The Louisiana Wills Act
Elenora Gregoratti Guezuraga executed the statutory will on March 17, 1978. She left the forced portion of her estate
The court of appeal reversed, citing Succession of Hoyt, 303 So.2d 189 (La.App. 1st Cir.1974) and Land v. Succession of Newsom, 193 So.2d 411 (La.App. 2d Cir.1967), writ denied, 250 La. 262, 195 So.2d 145 (1967). Land involved a two page will signed only on the second page. The testator there did not sign the first page, containing some or all of the dispositive portions. The court of appeal in Land affirmed the trial court judgment declaring the will invalid, holding the "absence of the testatrix's signature on each page or sheet of the will [was] fatal." 193 So.2d at 414. Hoyt also involved a two page will signed only on the second page. The court of appeal affirmed the trial court judgment invalidating the will, reciting the purpose of the requirement that the testator sign his name on each separate sheet is "to prevent fraud by the substitution of one typewritten page for another after the execution of the will by the testator." 303 So.2d at 189. Both of these cases are distinguishable from the case at bar, where the testatrix signed (in fact twice) on the page containing all of the dispositive portions.
La.Rev.Stat.Ann. § 9:2442(B)(1) requires the testator to declare to the notary and witnesses that the "instrument" is his last "will" and to sign his name at the end of the "will" and on each separate page of the "instrument." A plausible conclusion, and one in keeping with the principles of liberality established by the jurisprudence discussed below, is that the Legislature intended
The only argument to the contrary is prompted by a strict reading of this statutory provision. Opponents argue that while "will" may refer only to the dispositive provisions, the "instrument" (as to which the testator must sign his name on each page) is the full document, including the attestation clause.
But we are not required to give the statutory will a strict interpretation. The Legislature adopted the statutory will from the common law in order to avoid the rigid formal requirements of the Louisiana Civil Code. "The minimal formal requirements of the statutory will are only designed to provide a simplified means for a testator to express his testamentary intent and to assure, through his signification and his signing in the presence of a notary and two witnesses, that the instrument was intended to be his last will." Succession of Porche v. Mouch, 288 So.2d 27, 30 (La. 1973). In accordance with this legislative intent, courts liberally construe and apply the statute, maintaining the validity of the will if at all possible, as long as it is in substantial compliance with the statute. Note, Louisiana's Statutory Will: The Role of Formal Requirements, 32 La.L.Rev. 452, 453 (1972). In deciding what constitutes substantial compliance, the courts look to the purpose of the formal requirements—to guard against fraud.
Casenote, Donations—Imperfect Compliance with the Formal Requirements of the Statutory Will, 25 Loy.L.Rev. 362, 371 (1968-69).
Section 2442(B)(1) of Title 9 of the Revised Statutes speaks of the testator's conduct of signing "at the end of the will and on each separate page of the instrument," at a point in the statute where mention is yet to be made of the attestation formalities.
This interpretation is consistent with the Louisiana statute's lack of a requirement that the testator sign after the attestation clause. As originally enacted in 1952, section 2442 of Title 9 required that certain facts "be evidenced in writing above the signatures of the notary public and witnesses and the testator at the end of the will." This language created confusion as to whether the testator was required to sign after the attestation clause. In Succession of Porche v. Mouch, 288 So.2d 27 (La.1973), this Court held that it was "immaterial for any substantial purpose whether the testator's signature is placed before or after any formal attestation clause by the notary and two witnesses at the end of the will." Id. at 30.
In 1974, section 2442 was amended to require the facts "be evidence[d] by a declaration signed by the notary and both witnesses." "This amendment settle[d] the controversy as to whether the testator must sign at the end of the will or after the attestation clause." L. Oppenheim, Louisiana Civil Law Treatise: Successions and Donations, § 111 n. 115 (Supp.1979). It is now clear that the testator need not sign after the attestation clause. Johnson, Successions and Donations, 43 La.L.Rev. 585, 595 & n. 43 (1982).
Id. at 595-96.
This interpretation is also consistent with the common law, from which Louisiana's statutory will was adopted.
We therefore hold that the testatrix's failure to sign the page containing only the conclusion of the attestation clause is not fatal to the validity of this statutory will. The will shall therefore be probated.
For the foregoing reasons, we reverse the judgment of the court of appeal and reinstate the judgment of the district court.
JUDGMENT OF COURT OF APPEAL REVERSED; JUDGMENT OF DISTRICT COURT REINSTATED.
In our original opinion in this case we made reference to language in La. R.S. 9:2442 as it appears in the current version of the statute, amended by 1980 La. Acts, No. 744, § 1. The will in this case was executed in 1978 at a time when the prevailing statutory language was in fact to be found in La. R.S. 9:2442 as amended by 1976 La. Acts No. 333, § 1, effective July 30, 1976.
The pertinent differences are that Section A (1) of the applicable 1976 statute required that the testator "shall sign his name at the
Neither difference in the language noted above reduces the force of the reasons given in the earlier majority opinion which prompted our conclusion that the testator is not required to sign again at the end of the attestation clause. There is little or no difference between "page" and "sheet". And our emphasis in the original opinion upon the statute's chronology of execution of the will and signing of the attestation clause is served just as well by the 1978 statute's commencing language, "the foregoing facts shall be evidenced by... [an attestation clause]..."
In light of the liberal construction given statutory wills, the placement of the requirement that the will be signed by the testator in an earlier section of the statute prior to any mention of an attestation clause, a similar anticipated chronology of events that envisions a signed will as a prerequisite to the making of an attestation clause, the lack of a specific requirement that the attestation clause be signed, and the fact that the statutory will was adopted from the common law which generally views the attestation clause as a certificate to a will and not part of the will itself, we reaffirm our prior holding that "the testratrix's failure to sign the page containing only the conclusion of the attestation clause is not fatal to the validity of this statutory will."
Accordingly, the application for rehearing is denied.
Last Will and Testament of
Elenora Gregoratti Guezuraga
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Last Will and Testament of
ELENORA GREGORATTI GUEZURAGA
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