Succession Of James Conway Liner, III

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FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #005
FR
OM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 27th day of January, 2021 are as follows:
BY Hughes, J.:
2019-C-02011 SUCCESSION OF JAMES CONWAY LINER, III (Parish of Ouachita)
REVERSED IN PART. DISTRICT COURT JUDGMENT REINSTATED.
SEE OPINION.
Retired Chief Justice Johnson participated in this decision, which was
argued prior to her retirement.
Retired Judge James H. Boddie, Jr., heard this case as Justice pr o tempore,
sitting in the vacant seat for District 4 of the Supreme Court. He is now
appearing as an ad hoc for Justice Jay B. McCallum.
Weimer, C.J., dissents and assigns reasons.
Hughes, J., additionally concurs and assigns reasons.
Crichton, J., dissents and assigns reasons.
Crain, J., dissents and assigns reasons.

*Retired Chief Justice Johnson participated in this decision, which was argued prior to her
retirement. Retired Judge James H. Boddie, Jr., heard this case as Justice pro tempore, sitting in
the vacant seat for District 4 of the Supreme Court. He is now appearing as an ad hoc for Justice
Jay B. McCallum.

01/27/2021
SUPREME COURT OF LOUISIANA

No. 2019-C-02011

SUCCESSION OF JAMES CONWAY LINER, III

On Writ of Certiorari to the Court of Appeal,
Second Circuit, Parish of Ouachita

HUGHES, J.*
The primary issue in this case is whether the language of an attestation clause
in a notarial testament, which failed to expressly state that the testator declared or
signified that he signed the testament “at the end of the testament and on each other
separate page,” in accordance with the requirements of La. C.C. art. 1579, rendered
the testament absolutely null under La. C.C. art. 1573 (“The formalities prescribed
for the execution of a testament must be observed or the testament is absolutely
null.”).
The testator herein executed two notarial testaments, one in 2013 and another
in 2015 (which purported to revoke all prior testaments). T he 2013 testament ,
executed under La. C.C. ar t. 1577 (for a testator who is able to read and sign his
name), divided the testator’s property equally among his three adult children
(Conway, Jeffrey, and Laura). T he 2015 testament, executed under La. C.C. art.
1579 (for a testator who is unable to read regardless of whether he is able to sign his
name), divided the testator’s property between only two of his children (Jeffrey and
Laura), excluding the third child (Conway). After the testator’s death on October 9,

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2018, Conway challenged the validity of the 2015 testament on several bases , in
response to his siblings’ attempt to probate the testament.
The testator’s 2015 notarial testament reads, in pertinent part:
IN WITNESS WHEREOF, I have signed this, my Last Will and
Testament, in the presence of the witnesses hereinafter named and
undersigned.
[signature of testator]

* * *

The foregoing instrument, consisting of eight (8) pages, and read
aloud in the presence of the Testator and of each other, such reading
having been followed on copies of the Will by Notary and witnesses,
and the Testator declared that he had heard the reading of the Will by
the Notary , and the Will was signed and declared by JAMES
CONWAY LINER, III, Testator and above named, in our presence to
be his Last Will and Testament, and in the presence of the Testator and
each other we have hereunto subscribed our names on this 3rd day of
June, 2015.
[signature of witnesses, notary,
and testator]
* * *
(Emphasis added.)

Despite the fact that the testator actually signed on each separate page and at
the end of the testament, Mr. Liner’s testament stated only that it was “signed.”
However, La. C.C. art. 1579(2) provides as follows:
In the presence of the testator and each other, the notary and witnesses
must sign the following declaration, or one substantially similar: “This
testament has been read aloud in our presence and in the presence of
the testator, such reading having been fo llowed on copies of the
testament by the witnesses [, and the notary if he is not the person who
reads it aloud,] and in our presence the testator declared or signified
that he heard the reading, and that the instrument is his testament, and
that he signed his name at the end of the testament and on each other
separate page; and in the presence of the testator and each other, we
have subscribed our names this ____day of ____, ______.”

(Emphasis added.)

