09 February, 2017
No one wants to pay more than necessary for essential estate planning documents, such as a last will and testament or power of attorney. These documents can be attained easily at retail office supply outlets or online through legal storefronts like legalzoom.com for as little as $69.00. While a bargain basement price is enticing, estate litigation contesting the validity of a will purchased online or through a retail outlet is very expensive.
Take Mr. John Robert Biscamp who purchased his will online from an unknown source. Mr. Biscamp had two daughters, but made no provision for them in his will, instead leaving all of his estate to other relatives. After Mr. Biscamp died on April 6, 2015, his will was admitted to probate and his daughters thereafter filed a petition to annul the will.
There are a number of ways to challenge the validity of a will, but with computer-generated forms, the attack often focuses on either improper form or improper execution. In order for a will to be valid in Louisiana, the form of the will must comply with the peculiarities of Louisiana law and the formal requirements of execution must be observed. If the form of the will is invalid, or the testator fails to observe the required formalities of execution, the will is invalid and will be set aside.
Mr. Biscamp’s will consisted of six pages, four of which contained dispositive provisions and two of which contained various attestation clauses in the form of an affidavit. To a layperson, the will appears to be valid and contained ample recitals of various declarations and formalities. However, the will lacked a proper notarial attestation clause, which is required in Louisiana.
In Louisiana, the notary and witnesses must execute an attestation clause at the end of the will, which basically states that: (1) the testator declared in the presence of the notary and witnesses that the instrument was his last will and testament; (2) the testator signed the testament at the end and on each separate page; and (3) the entire execution process occurred in the presence of the notary and witnesses on a certain date. The form of the notarial attestation clause is not sacrosanct, but it must substantially comply with the requirements.
Unfortunately, for Mr. Biscamp, his computer-generated will was defective. The recitations at the end of the will sounded “legal,” but at the bottom of the issue, the notary did not declare anything. All declarations were made by the testator and/or the witnesses.
The source of the computer-generated testament was unknown. However, the very same will was invalidated by the First Circuit Court of Appeal several years ago. In the case of Succession of Seal, 10-351 (La. App. 1 Cir. 9/10/10), the First Circuit engaged in an in-depth analysis of the problems with a computer-generated will. As it turns out, Mr. Biscamp somehow purchased and executed the very same computer-generated will. When faced with the very same document, the Third Circuit Court of Appeal followed suit and affirmed the trial court ruling invalidating the computer-generated will in the case of Succession of John Robert Biscamp, 16-673 (La. App. 3 Cir. 02/01/17).
In so doing, the Third Circuit felt compelled to provide an example of a valid attestation clause and stated, “[g]iven the reliance on … computer-generated testaments, we strongly feel the public would benefit from the form provided by the treatise author, a noted member of the Louisiana State Law Institute Succession and Donations Committee upon whose recommendation La. Civ. Code Art. 1577 was enacted….” This statement is tantamount to a public service announcement warning the public to beware of computer-generated testaments.
The problem with purchasing a testament or other estate planning document online or at a box store is that the validity of the document may not be tested until after the testator or testatrix has passed. In real terms, if there is a problem with the document, it will not likely be known until it is too late to fix it, which would yield the same result as In Re the Succession of John Robert Biscamp, 16-673 (La. App. 3 Cir. 02/01/17), that is, declaring it null and void, despite intentions of the testator or testatrix.
Theus Law Offices provides a complete range of estate planning services, including wills, trust, probate, successions, estate administration and probate litigation. If you are facing an estate planning issue or will contest and need a Louisiana estate planning attorney, estate lawyer or probate attorney in Alexandria, Lafayette, Lake Charles, Baton Rouge, New Orleans, Shreveport, Monroe, Central Louisiana or elsewhere, let our estate planning lawyers and probate attorneys help you.
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