George Holmes (Louisiana State University) recently published a comment entitled, Testamentary Formalism in Louisiana: Curing Notarial Will Defects Through a Likelihood-of-Fraud Analysis, 75 La. L. Rev. 511-541 (2014). Provided below is a portion of the article’s introduction:
Before James Holbrook died, he thought that his last will and testament was valid. The document that he prepared for probate appeared to have all of the requisite formalities for a notarial will required by Louisiana Civil Code article 1577. Unfortunately for Mr. Holbrook’s potential legatees, the date recorded on the attestation clause of the will included the year and the month, but not the day—contrary to the strict requirements of Louisiana law. Although the will was properly dated on every other page, the omission of the date on the attestation clause was due to the fault of the notary who executed the document. Mr. Holbrook’s daughter challenged the validity of the will on the basis of its lack of form; she did not claim the existence of another will. Although the document complied with the statutory formalities of a notarial will in every other respect, a Louisiana circuit court declared his will null for lack of form because of a seemingly minor flaw.
Many people die leaving behind instruments that, although intended to be wills, contain errors that deviate from the statutory requirements. Much like the circuit court that decided Mr. Holbrook’s case, courts across the United States have historically regarded any deviation from the formal requirements of wills as fatal to a will’s validity. One basis for these decisions is that will formalities exist to provide unequivocal evidence of testamentary intent. A conflict arises, however, when the testator’s intent is evident despite the testator’s non-compliance with the formalities. In such cases, wills are often invalidated notwithstanding the clear intent of the testator to leave a will.