Just calling a document a “Last Will and Testament” does not make it valid under Louisiana law. Louisiana has specific requirements that must be satisfied before a document will be considered a valid Louisiana will.
It is important for the Last Will and Testament to be in the required form. Unless the document calls within one of the categories of Louisiana Last Will and Testament forms, it will not be sufficient to leave property at death (called a disposition mortis causa in Louisiana). The Last Will Testament will be unenforceable and deceased person’s assets will be distributed under Louisiana intestate law.
Louisiana case law has shown that the formal requirements for a Louisiana Last Will and Testament are strictly enforced. Even if it is clear that the person intended someone to receive property at death, the document will not be valid if it is not in a proper Louisiana Last Will and Testament form.
Forms of Louisiana Last Will and Testament
Under current law, there are only two forms of wills under Louisiana law: the notarial testament and the olographic testament (called a holographic testament in other states). In order for either type of will to be valid, it must either:
- Meet the requirements of Louisiana law (discussed below);
- Meet the requirement of the law of the state (other than Louisiana) where the will was executed at the time that the will was executed;
- Meet the requirements of the law where the testator was domiciled at death or when the will was executed; or
- If it affects real estate, meet the requirements of the law of the state where the real estate is located.
Either type must be made by the testator (and not be someone else acting on his or her behalf). Joint wills (e.g., a single will signed by both a husband and a wife) are not permitted.
Requirements for a Notarial Testament Under Louisiana Law
The Louisiana Code sets out five different forms of notarial testaments. The correct form depends on the physical and mental condition of the testator. The specific conditions are:
- When the testator knows how to sign his name and to read and is physically able to do both
- When the testator is literate and sighted but physically unable to sign
- When the testator is unable to read
- When the testator is blind but knows how and is physically able to read braille (notarial testament in braille form)
- When the testator has been legally declared physically deaf or deaf and blind and who is able to read sign language, braille, or visual English
Most wills fall under the first category (when the testator can read and sign his or her name). In that case, the testator must:
- Sign the will on each separate page of the will;
- Sign the will at the end;
- Do all signing in the presence of a notary and two competent witnesses; and
- Declare or signify to the notary and two competent witnesses that the instrument is his testament.
In addition, the notaries and each of the two witnesses should sign a statement in the following form while the testator, the notary, and the two witnesses are all together:
In our presence the testator has declared or signified that this instrument is his testament and has signed it at the end and on each other separate page, and in the presence of the testator and each other we have hereunto subscribed our names this ____day of _________, ____.
This clause that the notary and two witnesses signs is called a witness attestation clause. It is a statement by the witnesses and the notary that all of the testamentary formalities have been followed. This requirement is strictly enforced. Failure to include it will invalidate the will, as many Louisiana cases have demonstrated.
A witness attestation clause is different from the testator attestation clause, which is a statement that appears before the testator’s signature. Both clauses must be included in the will. Problems arise when clients use do-it-yourself forms from the internet that don’t take Louisiana’s specific laws into account.
Requirements for an Olographic Testament (Handwritten Will) Under Louisiana Law
An olographic testament (handwritten will) is one that is entirely written, dated, and signed in the handwriting of the testator. A few comments on these requirements:
- Handwritten – The entire document must be in the handwriting of the testator. Issues arise with handwritten wills when people use fill-in-the-blanks forms that are partially typed and partially handwritten. In that case, a court will look to the handwritten portion of the document to determine whether it meets the requirements of an olographic testament.
- Dated – The date can appear anywhere in the will. If the date is unclear, the court may look at other evidence to determine the date.
- Signed - Although the testator must sign his or her name at the end of the document, anything written below the signature will not necessarily invalidate the will. (The court may or may not consider this other language to be part of the will.)
The cases involving olographic testaments show a general trend toward loosening the rules. If the document is in the handwriting of the testator, shows the testator’s intent to dispose of property at death, and is signed and dated, it can usually be admitted as an olographic testament.
Prior Forms of Louisiana Last Will and Testament
Before July 1, 1999, the Louisiana Code recognized three other forms of Louisiana wills:
- Nuncupative Testament by Public Act
- Nuncupative Testament by Prior Act
- Mystic Testament
The changes that took effect on July 1, 1999, eliminated these forms. To be valid, all wills after July 1, 1999, must either be an olographic testament or notarial testament. But any wills what were validly executed before July 1, 1999, using one of the old forms will still be valid.