By Kris Bromley
Introduction
Imagine a family gathering after the death of one of their own. The family member that passed away had all her affairs in order, distributing her estate through a will that she signed years ago. Everyone in the family anticipates receiving specific items she bequeathed to each of them—a jewelry collection to her only granddaughter, a house to one of her sons, a collection of books to her sister. Each of them had conversations with the decedent about the items she wished for each to have. However, after attempting to get each of these items, a court informs the family that the will is not enforceable because the will was a notarial testament, and the decedent initialed the first page instead of signing her entire name. Instead, the court will divide everything equally between her two sons, one of whom has not spoken to her for twenty years. While the son who remained in contact with his mother desires to uphold the will, the other son does not and instead wants to receive half of her estate as he would be entitled to under intestacy law. Now, those who expected to receive both sentimental and valuable gifts will receive nothing—all because of a small issue with the specific formal requirements of the will.
A notarial testament is a will that is written and executed in the presence of a notary and witnesses.[1] Louisiana Civil Code articles 1577–80.1 require individuals to execute notarial testaments according to specific formal requirements.[2] A notarial testament must be written, dated, and signed by the testator on every page and at the end of the testament while in the presence of a notary and two witnesses, and include a statement that the testator declared that the document is his or her testament. Further, the notary and two witnesses must sign an attestation clause in which the witnesses attest to comply with the formal requirements.[4] The Louisiana legislature provides a model attestation clause in the Civil Code:
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 _________, ____.[5]
An attestation clause within a notarial testament must either be identical or “substantially similar” to the model attestation clause.[6] If the formalities provided for a notarial testament are not followed, the testament is absolutely null.[7]
Because of the numerous formal requirements of notarial wills, jurisprudence shows various examples of defective compliance. One significant area of debate in recent years is strict or substantial compliance. Some courts following the strict compliance approach invalidate wills that contain only minor defects without any indication of fraud.[9] Historically, courts required strict compliance with all formal requirements, invalidating any will that did not explicitly display all requirements.[10] Conversely, some Louisiana courts tolerate deviations from the formal requirements to enforce notarial wills.[11] This approach is expressed as the doctrine of substantial compliance.
I. The Strict v. Substantial Compliance Debate
Two primary rationales support the strict compliance approach: the floodgates argument and the separation-of-powers argument.[12] The floodgates argument holds that formal requirements exist to protect against issues such as fraud, mistake, and undue influence.[13] Accordingly, proponents worry courts relaxing the standard for formal requirements may open the floodgates to upholding notarial testaments with an abundance of defects, increasing the likelihood of fraud, mistake, or undue influence.[14] Alternatively, the separation-of-powers argument holds that the legislature creates law and the court merely interprets and applies it.[15] When the law is clear, courts cannot ignore it for the purposes of pursuing justice or applying the “spirit” of the law.[16] Instead, the strict compliance approach advocates for judges to apply the formal requirements even if doing so results in invalidating notarial testaments.
This reflects effort to uphold and enforce wills that demonstrate “testamentary intent” but merely lack small details required by the formal requirements.[18] Despite the perils strict compliance advocates warned about, courts applying this approach have not seen a considerable rise in the risk of fraud.
In Louisiana, this debate of applying substantial compliance to notarial testaments largely began in Succession of Guezuraga. In Guezuraga, the testator did not sign the testament after the attestation clause, but instead signed after the will’s dispositive provisions.[21] The Louisiana Supreme Court upheld the will, applying a substantial compliance approach in its explanation that the statute does not require strict interpretation.[22] The Court considered what constituted substantial compliance and explained it should look to whether the defect in the will concerns fraud. If a defect indicates an increased likelihood that fraud occurred, the court should consider the defect substantial and not enforce the will.[24] Alternatively, if a defect does not indicate the occurrence of fraud, the court should disregard the defect and enforce the will despite the lack of formal requirements.[25]
After the Guezuraga decision in 1987, Louisiana courts mostly applied a substantial compliance approach and permitted minor formal defects in wills, looking to whether the defects indicated a likelihood of fraud.[26] In 2017, the Louisiana Supreme Court changed course in Succession of Toney.[27] In Toney, the Court explained that notarial testaments are invalid and unenforceable when they contain “material deviations” from the formal requirements even if there is no indication of fraud.[28] The testament in Toney did not have a full signature on every page and did not have a sufficient attestation clause.[29] The Court found that initials fall short of the signature requirement, particularly here where the initials were in print and not cursive, and that the language in the will was not substantially similar to the requirements of the attestation clause.[30] While the Court quoted and applied the Guezuraga substantial compliance language, it distinguished the case as only having a minor defect while the Toney testament had multiple “material” deviations—explaining that a testament including material deviations should not also be required to show an indication of fraud.[31] Instead, the Court found that all of the defects in the Toney testament showed a lack of substantial compliance, resulting in an absolute nullity.
