There are two kinds of donations. A donation inter vivos (between living persons) is an act by which the donor divests ownership of a thing, at present and irrevocably, in favor of a donee who accepts it.1  A donation mortis causa (in prospect of death) is an act to take effect, when the donor shall no longer exist, by which the donor disposes of the whole or a part of the donor’s property, and which is revocable.2

• 1La. C.C. art. 1468.
• 2La. C.C. art. 1469.

A person of the age of majority can give via donation inter vivos and mortis causa.1  A minor under the age of sixteen years does not have capacity to donate either inter vivos or mortis causa, except in favor of a spouse or children.2  A minor who has attained the age of sixteen has capacity to make a donation mortis causa in favor of any person and a donation inter vivos in favor of a spouse or children.3

To have capacity to donate inter vivos or mortis causa, a person must also be able to comprehend generally the nature and consequences of the disposition being made.4  Capacity to donate mortis causa must exist at the time the testator executes the testament.5  A person who challenges a testator’s capacity must prove by clear and convincing evidence that the testator lacked capacity when the will was executed.6  Special rules apply to full and limited interdicts.7

• 1La. C.C. art. 1470.
• 2La. C.C. art. 1476.
• 3Id.
• 4La. C.C. art. 1477.
• 5La. C.C. art. 1471.
• 6La. C.C. art. 1482(A).
• 7La. C.C. art. 1482(B)–(C).

All persons have capacity to receive donations inter vivos and mortis causa, except as expressly provided by law.1  The capacity to receive a donation inter vivos must exist at the time the donee accepts the donation.2  Capacity to receive a donation mortis causa must exist at the time of the testator’s death.3  When a donation depends on fulfillment of a suspensive condition, the donee must have capacity to receive at the time the condition is fulfilled.4

The Civil Code has particular provisions for unborn children. To be capable of receiving by donation inter vivos, an unborn child must be in utero at the time the donation is made.5  To be capable of receiving by donation mortis causa, an unborn child must be in utero at the time of the testator’s death.6  In either case, the donation has effect only if the child is born alive.7

• 1La. C.C. art. 1470.
• 2La. C.C. art. 1472.
• 3Id.
• 4La. C.C. art. 1473.
• 5La. C.C. art. 1474.
• 6Id.
• 7Id.

A donation inter vivos is without effect unless and until accepted by the donee during the donor’s lifetime.1  If the donee is of full age, the acceptance may be made by the donee or by a mandatory having power to accept the donation.2  Gifts to an unemancipated minor may be accepted by a parent or other ascendant or by the minor’s tutor, even if the person who accepts is also the donor.3

• 1La. C.C. art. 1544.
• 2La. C.C. art. 1545.
• 3La. C.C. art. 1548.

For a donation to be valid, (1) the donor and donee must have capacity to give and receive; (2) the requisite formalities must be followed; and (3) the donation must not violate a substantive limit on donations.

Various grounds may render a donation null:

• Donation impoverishes donor.1
• Donation lacks proper form or the donee fails to accept.2
• Donation procured through fraud, duress, or undue influence.3
• Donee is incapable of receiving.4  
• Donation is of property that does not exist at the time of the donation.5
• Donation conditional on will of the donor.6
• Donation conditioned on paying debts and charges other than those existing at the time of the donation.7

To annul a donation on the basis of undue influence, one must show that the donee’s influence was so substantial that the donee substituted his or her own volition for that of the donor.8  However, if the evidence shows that the execution of the testament was well within the discretion of the testator, the court should not find that the testator’s volition has been replaced by that of the donee.9      

If a person commits fraud or exercises duress or unduly influences a donor, or procures an appointment by such means, that person cannot serve or continue to serve as an executor, trustee, attorney, or other fiduciary even if so designated in a testament or act of donation.10

• 1La. C.C. art. 1498.
• 2In re Succession of Jones, 46,904 (La. App. 2 Cir. 1/25/12), 86 So. 3d 25.
• 3La. C.C. art. 1480.
• 4La. C.C. art. 1475.
• 5La. C.C. art. 1528.
• 6La. C.C. art. 1529.
• 7La. C.C. art. 1530.
• 8La. C.C. art. 1479.
• 9Succession of Cole, 618 So. 2d 554 (La. App. 4 Cir. 1993).
• 10La. C.C. art. 1481.

