last update 1-01-2003
In the will that was contested in the case of Dupuy v
Walther, No 98-669 (La App 3 Cir, 1998), the decedent had
begun his will by stating "In the event anything ever happens to
me to cause my death...." I suppose that he was being
optimistic in thinking that there was a possibility of nothing
happening resulting in a longer life than most of us will have.
His approach was overly optimistic and indicated a lack of a
need for planning. That should not be the attitude of most of
us, however, and we should make plans to transmit our property
to the heirs who will receive it at our passing.
The transmission of property from one person to another
is treated in Louisiana under the general heading of donations,
of which there are two types. A donation mortis causa is one
that takes effect upon the death of the donor and must be in the
valid form required of a will. The other type is an inter vivos
donation or one made during the lifetime of the donor. This
type of donation will be discussed under the chapter of gifts.
There have been several types of wills that were
allowable in Louisiana in the past. However, only two of them
were used most of the time and it has been anticipated that the
other will forms would be done away with by the legislature.
Effective July 1, 1999, the Legislature did limit the types of
wills to only two and they are the Notarial and the Olographic
In general, a will is simply the statement by the person
writing it, called a testator or testatrix, who sets out rules as to
what is to happen to his assets at the time of his death. The will
can be written in general terms by giving all or certain
percentages of the assets that he owns at death to certain people.
It can also be very detailed and specific by listing each and
every item that should be included and telling who is to receive
Even in a detailed type will, there should be a provision
for all other items not listed since there may be changes in the
assets from the time of executing the will to the time of death.
You can think of this catchall provision as being an umbrella
turned upside down. Anything that is in the estate that is not
specifically left to someone falls to this special category and
these items go to the universal legatee the one who takes
anything not otherwise provided for.
As noted above, the will must be written. By definition,
this means that a verbal deathbed statement by a dying person
will not qualify as a will and cannot be used to change a prior
written will. Oral or verbal wills are simply not recognized in
Generally, it is better planning to prepare a will that is
not detailed in nature. Obviously, if there are certain items that
the testator wants to go to certain people, then those items
should be specified. As to all of the general assets that should
go to the children, general statements can be made to provide
for those items.
The property can be set forth in the will to go directly to
certain people at death or it can be subject to a usufruct or it can
be put into a trust with more terms and conditions set forth in
Before we get into the details of wills, let me review the
list of situations that I consider lend themselves to the need for
a will. They are:
A combined estate in excess of the requirement
to file a Federal Estate Tax Return
Prior marriage of either spouse with children
from that prior marriage
Complex asset holdings
An operating business
A desire to leave property or assets to people or
an organization other than your descendants
A desire to name a guardian or tutor or curator
for minor children
A succession representative will not be able to
close a succession quickly.
You can go to almost any bookstore and many of the
office supply stores and find pre-printed forms to be used as
wills. In Louisiana, the odds are that those forms are not going
to be acceptable. The only type of printed or typed will is the
Notarial Will (formerly referred to as the Statutory Will) which
is one prepared according to the statutory scheme, includes
certain paragraph wording and is signed on each page and at the
end by the testator and before a notary and two witnesses.
Normally, this will is prepared by an attorney in the
process of doing estate planning for the testator. The will is to
be read and the testator is to state that it as his last will and
testament prior to signing it.
After death, the notary and/or witnesses will be called
upon to execute an affidavit stating that they were the notary
and/or witnesses to the will and that the testator complied with
the statutory requirements.
Generally, any competent person 16 years of age or
older who is not insane, not deaf or blind can normally qualify
to be a witness. However, a person who is an heir or legatee
should not be a witness. If an heir or legatee is a witness, the
will is still valid for most parts but is invalid as to any
disposition to that person.
We have used the terms heir and legatee in this book.
Let's explain the terms and their differences. A legatee is
defined as a successor to a testate succession. In other words,
it is any person who inherits because his name is included in a
will. Conversely, an heir is one who is a successor to an
intestate succession or one who inherits by right of law without
having been named in a will. A person can be both a legatee
and an heir if there are certain items passing to a person from a
will but other items not covered by the will pass to him by right
There are also provisions for a notarial form of will for
persons who are literate and sighted but physically unable to
sign, for those who do not know how or cannot read and for a
will to be prepared in braille.
Source: Civil Code Art 1574 et seq
In Spanish, the term holografo or holograph means an
instrument written entirely in the handwriting of the person
executing it. The term holographic will is still used in other
states. During the transition from Europe to Louisiana, the term
lost the "H" and has taken on the spelling of "olographic" in
In any regard, an olographic will is one that is entirely
written, dated and signed by the testator in his own hand. There
is no other requirement for form, notary or witnesses and it may
be made anywhere, even out of state.
Many times a person may go to an attorney to have a
notarial will drawn but later want to make some minor changes
at home. The olographic form can be used for amendments or
codicils to an original will so this makes for a convenient means
for a person to make minor changes on their own.
Erasures not approved by the testator are considered as
not made and words added by the hand of another as not
written. Obviously, changes to any document can lay the
foundation for a legal attack on the will, regardless of which
form is used.
Source La Civil Code Art 1574 et seq
Wills for Deaf and/or Blind
The olographic type of will is available to the deaf
and/or blind who can write. The notarial form of will is
available to the deaf and/or blind only by a person who is able
to read sign language, braille or visual English. A special
attestation clause is to be executed by the witnesses.
There must be two witnesses for this type of will, one of
which must be meet the qualifications of a certified interpreter
for the deaf as provided by law. In addition, the testator is to
be given the choice of accommodation services afforded by the
use of large print, braille, or a tactile interpreter.
Source: La Civil Code Art 1580.1
Amendments or Codicils
It is quite common for a will to be written and the
testator later wanting to make a minor change to that will. Such
a change is often called a codicil or amendment.
A codicil to a will must be in one of the forms allowed
for the original will. However, it does not have to be the same
as the original will. For instance, an original will may have
been of the notarial form and the codicil could have been
prepared at home as an olographic codicil. As long as the
codicil meets the requirements for a valid will using that
method, then it will be a valid codicil. It could be written on
the back of the original will or as a separate piece of paper.
======================== WARNING =======================
This information is provided for the reader's benefit in
becoming familiar with the legal matters discussed. Your
particular facts may be different from the points above.
You should not rely on the above data without consulting a
attorney to discuss the specific facts of your case
and the law of your state.
If you live in Louisiana and want to talk about your situation, please
call me at:
Marvin E. Owen
3036 Brakley Drive
Baton Rouge, La 70816
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