Litigation Over the Execution of a Will

Louisiana Law and the Execution of Wills

Louisiana’s succession courts have strict rules and procedures regarding how estates must be resolved after an individual’s death. These rules govern how wills must be read and enforced.

Louisiana presumes that most adults of sound mind have the legal capacity to write their own will. However, wills must still comply with state law to be accepted by a succession court. In general, any will that meets the state’s requirements will be considered valid.

Louisiana Recognizes Two Types of Wills

• Olographic testaments. This is a will written, signed, and dated by the deceased person. An olographic will does not require a notary stamp or witness signatures, provided it was written entirely in the decedent’s own handwriting.
• Notarial testaments. This will need not be handwritten and may be prepared by an attorney or other third party. A notarial will is only valid if each page is signed by the testator in the presence of a notary and two competent witnesses. The writer must explicitly state that the instrument is their testament.

However, the court may reconsider the validity of a will under certain circumstances.

Why a Will Might Be Declared Invalid

• The will is not signed.  
• The testator created an olographic will but did not sign or date it.
• The decedent attempted to create an olographic will but did not do so entirely in their own handwriting.
• The notarial will was not affirmed before a notary or witnesses.
• The estate executor cannot furnish the original copy of the will.
• The witnesses had an interest in the will. For example, one or more of the witnesses was a creditor to the estate or a named beneficiary.
• The testator’s signature was forged or cannot be verified.
• The decedent was coerced into creating or altering the will.
• The deceased person was not of sound mind.

What Happens if a Will Is Found Invalid?

If a will is found invalid and cannot be executed under Louisiana law, the outcome could be catastrophic for everyone involved.

In some limited instances, the court could simply invalidate a provision of the will. However, if the will itself was not created in accordance with state law, it may be deemed ineligible by a succession court. If this happens, a judge might order that the estate be treated as if the decedent died intestate, or without a will.

Louisiana law requires that intestate assets be disbursed according to a strict legal formula. This formula privileges the surviving spouse, children, and other close blood relations—including people explicitly excluded from the original will. Since intestate proceedings do not account for the decedent’s wishes, they could result in intended beneficiaries losing some or all of their inheritance.

Scott Law Group – Estate Counsel Can Help

Estate litigation can be complex, especially if the deceased person’s will could be invalid or their intent was not clear. If you are defending an estate from a contest or planning to challenge the validity of a will, you need to understand the potential outcomes and how they could affect you.

Scott Law Group – Estate Counsel’s team of succession attorneys can help you review the will, the viability of a challenge, and the deceased person’s other estate plans, if any. Please call us at 504-264-1057 to get started on your case today.

What “Execution” Means in Louisiana Will Law

In Louisiana will law, “execution” refers to the formal steps required to make a will legally valid — not the distribution of the estate after death. A will that has not been properly executed is not a valid will under Louisiana law, regardless of how clearly it expresses the testator’s intentions. For a Louisiana notarial will, execution requires that the testator sign the will in the presence of a notary and two competent witnesses, that the witnesses sign before the notary, and that the notary sign. Each signature must occur in the physical presence of the others during a single ceremony. For an olographic will, execution requires that the entire document be written by the testator’s hand, that it be dated in the testator’s hand, and that the testator sign it. Missing any required element of execution renders the will invalid as a matter of Louisiana law.

The witnesses to a Louisiana notarial will must meet specific requirements. They must be at least sixteen years old, of sound mind, and able to sign their names. They cannot be the notary before whom the will is executed. Critically, a person who is named as a beneficiary in the will — or who is the spouse of a named beneficiary — is disqualified from serving as a witness. A notarial will executed before a disqualified witness is not validly executed and can be declared void even if every other formality was observed. Louisiana courts have been consistent in requiring strict compliance with execution requirements, refusing to apply a “substantial compliance” standard that some other states use. Either the will was properly executed or it was not.