A will is the voice of the testator—the deceased. It determines the disposition of the testator’s property at death. If a person makes a will, the succession will be testate. Only one person may execute a testament in the same instrument.1

Prior to 1999 there were seven different types of wills. In 1999, the Louisiana Legislature narrowed the list to only two: olographic and notarial testaments.2  Wills drafted before 1998 that were valid under those rules, remain still valid.3  A will executed in another state and valid under that state’s law will be recognized by Louisiana if the will was in writing and subscribed by the testator.4

The two kinds of wills have specific formal requirements. Failure to adhere to these formalities  may invalidate the will, causing the succession to go intestate. If an invalid will has been probated, a petition to annul the testament may be filed.5

• 1La. C.C. art. 1571.
• 2La. C.C. art. 1574.
• 3La. R.S. 9:2440.
• 4La. R.S. 9:2401.
• 5La. C.C.P. art. 2931.

An olographic will is one entirely written, dated, and signed in the testator’s handwriting.1  The date may appear anywhere in the testament.2  The testator’s name must be signed at the end of the testament.3  The date is sufficiently indicated if the day, month, and year are reasonably ascertainable from information in the testament, as clarified by extrinsic evidence, if necessary.4  Additions and deletions on the testament may be given effect only if made by the hand of the testator.5  If anything is written by the testator after the signature, the testament is not made invalid, and a court may consider such writing as part of the testament.6  Olographic testaments have no other formal requirements.7

Over the years, the courts have lessened the formalities of olographic wills, e.g., accepting slash dates instead of writing out the date.8  An olographic will may be written in part pencil and ink.9  The entire olographic will does not have to be written on the same date.10   But, the basic formal requisites have remained in place, i.e., a valid olographic testament must be entirely written, dated, and signed in the testator’s handwriting.11

• 1La. C.C. art. 1575(A).
• 2Id.
• 3Id.
• 4Id.
• 5La. C.C. art. 1575(B).
• 6La. C.C. art. 1575(A).
• 7Id.
• 8Succession of Boyd, 306 So. 2d 687 (La. 1975).
• 9Succession of Smart, 36 So. 2d 639 (La. 1948).
• 10Oroszy v. Burkard, 158 So. 2d 405 (La. App. 3 Cir. 1963).
• 11Succession of Angele, 546 So. 2d 262 (La. App. 1 Cir. 1989) (holding that a will typewritten and signed by the testator was not valid and rejecting the argument that the term “written” was broad enough to include “typewritten” wills).

To probate an olographic will, two witnesses must testify that the testament was entirely written, dated, and signed in the testator’s handwriting.1   The jurisprudence interpreting La. C.C.P. art. 2883 has held that the phrase “credible witness” includes persons who are familiar with the testator’s handwriting as well as handwriting experts.2

• 1La. C.C.P. art. 2883; Succession of Calhoun, 28,233 (La. App. 2 Cir. 04/03/96), 674 So. 2d 989.
• 2In re Succession of Jones, 356 So. 2d 80 (La. App. 1 Cir. 1978); Succession of Lirette, 5 So. 2d 197 (La. App. 1 Cir. 1941).

Sometimes a testator may draft a will on a paper bearing preprinted extraneous material such as a personal or business letterhead. A letterhead will not defeat the formal requisites of an olographic will provided that the testament itself is entirely written, dated, and signed in the testator’s handwriting. Courts have ignored printed words whose presence on the document is incidental. An exception has evolved with respect to partially printed dates. To uphold a will where a portion of the date was printed, the handwritten portion of the date must be sufficient to be certain of the date when the printed numbers are ignored.1  In other words, the ignored numerals must not be essential to a determination of the date.

The language used in the will must also reflect animus testandi.2  Even if a document has expressions that reflect an intent to direct the division of the author’s property upon the author’s death, the words must signify bequests and that the testator intends that “very paper to be his will.”3  For instance, if a testator directs a person to sell the testator’s home, but does not bequeath the sale proceeds, the directive is deficient as a legacy. The testator can direct heirs to divide the contents of a home among themselves, to use life insurance money for the testator’s funeral, and to pay debts from the estate. The testator can also grant the beneficiaries the power to manage the testator’s debts and “full usage of the money” in an account “to solve what problems they encounter.” Nevertheless, if there is no disposition of property to a person, the document fails to be a testament.

• 1Succession of Heinemann, 136 So. 2d 51 (La. 1931).
• 2In re Succession of Plummer, 37,243 (La. App. 2 Cir. 05/14/03), 847 So. 2d 185.
• 3Id.

