For people to successfully contest a Will or Trust, they must have authority to question the validity of a Will or Trust. The following are three reasons why wills or trusts get contested:
(1) Formality Requirements Not Met. There are two different kinds of Wills in Louisiana, each with different formality requirements. And trusts are subject to a different formality requirement. An olographic will is entirely written, dated, and signed in the handwriting of the testator. There are other requirements regarding where the will must be signed, but generally, it is easy to meet the formality requirements for a Louisiana olographic Will. The problem with the Louisiana olographic will is not often whether it is valid, but since most olographic wills are done by people who do not get adequate legal help, the language used in the Will can cause major problems when it comes time to go through the Succession and have the will probated.
Most Louisiana wills are notarial testaments. To meet the formality requirements, a notarial testament is notarized, witnessed by two people, signed by the testator at the end and on each page, and a declaration must exist in the will that is substantially similar to the declaration in our notarial testament statute in Louisiana. There are additional requirements regarding who can be a witness, and other requirements for the illiterate, blind, and those physically unable to sign.
A trust that is properly notarized and witnessed by two people will meet the trust formality requirements.
(2) Lack of Capacity. To have the necessary capacity to make a Will, a person must be able to comprehend generally the nature and consequences of the disposition that he is making. A person with severe dementia, for example, may not have the necessary capacity to make a will. This is often difficult to prove because capacity is typically not questioned until after the testator dies, and the will may have been executed years earlier.
(3) Undue Influence. A will shall be declared null upon proof that it is the product of influence by the donee or another person that so impaired the volition of the donor as to substitute the volition of the donee or other person for the volition of the donor. The authority for the definition of undue influence is Louisiana Civil Code article 1479.
Often, it is difficult to prove that someone either did not have the necessary capacity, or they were unduly influenced. These battles amongs potential heirs are litigious, nasty, difficult, lengthy, expensive, and they wreck family relationships.
At our office, we do not handle these contested Will cases. Our preference is to work with people to set up things in advance, the right way, get it right the first time, and have the proper communication and planning in place so problems like this do not surface later. That's why it is so important to get these matters addressed while you are still healthy.
This post is for informational purposes only and does not provide legal advice. Please do not act or refrain from acting based on anything you read on this site. Using this site or communicating with Rabalais Estate Planning, LLC, through this site does not form an attorney/client relationship.
Louisiana Estate Planning Attorney
Phone: (225) 329-2450