The district court invalidated the 2015 Liner testament, ruling that the
provisions of the attestation clause were not substantially similar to those set forth
in La. C.C. art. 1579. Jeffrey and Laura appealed, and the appellate court reversed

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in part.1 Succession of Liner, 53,138 (La. App. 2 Cir. 11/20/19), 285 So.3d 63. We
granted the subsequent writ application to review the appellate court ruling.
Succession of Liner, 19-02011 (La. 2/26/20), 294 So.3d 476.
A disposition mortis causa may be made only in the form of a testament
authorized by law. La. C.C. art. 1570. The formalities prescribed for the execution
of a testament must be observed or the testament is absolutely null. L a. C.C. art.
1573. A notarial testament is one that is executed in accordance with the formalities
of Articles 1577 through 1580.1. La. C.C. art. 1576. The codal provisions governing
an attestation clause within a notarial testament state that the mandated attestation
clause need only be “substantially similar” to the model declaration provided therein.
See Successions of Toney, 16-1534, p. 5 (La. 5/3/17), 226 So.3d 397, 401. See also
In re Succession of Holbrook , 13 -1181, p. 9 (La. 1/28/14), 144 So.3d 845, 851
(“There must be an attestation clause, or clause of declaration. However, its form is
not sacrosan ct: It may follow the form suggested in the statute or use a form
substantially similar thereto.”) (citing Succession of Morgan, 257 La. 380, 385, 242
So.2d 551, 552 (1970)).
Our jurisprudence requires that the validity of a testament should be
maintained through the liberal construction and application of the codal articles,
rather than a strict interpretation, as long as there is substantial compliance with the
codal provisions. See In re Succession of Holbrook, 13-1181 at pp. 8-9, 144 So.3d
at 851; Succession of Guezuraga, 512 So.2d 366, 368 (La. 1987). This court held
in Successions of Toney that “[t]here is a presumption in favor of the validity of

1 We note that two issues were presented to the appellate court: (1) whether the 2015 testament
was valid, and (2) whether Conway was appropriately appoint ed provisional administrator for the
succession. Although the appellate court reversed the district court’s invalidation of the 2015
testament, it affirmed the provisional appointment of Conway as administrator for the succession
(finding that neither of the other siblings applied f or the position , nor did they establish a valid
basis for Conway’s removal as provisional administrator). As only the former of these rulings has
been presented to this court for review, we do not address the latter.

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testaments in general, and proof of the nonobservance of formalities must be
exceptionally compelling to rebut that presumption. ” Successions of Toney , 16 -
1534 at p. 5, 226 So.3d at 401.
Thus, the issue presented herein is whether an attestation clause verifying that
the testator declared he “signed” the testament is substantially similar to the Article
1579 requirement that the attestation clause verify that the testator declared he signed
his name “at the end” and “on each other separate page” of the testament.
We first examine the history of the relevant codal language in La. C.C. art.
1579.2 Prior to 1980, the text of former Section 2443 only addressed limitations on
the use of former Section 2442 (first stating in 1952, “Those who know not how or
are not able to read, cannot make dispositions in the form of the will provided for in
R.S. 9:2442.”); Section 2443 was continued with substantially the same text, with
only slight modifications, until 1980. See 1952 La. Acts, No. 66, § 2; 1964 La. Acts,
No. 123, § 1; 1979 La. Acts, No. 241, § 1. Former Section 2443 was revised, in
1980, to change its subject matter and prior title of “ Qualifications of testator and
witnesses” to “Statutory will for those with s ight impairment or those who are
illiterate.” As amended, former Section 2443 required a testator whose statutory will
was executed under that section to sign his name “at the end of the will and on each
other separate page of the instrument” and required the witnesses and notary to attest
that the testator signed “at the end and on each other separate page.” See 1980 La.
Acts, No. 744, § 1. When 9:2443 was repealed and its substance re-enacted as La.
C.C. art. 1579 (by 1997 La. Act No. 1421, §§ 1 & 8, e ff. July 1, 1999), both of the
requirements in this statute ‒ directing where the testator was required to sign and
what the witnesses and notary were required to attest about where the testator had

2 See also Succession of Bruce , 20-00239 (La. 1/27/21), ___ So.3d ___ ( rendered
contemporaneously with the instant case) (wherein we discuss the legislative history of La. C.C.
art. 1577, supra, which also requires an attestation that the testator declared he signed the testament
“at the end and on each other separate page”).

