by Matthew P. Clark
Louisiana law imposes strict formalities on the creation of a last will and testament, which often results in litigation over whether the testator sufficiently complied with Louisiana law when making his or her testament. There are two types of testaments in Louisiana—olographic and notarial.[1] Generally, an olographic testament is one that is entirely written, dated, and signed in the testator’s handwriting.[2] For a notarial testament, the testator must be able to read and physically sign his or her name; the testament must be written, dated, and signed at the end of the testament and on each other separate page in the presence of a notary and two competent witnesses; the testator must declare that the instrument is his testament; and the testament must contain a proper attestation clause acknowledging that the form requirements have been met.[3] If the formalities for an olographic or notarial testament are not met, the testament is absolutely null, meaning it can have no effect.[4]
In 2023, the Louisiana Supreme Court addressed whether to probate an unsigned copy of a notarial testament using solely extrinsic evidence—evidence outside the four corners of the document—in the case of In re Succession of Morgan.[5] On its face, the copy of the testament did not satisfy the signature requirement for a notarial testament.[6] The proponent of the copy attempted to use affidavits of those who witnessed the testator sign the original testament to prove the validity of the will.[7] The opponent of the copy argued that the will was not a duplicate under the Louisiana Code of Evidence and was therefore inadmissible for probate.[8]
Will formalities serve a number of different purposes in Louisiana.[9] At issue in were two often competing justifications for Louisiana’s will formalities—formalities as an evidentiary function to prevent fraud on the one hand, and protecting and upholding the intent of a testator on the other.[10] Louisiana law aims to prevent fraud by requiring a testator to sign the testament at the end and on each other separate page, which prevents the substitution of one typewritten page for another after the testator executed the will.[11] However, the law also seeks to uphold the testator’s intent in making his or her last will and testament.[12] These two principles clashed in Morgan.
I. Louisiana law requires a true duplicate for probate.
The Louisiana Supreme Court addressed whether to probate an unsigned copy of a lost notarial testament using only extrinsic evidence in Morgan.[13] In this case, Diana Lynn Ford, the daughter of the decedent, Diana Bartlett Morgan, petitioned the 19th Judicial District Court of East Baton Rouge Parish to open her mother’s succession.[14] Ms. Ford alleged that the decedent died intestate—or without a will—because Mrs. Morgan’s surviving spouse, James William Morgan, could not find or produce her last will and testament.[15] The trial court opened the succession and appointed Ms. Ford as administratrix.[16]
Mr. Morgan then filed a petition to probate a lost will and alleged that the decedent executed a valid, one-page notarial testament in 2016, which he believed to be in the safety deposit box of the attorney who drafted the testament, Lawrence Dupre.[17] Mr. Morgan attached an unsigned copy of the lost notarial testament to his petition and submitted affidavits of himself, Mr. Dupre, and the two witnesses to the lost original testament.[18] Collectively, the affidavits attested that the unsigned copy of the lost notarial testament was a true copy and that the testator met the form requirements for a notarial testament when signing the original testament.[19] However, Mr. Morgan could not locate the alleged notarial testament.[20] Ms. Ford argued that the unsigned copy of the testament was not a duplicate under Louisiana Code of Evidence article 1001 and therefore could not be probated.[21]
The trial court ruled in favor of Mr. Morgan, admitted the unsigned copy of the lost notarial testament for probate, removed Ms. Ford as administratrix, and confirmed Mr. Morgan as independent executor.[22] The Louisiana First Circuit Court of Appeal affirmed the trial court’s decision.[23] In doing so, the First Circuit distinguished between “probating an original testament that is invalid on its face, and probating a lost original testament by relying on extrinsic evidence to prove that a valid testament existed.”[24] Ms. Ford filed writs to the Louisiana Supreme Court, which the Court granted.[25]
