4.2.5 Formal Requirements for Notarial Testaments

A notarial testament must be in writing and be executed according to the formalities in Civil Code Articles 1577–1580.1.1  For a testator that knows how to read and to sign his or her name and is physically able to do both, there are four requirements:

1. The testator must execute the testament in the presence of a notary and two competent witnesses.

2. The testator must declare or signify that the instrument is the testator’s testament.

3. The testator must sign the testator’s name at the end of the testament and on each other separate page.

4. In the presence of the testator and each other, the notary and the witnesses must 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 ________, ____.” This is called an attestation clause.2   

There are different procedures and attestation clauses for (1) persons who are physically unable to sign their names, (2) persons unable to read, (3) persons who are blind, and (4) persons who are deaf or deaf and blind.3  For example, if the testator does not know how to read or cannot read due to a physically impairment, the testament must be read aloud, and the witnesses must follow the reading on copies of the testament.4

Failing to incorporate the required attestation clause or follow the required formalities may invalidate a purported testament. However, in 2021, the Louisiana Supreme Court held that courts must determine if a notarial will, with all formalities and evidence taken into consideration, reflects that the testator was sufficiently protected against the risk of fraud.5  A dissent in a subsequent case noted the potential negative ramifications of this ruling: “[T]he ‘attestation clause’ has become meaningless. All testaments must now be litigated to determine if there was fraud, or even just to determine how many pages are contained in the testament.”6  Therefore, despite these recent decisions, the better course is to follow all of the codal requirements.

• 1La. C.C. art. 1576.
• 2La. C.C. art. 1577.
• 3See La. C.C. arts. 1578–1580.1.
• 4La. C.C. art. 1579.
• 5Succession of Liner, 2019-02011 (La. 06/30/21), 320 So. 3d 1133; see also Succession of McKlinski, 2021-0369 (La. App. 4 Cir. 11/10/21), 331 So. 3d 414.
• 6In re Succession of Allen, 2020-00653 (La. 09/27/21), 324 So. 3d 79.