NOTARY NEWSLETTER, March, 2019, Vol. 4, no. 3
Seminar #1. 2019 Recent Developments in the Law For Notaries:
The Louisiana legislature has passed new laws affecting notarial practice
in its most recent session, and numerous cases have been decided which may likewise affect your practice. This seminar will cover changes affecting document preparation, changes to the Louisiana Civil Code, and new jurisprudence in the following areas among others:
Testaments, Powers of Attorney, Donations, new Small Succession Rules, Business Organizations, Trusts, Mortgages, Immovables, Leases, Movable Property Sales, and Other Related Subjects of General Interest To All Notaries.
Seminar #2. 2019 Advanced Topics for Notaries:
This seminar will discuss ideas to improve your notary practice, how notaries set fees, what notaries are including in common practice documents, and how notaries get critical information from clients to facilitate good drafting and avoid liability. Drafting techniques for small successions and inter vivos trusts will be included in the seminar this year.
When a Testament Which States That it Revokes All Previous Testaments is Found to be Invalid, Does it Still Suffice as an Authentic Act to Revoke Previous Testaments?
Testaments - Revocation of a Testament
Succession of Harlan, 2017-1132 (La. 5/1/18), 2018 WL 2025816. Charles Harlan died in November of 2015. He was survived by his wife, Xiaoping Harlan. He was also survived by four adult children from a prior marriage, Veni, Hansel, Jeffrey and Gretel.
In December of 2015, Mr. Harlan’s children filed a purported March, 2000 notarial testament and Hansel was appointed as independent executor in accordance with the testament.
In January of 2016, Xiaoping filed a petition to nullify the 2000 testament, to file another purported testament, to remove Hansel as executor and to have herself appointed as executor. In conjunction with her petition, Xiaoping submitted a purported 2012 testament. Xiaoping conceded that the 2012 document was not a valid testament. However, she alleged that it was a valid authentic act and therefore revoked the purported 2000 testament, leaving Mr. Harlan’s succession intestate.
In February of 2016, the trial court found that as the 2012 document was not valid as a testament, it could not serve as a revocation of Mr. Harlan’s 2000 testament. In other words, the trial court found the purported 2012 testament to be null ab initio and therefore found the 2000 testament to be valid and enforceable.
Thereafter, Xiaoping filed a petition to probate a purported 2007 olographic testament of the decedent. Mr. Harlan’s children opposed the probate of the 2007 document. Although the children had previously argued that the purported 2012 testament was not an authentic act sufficient to revoke the 2000 testament, they now argued that the purported 2012 testament was sufficient to revoke the purported 2007 olographic testament. Similarly, although Xiaoping had previously argued that the 2012 document validly revoked the 2000 testament, she now argued that the 2012 document was not a valid authentic act and therefore did not revoke the 2007 olographic testament.
The trial court, applying the reasoning from its prior judgment, again found the 2012 purported testament to be null ab initio. Therefore, the trial court found that the 2012 document did not revoke the 2007 olographic testament of the decedent. The trial court further found the 2007 olographic testament to be in proper form and admitted the document for probate accordingly.
The children appealed both of the judgments of the trial court.
The 2012 document was entitled, “Last Will and Testament of Charles George Harlan, Sr.” and consisted of two typed pages. The second sentence of the first paragraph of the document provided, “Any prior wills are hereby revoked.” Mr. Harlan signed the second page of the document. He did not sign the first page, which included the revocation language. However, he initialed the first page. On appeal, the parties conceded that the 2012 document was not in valid form as a testament. However, Mr. Harlan apparently executed the document in the presence of a notary and two witnesses.
The court of appeal observed that Civil Code article 1607 governs the revocation of testaments. Article 1607 provides, in part, that the revocation of an entire testament occurs when the testator “so declares in one of the forms prescribed for testaments or in an authentic act.”
The court of appeal then concluded that the 2012 document, although invalid as a testament, was an authentic act under Civil Code article 1833. Therefore, the 2012 document was a valid revocation of all prior testaments of the decedent, including the 2000 notarial testament and the 2007 olographic testament.
Xiaoping filed a writ application, which was granted by the Louisiana Supreme Court. In its review, the Supreme Court first noted that under Civil Code article 1573, the formalities prescribed for the execution of a testament must be observed or the testament is absolutely null. There was no dispute that the 2012 document was not in valid form as a testament, as it failed to include an attestation clause. Therefore, the Supreme Court found that article 1573 was applicable to the 2012 document.
The Supreme Court conceded that under Paragraph (2) of Civil Code article 1607, the revocation of an entire testament occurs when the testator “so declares in one of the forms prescribed for testaments or in an authentic act.” However, the Supreme Court observed that unless it is otherwise clearly indicated by context, whenever the term “or” is used by the legislature, it is used in the disjunctive sense and does not mean “and/or.” The disjunctive “or” generally sets apart two mutually exclusive alternatives. The Supreme Court found that when the “or” in Paragraph (2) of article 1607 is given its disjunctive meaning, the provision should be read as authorizing a testamentary revocation in either “one of the forms prescribed for testaments” or “in an authentic act.”
The Supreme Court concluded that when article 1607 is viewed in light of article 1573, it becomes clear that a disjunctive reading of “or” in Paragraph (2) of article 1607 is appropriate. An absolutely null testament is deemed never to have existed and the parties must be restored to the situation that existed before the testament was executed. See La. Civ. Code art. 2033 (2018).
The Supreme Court further noted that the express provisions of Civil Code article 1573 admit no exceptions. In contrast, Civil Code article 1541 provides that a donation inter vivos shall be made by authentic act under the penalty of absolute nullity, unless otherwise expressly permitted by law. Civil Code article 1834 provides that an act that fails to be authentic because of the lack of competence or capacity of the notary public or because of a defect in form may still be valid as an act under private signature. Article 1573, on the other hand, provides only for the absolute nullity of a testament when there has been no substantial compliance with the formalities prescribed for the execution of the document.
The Supreme Court concluded that if the legislature had intended to create an exception to the absolute nullity of a purported testament under article 1573 by authorizing the authentic act form of revocation to be derived from an absolutely null testament (when the requirements for an authentic act have otherwise been satisfied within the purported testament), then express language comparable to the wording of articles 1541 and 1834 to that effect could have been included within article 1573 or article 1607. However, no such qualification exists within either article 1573 or article 1607. Therefore, the Supreme Court concluded that a juridical act formulated as a testament which does not substantially comply with the formalities of the testament “is absolutely null and void ab initio, and can have no effect whatsoever.
For these reasons, the Supreme Court reversed the judgment of the court of appeal and reinstated the judgments of the trial court.
QUIZ
In Louisiana, certain acts under private signature may be acknowledged by a witness to the act:
a. When the act is duly signed by the parties and attested by two or more witnesses, even if the witnesses did not sign the act until later (that, is one or more of the witnesses did not sign at the same time that the act was signed by the parties).
b. When the act is duly signed by the parties and attested by two or more witnesses, if all witnesses signed the act at the same time as the parties.
c. Only if all witnesses to the act sign the acknowledgment.
d. None of the above.
The Correct answer is below.
We hope you have enjoyed this month's newsletter. Call or email with any comments or questions: dan@statewidenotaryedu.com, 281-758-5572 (office) or 225-205-1984 (Gwen's cell)
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ANSWER: The correct answer to the quiz question is A.
Contact Us
Dan D. Schaneville Statewide Notary Education, LLC dan@statewidenotaryedu.com 15302 Ochre Leaf Trail Cypress, Texas 77433 281-758-5572 (Office) 225-205-1984 (Gwen's Cell)
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