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Has Your Will Been Notarized Properly?

Monday, April 01, 2019

Generally, for a Will to be considered valid in Louisiana, it must be signed by the person making the Will (the testator) and two witnesses, and it must also be notarized. Doing a Notarial Will (one signed by two witnesses and notarized) is the best way to ensure that the document will be considered valid. Although there is a strict procedure that must be followed in order for a Will to be recognized by the courts.

In the 2016 succession of Sandra Gabor Dale in Louisiana, a court ruled that Ms. Dale’s most recent Will, which was drawn up in 2016, was not valid. Typically, when you a make a new Will, that Will includes a statement that revokes all prior Wills, making them void. For example, “I, Patricia Miramon, a resident of Caddo Parish, Louisiana, hereby make this my Last Will and Testament, revoking all prior wills and codicils.”

Ms. Dale’s 2016 Will did include a similar statement, yet her case is unique because Ms. Dale’s most recent Will was deemed invalid, and an older Will from 2014 was executed in her succession. This means that when Ms. Dale passed away, her 2014 wishes were carried out instead of her 2016 wishes.

This unfortunate situation occurred because the 2016 Will, “contained a disclaimer from the notary stating that the notary did not prepare nor read the document and was attesting only to the authenticity of the signatures.”

By adding the disclaimer, the notary only certified that the signatures are authentic. This is a problem because Louisiana Civil Code article 1577 says that in order for a Will to be valid, two witnesses and a notary have to sign a statement declaring, "In our presence the testator [the person whose Will it is] has declared or signified that this instrument [or document] is his/her testament…”  

In Ms. Dale’s case, the notary’s disclaimer raises a question as to whether the notary was present:

(1) When Ms. Dale indicated that the document in question was her Last Will and Testament and

(2) When the two witnesses signed the document.

A court concluded that the 2016 Will with the notary’s disclaimer was invalid, meaning that the wishes of Ms. Dale’s 2014 Will had to be carried out.

To avoid a similar situation, it is important that your Will be witnessed and notarized properly, in compliance with Louisiana law.

 

This article is based on a decision from Louisiana’s First Circuit Court of Appeals. 

To read the court’s decision, click here.