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.

Witnesses to a notarial testament must be competent. The following render a person incompetent to serve as a witness: (1) insanity; (2) blindness; (3) being under the age of sixteen; (4) being unable to sign his or her name; or (5) being unable to perform the special duties of a witness when the testator is unable to read.1

Persons should not be witnesses if they are legatees since their legacy will be invalidated.2  The fact that a witness is a legatee does not invalidate the entire testament. In that case, the legacy to the witness is invalid.3  However, if the witness would be an heir in intestacy, the witness may receive the lesser of the witness’ intestate share or the legacy in the testament.4  Similarly, if a legatee’s spouse is a witness to a testament, the legacy to the witness’ spouse is invalid, but, if the spouse would be an heir by intestacy, the spouse may receive the lesser of the spouse’s intestate share or the legacy in the testament.5  No such provision is made for notaries; a legacy to the notary is invalid.

An executor or attorney not otherwise named as a legatee may be a witness. The designation of a succession representative or a trustee, or an attorney for either of them, is not a legacy.6  The notary may be named as attorney, executor, or trustee under the will and still be the officiating notary. If the testament names an attorney to handle the succession, the executor or heirs are not required to use that attorney.7  The executor or heirs can choose to use another attorney, and the attorney named in the will is under no obligation to handle the succession.

• 1La. C.C. art. 1581.
• 2La. C.C. art. 1582.
• 3Id.
• 4Id.
• 5La. C.C. art. 1582.1.
• 6La. C.C. art. 1583.
• 7Succession of Wallace, 574 So. 2d 348 (La. 1991).

A testator may revoke a will at any time.1 The right of revocation may not be renounced.2 Revocation may be express or tacit. Express revocation occurs when a testator executes a new will or adds a codicil or change, thereby revoking a prior will or particular disposition.3 Tacit revocation occurs when a testator disposes of particular property during life, i.e., selling a home or car that had been left to legatees in a will.4

• 1La. C.C. art. 1606.
• 2Id.
• 3La. C.C. arts. 1607–1608.
• 4La. C.C. art. 1608(3).

Revocation of an entire testament occurs when the testator does any of the following:

• Physically destroys the testament, or has it destroyed at his direction.
• Declares a revocation in one of the forms prescribed for testaments or in an authentic act. 
• Identifies and clearly revokes the testament by a writing that is entirely written and signed by the testator in the testator’s own handwriting.
• Destroys one of multiple wills.1
• Destroy or revokes a second will; if the first will was not destroyed, it is revived.2

• 1Succession of Talbot, 530 So. 2d 1132 (La. 1988).
• 2La. C.C. art. 1607.

A testator can can revoke a testamentary provision in the following ways:

• Declaring the revocation in one of the forms prescribed for testaments.
• Making a subsequent incompatible testamentary disposition or provision.
• Making a subsequent inter vivos disposition of the thing that is the object of the legacy and not reacquiring the thing.
• Clearly revoking the provision or legacy by a signed writing on the testament itself.1

A testator's divorce from a legatee after the execution of the testament also revokes the legacy unless the testator has remarried the legatee following the divorce or the testament provides to the contrary. Testamentary designations or appointments of a spouse are revoked under the same circumstances.2

Revocation of legacies in an olographic will may also occur by physical destruction of the testament or by drawing lines through or erasing portions of it, provided that the lines or erasures were made by the hand of the testator.3

• 1La. C.C. art. 1608.
• 2Id.
• 3Oroszy v. Burkard, 158 So. 2d 405 (La. App. 3 Cir. 1953) (“[A] testator, by drawing lines through words or over some writing in his olographic will, may cancel portions of the will or he may revoke it in toto, provided that the evidence establishes that the lines were drawn by the hand of the testator and that in doing so the testator actually intended to cancel or revoke all or specific portions of the will.”).

Revocations of testaments, legacies, or other testamentary provisions may be revoked prior to a testator’s death unless the revocation was made by physical destruction, subsequent inter vivos donation, or divorce.1

• 1La. C.C. art. 1609.

