compliance with the act is valid if it is

executed in compliance “with the law of the jurisdiction where: (1) the

testator is physically located when the will is signed; or (2) the testator is

domiciled or resides when the will is signed or when the testator dies.”

668

As noted by the drafting committee, “[t]his is consistent with the current

law applicable to traditional wills and prevents the intestacy of a testator

who validly signs a will while living in a state that permits remote

execution, but moves to or just happens to die in a state that prohibits

them.”

669

Although the above is a reminder that electronic wills have potentially

already arrived in Louisiana, a more controversial consideration also

exists. Consider the Louisiana domiciliary who, while residing and

remaining in Louisiana, goes online and executes an electronic will

pursuant to either the Florida or Nevada statutes. A traditional conflicts

analysis would suggest that such a will is not formally valid in Louisiana

because the will was not made in conformity with: (1) the law of this

state—Louisiana; (2) the law of the state of making at the time of

making—also Louisiana;

670

or (3) the law of the state in which the testator

was domiciled at the time of making or at the time of death—again,

Louisiana. None of the conflicts provisions seem to make allowance in this

example for the applicability of Nevada or Florida law. Nevada law,

however, provides as follows:

667. Id.

668. U

NIF. ELECTRONIC WILLS ACT § 4.

669. Walsh, Berry, & Gary, supra note 660.

670. Although the expression “the law of the state of making at the time of

making” is perhaps less than pellucid, comment (e) to article 3528 clarifies that

the reference to the “state of making” is a reference to “the pertinent law of the

place of making . . . in force at the time of making and not later.” L

A. CIV. CODE

art. 3528 cmt. e (emphasis added). In other words, the applicable law in the above

example is whatever Louisiana law, i.e., “the place of making” since the testator

was in Louisiana at the time of making, was at the time the testator made his will,

i.e., “the time of making.”

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1432 LOUISIANA LAW REVIEW [Vol. 80

Regardless of the physical location of the person executing a

document . . . , if a document is executed electronically, the

document shall be deemed to be executed in this State and will be

governed by the laws of this State and subject to the jurisdiction

of the courts of this State if (1) [t]he person executing the

document states that he or she understands that he or she is

executing, and that he or she intends to execute, the document in

and pursuant to the laws of this State; [and] (2) [t]he document

states that the validity and effect of its execution are governed by

the laws of this State.

671

In other words, Nevada law has deemed a Louisiana domiciliary who,

while residing and remaining in Louisiana, goes online and executes an

electronic will in compliance with the Nevada statutes, to have executed

the will in Nevada. If that is the case, however, then one could argue that

the will is formally valid in Louisiana, as the law was in writing and

formally valid pursuant to the laws of the deemed state of making at the

time of making, that is, Nevada. The Florida statute provides similarly in

stating that “[a]n instrument that is signed electronically is deemed to be

executed in this state if the instrument states that the person creating the

instrument intends to execute and understands that he or she is executing

the instrument in, and pursuant to the laws of, this state.”

672

Notably, this

is not the approach of the Uniform Electronic Wills Act, which:

[W]ould not validate the remotely executed, Nevada will of a

testator who signed it while living in a state (say, Connecticut)

which prohibits remote execution, if the will is later offered for

probate in Connecticut. It would, however, later require

Connecticut to admit the will to probate if it was signed remotely

while the testator lived in Nevada, which recognizes such wills.

673

Despite the deemed presence statement in Nevada and Florida law, it

is possible—perhaps probable—that a Louisiana court would not give

effect to the fiction created by Florida or Nevada law that a Louisiana

domiciliary is deemed to be in Florida or Nevada at the time of execution.

Thus, a court would not apply Louisiana’s general conflicts rule and would

not give effect to the electronic will. Be that as it may, pursuant to Nevada

Revised Statutes § 133.088, the Louisiana domiciliary is “subject to the

jurisdiction of the courts of this State”—that is, Nevada—suggesting that

671. NEV. REV. STAT. § 133.088.

672. F

LA. REV. STAT. § 732.522(4).

673. Walsh, Berry, & Gary, supra note 660.

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2020] WILL FORMALITIES IN LOUISIANA 1433

a Nevada court would probate the Louisiana domiciliary’s electronic will.

Of course, under Louisiana law, the Louisiana domiciliary’s movable

property would be subject to the law of Louisiana—that is, “the law of the

state in which the deceased was domiciled at the time of death”

674

—as

would his immovable property—that is, “the law of this state.”

675

The

Uniform Electronic Wills Act recognizes that “some states will seek to

enforce [a] no remote wills policy by amending their wills acts not only

by prohibiting the remote execution of electronic wills in their state, but

also by refusing to recognize those that were validly executed out of

state.”

676

To date, Louisiana has not undertaken this approach.

ONCLUSION

Although the above assessment has, in many ways, been critical of the

current law, many beneficial developments have occurred. The legislature

is to be commended for moving away from the Procrustean traditional

form requirements that dominated the law for most of the 20th century and

adopting, based largely upon comparative research, the simpler and easier

statutory and, eventually, notarial will. The courts have, in many instances,

grafted doctrines of flexibility, such as “substantial compliance,” that have

aided testators in enforcing their intent without at the same time

jeopardizing the virtues and purposes of form requirements.