The requirement that all signatures occur during a single continuous ceremony is another area where execution challenges arise. Louisiana courts have held that a will signing ceremony cannot be interrupted and resumed — all parties must be present together, sign the will during the same gathering, and not leave and return. A notary who leaves the room while witnesses are signing, or a situation where one witness signs on a different day, may create a valid execution challenge. These requirements exist because the ceremony is designed to protect the testator from fraud and undue influence — ensuring that the testator, witnesses, and notary are all present together and observing the same signing event.

How Execution Challenges Differ From Other Will Contests

Execution challenges are fundamentally different from capacity or undue influence challenges in how they are proved and how courts evaluate them. A capacity challenge requires examining the testator’s mental state — gathering medical records, interviewing caregivers, analyzing the testator’s behavior before and after the will was signed. An execution challenge focuses almost entirely on the document itself and the circumstances of its signing. Who was present? In what order did signatures occur? Was the notary a licensed notary in good standing? Were the witnesses qualified? These questions can often be answered from the face of the will and the testimony of the notary and witnesses, without requiring the extensive factual investigation that capacity claims demand.

The burden of proof in an execution challenge depends on how the challenge is raised. In Louisiana, a notarial will that appears regular on its face is presumed valid. The party challenging the will’s execution must overcome that presumption by proving that a specific execution requirement was not met. If the challenge succeeds in establishing a prima facie defect — for example, showing that one of the witnesses was a named beneficiary — the burden then shifts to the will’s proponents to explain why the will should nonetheless be given effect. Because Louisiana’s execution requirements are strict, a demonstrable technical defect is often sufficient to void the will without requiring proof of bad intent or harm.

Execution challenges are frequently raised alongside, rather than instead of, capacity and undue influence challenges. A party contesting a will on execution grounds often also argues that the testator lacked capacity or was subjected to undue influence — presenting multiple grounds so that the will contest does not fail entirely if one ground is rejected. The strategic sequencing of these arguments matters: an execution challenge that voids the entire will makes the capacity and undue influence claims moot, while a capacity challenge that succeeds only as to a specific provision leaves the rest of the will intact. The succession attorney handling the challenge advises on which grounds to prioritize and how to structure the claims to maximize the chance of a favorable outcome.

What Happens After a Successful Execution Challenge

When a court finds that a will was not properly executed under Louisiana law, it declares the will void — the document has no legal effect. The consequences of that ruling depend on whether any other valid testamentary document exists. If the decedent had a prior valid will — one that was executed before the void will and was never revoked by a properly executed revocation — the prior will may govern the estate’s distribution. Louisiana courts look at whether the revocation of the prior will was itself valid: if the void will contained a revocation clause, and the will is now void, the revocation may also fail, potentially reviving the earlier will. This analysis of which document governs after a successful execution challenge can itself require significant legal work.

If no prior valid will exists after a successful execution challenge, the estate is distributed under Louisiana’s intestate succession laws. The heirs receive their statutory shares based on their relationship to the decedent, regardless of what the voided will attempted to accomplish. This result can be dramatically different from what the testator expressed in the defective document — the entire estate plan fails because of a technical flaw in how the will was signed. This is one of the strongest arguments for having an estate planning attorney prepare and supervise the execution of every will: a professionally supervised execution ceremony eliminates the execution defects that could invalidate years of careful estate planning.

For the party who brought the execution challenge successfully, the outcome is determined by what governs after the void will is set aside — either the prior will or intestate succession. The challenger does not get to direct the estate’s distribution to themselves; they simply succeed in removing the document they challenged. If the challenger was an intestate heir who was excluded by the void will, the successful execution challenge restores their intestate share. If the challenger was a beneficiary under a prior will who received less under the later void will, the successful challenge restores the prior will’s more favorable bequest. The challenger’s motivation, strategy, and expected recovery must all be analyzed before filing, because the outcome of a successful challenge is determined by law — not by the challenger’s preferred distribution scheme.