At the Supreme Court, Ms. Ford’s argument centered on a presumption that Mrs. Morgan revoked her last will and testament.[26] Louisiana jurisprudence provides that the failure to find a validly executed will that was accessible to the testator creates a presumption that the testator revoked the will by physical destruction.[27] The proponent of the will may rebut the presumption “upon clear proof: 1) that the testator made a valid will; 2) of the contents or substance of the will; and 3) that the testator did not revoke it.”[28] Ms. Ford argued that Mr. Morgan could not satisfy the first element required to rebut the presumption of revocation.[29] She contended that the unsigned copy of the lost notarial testament was not a duplicate under Louisiana Code of Evidence article 1001(5) because it did not satisfy the signature requirements of a notarial testament.[30] Mr. Morgan countered by arguing that the requirements for a notarial testament, and therefore the validity of the testament, may be established by extrinsic evidence.[31] Here, Mr. Morgan attempted to use affidavits of the individuals who witnessed the decedent sign, and then themselves signed, the lost testament to prove that the original will complied with the form requirements for a notarial testament.[32]
The Supreme Court focused its analysis on Louisiana Code of Evidence articles 1003 and 1004, which pertain to the admissibility of duplicates. Generally, duplicates of a testament offered for probate are inadmissible.[33] The Court noted Comment (a) to article 1003, which states that “[w]hen a duplicate is inadmissible under [La. C.E. art. 1003], it may nevertheless be admissible under Article 1004.”[34] To be admissible under article 1004, the proponent of the duplicate testament must establish an excuse for why he or she could not produce the original.[35] One such excuse is when the original testament has been lost or destroyed.[36] The Court concluded that “[a]rticle 1004 does not create a free-standing method for probating a testament or proving compliance with the requirements for a notarial testament through extrinsic evidence.”[37] Rather, article 1004 simply allows the proponent of a testament to rely on a duplicate which would otherwise be inadmissible under article 1003(3) if the proponent provides a valid article 1004 excuse.[38] In the Court’s view, articles 1003 and 1004 require a true duplicate—one that is a true copy of the original and meets the requirements for a valid testament on its face. The validity of the will must be evident from the four corners of the document. The Court stated that “[t]he lack of signatures on a notarial testament – or its purported duplicate – represents a material deviation from the statutory form requirements prescribed by the legislature and is fatal to the validity of a will.”[39] Thus, in reversing the lower courts’ decisions, a majority of the Louisiana Supreme Court held that Mr. Morgan could not use extrinsic evidence to prove the validity of Mrs. Morgan’s testament because it was “materially defective on its face.”[40]
II. The Dissent
Justice Weimer challenged the majority’s holding. In his dissent, Justice Weimer argued that the majority’s opinion “upend[ed] decades of jurisprudence, and hornbook law, regarding proof of a lost testament.”[41] Justice Weimer generally agreed with the majority’s conclusion that article 1004 permits the admission of a duplicate testament upon proof that the testament had been lost or destroyed.[42] However, Justice Weimer took issue with the majority’s holding that a true duplicate is the only means of proving the contents of a testament when the original has been lost, particularly when looking at the titles of the two articles.[43] Articles 1003 and 1004 are titled “Admissibility of duplicates” and “Admissibility of other evidence of contents,” respectively.[44] Justice Weimer wrote that the titles of these two articles did not evidence an intent to restrict proof of an original to duplicates alone.[45]
Justice Weimer’s dissent aligned with the appellate court’s holding.[46] Like the First Circuit, he drew distinctions between attempting to cure deficiencies in the unsigned copy of Mrs. Morgan’s testament and attempting to prove the existence and contents of the lost original testament by reliance on the unsigned copy of that testament and the affidavits of the attorney who wrote it and the witnesses thereto.[47] He argued that article 1004 did not limit the proponent of a lost will to only use duplicates.[48] Rather, he believes article 1004 allows the proponent of the will to use “other evidence” to show the validity of the will, as the article’s title suggests.[49] Justice Weimer noted that while the majority’s holding may be a sound practice, the holding is inconsistent with prior Supreme Court decisions, particularly that of Nunley and Succession of Boyd, which stated, “We have arrived at this point in Louisiana: if the will is lost, the entire will can be proved by extrinsic evidence . . . .”[50]
In Justice Weimer’s view, the majority’s holding frustrates the intent of the testator, which Louisiana law seeks to avoid.[51] Justice Weimer noted that natural disasters are all too common in Louisiana.[52] It is inevitable that testaments will be lost or destroyed.[53] Under his view, and allegedly that of the prior jurisprudence, allowing the proponent of a testament to prove its validity and contents with extrinsic evidence honors the intent of the testator, with the trial court and its evaluation of evidence and testimony serving as the check on any questions of fraud, credibility, or sufficiency of proof.[54]
