In re Watson

253 So. 3d 867
CourtLouisiana Court of Appeal
DecidedAugust 15, 2018
DocketNo. 52,199-CA
StatusPublished
Cited by6 cases

This text of 253 So. 3d 867 (In re Watson) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Watson, 253 So. 3d 867 (La. Ct. App. 2018).

Opinion

STONE, J.

The trial court denied William Watson's petition to have the last will and testament of Rosie Lee Watson declared invalid for failure to meet the requirements of La. C.C. art. 1578. William Watson now appeals. For the following reasons, we affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Rosie Lee Watson ("the decedent") died testate on February 26, 2016. Her will was admitted to probate on June 15, 2016, and a judgment of possession was rendered on the same date. On March 30, 2017, the decedent's son, William Watson ("Watson") filed a petition to have the will, dated January 28, 2011, annulled. Watson argued the will was not valid under Louisiana law because it did not contain the sufficient attestation clause as required by La. C.C. art. 1578 (" Article 1578"). The hearing on Watson's petition was held on July 31, 2017. At the hearing, Watson opted to not present any evidence, but instead elected to rest on the pleadings and the will itself. Thereafter, the trial court determined the decedent's testament was valid because it met the requirements of La. C.C. art. 1577 (" Article 1577"). The trial court rendered a final judgment denying Watson's petition. Watson now appeals.

DISCUSSION

The formalities prescribed for the execution of a testament must be observed or the testament is absolutely null. La. C.C. art. 1573. The purpose of prescribing formalities for the execution of wills is to guard against mistake, imposition, undue influence, fraud or deception, to afford a means of determining the will's authenticity, and to prevent substitution of some other writing in its place. Succession of Roussel , 373 So.2d 155, 158 (La. 1979).

Article 1577 provides:

The notarial testament shall be prepared in writing and dated and shall be executed in the following manner. If the testator knows how to sign his name and to read and is physically able to do both, then:
(1) In the presence of a notary and two competent witnesses, the testator shall declare or signify to them that the instrument is his testament and shall sign his name at the end of the testament and on each other separate page.
(2) In the presence of the testator and each other, the notary and the witnesses shall sign the following declaration, or one substantially similar: "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 order for a notarial testament to be valid as to form, (1) the testator must declare in the presence of a notary and two witnesses that the instrument is his testament, (2) the testator must sign his *870name at the end of the testament and on each separate page, and (3) the notary and two witnesses must sign a declaration in the presence of each other and the testator attesting that the formalities of Article 1577 have been followed. Succession of Dawson, 51,005 (La. App. 2 Cir. 11/16/16), 210 So.3d 421, 424-25.

For a valid notarial will, there must be an attestation clause or clause of declaration. However, its form is not sacrosanct. Successions of Toney , 2016-1534 (La. 5/3/17), 226 So.3d 397, 409 ; Succession of Morgan , 257 La. 380, 242 So.2d 551, 552 (La. 1970) ; Succession of Dawson , supra at 425. The attestation clause may use the form suggested in the statute or use language substantially similar thereto. The attestation clause is designed to demonstrate that the facts and circumstances of the execution of the instrument conform to the statutory requirements. Successions of Toney, supra at 409-10 ; Succession of Morgan, supra ; Succession of Dawson, supra . Courts liberally construe and apply the provisions of Article 1577, maintaining the validity of the will if at all possible, as long as the will is in substantial compliance with the statute. In re Succession of Holbrook, 2013-1181 (La. 1/28/14), 144 So.3d 845, 851 ; Succession of Dawson, supra .

Article 1578 provides:

When a testator knows how to sign his name and to read, and is physically able to read but unable to sign his name because of a physical infirmity, the procedure for execution of a notarial testament is as follows:
(1) In the presence of the notary and two competent witnesses, the testator shall declare or signify to them that the instrument is his testament, that he is able to see and read but unable to sign because of a physical infirmity, and shall affix his mark where his signature would otherwise be required; and if he is unable to affix his mark he may direct another person to assist him in affixing a mark, or to sign his name in his place. The other person may be one of the witnesses or the notary.
(2) In the presence of the testator and each other, the notary and the witnesses shall sign the following declaration, or one substantially similar: "In our presence the testator has declared or signified that this is his testament, and that he is able to see and read and knows how to sign his name but is unable to do so because of a physical infirmity; and in our presence he has affixed, or caused to be affixed, his mark or name at the end of the testament and on each other separate page, and in the presence of the testator and each other, we have subscribed our names this _____day of ____, _____."

In his first assignment of error, Watson argues the trial court erred in failing to find the will was absolutely null as a matter of law. The first page of the decedent's will stated that she wished to take advantage of the provisions of Article 1578, which allows an individual who can read and write to make a mark when physical infirmity prevents her from signing her name to a will. Specifically, Watson claims the will is absolutely null because the attestation clause did not include the language that the decedent "declared or signified that this is [her] testament, and that [she] is able to see and read and knows how to sign [her] name but is unable to do so because of a physical infirmity."

Under Louisiana law, there is a presumption in favor of the validity of testaments and evidence of the nonobservance of formalities must be exceptionally compelling to rebut that presumption. In re Succession of Holbrook, supra at 853 ;

*871Succession of Dawson, supra at 423.

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Cite This Page — Counsel Stack

Bluebook (online)
253 So. 3d 867, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-watson-lactapp-2018.