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signed ‒ employed the language “at the end” and “on each other separate page.” The
relevant language of La. R.S. 9:2443, as re-enacted in La. C.C. art. 1579, currently
states that the testator must sign his name “at the end” of the testament and “on each
other separate page” and that the witnesses and notary must attest that the testator
signed his name “at the end” of the testament and “on each other separate page.”
We previously reviewed whether an attestation clause could simply state that
the testator “signed” a notarial testament in Succession of Hanna , 19-01449 (La.
11/25/19), 283 So.3d 493 (per curiam). In Succession of Hanna, 52,664, pp. 2- 3
(La. App. 2 Cir . 6/26/19), 277 So.3d 438, 439 -40, the trial court found that the
attestation clause of the testament at issue materially deviated from the model
attestation clause, set forth in La. C.C. art. 1577(2),3 because it did not state that the
testator signed the testament at its end and on each of its separate pages. In Hanna,
the testament at issue consisted of four pages , and the testator did in fact sign on
every page. However, the Hanna attestation clause stated:
SIGNED AND DECLARED by testator above named in our presence
to be his last will and testament and in the presence of the testator and
each other we have hereunto subscribed our names on the 18th day of
October, 2012 at Jonesboro, Louisiana.

Succession of Hanna, 52,664 at p. 5, 277 So.3d at 441 (emphasis added).
Even though t he Hanna district court found th at the phrase “signed . . . by
testator” was not substantially similar to the codal language so as to constitute a valid
testament, the appellate court reversed, emphasizing that the omitted language was
the sole deviation from the codal requirements and noting that the testator’s signature
did actually appear at the end of his testament and on each other separate page, as
required by La. C.C. art. 1577. Succession of Hanna, 52,664 at p. 8, 277 So.3d at

3 Although Hanna dealt with the requirements of La. C.C. art. 1577(2) and the instant case is
concerned with the provisions of La. C.C. art. 1579(2), the discussion therein is relevant herein as
these two codal articles both state that the notary and witnesses must attest that the testator declared
or signified that he signed the testament “at the end” and “on each other separate page.”

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442. The Hanna appellate court reasoned that, while the absence of the words “at
the end and on each other separate page ” deviated from the s ample attestation
language of Article 1577(2), the deviation was “minor and immaterial” in light of
the fact that the testator did in fact sign his full signature at the end and on each other
separate page of the testament. Id., 52,664 at p. 8, 277 So.3d at 442-43. The Hanna
appellate court found that the attestation clause in the testament was substantially
similar to the one in La. C.C. art . 1577 and , since there was no indication or
allegation of fraud, the court concluded that the language “substantially complie[d]
with the formalities prescribed for the execution of a notarial testament.” Id., 52,664
at pp. 8-9, 277 So.3d at 442-43.
In granting a subsequent writ application in Hanna, this court ruled:
Pursuant to this Court’s ruling in Successions of Toney, 16-1534 (La.
5/3/17), 226 So.3d 397, we find the trial court correctly concluded the
attestation clause in the subject testament materially deviated from the
requirements of La. C.C. art. 1577(2) so as to render the testament
invalid. Consequently, the ruling of the Court of Appeal is reversed,
and the trial court’s judgment is hereby reinstated.

Succession of Hanna, 19-01449 at p. 1, 283 So.3d at 493. Thus, this court found
that the failure of the Hanna testament to comply with the codal requirement ‒ that
the attestation clause state that the testator signed the testament at its end and on each
of its separate pages ‒ was a material deviation that rendered the testament invalid.
As indicated hereinabove, La. C.C. art. 1579(2) requires that the notary and
witnesses sign a declaration, “or one substantially similar, ” stating the testator
declared or signified in their presence that, inter alia, “he signed his name at the end
of the testament and on each other separate page”; however, in the instant case, the
attestation clause of Mr. Liner’s 2015 testament, on this point, stated only that “the
Testator declared that . . . the Will was signed . . . . ” The statement in the instant
2015 testament that the testament “was signed ,” as in Hanna, is not subs tantially
similar to the model phrase set forth in Article 1579(2) because it does not establish