III. Who got it right?
“The key [to will formalities] . . . is discovering the balance between promoting the intent of the testator and doing so at ‘an acceptable administrative cost.’”[55] A majority of the Louisiana Supreme Court and Justice Weimer, in dissent, undertook this balancing act in analyzing whether to probate an unsigned copy of Mrs. Morgan’s purported last will and testament, but both reached different conclusions. The majority took a strong stance in favor of a lower administrative cost at the expense of upholding the testator’s intent. The majority’s holding limits the risk of fraud by requiring strict compliance with Louisiana’s will formalities. Such a holding lowers the administrative costs of probating last wills and testaments by potentially reducing the number of will contests. If the proponent of a purportedly valid, original testament that cannot be located cannot provide a true duplicate of the original that meets the formal requirements of a Louisiana testament, the proponent will be barred from probating the testament under Morgan, even if the decedent truly intended for the lost testament to be his or her will. Thus, any additional protection against fraud comes at the expense of upholding the testator’s intent.
Justice Weimer took the opposite approach. Justice Weimer would allow Mr. Morgan to prove the validity of the original testament through extrinsic evidence alone. This approach upholds the testator’s intent at the risk of potentially increased administrative costs and an increased risk of fraud. Arguably, anyone could present an alleged copy of an original testament to a court for probate and hope that the court believes their testimony, even if that purported copy is facially invalid. Such an approach would increase administrative costs as trial courts would be forced to weigh the evidence in favor of a copy of a purported testament and make credibility judgments more often. Justice Weimer was satisfied with leaving the weighing of such evidentiary questions to the trial courts.[56] Indeed, it is often the trial court’s role to weigh the credibility of evidence. Additionally, the increased administrative costs may be negligible under Justice Weimer’s approach, depending upon the number of additional will contests. However, Justice Weimer’s approach ensures that a court will uphold a testator’s intent in situations where the testator actually executed a valid testament but that testament has been lost. As he noted in his dissent, there was uncontroverted evidence that the unsigned copy of the testament Mr. Morgan petitioned the court to probate was a copy of a valid testament.[57] Thus, the majority’s holding that Mr. Morgan could not use extrinsic evidence to prove the validity of the will likely destroyed Mrs. Morgan’s intent.
Ultimately, opinions can differ on where to draw the line between promoting the intent of the testator and an acceptable level of administrative costs. Where a significant number of wills are invalidated for failing to comply with formal requirements, the imposed costs could outweigh the benefits.[58] Conversely, if the formal requirements are too laxed, there is increased risk of fraud.
Conclusion
As stated above, Louisiana imposes strict formal requirements on the creation of a last will and testament. In Morgan, the Louisiana Supreme Court made clear that these formalities, particularly the signature requirement of a notarial testament, apply to both the original testament and a purported copy of that testament in the event the original is lost or destroyed. As Justice Weimer noted, natural disasters are all too common in Louisiana.[59] Thus, it is imperative that a Louisiana testator create a true duplicate of his or her last will and testament if he or she wishes for a court to probate a copy of the original in the event the original is lost or destroyed
[1] La. Civ. Code art. 1574 (2024).
[2] Id. art. 1575. There are several intricacies that can factor into the validity of an olographic testament. See id. For the purposes of this blog post, the basic form requirements are sufficient.
[3] Id. art. 1577. Again, these are the basic requirements for a notarial testament. There are nuances to each element that are outside the scope of this blog post. For an in-depth look at the formalities of Louisiana testaments, see Ronald J. Scalise, Jr., Will Formalities in Louisiana: Yesterday, Today, and Tomorrow, 80 La. L. Rev. 1331 (2020).
[4] La. Civ. Code art. 1573.
[5] In re Succession of Morgan, 370 So. 3d 399 (La. 2023).
[6] Id. at 401.
[7] Id.
[8] Id.
