In Succession of James Conway Liner III , a June 30, 2021 opinion from the Louisiana Supreme Court, the Court vacated its original opinion and clarified the analytical framework for determining whether a notarial will is in substantial compliance with the provisions of the Louisiana Civil Code.
The Facts of Succession of James Conway Liner
We have written about the facts of this case before, in: Two Louisiana Supreme Court Cases Examine When Attestation Clauses In A Notarial Will Substantially Comply With The Law, and When They Don’t.
In sum, James executed two notarial instruments, one in 2013 and one in 2015. The district court invalidated the 2015 testament on the basis that the provisions of the attestation clause were not substantially similar to those set forth in La. C.C. art. 1579(2), which governs the requirements of the attestation clause for a notarial will and testament when a testator is unable to read. The appellate court reversed the district court’s decision.
In a January 2021 Opinion, the Louisiana Supreme Court reversed the Court of Appeal and reinstated the trial court’s judgment invalidating the 2015 testament, stating:
A statement verifying only that the “[w]ill was signed” establishes only that the will was signed once and does not establish that the testament was signed at the end and on each other separate page, as required by La. C.C. art. 1579(2). An attestation clause that fails to state that the testament was signed at the end and on each other separate page fails to inform the testator and witnesses that the testator has a responsibility to sign every page of a multiple-page testament, and “signing one’s name on each page of the will undoubtedly offers more heightened protection from surreptitious replacement of pages.”
The Louisiana Supreme Court granted a Motion for Rehearing, and issued a new opinion.
Attestation Clause For Louisiana Notarial Will Of Testator Who Is Unable To Read
The Louisiana Supreme Court began by reviewing the requirements for a notarial will when the testator is unable to read:
A testator who is unable to read, including by reason of physical impairment, must follow the requisite formalities detailed in La. C.C. art. 1579 in order to execute a will. An attestation clause, evincing compliance with these formalities, must be included. The required contents of the attestation clause for this type of will is governed by La. C.C. art. 1579(2), which provides:
In the presence of the testator and each other, the notary and witnesses must sign the following declaration, or one substantially similar: “This testament has been read aloud in our presence and in the presence of the testator, such reading having been followed on copies of the testament by the witnesses [, and the notary if he is not the person who reads it aloud,] and in our presence the testator declared or signified that he heard the reading, and that the instrument is his testament, and that he signed his name at the end of the testament and on each other separate page; and in the presence of the testator and each other, we have subscribed our names this ____day of ____, ______.” “The formalities prescribed for the execution of a testament must be observed or the testament is absolutely null.” La. C.C. art. 1573.
The plain language of La. C.C. art. 1579(2) establishes that strict compliance with formal requirements is not necessary – an attestation clause need only be “substantially similar” to the language provided by the Civil Code. Our legislature adopted the statutory – now notarial – will from the common law to avoid the rigid formal requirements of the civil law.
Intention Of the Testator Must Govern: Elevate Function Over Form
A cardinal rule of the interpretation of wills is that the intention of the testator as expressed in the will must govern. Against this framework, the Louisiana Supreme Court noted that the formalities of a notarial will provide a protective function of guarding the testator against the risk of fraud.
However, in guarding against the risk of fraud, courts should not favor the hypothetical over the facts at hand – potentially undermining the very purpose the formalities serve – by “elevating form over function.” The result for a testator’s estate would be the same as if fraud had actually been proven. This is contrary to the legislature’s adoption of the “substantially similar” language in the Civil Code, the established liberal interpretative standard in favor of a will’s validity, and ignores consideration of whether “the instrument as a whole shows that [the] formalities have been satisfied.”
The Clarified Standard: Louisiana Courts Must Determine If a Notarial Will Reflects Testator Was Protected Against the Risk of Fraud
In light of the overarching goals of honoring the testator’s intent and liberal interpretation of the standard in favor of the wills validity, the Louisiana Supreme Court established a clarified standard:
Courts must determine if a notarial will, with all formalities and evidence taken into consideration, reflects the testator was sufficiently protected against the risk of fraud. Holmes, supra, at 541. This involves a contextual analysis of the protective function of a will’s formalities in light of the document itself.
If the court’s analysis reveals an increased likelihood that fraud may have been perpetrated, the deviations are material and cause to nullify the will exists. If not, the deviations are slight and should be disregarded. Guezuraga, 512 So.2d at 368. Whether the deviating language sufficiently protects against the risk of fraud is construed liberally in favor of maintaining the validity of the will. Id.; Holbrook, 13-1181, p. 11, 144 So.3d at 853. Mere allegations of fraud are not outcome determinative.
The Louisiana Supreme Court then reviewed the deviations in the attestation clause of the 2015 testament at issue:
The primary deviation in the attestation clause at issue is the absence of language declaring that Mr. Liner signed the 2015 testament “at the end” and “on each other separate page.” We construe the attestation clause liberally to determine whether it sufficiently evinces the requisite formalities to serve the protective function of guarding against the risk of fraud. See Morgan, 257 La. at 385, 242 So.2d at 552; Porche, 288 So.2d at 29-30; Guezuraga, 512 So.2d at 368. The attestation clause contains Mr. Liner’s declaration that the “Will was signed” by himself and that “the foregoing instrument, consist[s] of eight (8) pages.” Further, the 2015 testament was actually signed at the end and on each of the eight pages comprising it. These contextual circumstances – apparent from the instrument itself – reasonably indicate the language of the 2015 attestation clause sufficiently protected Mr. Liner against the risk of fraud.
The Louisiana Supreme Court therefore found that the attestation clause of the 2015 testament was executed in substantial compliance with La. C.C. art. 1579(2), and noted that while “it is doubtless that best practices suggest using the language provided in the Civil Code, strict compliance is not the governing standard.”