Are there Reasons to Challenge a Last Will and Testament? Among other reasons, wills may be challenged as follows:
- The testator lacked the testamentary capacity;
- The will is the product of undue influence is alleged; or
- The will is a forgery.
A probated testament may be annulled only by a direct action brought in the succession proceeding against the legatee, the residuary heir, if any, and the executor if he has not been discharged. If a will is challenged, witnesses must be produced. Usually, a party challenging a will asserts both lack of capacity and undue influence.
An objection to the will may be made at the time the will is presented or may be presented in opposition at a later time. The plaintiff to an action to annul a probated testament has the burden of proving the invalidity thereof unless the action was instituted within three months of the date the testament was probated. Additionally, the action must be brought within five years of the time the will is filed with the court.
The burden of proof to invalidate a will due to testamentary capacity must be proven by clear and convincing evidence. A person who challenges a donation because of fraud, duress, or undue influence, must also prove it by clear and convincing evidence. However, if, at the time the donation was made or the testament executed, a relationship of confidence existed between the donor and the wrongdoer and the wrongdoer was not then related to the donor by affinity, consanguinity, or adoption, the person who challenges the donation need only prove the fraud, duress, or undue influence by a preponderance of the evidence.
Challenge a Last Will and Testament in Louisiana for Testamentary Capacity
In Louisiana, a challenging party can assert that the testator did not have the capacity to sign the will at the time of the execution. This is likely the most common challenge to a will – that the testator lacked capacity.
Under Louisiana law, the testator shall generally have capacity if he or she is able to comprehend generally the nature and consequences of the disposition that he or she is making. This means that the testator must be able to understand what he is doing and the effect on himself and his wealth. This does not mean that the testator must fully understand the document creating the transfer.
A court in such a case will consider the medical evidence that is available as well as the testimony of lay witnesses. The capacity to give must exist at the time of making a donation (as opposed to the time of acceptance by the donee) and at the time of execution of a will. Last, a fully interdicted person cannot make or receive donations; a limited interdict is presumed not to have capacity over those things for which a curator has been appointed.
Challenge to Last Will and Testament in Louisiana for Undue Influence
In Louisiana, a challenging party can assert that a third party exercised undue influence over the testator, thus nullifying the will. A will can also be declared null upon proof that it is the product of fraud or duress; in this case, the entire will does not have to be nullified if any provision of the will is not the product of fraud or duress. Usually, a party challenging a will asserts both lack of capacity and undue influence.
Specifically, under Louisiana law, a last will and testament shall be declared null upon proof that it is the product of influence by the donee of another person that so impaired the volition of the donor as to substitute the volition of the donee or other person for the volition of the donor. The effect of the use of undue influence is not limited to a bequest of property, but extends to one obtaining an appointment as an executor, trustee, attorney, or other fiduciary.
What Types of Wills Exist in Louisiana?
There are generally two types of wills in Louisiana: notarial wills and olographic wills. A notarial will is a last testament signed in front of a notary and two witnesses. An olographic will is a last testament entirely written, dated, and signed in the testator’s handwriting in front of two witnesses.
If the formalities and technicalities of either a notarial will or an olographic will are not followed, courts will declare the purported will to be invalid.
Olographic Wills in Louisiana
As stated above, an olographic will is a last testament entirely written, dated, and signed in the testator’s handwriting in front of two witnesses.
An olographic will must be entirely written, dated and signed in the handwriting of the testator. The date can appear anywhere in the testament, but the testator must sign the testament at the end of the will. Anything written by the testator after his or her signature might not be considered by a court to be part of the will. Also, additions or deletions on the will may be given effect only if made by the hand of the testator.
An olographic will is probated by a Louisiana court through the testimony of the two creditable witnesses that the testament was entirely written, dated, and signed in the testator’s handwriting. This may be done by affidavit, and usually is. However, a Louisiana court, in its discretion, could require either or both of these witnesses to appear and testify orally that the testament was entirely written, dated, and signed in the testator’s handwriting.
Notarial Wills in Louisiana
As stated above, a notarial will is a last testament signed in front of a notary and two witnesses.
Generally speaking, a notarial will is a self-proving document (it need not be “proved”) and may be presented ex parte, or in other words, without a contradictory hearing. So upon production of the testament, a court shall order it filed and executed, and this order shall have the effect of probate.
For a notarial will, if a testator can read and sign his name, the testator shall declare or signify before the notary and witnesses that the instrument is his testament and shall sign his name at the end of the testament and on each other separate page. Also, the testator must sign an attestation clause that is substantially similar to that set forth in Louisiana Civil Code Article 1577(2).
For a notarial testament where the testator knows how to sign his name, is literate and able to see, but unable to sign his name due to some physical infirmity, there are special rules. Specifically, the testator needs to either affix his mark or, if unable shall direct another person to affix his mark, and there is a different special attestation clause in this situation. When a testator does not know how to read or cannot physically read, the will must be read out loud before the notary and witnesses, and there is a different special attestation clause. When a testator knows how to and is physically able to read braille, there is a specific type of attestation clause and certain procedures that must be followed for the will to be declared valid. When a testator has been declared physically deaf or deaf and blind and who is able to read sign language, braille, or visual English, there is a different specific type of attestation clause and certain different procedures that must be followed for the will to be declared valid.