[9] See Scalise, supra note 3, at 1333–37 (detailing the functions of form requirements).
[10] See Morgan, 370 So. 3d at 403, 406.
[11] Succession of Hoyt, 303 So. 2d 189 (La. Ct. App. 1st Cir. 1974); Succession of Guezuraga, 512 So. 2d 366, 368 (La. 1987).
[12] See Morgan, 370 So. 3d at 406.
[13] Id. at 400.
[14] Id.
[15] Id.
[16] Id. at 400–01.
[17] Id. at 401. Mr. Morgan also sought to remove Ms. Ford as administratrix and be named as independent executor of the decedent’s estate. Id.
[18] Id.
[19] Id.
[20] Id.
[21] Id.
[22] Id.
[23] Id.
[24] Id.
[25] Id.
[26] Id. at 402.
[27] Id. (citing Succession of Talbot, 530 So. 2d 1132, 1134–35 (La. 1988) (citing Succession of Nunley, 69 So. 2d 33 (1954))).
[28] Id. (citing Nunley, 69 So. 2d 33).
[29] Id.
[30] Id.; La. Civ. Code art. 1577. La. Code Evid. Ann. art. 1001(5) (2024) states:
A “duplicate” is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic re-recording, or electronic imaging, or by chemical reproduction, or by an optical disk imaging system, or by other equivalent techniques, which accurately reproduces the original.
[31] Morgan, 370 So. 3d at 402.
[32] Id.
[33] La. Code Evid. Ann. art. 1003.
[34] Morgan, 370 So. 3d at 403 (quoting La. Code Evid. Ann. art. 1003 cmt. a) (alterations in original) (internal quotations omitted)).
[35] Id. (citing La. Code Evid. Ann. art. 1003 cmt. b); La. Code Evid. Ann. art. 1004.
[36] La. Code Evid. Ann. art. 1004.
[37] Morgan, 370 So. 3d at 402–03.
[38] Id. at 402.
[39] Id. at 403.
[40] Id. (citing Successions of Toney, 226 So. 3d 397, 408 (La. 2017)) (internal quotations omitted).
[41] Id. at 404 (citing In re Succession of Nunley, 69 So. 2d 33 (1953); Succession of O’Brien, 121 So. 874 (1929); Monica Hoft Wallace, Successions and Donations § 14:6, in 10 Louisiana Civil Law Treatises (2d ed. 2023) (“A testament that has been lost or unintentionally destroyed may be probated if it can be established that such a will was executed, what its content was and that after diligent search the testament cannot be found and was never revoked.” (citing Nunley, 69 So. 2d 33; Succession of Franks, 170 So. 2d 178 (La. Ct. App. 4th Cir. 1964))).
[42] Id. at 404–05.
[43] Id. at 405.
[44] La. Civ. Code arts. 1003–04 (2024).
[45] Morgan, 370 So. 3d at 405 (citing Authement v. Shappert Eng’g, 840 So. 2d 1181, 1186 (La. 2003) (“[T]he title of a statute may be instructive in determining legislative intent.”)).
[46] See generally In re Succession of Morgan, 356 So. 3d 38 (La. Ct. App. 1st Cir. 2022), cert. granted, 354 So.3d 1241 (La. 2023) and rev’d, 370 So. 3d 399 (La. 2023).
[47] Morgan, 370 So. 3d at 406.
[48] Id. at 405.
[49] Id.
[50] Id. at 406 (quoting Succession of Boyd, 306 So. 2d 687 (La. 1975)) (internal quotations omitted). The majority distinguished prior jurisprudence from the cases Mr. Morgan and Justice Weimer cited, including the case of In re Succession of Nunley, 69 So. 2d 33 (1953). Id. at 403 n.4.
[51] Id. at 406 (citing Boyd, 306 So. 2d at 692).
[52] Id.
[53] Id.
[54] Id.
[55] See Scalise, supra note 3, at 1337 (quoting James Lindgren, The Fall of Formalism, 55 Ala. L. Rev. 1009, 1033 (1992)).
[56] Morgan, 370 So. 3d at 406.
[57] Id.
[58] See Scalise, supra note 3, at 1337.
[59] Morgan, 370 So. 3d at 406.