Wills can be declared invalid by the court when certain formalities prescribed by law are not followed. An example of a will being declared null and void in Louisiana is found in a recent 2008 case.  In this case, "Joe" died at age 85.  Joe executed a standard notarial testament (not  handwritten)  in 2005.  This 2005 will gave all of his property to his second wife.   Following his death, his wife filed this will in the probate proceedings and was subsequently placed into possession of all of Joe's property.

Soon after his son filed a petition to annul his father's will and to reopen the succession.  The son claimed that his father was illiterate and that the 2005 will was in a standard notarial form, not the form required for an illiterate person pursuant to article 1579 of the Louisiana Civil Code.

Joe's 2005 will was not read aloud to him and did not contain an attestation clause which is required by Louisiana Law for an illiterate person. Therefore, whether or not Joe executed a valid will depended on the evidence of his being able to read or not being able to read.

In the trial, evidence was presented that Joe needed assistance to read and interpret simple documents like personal letters or a newspaper.  Along with other evidence, the court concluded that Joe could not adequately read the 2005 will.   Because the court decided that Joe was illiterate, the 2005 will was declared invalid because it was not executed with the proper language  for someone who could not read. The  court ruled in favor of the son, reopened the succession and annulled  the Judgement of Possession in favor of the second wife. Joe's assets were distributed according to the laws of intestacy and not necessarily the way Joe would have wanted.

How could this have been avoided? What are the formalities established by Louisiana Law?  For persons who can read and write, and are able to do so, the procedures are relatively simple and include signing at the end of the testament and on each separate page in the presence of a notary, who is often an attorney, and two competent witnesses.  Another formality, for example, is a separate statement called a Declaration that must be signed and certifies in special language what happened on the day that the will was signed.  For example the Declaration would say  that the testator read it and declared it was his testament.

Wills for those who cannot read, or are not able to sign have separate formalities that must be followed.   The will must be read aloud for those who cannot read, and the witnesses must follow along on written copies, to verify the accuracy of the reading. The Declaration must certify that the will was read to him and he declared it his (or her) testament.  On the other hand, a person who cannot sign may have one of the witnesses sign on their behalf if the proper modifications are made to the Declaration. This would include people who are mentally fine but physically impaired.

Finally, changes to notarial wills have another set of formalities.  While it is true that a person can line through a section, handwrite changes and initial the changes with the date, it is not recommended because changing one section can significantly alter how other sections are interpreted.  Therefore, it is recommended that any substantive changes should be handled by  an attorney  through the forms of a codicil or revised notarial testament.

The primary practice at Melchers Law Firm focuses on estates, wills, trusts, successions, business law and personal injury. (Plaintiff representation)

Contact us for more information at 504-467-1092 or 504-467-1130