Witnesses to a notarial will must be competent; a person cannot be a witness to any will if he is insane, blind, under the age of sixteen, or unable to sign his name. Also, a person who is competent but deaf or unable to read cannot be a witness to a notarial will.
A legatee to a will should never be either a witness or a notary to the will. In such a case, the will is not entirely invalidated, but the legacy to wither the witness or notary is invalid. (There is an exception if the witness would otherwise have been an heir in intestacy, the witness may receive the lesser of his intestate share or the legacy in the will.)
Note that a person may not be a witness to a will if that person is a spouse of a legatee at the time the will is executed. The will is still valid, but the legacy to the witness’ spouse is invalid. However, if the legatee would have been an heir in intestacy, the legatee can receive the lessor of his intestate share or legacy in the will.
Further, the designation of a succession representative or a trustee or an attorney for either the succession representative or trustee is not a legacy. This means that, though such designation is not binding on either the succession representative or the trustee, such designation does not prevent the attorney from being retained by either person.
A mandatory or agent for the testator cannot sign the testator’s will. Also, more than one person cannot execute a will in the same instrument.
Testamentary dispositions committed to the choice of a third person are null except as expressly provided by law. The testator may delegate to the executor the authority to allocate specific assets to satisfy a legacy expressed in terms of a value or a quantum or fractional share. Note that this power is only limited to selecting assets, not to selecting legatees.
For charitable kinds of legacies, a testator can give executors much greater powers. The testator may expressly delegate to the executor the authority to allocate a legacy to one or more entities or trustees for trusts organized for educational, charitable, religious, or other philanthropic purposes. In other words, the testator may even delegate the authority to the executor to select the very charities themselves who are to receive the legacies.
How Are Lost Wills Handled in Louisiana?
Any party interested in locating an original last will and testament should try the following steps:
- Contact the notary to see if the notary has the original will;
- Contact the Louisiana Secretary of State to determine if the will was registered in the Secretary of State’s central registry of wills; and
- Contact the possible parishes to determine if the will was filed in the parish’s notarial archives or with the parish’s clerk of the court.
Oftentimes, one or more parties in a matter are “convinced” that the decedent had left a will. Unfortunately, in many of those cases, those convinced parties had to address the reality that the will could not be found, even after extensive inquiries to all local banks regarding potential bank boxes in the name of the decedent where the alleged will might have been kept.
To avoid this type of issue from ever arising, a testator should strongly consider leaving the original copy of the will at the office of his or her attorney. This makes sense for several reasons: in case there is a need to execute codicils to the will, to revoke (and perhaps destroy) a prior will, and to secure the will in a “will safe.” Also, a testator should never execute more than one original copy of the will; having multiple original copies of the will could create problems that might otherwise have been avoided with a single original copy of the will.
When a will cannot be found at the testator’s death, there arises a presumption that the testator destroyed the will with the intention of revoking it. Nonetheless, a last will and testament that has been lost or unintentionally destroyed can be probated if it can be proven:
- That the last will and testament was executed;
- What the contents of the last will and testament were; and
- After a diligent search, the last will and testament cannot be found and was never revoked.
If the last will and testament is proven to have been in the testator’s possession (or accessible to the decedent) and cannot be found after he or she dies, a presumption arises that the testator revoked the will by destroying it. This presumption can be rebutted upon a showing that the testator did not revoke the last will and testament.
How Are Copies of Wills Handled in Louisiana?
As noted above, if an original copy of the will cannot be found, a presumption arises that the testator revoked the will by destroying it. And, if a copy of a will exists, this copy alone is not sufficient to overcome this presumption. However, if there is sufficient additional evidence, a copy of a will can be accepted for probate if it can be proven:
- That the will was properly executed;
- What the contents of the will were; and
- After a diligent search, the last will and testament cannot be found and was never revoked.
Typically, these requirements can be met by producing an affidavit of an individual who had personal knowledge that the original will existed and it was lost or destroyed after death. Also, many times Louisiana courts will accept an affidavit from the notary who wrote or notarized the will. This notary’s affidavit would typically state that the notary signed the original will, that the notary has a copy of that signed will, and that the copy of the will is the same as the notary’s copy.
Last, Louisiana law also requires the court to direct a notary to attempt to locate the original will.
Before You Challenge a Last Will and Testament, Contact a Louisiana Succession and Probate Lawyer Who Has Actually Successfully Invalidated Wills at Trial
Peter Diiorio of New Orleans Legal, LLC is an experienced Louisiana succession and probate attorney. Mr. Diiorio frequently handles complex succession matters, including succession and probate litigation and disputes. Mr. Diiorio has successfully invalidated wills at trial and removed succession representatives after contradictory hearings. Mr. Diiorio is happy to provide a free consultation to discuss your succession and probate matter. Please contact Mr. Diiorio now at (504) 897-5580 to schedule a free face-to-face, Zoom, or telephone consultation, and let us handle your probate matter for you.