last update 1-01-2003

Louisiana Wills

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.

General

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 Will.

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 that item.

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 Louisiana.

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 the trust.

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.

Notarial Will

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 of law.

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

Olographic Will

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 Louisiana parlance.

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  =======================
                      AND DISCLAIMER
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.
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last update 1-01-2003

Louisiana Wills

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