Over the last 50 years, however, the positive law on form requirements

for wills has developed very little. The notarial and olographic wills are,

to a very great extent, the statutory and olographic wills of the 1950s. The

statutory will, which was adopted to provide a simpler form than had

previously been available for nuncupative wills, has now become a rigid

procedure that is applied in an inflexible, formalistic way. Requirements,

such as the date, the attestation clause, and the signing of every page of a

will—which serve little to no practical purpose—have served as a

shibboleth to allow only the initiated and chosen ones to successfully make

wills while, at the same time, denying the benefits to many. To make

matters worse, in the context of notarial wills, decedents are being forced

to die intestate not because of mistakes they make themselves but because

of errors on the part of their lawyers in the drafting of wills. The current

Louisiana law is not only ill-suited for modern day practice, but it is also

ill-equipped to contend with matters such as electronic wills and other

forms of wills that may develop in the future.

674. LA. CIV. CODE art. 3532.

675. Id. art. 3533.

676. Walsh, Berry, & Gary, supra note 660.

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1434 LOUISIANA LAW REVIEW [Vol. 80

Indeed, today—perhaps more than in the recent past—the purposes of

will formalities should be keenly kept in mind as an increasing number of

jurisdictions begin to reevaluate will formalities, such as the attestation

requirement, in light of the COVID-19 pandemic and the new importance

of social distancing. The Ministry of Justice in the United Kingdom, for

example, is currently reported to be “urgently look[ing] to change

requirements around witnessing wills in the wake of the coronavirus

outbreak.”

677

Additionally, U.S. governors in a great number of states have

issued executive orders purporting to relax certain will formalities, such

as in-person witnessing.

678

Even in Louisiana, several bills have been

introduced to allow for remote notarization of legal acts,

679

and at least one

such bill would include wills within its ambit.

680

When assessing the relevance of form requirements—whether during

a pandemic or not—the key consideration with form requirements should

never be blind obeisance; rather, it should always be that the requirements

be applied to the extent that their enforcement furthers their rationale or

underlying purposes.

681

As one commentator aptly observed many years

ago, form requirements are not an end in themselves but only a means to

an end.

682

As such, they should always be viewed by courts as “a vehicle

677. Jemma Slingo, Coronavirus: Talks Ongoing over Wills Witness

Requirements, L

AW SOC. GAZETTE (Mar. 25, 2020), available at https://www.

lawgazette.co.uk/news/coronavirus-talks-ongoing-over-wills-witness-requirement

s/5103625.article [https://perma.cc/CT9M-UZU2]; see also Harry Brennan, Rules

to Be Relaxed to Allow Quick Military-Style Wills to Be Drawn Up Amid Covid-19

Surge, T

ELEGRAPH (Apr. 1, 2020), available at https://www.telegraph.co.uk/

money/consumer-affairs/rules-relaxed-allow-quick-military-style-wills-drawn-amid-

covid/ [https://perma.cc/39BH-WUKF].

678. See, e.g., N.Y. Exec. Order 202.14 (April 7, 2020) (providing that the act

of witnessing can be performed using certain types of audio-visual technology). For

a comprehensive and up-to-date listing of the various laws and executive orders

regarding remoted witnessing and notarization, see Emergency Remote

Notarization and Witnessing Orders, ACTEC (April 10, 2020), available at https://

www.actec.org/resources/emergency-remote-notarization-and-witnessing-orders/

?utm_source=Informz&utm_medium=Email&utm_campaign=ACTEC&_zs=Thp

AX&_zl=JKd32 [https://perma.cc/394K-RMQU].

679. H.B. 122, 2020 Leg., Reg. Sess. (La. 2020), subsequently enacted into

Act No. 131, 2020 La. Acts; H.B. 274, 2020 Leg., Reg. Sess. (La. 2020),

subsequently enacted into Act No. 254, 2020 La Acts; S.B. 472, 2020 Leg., Reg.

Sess. (La. 2020).

680. S.B. 472, 2020 Leg., Reg. Sess. (La. 2020).

681. Kolkman, Testamentary Formalities in the Netherlands, in

ESTAMENTARY FORMALITIES, supra note 44, at 173.

682. Hawsey, supra note 270, at 461.

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2020] WILL FORMALITIES IN LOUISIANA 1435

which protects the testator and those inheriting under him from imposition,

fraud, and undue influence. When none of these evils are present, form has

served its function and the testament should not be struck with nullity.”

683

Yet it would be unfair to lay all the blame at the feet of courts. As one

branch of government, the courts are charged with interpreting the laws,

not writing them. The legislature, too, must be cognizant of whether the

formalities adopted are not only serving the purposes for which they are

designed but also whether there are better ways to serve those purposes

without imposing an unjustifiable risk upon testators. As James Lindgren

has written, “If we required a secret handshake for willmaking that only

lawyers knew, that would serve the cautionary or ritual function.”

684

It is

time for the secret handshake for will-making in Louisiana to change. It is

hoped that the above contribution will modestly serve to advance that goal.

683. Id.

684. Lindgren, supra note 23, at 1033; see also Fassberg, supra note 146, at

627.

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