Succession of Guezuraga

• Court: Louisiana Supreme Court
• Writing for the Court: CALOGERO; WATSON; PER CURIAM
• Citation: Succession of Guezuraga, 512 So.2d 366 (La. 1987)
• Decision Date: 09 September 1987
• Docket Number: No. 87-C-0724,87-C-0724
• Parties: SUCCESSION OF GUEZURAGA.

Page 366

512 So.2d 366

SUCCESSION OF GUEZURAGA.

No. 87-C-0724.

Supreme Court of Louisiana.

Sept. 9, 1987.

Rehearing Denied Oct. 15, 1987.

Robert Fadaol, Gretna, for applicant.

Jackson McNeely, Garon, Brener & McNeely, New Orleans, for respondent.

CALOGERO, Justice.

The Louisiana Wills Act ¹ requires that a testator "sign his name at the end of the will and on each separate page of the instrument." ² The issue in this case is whether a statutory will is valid if the testatrix signs the page containing all dispositive portions and the beginning of the attestation clause, but fails to sign the page containing only the conclusion of the attestation clause. ³

The executrix filed a petition to probate the will. The trial judge ordered the will probated over the opposition of the testatrix's two adopted children. The Fourth Circuit Court of Appeal reversed, holding that "[t]he failure of the testator to sign each sheet is fatal to the validity of the will." Succession of Guezura (sic), 503 So.2d 187, 188 (La.App.1987). The succession representative applied for a writ of review, which this Court granted. 505 So.2d 50 (La.1987). For the reasons discussed below, we reverse.

Elenora Gregoratti Guezuraga executed the statutory will on March 17, 1978. She left the forced portion of her estate ⁴ to the two children adopted by her and her ex-husband. She left the disposable portion to her four sisters and appointed one of the sisters executrix. After Mrs. Guezuraga died in 1986, the executrix filed a petition for probate of the statutory will. The forced heirs' opposition was based solely on the testatrix's failure to sign the second page, which contained the conclusion of the attestation clause. ⁵ The trial judge ordered the will probated.

The court of appeal reversed, citing Succession of Hoyt, 303 So.2d 189 (La.App. 1st Cir.1974) and Land v. Succession of Newsom, 193 So.2d 411 (La.App. 2d Cir.1967), writ denied, 250 La. 262, 195 So.2d 145 (1967). Land involved a two page will signed only on the second page. The testator there did not sign the first page, containing some or all of the dispositive portions. The court of appeal in Land affirmed the trial court judgment declaring the will invalid, holding the "absence of the testatrix's signature on each page or sheet of the will [was] fatal." 193 So.2d at 414. Hoyt also involved a two page will signed only on the second page. The court of appeal affirmed the trial court judgment invalidating the will, reciting the purpose of the requirement that the testator sign his name on each separate sheet is "to prevent fraud by the substitution of one typewritten page for another after the execution of the will by the testator." 303 So.2d at 189. Both of these cases are distinguishable from the case at bar, where the testatrix signed (in fact twice) on the page containing all of the dispositive portions.

La.Rev.Stat.Ann. § 9:2442(B)(1) requires the testator to declare to the notary and witnesses that the "instrument" is his last "will" and to sign his name at the end of the "will" and on each separate page of the "instrument." A plausible conclusion, and one in keeping with the principles of liberality established by the jurisprudence discussed below, is that the Legislature intended to and did use the terms "will" and "instrument" interchangeably, and the reference in each instance was only to the entirety of the testator's dispositions or recitations. Therefore, when the testatrix in this case signed the page containing all of the dispositive provisions, she fulfilled the statutory requirement to sign her name at the end of the "will" and on each separate page of the "instrument." This is our conclusion in this case, for the reasons recited below.

The only argument to the contrary is prompted by a strict reading of this statutory provision. Opponents argue that while "will" may refer only to the dispositive provisions, the "instrument" (as to which the testator must sign his name on each page) is the full document, including the attestation clause.

But we are not required to give the statutory will a strict interpretation. The Legislature adopted the statutory will from the common law in order to avoid the rigid formal requirements of the Louisiana Civil Code. "The minimal formal requirements of the statutory will are only designed to provide a simplified means for a testator to express his testamentary intent and to assure, through his signification and his signing in the presence of a notary and two witnesses, that the instrument was intended to be his last will." Succession of Porche v. Mouch, 288 So.2d 27, 30 (La.1973). In accordance with this legislative intent, courts liberally construe and apply the statute, maintaining the validity of the will if at all possible, as long as it is in substantial compliance with the statute. Note, Louisiana's Statutory Will: The Role of Formal Requirements, 32 La.L.Rev. 452, 453 (1972). In deciding what constitutes substantial compliance, the courts look to the purpose of the formal requirements--to guard against fraud.

