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).