SUCCESSION OF MCKLINSKI v. << (2022)

Writ application denied.

While I share the frustration of my brother Genovese, the requirements of a notarial testament and an attestation clause (there are requirements for both) have become so watered down so as to become almost meaningless. A good faith effort absent fraud appears to be enough. I therefore reluctantly concur in the writ denial. We have upheld wills with more serious defects than this one.

Decedent executed a three-page notarial will. On the first page of her will, she only signed her initials and did not sign her full name. On the second and third pages of the will, she affixed her full name and initials.

The majority in this case narrowly denied this writ. I disagree with the scant majority.

Louisiana Civil Code Article 1577 ¹ (emphasis added) states that the testator (testatrix) “shall sign his name at the end of the testament and on each other separate page.” This was not done in this case. The testatrix did not sign her name on the first page. The codal article states “shall,” and shall is mandatory. Thus, simply stated, the testatrix failed to comply with our Civil Code, and this will is invalid, as correctly determined by the trial court.

The court of appeal reversed the trial court and failed to recognize and acknowledge that Succession of Liner, 19-2011 (La. 6/30/21), 320 So.3d 1133, did not overrule Successions of Toney, 16-1534 (La. 5/3/17), 226 So.3d 397, because Liner only applied to attestation clauses and not signature requirements. The attestation clause and signature requirements are not the same. One is an apple; the other is an orange; and, the court of appeal mixed the apples with the oranges.

It is critical to our civilian tradition that the mandatory requirements relative to the execution of wills be upheld. I would reverse the court of appeal and reinstate the trial court judgment annulling the will.

FOOTNOTES

1.   Louisiana Civil Code Article 1577 (emphasis added) provides:The notarial testament shall be prepared in writing and dated and shall be executed in the following manner. If the testator knows how to sign his name and to read and is physically able to do both, then:(1) In the presence of a notary and two competent witnesses, the testator shall declare or signify to them that the instrument is his testament and shall sign his name at the end of the testament and on each other separate page.(2) In the presence of the testator and each other, the notary and the witnesses shall sign the following declaration, or one substantially similar: “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 _, _.”

Hughes, J., additionally concurs and assigns reasons. Genovese, J., dissents and assigns reasons. Crain, J., would grant. McCallum, J., would grant.