Beware of Online Conveniences in the Age of COVID-19: Louisiana Courts May Require Strict Adherence to Form Requirements for Notarial Will Attestation Clauses
The COVID-19 pandemic has caused people to seek out fast, convenient methods for getting their affairs in order, resulting in an increased use of online will forms. However, Succession of Bruce, a recent decision out of the Louisiana Court of Appeal for the Third Circuit,1 highlights the risks of using online will forms.
Louisiana Civil Code article 1577, governing "Requirements of form" for notarial wills, requires a notary and two witnesses to sign an "attestation clause." Specifically, the article states that the notary and witnesses shall sign a particular declaration quoted in the article, or one "substantially similar." Louisiana courts have recognized that, "[a]lthough it is best practice to use the suggested language provided in art. 1557(2), it is not mandated." Succession of Hanna, 52,664 (La. App. 2 Cir. 6/26/19); 277 So. 3d 438, 442; see also Successions of Toney, 2016-1534 (La. 5/13/17); 226 So. 3d 397, 405 ("There must be an attestation clause, or clause of declaration. However, its form is not sacrosanct. It may follow the form suggested in the statute or use a form substantially similar thereto.").
Notwithstanding the apparent flexibility that article 1577 offers, Louisiana courts have been reluctant to call anything "substantially similar," instead insisting on the exact language provided by the Civil Code. In Successions of Toney, the Louisiana Supreme Court held that "significant and material" deviations in a will apparently derived from a multistate template could not be considered substantially similar to the Civil Code's sample attestation clause. The legatee argued that several affidavits by the witnesses and notary throughout the will substantially complied with the form requirements for a Louisiana attestation clause. Although there were no allegations of fraud, the court held that the will was invalid for want of form. The estate was distributed to the decedent's heirs according to Louisiana's intestate laws. The dissent criticized the majority for "elevat[ing] form over the substance of what Mr. Toney intended" where there was "no hint of fraud."
In the wake of Toney, Louisiana courts have disagreed as to the meaning of "substantial" compliance with article 1577(2). Some courts have required strict adherence to the Civil Code's sample attestation clause, notwithstanding typographical errors or even the correct placement of the testator's signatures. Some courts have permitted variations of the sample attestation clause by looking to the will as a whole and accepting that signatures in the right spot lessen the worry that a poorly worded attestation clause would cause the will to fall for lack of form. But the number of courts requiring strict adherence grows.
On January 8, 2020, the Louisiana Court of Appeal for the Third Circuit considered whether an attestation clause of an internet will was "substantially similar" to the Civil Code's formal requirements in Succession of Bruce. The sample attestation clause in article 1577(2) states, "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 _____, ____." In Bruce, the attestation clause omitted the phrase "at the end." However, the testator signed each page of the two-page will near the paginations, marked 1 of 2 and 2 of 2—that is, he had, in fact, signed it at the end. The legatee urged the court to consider the omission a minor deviation because the will otherwise demonstrated that the totality of the form requirements were met. The court disagreed, citing Toney: "Strict adherence regarding the will's attestation clause is required for a will to be found in compliance. As such, the failure to include this formality is significant and material, and cannot be considered to be substantially similar." 289 So. 3d at 125. As a result, the entire will was declared invalid. The dissent noted the court's evisceration of a "substantially similar" clause clearly permitted by legislation and echoed the dissenting judge's concern in Toney that form had been elevated over substance to the detriment of the testator's unchallenged intent.
In this time of uncertainty when daily life is lived online, it is tempting to fill in the blanks of a generic will that uses generic legalese. But take heed: Louisiana courts have strictly interpreted the form requirements for a notarial will. To these Louisiana courts, a "substantially similar" attestation clause is one that "strictly adheres" to the sample attestation clause provided by the Civil Code. In fact, the Louisiana Supreme Court has explicitly cautioned against the use of generic, multistate templates — no matter how clearly they might manifest the testator's intent. Because failure to comply with Louisiana's formal requirements may result in the severe penalty of rendering a will absolutely null, it is essential for Louisianans to consult with counsel well versed in Louisiana law when drafting their wills.
 19-208 (La. App. 3 Cir. 1/8/20); 289 So. 3d 121.