How to Ensure Your Will is Valid Under Louisiana Law

Losing a loved one is one of life's most challenging experiences, and dealing with legal matters in the midst of grief can be overwhelming. One important step is ensuring that you and your loved ones’ have wills, and that those wills are valid under Louisiana law. If a will fails to meet any of the legal requirements, even slightly, it will be entirely invalidated, so it is extremely important that all formalities are strictly followed.

This blog will describe common errors in Louisiana wills that cause them to be thrown out. However, this is not a complete list, and it is no replacement for consulting with an attorney to avoid any legal pitfalls. Ciolino & Onstott offers a free consultation to examine the validity of your will, and we encourage you to call us if you have any doubts about the validity of your will, or the will of a loved one.

Key Requirements for a Valid Will in Louisiana

Louisiana law sets out specific requirements that must be met for a Last Will and Testament to be considered valid. Here are the essential criteria:

1. Form of the Will

Louisiana recognizes two primary forms of wills: olographic (handwritten) and notarial (typed and witnessed).

Olographic Will: This must be entirely written, dated, and signed by the testator (the person making the will). The date must include the day, month, and year, and the testator's signature should be on each page of the will, and at the end of the will. Anything type-written will be entirely ignored. If the exclusion of type-written portions causes the will to lack an essential element, then the will is entirely void.
Notarial Will: This must be typed or printed and executed and dated in front of a notary and two competent witnesses. The testator must declare that the document is their will, and then sign it in the presence of the notary and witnesses. The notary and witnesses must also sign the will in the presence of the testator and each other. The will must be signed on each page and contain a proper attestation clause from the notary. Neither the notary nor the witnesses may stand to inherit from the will, or be married to anyone who stands to inherit from the will. The will submitted to the court must be an original with pen-and-ink signatures from the testator, notary, and two witnesses. A will is presumed to be revoked if its original cannot be produced; and although it is sometimes possible to overcome this presumption, it is complicated, costly, and not guaranteed.

2. Capacity of the Testator

The testator must be of sound body and mind at the time of making the will. This means they must be able to understand the nature of their actions and the contents of the will. This means that the testator must be at least 16 years old, not blind or deaf, not mentally incapacitated, and able to read and sign their own name. However, so long as a person has the mental capacity to understand the terms of their will and the consequences of signing it, there are special forms which may be used if the testator is deaf, blind, incapable of reading, or incapable of signing their own name. Standard forms will not be valid if the testator suffered from any of these conditions at the time that they signed the will.

3. Voluntariness

The will must be made voluntarily, without undue influence, duress, or coercion. If there is any indication that the testator was pressured or manipulated into making the will, its validity can be challenged. While invalidating a will on these grounds is rare, conflicts between heirs alleging coercion or fraud are unfortunately common, particularly when one heir assisted the deceased in preparing their estate plan and that heir is receiving a large inheritance. The best practice is to encourage your loved ones to get an estate plan complete, but to avoid involvement in the estate planning process, when possible. If your loved one requires your assistance to complete the process, communicate openly and honestly with the family, and ensure that your attorney is qualified and experienced to assist you with this delicate issue.

Common Issues Affecting Validity

Even if a will appears to meet the basic requirements, certain issues can affect its validity:

1. Improper Execution

For notarial wills, any failure to follow the formalities—such as signing on every page in the presence of the required witnesses and notary—can render the will invalid. Similarly, for olographic wills, type-written portions, lack of signatures, unclear language, or missing or incorrect dates can pose problems.

2. Improper Form

If the deceased suffered from any physical or mental infirmity at the time the will was signed, then very specific forms must be used. If those forms are not properly used, then the will may be challenged.

3. Lost Wills/Revocation

A will can be revoked by the testator at any time before their death. This can be done by creating a new will, destroying the old one, or making a formal declaration of revocation. If a newer will is found, the older one might be invalidated. If an original will cannot be located, it is presumed to be destroyed and revoked. These issues can cause substantial difficulties in the succession process, and may lead to the will being invalidated altogether.

Why You Should Consult with an Attorney

While understanding these basics is important, the intricacies of Louisiana succession law make it crucial to consult with an experienced attorney. Here’s why:

Legal Expertise: An attorney can verify the validity of the will based on Louisiana's specific legal requirements and ensure that all formalities were properly observed.
Avoiding Mistakes: Simple mistakes can lead to significant legal issues. An attorney can help identify and rectify any errors or omissions that could affect the will’s validity.
Handling Disputes: If there are any disputes among heirs or questions about the will’s authenticity, an attorney can provide the necessary legal representation and mediation to resolve these issues.
Comprehensive Guidance: The succession process involves more than just validating a will. An attorney can assist with the entire probate process, including the identification and valuation of assets, payment of debts, and distribution of the estate.

Final Thoughts

Determining the validity of a Last Will and Testament under Louisiana law involves understanding and meeting specific legal requirements. While this guide provides an overview, the best course of action is to consult with an experienced attorney who can provide expert advice and support. An attorney can ensure that the will is valid, guide you through the succession process, and help alleviate the stress during this challenging time. If you have any doubts or questions, don’t hesitate to reach out to a qualified attorney to help you navigate these complex legal waters.

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