Forced heirship is one of the legacies of Louisiana’s civil law history. For many years, all children, of whatever age, were forced heirs, meaning that they could not be deprived of a portion of their parents’ estates, even if a testator/parent did not mention the children in a testament and left all of the parent’s property to others. This amount reserved to a forced heir is referred to as the legitime or forced portion. Unless there is a just cause to disinherit a forced heir, the legitime cannot be disposed of to others.1

The Louisiana Legislature attempted to change the forced heirship laws several times in the early 1990s, but these changes were declared unconstitutional by the Louisiana Supreme Court. By constitutional amendment, the law was successfully changed on January 1, 1996 to limit those who qualify as forced heirs.2

Forced heirs are descendants of the first degree who, at the time of the decedent’s death, are (1) twenty-three years of age or younger (i.e., right up to the twenty-fourth birthday); or (2) permanently incapable of taking care of their persons or administering their estates at the time of the decedent’s death because of a physical or mental infirmity, or an inherited, incurable condition, supported by medical records, that may render them incapable of taking care of their persons or estates in the future.3  Some consider this latter clause to be an open invitation to litigation. Certainly, heirs with severe mental illness would be natural beneficiaries of this clause. Reported cases have held that persons with bipolar disorder may meet the statutory definition of “permanently incapable of taking care of their persons or administering their estates at the time of the death of the decedent”. 4

When a testator died or executed the testament to be probated before the new law came into effect, complex rules determine whether the new law or prior law governs. If the decedent died before January 1, 1996 or executed his last will before January 1, 1996 and had children over 23 years old, you should review the discussion in L. Carman, Louisiana Successions §§ 2.49–.50. For pre-January 1, 1996 wills where the decedent died in 1996 or later, the testator’s intent as to a forced heir portion is determined on an ad hoc basis. These older children may qualify as forced heirs if the pre-January 1, 1996 law governs or if a pre-January 1, 1996 will is interpreted to give a forced portion.5

When a descendant of the first degree predeceases the decedent, representation takes place for forced heirship only (1) if said descendant was younger than 24 years of age at the decedent’s death; or (2) if a child of said descendant, because of mental incapacity or physical infirmity, is permanently incapable of taking care of his or her person or administering his or her estate at the time of the decedent’s death, or that child has an inherited, incurable condition, supported by medical records, that may cause the child to be incapable of taking care of the child’s person or estate in the future, regardless of the age of the descendant of the first degree at the time of the decedent’s death.6

• 1La. C.C. art. 1494. For the causes of disinhersion, see La. C.C. arts. 1617–1626.
• 2La. Const. art. XII, § 5.
• 3La. C.C. art. 1493.
• 4See, e.g., In re Succession of Wilkins, 2019-1060 (La. App. 1 Cir. 05/11/20), 303 So. 3d 321; Stewart v. Estate of Stewart, 07-333 (La. App. 3 Cir. 10/03/07), 966 So.2d 1241; Succession of Ardoin, 07-43 (La. App. 3 Cir. 05/30/07), 957 So. 2d 937.
• 5For a discussion of this problem, see 10 La. Civ. L. Treatise, Successions & Donations § 10:15 and cases discussed therein.
• 6La. C.C. art. 1493(B).

The portion reserved for the forced heirs is called the forced portion, or legitime, and the remainder is called the disposable portion.1 Since 1982, donations inter vivos and mortis causa may not exceed 3/4ths of the donor’s property (if the donor leaves one forced heir at death) and 1/2 if the donor leaves two or more forced heirs.2 Be sure to apply the forced heirship law in effect at the time of the decedent’s death.3 Prior to 1982, the forced portion was 1/4 for 1 child, 1/2 for 2 children, and 2/3 for 3 or more children. 

Nevertheless, if the fraction that would otherwise be used to calculate the legitime is greater than the fraction of the decedent’s estate to which the forced heir would succeed by intestacy, then the legitime equals the fraction due an intestate successor.4 For instance, if a decedent leaves five children, one of whom qualifies as a forced heir, the forced portion is 1/5 of the estate rather than 1/4. When calculating the forced portion, all donations made by the decedent within the last three years of life are included in the decedent’s property.5

A donation that impinges on the legitime is not null but is merely reducible to the extent necessary to eliminate the impingement.6 For example, if a husband’s will leaves all of his property to his wife and there is a forced heir who is entitled to one-fourth, the legacy to the wife is reduced to the disposable portion (3/4) in full ownership and a usufruct for life, with the power to dispose of nonconsumables, over the forced portion, because that usufruct could have been left to her expressly under La. C.C. art. 1499. This is the maximum extent to which reduction is needed to eliminate the excess that impinges upon the legitime, since the decedent could legally have made such a bequest to his surviving spouse. No further reduction is necessary or appropriate.7

• 1La. C.C. art. 1495.
• 2Id.
• 3La. C.C. art. 870(B).
• 4La. C.C. art. 1495.
• 5Id.
• 6La. C.C. art. 1503.
• 7See La. C.C. art. 1503 cmt. a–b.