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that the testament was signed at the end and on every pa ge of the multiple -page
testament. A statement verifying only that the “[w]ill was signed” establishes only
that the will was signed once and does not establish that the testament was signed at
the end and on each other separate page, as required by La. C.C. art. 1579(2).
“The attestation clause is designed to evince that the facts and circumstances
of the confection and execution of the instrument conform to the statutory
requirements.” In re Succession of Holbrook , 13-1181 at p. 9, 144 So.3d at 851
(citing Succession of Morgan, 257 La. at 385, 242 So.2d at 552)). Further, 1997
Revision Comment (b) for Article 1579 states:
In light of the fact that the person who executes a testament under this
Article lacks the ability to verify its provisions for hims elf, the
assurance of accuracy is achieved by the reading of the testament by
the notary to the testator and the witnesses, while the latter follow the
reading on copies of the testament. In this instance, the attestation by
the witnesses is not only that the testator indicated that the instrument
was his testament, but also that the witnesses assured themselves
through the reading that the document that the testator signed was the
same one that was read aloud.

“The primary purpose of the kind of notarial testament authorized in this article is to
provide safeguards to protect persons who are illiterate or otherwise unable to read .
. . .” La. C.C. art. 1579, 1997 Revision Comment (c).
An attestation clause that fails to state that the testament was signed at the end
and on e ach other separate page fails to inform the testator and witness es that the
testator has a responsibility to sign every page of a multiple -page testament, and
“signing one’s name on each page of the will undoubtedly offers mor e heightened
protection from surreptitious replacement of pages.” See Successions of Toney, 16-
1534 at p. 10, 226 So.3d at 404. See also Succession of Guezuraga, 512 So.2d at
367 (recognizing that the purpose of the requirement that the testator sign his name
on each separate page is “to prevent fraud by the substitution of one typewritten page
for another after the execution of the will by the testator”).

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Having found in Succession of Hanna that an at testation clause declaring
only that the testator “signed” a n Article 1577 testament, rather than stating he
signed at the end of the testament and or each other separate page, is a material
deviation that render s such a testament invalid , we now hold, con sistently with
Hanna, that the nearly-identical defect in Mr. Liner’s 2015 testament likewise fails
to be substantially similar to the language of La. C.C. art. 1579(2) and, therefore, the
2015 testament is rendered invalid and absolutely null under La. C.C. art. 1573.
Accordingly, we reverse the appellate court ruling to the contrary.4
We distinguish the case of Succession of Bruce, 20-00239 (La. 1/27/21), ___
So.3d ___, in which the notarial testament at issue stated in the attestation clause
that the testator had “[s]igned on each page.” In Bruce, since the phrase “signed on
each page” necessarily encompasses the fact that the testator has signed on the page
containing the end of the testament, as well as every other separate page, we held
that the attestation language was substantially similar to the La. C.C. art. 1577(2)
model language, requiring that the witnesses and notary attest that the testator had
signed “at the end and on each other separate page.” Whereas in the instant case the
attestation clause states simply that the testator “signed” the testament, which could
only establish that the testator signed the eight-page testament once, rather than “at
the end” and “on each other separate page,” as required by La. C.C. art. 1579(2).
DECREE
Accordingly, we reverse the appellate court decision, in part, as indicated
herein, and we reinstate the district court judgment.
REVERSED IN PART ; DISTRICT COURT JUDGMENT
REINSTATED.

