When it comes to last wills and testaments, proper form is essential.  Indeed, under Louisiana law, “[t]he formalities prescribed for the execution of a testament must be observed or the testament is absolutely null.”[1]  There are two types of testaments in Louisiana: olographic and notarial.[2]  “A notarial testament is one that is executed in accordance with the formalities of Articles 1577 through 1580.1”[3]  Article 1577 sets forth strict form requirements for notarial testaments in general.  First, the testament must be in writing, dated, and signed in the presence of a notary and two witnesses at the end of the testament and on each separate page.[4] Second, the notary and witnesses are required to sign an attestation clause, acknowledging that the testator properly signed the instrument in their presence.[5]  

The heightened form requirements for notarial testaments carry strong consequences.  On one hand, if a notarial testament satisfies the requirements of Article 1577, it is self-proving on its face.[6]  On the other hand, a notarial testament that fails to satisfy all of those requirements is an absolute nullity.[7]  But what happens when a valid notarial testament is subsequently lost or accidentally destroyed and there are no signed copies available?  In that scenario, can an unsigned copy of the lost or destroyed will be probated with the testimony of the individuals who were involved in the execution of the original will?  The Louisiana Supreme Court recently held that an unsigned copy of a lost notarial testament cannot be probated under those circumstances.[8]   

In Succession of Morgan, the decedent’s daughter filed a petition to open the decedent’s small succession.[9]  The daughter claimed in the petition that the decedent died intestate, as an executed will could not be located or produced by the decedent’s husband.[10]  The district court opened the succession and appointed the daughter as administratrix.[11] 

The decedent’s husband then filed a petition to probate a lost will, asserting that the decedent executed a valid one-page notarial testament on June 22, 2016.[12]  He alleged that the original notarial testament was believed to have been placed into a safety deposit box belonging to the attorney who drafted it; however, after searching the box, the original could not be located.[13]  The husband submitted an unsigned copy of the lost notarial testament, along with his own affidavit, and the affidavits of the attorney who drafted the original will and the two witnesses to the testament.[14]  These “narrative affidavits,” attested that the unsigned copy of the lost notarial testament was a correct copy and that the original was properly signed in the presence of the decedent and two witnesses pursuant to La. Civ. Code art. 1577.[15]

In response, the daughter argued that the unsigned copy was not in proper notarial form because it lacked the signatures of the testator, the witnesses, and the notary; consequently, it was absolutely null.[16]  The district court rejected the daughter’s arguments, admitted the unsigned copy for probate, removed the daughter as administratrix, and confirmed the husband as independent executor.[17] 

The First Circuit Court of Appeal affirmed the district court’s ruling, noting that Louisiana jurisprudence recognizes a distinction between probating an original testament that is invalid on its face, which is prohibited, and probating a lost original testament by relying on extrinsic evidence to prove that a valid will existed and the contents of that will.[18]  The First Circuit concluded that this distinction allows lost or accidentally destroyed testaments to be probated if the proponent can establish: (1) that a valid will was executed; (2) what its content and substance were; (3) that it could not be found after a diligent search; and (4) that it was not revoked.[19]  If the proponent proves these facts, he or she may rely on extrinsic evidence despite that evidence itself not satisfying the form requirements applicable to the original testament.[20]  The First Circuit found that the husband’s narrative affidavits satisfied all of these criteria.[21]

The Louisiana Supreme Court granted the daughter’s application for writ of certiorari, reversed the lower courts’ rulings, and declared the unsigned copy absolutely null.[22]  The Court concluded that the unsigned copy of the lost notarial testament could not be probated solely with extrinsic evidence because the proffered copy lacked compliance with the strict statutory form requirements for notarial testaments in La. Civ. Code art. 1577—namely, the signatures of the testator, the witnesses, and the notary.[23]  The Court reasoned that “[t]he use of the word ‘shall’ relating to the signature requirements in La. Civ. Code art. 1577 reflects a policy decision by the legislature that the risk of mistake, imposition, undue influence, fraud, or deception is so significant that the absence of signatures constitutes a material deviation.”[24]  In this respect, the Court explained that “[w]hen the positive law requires certain formalities of execution to make a notarial testament valid and self-proving on its face, proponents of a testament may not prove its compliance with extrinsic evidence[,]” as doing so “would eviscerate the requirements of La. Civ. Code art. 1577 and condition such compliance on credibility determinations of after-the-fact affidavits.”[25] 

The Court’s decision in Morgan underscores the significance of ensuring that notarial wills are executed in proper form, and offers an important reminder for trust and estate lawyers to always make and retain copies of your clients’ signed testaments.  The failure to do so can result in grave consequences that cannot be remedied through testimony or “narrative affidavits” attesting to the lost will’s compliance with the statutory form requirements, as was the case in Morgan.  Ultimately, the Morgan decision dictates that there is no substitute for a signature when probating a lost notarial testament.

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Written on behalf of the Wills, Trusts & Successions Committee