In 2021, the Court again focused on fraud in Succession of Liner, finding that a court must determine whether the testator was sufficiently protected against fraud through the formalities evidenced in the will.[33] Thus, if a court’s analysis reveals an increased likelihood of fraud, the court should consider the deviations material and nullify the will.[34] The Liner Court upheld a will when its attestation clause did not state that the testator signed it on every page and used different language than the Civil Code’s model attestation clause.[35] The Court found that the testator was sufficiently protected from fraud after analyzing the language used in the clause and the contextual circumstance that the testator did in fact sign every page indicated. Significantly, Liner overruled Toney to the extent Toney stood for the proposition that “an aggregate of slight deviations constitute[s] a material deviation” regardless of whether their cumulative effect indicated fraud.[37]
After this ruling, Louisiana appellate courts were unsure about how to apply the substantial compliance approach that the Louisiana Supreme Court seemingly returned to in Liner.[38] The issue in Liner only surrounded the attestation clause.[39] Is the Liner holding of evaluating substantial compliance and allowing defects that do not indicate fraud limited to defects within an attestation clause? Alternatively, are courts permitted to apply this approach of substantial compliance to any defect within a notarial testament? One such area of debate is the signature requirement.
II. Signature Requirement
One requirement of a notarial testament is that the testator must sign each page and at the end of the document.[40] As seen in Guerzuraga, the testator must sign at the end of the will’s substantive provisions but is not required to sign after the attestation clause.[41] However, an open question existed regarding whether initials were acceptable as opposed to a formal signature. Historically, Louisiana courts have been flexible when legislation requires a signature.[42] Even after Toney, leading scholars in Louisiana succession law did not believe that initialing a will, rather than fully signing it, should invalidate the entire will.[43]
After Succession of Liner, the Louisiana Fourth Circuit Court of Appeal confronted the issue of substantial compliance as applied to the signature requirement of the notarial testament.[44] In Succession of McKlinski, the testator executed a three‑page notarial testament.[45] On the first page, she signed with only her cursive initials.[46] On pages two and three, she signed using a full signature.[47] The testator’s son argued that the testament was absolutely null because the first page did not include a full signature, advocating for strict compliance with the formal requirements.[48] While the testator’s son argued that applying Toney should result in the testament’s nullity, the Fourth Circuit determined that Liner completely overruled Toney.[49] Further, the Fourth Circuit explicitly rejected the argument that Liner only applies to attestation clauses and not the signature requirement.[50] Instead, the court relied on prior Fourth Circuit jurisprudence that held that initials suffice for the signature requirement.[51] After this decision, the Louisiana Supreme Court denied writs, leaving this issue unresolved from 2021 until the Court finally addressed the issue in 2024 in Succession of Frabbiele.[52]
III. Succession of Frabbiele
In Succession of Frabbiele, the testator executed a three‑page notarial testament, initialing the first two pages with cursive initials and signing the third with a full signature.[53] The lower courts enforced the will, finding that the testament substantially complied with the formal requirements, like the court in McKlinski.[54] The Louisiana Supreme Court found this issue to be a “simple matter of statutory application.”[55] Article 1577, listing the formal requirements of a valid notarial testament, states that “the testator shall . . . sign his name at the end of the testament and on each separate page.”[56] Further, Louisiana Civil Code article 1573 states that any notarial testament that does not follow the formal requirements provided is absolutely null. In explaining general rules of statutory interpretation, the Court stated that shall is mandatory and the court must give effect to any clear and unambiguous language, the application of which would not lead to absurd consequences.[58] Therefore, the Court found that the Louisiana Civil Code article 1577 requirements were clear and unambiguous, expressly requiring a testator to “sign his name at the end and on each separate page” of the notarial will.
