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DIY LOUISIANA WILL EXECUTION BACKFIRES (Notary Stamp Completely Invalidates Will)


10 December, 2018

DIY LOUISIANA WILL EXECUTION BACKFIRES (Notary Stamp Completely Invalidates Will)
“The views expressed by Me are in no way endorsed by CBS any of its allied companies or in fact Me.” ~Craig Ferguson

Ms. Sandra Dale lived in East Feliciana Parish, Louisiana.  She loved East Feliciana Parish so much that she named her first born, Felicia Dale.  Sandra later had two more children, namely Christopher Dale and Michael Dale.

The Dale family was one big happy family, until Sandra died on December 10, 2016.  On February 6, 2017, Felicia filed the Last Will and Testament of Sandra Dale (dated January 13, 2014) in East Feliciana District Court and was appointed as Executrix of the Succession of Sandra Dale.  A few days later, Felicia filed a Petition for Possession and obtained a Judgment of Possession placing her in possession of all the assets of the estate because she was the sole legatee named in the 2014 Will.  Sandra disinherited her two sons, Chris and Michael.  So much for one big happy family.

Fast forward just a few days and enter Chris and Michael with a later executed 2016 Will of Sandra Dale, which they filed in District Court along with a petition to reopen the Succession of Sandra Dale. The 2016 Will left everything to all three children of Sandra Dale, equally. Back to one big happy family, right? 

So far, so good, except the District Court refused to reopen the Succession of Sandra Dale to give legal effect to the 2016 Will because it decided that the 2016 Will was an absolute nullity even though it was valid on all accounts as drafted.
What was the Problem?
The Notary used the following disclaimer stamp when notarizing the 2016 Will, which read:  
“The Notary has neither read nor prepared this document and is solely attesting to the authenticity of the signatures affixed hereto.”
Stepping out of the story for a moment, "Disclaimer Stamps" used by non-lawyer notaries public are so common as to be considered industry standard. Best practices probably suggests that a notary public distance himself or herself from the contents of a document in the event of litigation (to set up an easy out).  

From a legal perspective, the 2016 Will of Sanda Dale was completely valid as drafted. Particularly, at the end of the 2016 Will appeared a critical "notarial attestation clause," which is required by Louisiana law to state:

1.  The Testator declared the instrument to be his or her last will and testament;
2. The Testator signed the instrument in the presence of the notary and two witnesses; and
3. The Testator signed the instrument at the end and on each separate page.

The notary's generic disclaimer stamp conflicted with the first two required elements of a valid notarial attestation clause rendering the otherwise completely valid will absolutely null because: with the addition of the disclaimer stamp, the notary essentially recanted the required declaration by the notary that (1) the Testatrix declared the instrument to be his or her will; and (2) the instrument was signed by the Testator in the presence of both the notary and two witnesses (i.e., everything happened together in the same place). 

The decision of the Lower Court was upheld by the First Circuit Court of Appeal in the Matter of the Succession of Sandra Gabor Dale.  

What is the moral of this story?
If you are an attorney, do NOT dispatch your client to execute a Will on their own! 

If you are not an attorney, do NOT let your attorney dispatch you to execute a Will on your own! Even if you obtain a computer-generated Will (which is NOT a good idea based on THIS CASE), call an estate planning attorney for assistance with execution of your Will! 

If you are a notary, DO NOT USE A DISCLAIMER STAMP ON AN OTHERWISE VALID WILL!

If you are anyone else, keep calm and carry on.

Theus Law Offices specializes in a complete range of estate planning and elder law services, including wills, trusts, probate, successions, estate administration, and probate litigation. If you need a Louisiana wills and trusts lawyer or a succession attorney in Alexandria, Lafayette, Lake Charles, Baton Rouge, New Orleans, Shreveport, Monroe, or elsewhere in Louisiana, we can help you.

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