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.