The Court explained that the holding in Liner is limited to defects in attestation clauses and is not applicable to the signature requirement.[60] The Court pointed to a footnote in Succession of Morgan where it clarified that Liner does not affect the formal requirements that notarial testaments must be in writing, dated, and signed by the decedent on every page and at the end, and that the notary and two witnesses must sign an attestation clause. Substantial compliance with the signature requirement is insufficient.[62] The signature requirement “reflects a policy decision by the legislature that the risk of mistake, imposition, undue influence, fraud, or deception is so significant that the absence of signatures constitutes a material deviation.”[63]
Instead, Article 1577 adopts only a substantial compliance standard for the attestation clause requirement.[64] If a notarial will contains an attestation clause that substantially complies with the requirements for attestation clauses but does not use the exact same language as the model clause, the notarial will meets the formal requirements, and a court will enforce it provided it strictly complies with all other formal requirements.[65] Thus, the Court invalidated the Frabbiele will because the testator merely initialed the first two pages.[66] Article 1577 requires a testator to “sign his name,” not initial the testament.[67]
While the majority found this to be a straightforward conclusion, this holding had many opponents. In his dissent, Justice Crain argued that there is no significant difference among “sign his name,” “signed,” or “signature”—all of which the legislature has utilized in various ways.[68] Justice Crain asserted that there is no indication that the legislature intended to create different signature requirements for these different parties.[70] Instead, an individual’s habitual use of a “written sign” is generally what confirms the signature’s authenticity, not whether the individual can legibly write his or her full name.[71] This raises the issue of individuals who customarily use their initials to sign their name.[72]
Further, Justice Crain questioned the need to debate strict-versus-substantial compliance within this case.[73] He noted a long line of consistent jurisprudence whereby the Louisiana Supreme Court recognized that substantial compliance with formal requirements was sufficient to uphold and enforce a will.[74] Justice Crain proposed an interpretation of Toney that does not reject the substantial compliance doctrine but rather emphasizes that material deviations invalidate a will, regardless of whether fraud is alleged. Despite three dissenters, the Court rejected the doctrine of substantial compliance as applied to any formal requirements other than the attestation clause and refused to validate the will.[76]
IV. Potential Issues
Despite a long line of conflicting jurisprudence, the Louisiana Supreme Court’s decision in Succession of Frabbiele seems to fully embrace the strict compliance approach. Moving forward, it appears that the Court is committed to upholding only those notarial testaments that strictly comply with the formal requirements the legislature prescribed. Louisiana estate planning attorneys should take note of this definitive ruling. No longer does the Court seem poised to uphold wills that contain any deviation from the formal requirements. This holding finally puts to rest an open question and clearly signals to individuals drafting wills that they must precisely follow the formal requirements the legislature prescribed.
Further, this decision raises the issue of what exactly constitutes a proper “name.” While the Court emphasized that initials are not sufficient, this leaves the open question of exactly what name must be signed on every page of a notarial testament. Must the name be the full legal name of the testator as reflected on his or her driver’s license? Perhaps the name can be a nickname by which the testator is generally known to others, as has been the common practice of courts and general understanding of scholars in olographic wills.[77] Alternatively, would a signature that included a first initial followed by a full last name suffice if the testator regularly signs his or her name in such a fashion? While each of these signatures would be sufficient in most other areas of the law, it is now unclear that they would be sufficient here, leaving some additional uncertainty.
Notwithstanding the clarity today, it is likely that courts will continue to invalidate many notarial wills despite the testator’s clear intent and lack of actual evidence indicating fraud, mistake, or undue influence. Indeed, many individuals who believe they have all their affairs in order as they prepare for the end of their lives will have their wills invalidated because of harmless errors for which they did not know to look. While the doctrine of strict compliance is laudable in theory, it will likely result in numerous inequities of which individuals who do not know the fine details of Louisiana succession law will be the victims.
Conclusion
The Frabbiele decision reinforces the strict compliance doctrine, providing some clarity in succession law but leaving unanswered questions. Estate planners and testators must now ensure that every will strictly complies with the formalities required by the Civil Code. By refusing to recognize substantial compliance outside of the attestation clause, the Court has prioritized formal requirements over testator intent. Moving forward, this decision highlights the importance of rigid standards in estate planning practices. However, future litigation may be necessary to resolve these remaining uncertainties, reinforcing the reality that succession law remains an evolving and complex field even if strict compliance advocates for the purported simple adherence to formal requirements.
[1] La. Civ. Code art. 1577 (2025).
[2] Id. art. 1576.
[3] Id. art. 1577. These requirements are reserved for a testator who knows how to read and sign his or her name and who has the physical ability to do so.
[4] Id.
[5] Id. art. 1577(2).
[6] Id.
[7] Id. art. 1573.
[8] See, e.g., In re Hendricks, 28 So. 3d 1057 (La. Ct. App. 2009); Succession of Hoyt, 303 So. 2d 189 (La. Ct. App. 1974); Land v. Succession of Newsom, 193 So. 2d 411 (La. Ct. App. 1966).
[9] See Succession of Toney, 226 So. 3d 397 (La. 2017).
[10] Ronald J. Scalise, Jr., Will Formalities in Louisiana: Yesterday, Today, and Tomorrow, 80 La. L. Rev. 1331, 1344 (2020).
[11] See Succession of Guezuraga, 512 So. 2d 366 (La. 1987).
[12] Scalise, supra note 10, at 1344.
[13] Id.
[14] Id.
[15] Id.
[16] Id.
[17] Id. at 1345.
[18] Id. (citing John H. Langbein, Substantial Compliance with the Wills Act, 88 Harv. L. Rev. 489, 513 (1975)).
[19] Id.
