Probate Stars: Louisiana Supreme Court Reverses Itself And Abandons Overly Strict Construction Of Standards For Creating Valid Notarial Will (July 14, 2021)

Probate Stars discusses the Succession of James Conway Liner III and the Louisiana Supreme Court’s decision to vacate the original opinion on determining whether a notarial will is in substantial compliance with the provisions of the Louisiana Civil Code.

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.

Applying the new standard to the facts the court stated:

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.

See Probate Source’s Summary by clicking: Louisiana Supreme Court Reverses Itself And Abandons Overly Strict Construction Of Standards For Creating Valid Notarial Will

See original opinion by clicking: Succession of James Conway Liner III 

Posted by Marin Larkin, Associate Editor, Wealth Strategies Journal.

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