No charges, conditions, or burdens may be imposed on the legitime except those expressly authorized by law, such as a usufruct in favor of a surviving spouse or placement of the legitime in trust.1

The decedent may grant a usufruct to the surviving spouse over all or part of the decedent’s property, including the forced portion, and may grant the usufructuary the power to dispose of nonconsumables as provided in the law of usufruct.2 The usufruct shall be for life unless expressly designated for a shorter period and shall not require security except as expressly declared by the decedent or as permitted when the legitime is affected.3 Security can be demanded from the surviving spouse by a forced heir who is not the child of that spouse.4  The requirement of security is not “automatic;” a forced heir “may request” such security, and the court “may order” such security as is necessary.

A usufruct can extend to movables, including cash, which is classified as a “consumable thing.”5 In that case, the usufructuary has the right to spend those funds; the usufruct continues to exist over the items purchased.6 Thus, consumable movables may be completely consumed by the usufructuary, and the naked owner has little recourse except a possible claim against the usufructuary or the usufructuary’s succession when the usufruct ends.7 “Nonconsumable things” include land, houses, and furniture.8 The usufructuary has the right to use and possess these things but not to alienate them.9 Nonconsumables can be sold with the permission of the naked owner(s), and the usufruct attaches to the proceeds of the sale unless the parties agree otherwise.10 A usufruct may be terminated for non-use or abuse of enjoyment and duties.11

• 1La. C.C. art. 1496.
• 2La. C.C. art. 1499.
• 3Id.
• 4La. C.C. art. 1514.
• 5La. C.C. art. 536.
• 6La. C.C. art. 538.
• 7Id.
• 8La. C.C. art. 537.
• 9La. C.C. art. 539.
• 10La. C.C. art. 616.
• 11La. C.C. arts. 621, 623.

If there is no forced heir, donations inter vivos and mortis causa may be made of any of the donor’s property.1 However, a donation inter vivos cannot divest the donor of all property—enough must be reserved for subsistence.2 This limitation on donors’ rights reflects the public policy of not allowing donors to impoverish themselves so as to become wards of the state. For obvious reasons, such restrictions do not apply to “mortis causa” donations.

• 1La. C.C. art. 1497.
• 2La. C.C. art. 1498.

There are three types of testamentary dispositions: universal, general, and particular.1 A universal legacy is the disposition of all of the estate, or the balance of the estate that remains after particular legacies.2  A general legacy is a disposition by which the testator bequeaths a fraction or a certain proportion of the estate, or a fraction or a certain proportion of the balances of the estate that remains after particular legacies.3 A legacy that is neither general nor universal is a particular legacy.4

These classifications become important if a legacy lapses, if one of the legatees renounces the inheritance, or if there are insufficient assets to satisfy all legacies. Particular legacies must be discharged in preference to all others.5 If the property remaining after payment of the debts and satisfaction of the legitime proves insufficient to discharge all particular legacies, the legacies of specific things must be discharged first and then the legacies of groups and collections of things.6 Any remaining property must be applied toward the discharge of legacies of money, to be divided among the legatees of money in proportion to the amounts of their legacies.7 When a legacy of money is expressly declared compensation for services, it shall be paid in preference to all other legacies of money.8

• 1La. C.C. art. 1584.
• 2La. C.C. art. 1585.
• 3La. C.C. art. 1586.
• 4La. C.C. art. 1587.
• 5La. C.C. art. 1600.
• 6La. C.C. art. 1601.
• 7Id.
• 8Id.

A legacy may lapse for several reasons including renunciation, invalidity, or the legatee’s death prior to that of the testator.1

The will controls the disposition (or “accretion”) of a lapsed legacy.2 In the absence of a governing testamentary provision, accretion occurs by the following rules:

1. A special rule applies when the legatee is the testator’s child or sibling, or a descendant thereof. In that case, the lapsed legacy goes to descendants of the legatee.3 The remaining rules apply to all other legatees.