[20] Succession of Guezuraga, 512 So. 2d 366 (La. 1987). But see Scalise, supra note 10, at 1346.
[21] Id. at 367.
[22] Id. at 369.
[23] Id. at 368
[24] Id. (citing Loretta Garvey Whyte, Note, Donations—Imperfect Compliance with the Formal Requirements of the Statutory Will, 15 Loy. L. Rev. 362 (1968–69)).
[25] Id.
[26] See, e.g., In re Succession of Holbrook, 144 So. 3d 845 (La. 2014).
[27] Succession of Toney, 226 So. 3d 397 (La. 2017).
[28] Id. at 407.
[29] Id. at 399.
[30] Id. at 404–05.
[31] Id. at 407–08.
[32] Id. at 408.
[33] Succession of Liner, 320 So. 3d 1133, 1138 (La. 2021) (citing George Holmes, Testamentary Formalism in Louisiana: Curing Notarial Will Defects through a Likelihood of Fraud Analysis, 75 La. L. Rev. 511, 517 (2014)).
[34] Id.
[35] Id.
[36] Id. at 1139.
[37] Id. at 1138.
[38] See, e.g., Succession of McKlinski, 331 So. 3d 414 (La. Ct. App. 2021).
[39] Liner, 320 So. 3d at 1139.
[40] La. Civ. Code art. 1577 (2025).
[41] Succession of Guezuraga, 512 So. 2d 366, 369 (La. 1987).
[42] Scalise, supra note 10, at 1363–65.
[43] See id. at 1366.
[44] See Succession of McKlinski, 331 So. 3d 414 (La. Ct. App. 2021).
[45] Id. at 415.
[46] Id.
[47] Id.
[48] Id. at 416.
[49] Id. at 418.
[50] Id. at 420.
[51] Id. (citing Succession of Armstrong, 636 So. 2d 1109, 1111 (La. Ct. App. 1994)).
[52] Succession of Frabbiele, 397 So. 3d 391 (La. 2024).
[53] Id. at 393.
[54] Id. at 394.
[55] Id. at 395.
[56] Id. (citing La. Civ. Code art. 1577 (2025)).
[57] Id. at 396 (citing La. Civ. Code art. 1573 (2025)).
[58] Id. (quoting Boudreaux v. La. Dep’t of Pub. Safety & Corr., 101 So. 3d 22, 26 (La. 2012)).
[59] Id.
[60] Id. at 397.
[61] Id. (citing to Succession of Morgan, 370 So. 3d 399, 403 n.6 (La. 2023)). In Morgan, the Louisiana Supreme Court did not consider whether initials were sufficient to satisfy the signature requirement. Instead, the Morgan Court considered whether a notarial testament that contained no signatures from the testator, the notary, or witnesses was enforceable. See Morgan, 370 So. 3d 399. Instead, the testament in Morgan was merely a copy of a testament that could not otherwise be located. Id. at 401. The will’s proponents sought to probate this blank copy. Id. However, the Court emphasized the importance of the signatures and refused to enforce the copy. Id. at 403.
[62] Frabbiele, 397 So. 3d at 397.
[63] Id. at 398 (quoting Morgan, 370 So. 3d at 403).
[64] Id.
[65] Id.
[66] Id. at 398–99.
[67] Id. at 398.
[68] Id. at 401 (Crain, J., dissenting).
[69] Id.; La. Civ. Code art. 1577 (2025).
[70] Id.
[71] Id. at 401–02.
[72] Id. at 402.
[73] Id.
[74] Id. (citing Succession of Guezuraga, 512 So. 2d 366, 368 (La. 1987) (“[C]ourts 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.”); Succession of Porche, 288 So. 2d 27, 30 (La. 1973) (“[S]ubstantial compliance with the Wills Act is sufficient.”); Stephens v. Adger, 79 So. 2d 491, 495 (La. 1955) (“[S]ubstantial compliance with the formalities required in the execution of wills is sufficient to sustain its validity.”); Succession of Eubanks, 9 La. Ann. 147, 148 (1854) (“[T]here was a substantial compliance with the requirements of Article 1574 of the Code.”)).
[75] Id. at 403 n.3 (“Confusion arose more recently in the wake of Successions of Toney, where this court recognized that material deviations from the form requirements, even absent fraud, invalidate a will. The court rejected ‘any language in previous jurisprudence which suggested otherwise.’ I submit Successions of Toney did not reject the substantial compliance doctrine, but rather emphasized that material deviations invalidate a will, regardless of whether fraud is alleged. That is consistent with the substantial compliance doctrine. If a will contains material deviations from the form requirements, it does not substantially comply with those requirements. On the other hand, if the deviations are not material, the will likely substantially complies with the form requirements.” (citations omitted)).
[76] Id. at 398.
[77] See Scalise, supra note 10, at 1363–64.