Losing a loved one is an obviously devastating experience. Possessions left to the surviving family members cannot take the grief away but can prohibit an entire upheaval for the survivors. It is critical that an excellent attorney drafts the will and handles the probate process for the sake of those survivors.
An Alexandria, Louisiana, widow was out of luck after family members filed a lawsuit claiming that her late husband’s will was null and defective. In 1996, Elmoses Ivey executed his last will and testament, which left all his property to his wife, Lois Ivey. After Mr. Ivey died in 2016, Mrs. Ivey probated the will and obtained a judgment of possession. However, Mr. Ivey’s children from a prior marriage filed a lawsuit to contest the validity of their father’s will. The children argued that the attestation clause at the end of the will did meet the necessary legal requirements and was, therefore, invalid. An attestation clause is a section at the end of the will stating that all the legal requirements in executing the will have been met. The Ninth Judicial District Court for the Parish of Rapides agreed and declared the will invalid. Mrs. Ivey appealed to the Louisiana Third Circuit Court of Appeal.
Louisiana law requires a notarial testament’s attestation clause to be in writing and dated. The testator (person making the will) must sign the will at the end and on each separate page. The testator must declare in the notary’s presence and two witnesses that the instrument is his will. Finally, the notary and witnesses must include a written declaration that both the first two requirements have been met. See La. C.C. art 1577. While there is a presumption in favor of validity generally, will execution formalities must be strictly followed, or the will is invalid. See Successions of Toney, 226 So.3d 397 (La. 2017). The Louisiana Supreme Court further opined that any earlier cases which treated deviations from testamentary form requirements with leniency would no longer apply.
The Third Circuit examined the attestation clause of Mr. Ivey’s will and found that it lacked two requirements. Mr. Ivey’s will did not contain the declaration by the witnesses and notary that Mr. Ivey signed the will at its end and on each separate page. It also did not have the declaration by the witnesses and notary that Mr. Ivey declared to them that the document was his will. The Third Circuit affirmed that the will was invalid without those two requirements.
Mrs. Ivey argued that there was no need for a rigid application of the attestation clause requirements because there was no evidence of fraud in the creation of Mr. Ivey’s will. Unfortunately, the Third Circuit was bound to follow the Louisiana Supreme Court’s holding that the formalities prescribed for the execution of a testament must be strictly followed.
The case reminds all estate attorneys that the statutory formalities for notarial testaments will be applied rigidly. Despite a presumption that a will is valid, courts must apply the legislature’s statutory scheme for will requirements. A hard lesson for Mr. Ivey’s attorneys and a miserable day in court for his widow.
Additional Sources: SUCCESSION OF ELMOSES IVEY
Written by Berniard Law Firm Blog Writer: Elisabeth Tidwell
Other Berniard Law Firm Articles on Contested Wills: Surviving Spouse Loses Fight with First Wife Over Provisions of “Clear and Unambiguous” Will in Louisiana