Will Declared Invalid!
Wills can be declared invalid by the court when certain formalities prescribed by law are not followed. An example of a will being declared null and void in Louisiana is found in a recent 2008 case. In this case, “Joe” died at age 85. Joe executed a notarial testament (not handwritten) in 2005. This 2005 will gave all of his property to his second wife. Following his death, his wife filed this will in the probate proceedings and was subsequently placed into possession of all of Joe’s property.
Joe’s 2005 will was not read aloud to him and did not contain an attestation clause which is required by Louisiana Law for an illiterate person. Therefore, whether or not Joe executed a valid will depended on the evidence of his being able to read or not being able to read.
In the trial, evidence was presented that Joe needed assistance to read and interpret simple documents like personal letters or a newspaper. Along with other evidence, the court concluded that Joe could not adequately read the 2005 will. Because the court decided that Joe was illiterate, the 2005 will was declared invalid because it was not executed with the language for someone who could not read. The court ruled in favor of the son, reopened the succession and annulled the Judgment of Possession in favor of the second wife. Joe’s assets were distributed according to the laws of intestacy and not necessarily the way Joe would have wanted
How could this have been avoided? What are the formalities established by Louisiana Law? For persons who can read and write, and are able to do so, the procedures are relatively simple and include signing at the end of the testament and on each separate page in the presence of a notary, who is often an attorney, and two competent witnesses. A separate statement called a Declaration must be signed and it certifies in special language what happened on the day that the will was signed. For example the Declaration would say that the testator read it and declared it was his testament.
Wills for those who cannot read, or are not able to sign have separate formalities that must be followed. The will must be read aloud for those who cannot read, and the witnesses must follow along on written copies, to verify the accuracy of the reading. The Declaration must certify that the will was read to him and he declared it his testament. On the other hand, a person who cannot sign may have one of the witnesses sign on their behalf if the proper modifications are made to the Declaration. This would include people who are mentally fine but physically impaired.
In the event someone wants to make substantive changes to his will, it is recommended that any such changes should be handled by an attorney through the forms of a codicil or revised notarial testament.
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In New Orleans, legal wills are the only way to protect your family and loved ones in the unfortunate case of death. Find out more at http://www.melcherslawfirm.com/.