Malone v. Malone

509 So. 2d 659, 1987 La. App. LEXIS 9528
CourtLouisiana Court of Appeal
DecidedMay 13, 1987
DocketNo. 86-518
StatusPublished
Cited by3 cases

This text of 509 So. 2d 659 (Malone v. Malone) 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
Malone v. Malone, 509 So. 2d 659, 1987 La. App. LEXIS 9528 (La. Ct. App. 1987).

Opinion

DOMENGEAUX, Judge.

This proceeding involves the validity of the last will and testament of Lee A. Malone, which was purportedly executed in compliance with La.R.S. 9:2443. The proponent of the will, and appellant here, is Donna Marie Malone, the administratrix and universal legatee under the will. Hartman Malone, Lee A. Malone’s brother, is the opponent to the will and appellee.

Lee A. Malone executed a testament on October 17, 1984. Prior to the date of execution, Mr. Malone had met Henry H. Lemoine, Jr., an attorney, for the purpose of having his last will and testament prepared. At that meeting Mr. Lemoine interviewed Mr. Malone to determine his desires concerning the will’s contents. Subsequently, Mr. Lemoine prepared a draft of the will and mailed it to Mr. Malone, along with a letter requesting Mr. Malone to review the draft and to make an appointment to formally execute it. On October 17, 1984, Mr. Malone went to Mr. Lemoine’s office without having made an appointment. At this time Mr. Lemoine, who was then engaged in a loan closing, asked his secretary, Shirley B. Paul, to execute the will with Mr. Malone. Mrs. Paul, who is a notary, in the presence of Mr. Malone and two witnesses, proceeded to execute the will in compliance with the provisions of La.R.S. 9:2442. When it came time for Mr. Malone to sign the testament, Mrs. Paul discovered that Mr. Malone could neither read nor write. At this point Mrs. Paul stopped the proceeding and informed Mr. Lemoine of Mr. Malone’s inability to read or write. Mr. Lemoine then took over the proceedings and Mrs. Paul acted as the third witness.

Once Mr. Lemoine took over, he confirmed with Mr. Malone that he could nei[660]*660ther read nor write. Mr. Lemoine then read the testament aloud in the presence of Mr. Malone and the three witnesses. Mr. Malone then signified that this was his last will and testament, and, in the presence of Mr. Lemoine and the three witnesses, affixed an “X” on each page in the place of his signature. Mr. Lemoine and each witness then signed under the attestation clause.

After Mr. Malone died on May 15, 1985, Donna Marie Malone petitioned the court to have the testament probated. On December 4, 1985, Hartman H. Malone filed an opposition to the petition. After the hearing on the opposition to probate, the district court entered a judgment in favor of the opponent of the will, denying probate, finding the testament to be invalid as it did not comply with the statutory requirements of La.R.S. 9:2443. Prom this judgment Donna Malone appeals. We affirm.

On appeal Donna Malone alleges that all the requirements for perfecting a valid statutory will under La.R.S. 9:2443 were in fact met, except that the attestation clause in the testament failed to conform to the language of the statute, and that the trial court erred in concluding that the testament is invalid.

We begin our review with the applicable statutory language, and the pertinent provisions of Mr. Malone’s testament. It is not disputed that Mr. Malone could neither read nor write. The provisions of La.R.S. 9:24421 are, therefore, not applicable and we must examine La.R.S. 9:2443.

La.R.S. 9:2443 provides in pertinent part the following:

“A. A statutory will may be executed under this Section by a person whose sight is impaired to the extent that he cannot read, or who does not know how to read and whether or not the person is able to sign.
B. The statutory will shall be prepared in writing and shall be dated and executed in the following manner:
(1) The will shall be read aloud by the notary in the presence of the testator and three competent witnesses, and the witnesses shall follow the reading on copies of the will.
(2) After the reading, the testator shall declare or signify to them that he heard the reading and that the instrument is his last will and shall sign his name at the end of the will and on each other separate page of the instrument. If the testator cannot sign his name, he must so declare or signify to the notary in the presence of the witnesses and declare or signify the cause that hinders him from signing, and shall then affix his [661]*661mark in the places where his signature is required.
(3) In the presence of the testator and each other, the notary and the witnesses shall then sign the following declaration, or one substantially similar: ‘Read aloud by the notary in the presence of the testator and each other, such reading having been followed on copies of the will by the witnesses, signed at the end and on each other separate page, (or if not signed by the testator, the statement of his declaration or signification that he cannot sign his name and of the cause that hinders him from signing) and declared or signified by testator, in our presence, to be his last will and testament, and in the presence of testator and each other we have hereunto subscribed our names on this_day of_, 19_’ ”

Mr. Malone’s testament provides in pertinent part:

“I, LEE A. MALONE, being of sound mind and knowing that life is precarious, do make this my last will and testament, revoking all others.
[[Image here]]
[Dispositive provisions omitted.]
IN WITNESS WHEREOF I have written this my last will and testament by typewriter and have signed this my last will and testament, in the presence of the undersigned Notary Public, who is duly qualified, commissioned and sworn in the Parish of Rapides, State of Louisiana, and in the presence of the undersigned competent witnesses on this 17th day of October, 1984.
This 17th day of October, 1984. _X_
LEE A. MALONE
PAGE 1 OF 2 PAGES
[End of Page 1]
[Beginning of Page 2]
THUS DONE AND SIGNED and declared by LEE A. MALONE, Testator herein in our presence to be his last will and testament and in the presence of the Testator and each other, we hereunto subscribed our names on this 17th day of October, 1984.
WITNESSES:
/s/ Elaine M. Downey X
LEE A. MALONE
/s/ Charlene B. Woodring /b/ Shirley D. Paul
/s/ Henry H. Lemoine, Jr.
NOTARY PUBLIC

A comparison of the will with the statutory provisions of La.R.S. 9:2443 B(3) shows that the will’s attestation clause does not conform to the language of the statute. We first note that the will’s attestation clause does not recite that the notary read the testament aloud in the presence of the testator and witnesses, with the witnesses following the reading on copies of the will. In addition, the attestation clause fails to state that Mr. Malone cannot sign his name and fails to give the cause that hinders him from signing.

Appellant argues that despite the defects in the attestation clause, the will was nontheless executed in substantial compliance with the statutory requirements, and should, therefore, be found to be valid. In support of her position, appellant cites a number of cases in which statutory wills completed under the provisions of La.R.S.

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Cite This Page — Counsel Stack

Bluebook (online)
509 So. 2d 659, 1987 La. App. LEXIS 9528, Counsel Stack Legal Research, https://law.counselstack.com/opinion/malone-v-malone-lactapp-1987.