4 Having decided the matter on this basis, we find it unnecessary to discuss the parties’ remaining
contentions.

01/27/2021
SUPREME COURT OF LOUISIANA
No. 2019-C-02011
SUCCESSION OF JAMES CONWAY LINER, III
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, SECOND CIRCUIT,
PARISH OF OUACHITA
WEIMER, C.J., dissents and assigns reasons.
The majority frames the issue as “whether an attestation clause verifying that
the testator declared he ‘signed’ the testament is substantially similar to the Article
1579 requirement that the attestation clause verify that the testator declared he signed
his name ‘at the end’ and ‘on each other separate page’ of the testament.” Succession
of Liner, 19-2011, slip op. at 4 (La. 1/___/21). Relying primarily on the
three-sentence per curiam in Succession of Hanna, 19-1449 (La. 11/25/19), 283
So.3d 493, the majority concludes, “consistent[] with Succession Hanna, that the
nearly-identical defect in Mr. Liner’s 2015 testament likewise fails to be substantially
similar to the language of La. C.C. art. 1579(2),”1 thereby rendering Mr. Liner’s
testament invalid and absolutely null. I respectfully dissent.
This court has long adhered to a policy of liberally interpreting the law in order
to give effect to the testator’s wishes. See, e.g., Succession of Crouzeilles, 106 La.
442, 447-48, 31 So. 64, 67 (1901) (“[i]t is not our duty to refuse the carrying out of
the wishes of deceased persons by pushing the requirements of the law to extremes”).
Courts must liberally construe and apply the law to maintain the validity of a
testament if at all possible, as long as it is in substantial compliance with the
requirements set forth in the law. See Succession of Morgan, 257 La. 380, 385, 242
1 Succession of Liner, 19-2011, slip op. at 8.