2. If a joint legatee dies before the testator, the legatee’s share goes to the other joint legatee(s) equally.4 A legacy is “joint” if made to more than 1 person without assigning shares.5 The testamentary language controls this classification. For example, “I give my immovable property to A and B” creates a joint legacy, but the language “share and share alike” or “to share equally” does not. If the legacy is not joint, each legatee owns a specific portion without a right of survivorship in favor of co-legatees.6

3. When a particular or general legacy lapses, accretion takes place in favor of the successor who, under the will, would have received the thing if the legacy had not been made.7

4. A lapsed legacy that is not disposed of under the above rules goes ratably to the universal legatees.8

5. Any portion of the estate not disposed of under the above rules devolves by intestacy rules.9

• 1La. C.C. art. 1589.
• 2La. C.C. art. 1590.
• 3La. C.C. art. 1593.
• 4La. C.C. art. 1592.
• 5La. C.C. art. 1588.
• 6Succession of Lambert, 28 So. 2d 1 (La. 1946).
• 7La. C.C. arts. 1591, 1586–1587.
• 8La. C.C. arts. 1585, 1595.
• 9La. C.C. art. 1596.

The attorney, in all cases, shall present the original testament to the court to be filed and executed. If it is a testament other than a statutory testament, notarial testament, or nuncupative testament by public act, then the testament must also be proven (or probated).1 Thus, an olographic will must be proven. The petitioner must present the testament to the court even if he/she doubts the validity of the testament.2

If the petitioner cannot locate the original will, then the attorney should search for the original. If it was a notarial will, the attorney should try to contact the notary to see if there is an original will in the notary’s possession. The Secretary of State has a central registry of wills. If the testator registered his will, information about the will can be obtained from the Secretary of State.3 Also, some parishes allow wills to be registered with the clerk of court or notarial archives. In Orleans and other parishes there are will “books”, and your petition can reference at which book and page a will is located without presenting an original. In Jefferson Parish, and possibly others, the clerk of court stores wills and releases them with a proper petition. Nevertheless, wills are rarely registered.

If the original cannot be located, then the attorney has additional hurdles to overcome when proffering a copy. If the lost will was duly executed and in possession of (or readily accessible to) the testator, there is the legal presumption of revocation by destruction.4 When this presumption applies, those seeking to probate the will must establish by clear proof (1) that the testator made a valid will; (2) the contents or substance of the will; and (3) that the will, though it could not be found at the testator’s death after diligent search, was never revoked.5 This is most usually done by an affidavit of the client with personal knowledge that the original will existed after the death of the decedent, but was lost or destroyed by some other force, such as a house fire or natural disaster.

The attorney should also petition the court to direct that a search be made for the testament by a notary of the parish.6 This requirement most likely stems from the prior system in which notaries were required to keep files of their notarized documents. Presumably, the notary who notarized the missing testament would be the one charged with finding it, but this is not stated in the statute. The statute does say that the notary must be appointed by the court. However, experience has shown that many courts will accept an affidavit from the notary who prepared the document, stating that they possess a copy of the testator’s testament and that the proffered copy is the same as the one in the notary's records. This affidavit, along with an affidavit from persons with knowledge about the loss of the will after the decedent’s death, may be sufficient to probate the copy. 

If the will is not a notarial document, or the notary is unknown, the attorney should have the court appoint a notary to search the public registries for the missing will. If the notary fails to find the original will, then the client’s copy can be submitted with an affidavit. 

If the client knows that there was a will, but does not have a copy, there is case law supporting the proof of the contents of a will by parol evidence.7 Nevertheless, parol evidence is acceptable only if the witness actually read the testament and remembered its contents. Statements by the decedent are insufficient to establish the will’s contents.8

If the client does not have sufficient evidence to prove the contents of a will or to overcome the presumption of revocation, then the petition should state these facts and pray that the court find that the succession should proceed under the laws of intestacy. 

• 1La. C.C.P. art. 2852.
• 2La. C.C.P. art. 2853.
• 3See La. R.S. 9:2446–2447.
• 4Succession of Talbot, 530 So. 2d 1132 (La. 1988).
• 5Succession of Nunley, 69 So. 2d 33 (La. 1953).
• 6La. C.C.P. art. 2854; see La. C.C.P. Form 810a (West).
• 7Succession of Davis, 347 So. 2d 906 (La. App. 3 Cir. 1977).
• 8Fuentes v. Gaines, 25 La. Ann. 85 (1873), rev’d on other grounds, 92 U.S. 10.