Where the departure from form has nothing whatsoever to do with fraud, ordinary common sense dictates that such departure should not produce nullity. It was the intent of the legislature to reduce form to the minimum necessary to prevent fraud. It is submitted that in keeping with this intent, slight departures from form should be viewed in the light of their probable cause. If they indicate an increased likelihood that fraud may have been perpetrated they would be considered substantial and thus a cause to nullify the will. If not, they should be disregarded. Thus testators and estate planners will have the security that the legislature intended to give them.

Casenote, Donations--Imperfect Compliance with the Formal Requirements of the Statutory Will, 25 Loy.L.Rev. 362, 371 (1968-69).

Section 2442(B)(1) of Title 9 of the Revised Statutes speaks of the testator's conduct of signing "at the end of the will and on each separate page of the instrument," at a point in the statute where mention is yet to be made of the attestation formalities. ⁶ Only after the testator has signed, "the notary and the witnesses shall then sign" [emphasis provided] the attestation clause, according to subsection (B)(2). This sequential reading of subsections (B)(1) and (B)(2) establishes a chronology of anticipated events which lends support to the plausible interpretation that subsection (B)(1)'s references to "will" and "instrument" are both references to the testator's disposition or testamentary recitations--the testator signs each other separate page of the instrument when the "instrument," based on that chronology, does not yet have the attestation clause appended to it.

This interpretation is consistent with the Louisiana statute's lack of a requirement that the testator sign after the attestation clause. As originally enacted in 1952, section 2442 of Title 9 required that certain facts "be evidenced in writing above the signatures of the notary public and witnesses and the testator at the end of the will." This language created confusion as to whether the testator was required to sign after the attestation clause. In Succession of Porche v. Mouch, 288 So.2d 27 (La.1973), this Court held that it was "immaterial for any substantial purpose whether the testator's signature is placed before or after any formal attestation clause by the notary and two witnesses at the end of the will." Id. at 30.

In 1974, section 2442 was amended to require the facts "be evidence[d] by a declaration signed by the notary and both witnesses." "This amendment settle[d] the controversy as to whether the testator must sign at the end of the will or after the attestation clause." L. Oppenheim, Louisiana Civil Law Treatise: Successions and Donations, § 111 n. 115 (Supp.1979). It is now clear that the testator need not sign after the attestation clause. Johnson, Successions and Donations, 43 La.L.Rev. 585, 595 & n. 43 (1982).

The dispositive provisions of the testament are what primarily concern the testator, and as to which we require the testator's affirmance by a signature.... This is our assurance that the testament is an accurate reflection of the testator's wishes. So long as the signature is located beneath the dispositive provisions and affixed in time after they are written, we are permitted to infer the testator's approval. It makes absolutely no difference that the testator's signature is also beneath the attestation clause. The latter clause is of no particular concern to the testator, and indeed we are not interested in his assertion as to the procedure followed in confection of the testament. The attestation clause is for the witnesses and notaries to affirm what has taken place in their presence.... [B]arring other problems with a disposition, it is valid if it appears above the signature of the testator....

Id. at 595-96.

This interpretation is also consistent with the common law, from which Louisiana's statutory will was adopted. ⁷ "In most jurisdictions the attestation clause is not regarded as a part of the will, but rather as a certificate to the will; and, accordingly, the signature of the testator may either precede or follow such clause and yet be at the end of the will." ⁸ The testator does not have to sign again following the attestation clause.

We therefore hold that the testatrix's failure to sign the page containing only the conclusion of the attestation clause is not fatal to the validity of this statutory will. The will shall therefore be probated.

Decree

For the foregoing reasons, we reverse the judgment of the court of appeal and reinstate the judgment of the district court.

JUDGMENT OF COURT OF APPEAL REVERSED; JUDGMENT OF DISTRICT COURT REINSTATED.

WATSON, J., dissents.

ON APPLICATION FOR REHEARING

PER CURIAM

In our original opinion in this case we made reference to language in La. R.S. 9:2442 as it appears...