So.2d 551, 552 (1970). Furthermore, in “adopt[ing] the statutory will from the
common law,” the legislature sought “to avoid ... rigid formal requirements.”
Succession of Guezuraga, 512 So.2d 366, 368 (La. 1987). In determining whether
there was “substantial compliance,” this court has historically focused on whether
deviations in form suggests fraud because the purpose of the formal requirements is
to guard against fraud. Id. (quoting Casenote, Donations–Imperfect Compliance with
the Formal Requirements of the Statutory Will, 25 Loy.L.Rev. 362, 371 (1968-69)).
(“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.”)
More recently, in In re Succession of Holbrook, 13-1181 (La. 1/28/14), 144 So.3d
845, this court considered whether an incomplete date in an attestation clause
invalidates a testament when the full date appears in the first paragraph of the
testament and on every page of the testament, including the page of the attestation
clause. Id. at 846. In finding the attestation clause was in substantial compliance, the
court noted “[t]here is no indication of fraud in the record before us, and in all other
respects, Mr. Holbrook’s testament and the attestation clause comply with La.
Civ.Code art. 1577.” Id. at 853.
However, in Successions of Toney, 16-1534 (La. 5/3/17), 226 So.3d 397, the
court began to deviate from its prior jurisprudence and demand more rigid adherence
to the formal requirements of the attestation clause. The majority in Successions of
Toney found multiple minor deviations from the required testamentary form to be
“significant and material” and, thus, not in substantial compliance with Civil Code
requirements. Id. 16-1534 at 15, 226 So.3d at 407-08. Moreover, contrary to the
court’s earlier opinions, the Successions of Toney majority did not find the lack of
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any indication of fraud to be decisive. See id. 16-1534 at 9-12, 226 So.3d at 404-05.
I dissented in Successions of Toney, noting the legislature has indicated that the
notarial testament “does not require exactitude, only that the testator, notary, and
witnesses declare what is ‘substantially similar’ to the attestation clause provided in
the Civil Code.” Id. 16-1534 at 3, 226 So.3d at 410 (Weimer, J., dissenting). I
additionally concluded:
In the instant case, Mr. Toney’s own attestation clause indicates
the testament was signed by Mr. Toney, who declared it to be his last
will and testament in the presence of the witnesses, but fails to attest that
Mr. Toney or the witnesses signed the will in the presence of the notary.
Additionally, the signature of Mr. Toney attests that he declares to the
“undersigned authority” (i.e., the notary) that he is signing, but does not
attest that he is signing in the presence of the notary. However, the
notary signed an attestation clause stating that the testament was
subscribed, sworn, and acknowledged by Mr. Toney and by the three
witnesses. When all the attestation clauses are considered together–an
approach consistent with La. C.C. arts. 1611 and 1612 and with the
liberal interpretative standard described by this court in
Guezuraga–there was substantial compliance with the requirements of
La. C.C. art. 1577.
. . . .
In conclusion, Mr. Toney’s intent to donate his estate to his
brother-in-law, Richie Gerding, is unrefuted. There has been no
allegation of fraud regarding the drafting or the execution of his
testament. Even so, under the majority’s ruling, the result for Mr.
Toney’s estate will be the same as if fraud had been actually proven, as
this testament will be annulled and, it appears, his estate will lapse into
intestacy. This result not only defeats Mr. Toney’s intent, but it runs
contrary to the substantial compliance standard embodied in La. C.C. art.
1577, a standard which has previously been recognized by this court’s
jurisprudence.
Id., 16-1534 at 3, 5, 226 So.3d at 410, 411.
This court further retreated from its policy of liberal interpretation in
Succession of Hanna, supra. In Succession of Hanna, the court–without
analysis–summarily expanded the holding in Successions of Toney to render a
testament invalid as a result of a single, minor deviation from the codal requirements.
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Succession of Hanna, 283 So.3d at 493.2 I dissented in Succession of Hanna,
finding the weighty issue involved necessitated full consideration by this court by a
granting and docketing of the case. In so doing I expressed concern that this court
may be elevating form over the substance of what the testator intended. Id., 16-1534
at 1, 226 So.3d at 493 (Weimer, J., dissenting). The majority’s opinion here affirms
my previously expressed concern.
Rather than “avoid ... rigid formal requirements”3 and adhere to the codal
provision requiring only a “substantially similar” attestation clause to the one provided
in the Civil Code,4 the majority here effectively disregards Mr. Liner’s intent and
ignores the undisputed fact that Mr. Liner did actually sign the testament on every
page and at the end. Moreover, the witnessed notarized attestation states that Mr.
Liner signed the testament, and Mr. Liner’s signature has not been called into
question. The sole defect alleged in this case is that the notary and witnesses did not
declare the testator signed each page. Although the attestation clause differs from the
codal language, it did not create any significant danger of fraud because Mr. Liner
signed each page as required by law. The testament should not be rendered invalid
merely “because the attestation clause does not state that obvious fact.” See
Succession of Dawson, 51,005 (La.App. 2 Cir. 11/16/16), 210 So.3d 421, 425. This
court has long held that the purpose of the attestation clause is to emphasize that the
legal formalities are satisfied at the time the testament was executed. Succession of
Porche, 288 So.2d 27, 29 (La. 1973). Thus, “[w]hen, in fact, the instrument as a
2 The words “at the end and on each other separate page” did not appear in the attestation clause.
Notably, testator’s full signature appeared at the end of his testament and on each other page. And the
attestation clause clearly indicated the witnesses, notary, and testator were all present during the
declaration and signing of the testament. Succession of Hanna, 52,664, p. 8 (La.App. 2 Cir. 6/26/19),
277 So.3d 438, 442, rev’d, 19-1449 (La. 11/25/19), 283 So.3d 493.
3 Succession of Guezuraga, 512 So.2d at 368.
4 See La. C.C. art. 1579(2).
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whole shows that these formalities have been satisfied, [there is] no reason why
technical variations in the attestation clause–which is designed merely to evidence
compliance with the formalities–should defeat the dispositive portions of an otherwise
valid will.” Id.
While I recognize the best practice might be for an attestation clause to mirror
that provided in the Civil Code, such a practice is not what the legislature requires.
At the end of the day, this court should not void a testament which clearly evinces the
testator’s intent based on a meaningless technicality. As noted by Professor Ronald
Scalise:
The strict compliance by courts to the talismanic language of the
attestation clause is curious for multiple reasons. First, article 1577
itself provides that the exact words contained in the article are not
required and that a clause that is “substantially similar” will suffice.
Although rules are rules, nothing requires these rules to be applied in a
rigid way that disregards the practical consequences of doing so.
Second, the Louisiana Supreme Court has long ago noted that the
attestation clause has only “evidentiary,” rather than substantive, value.
In Succession of Porche, the Court noted that “the purpose of the
attestation clause is primarily to evidence, at the time the will was
executed, that the statutory formalities have been satisfied.” The Court
continued by noting that when “the instrument as a whole shows that
these formalities have been satisfied, we see no reason why technical
variations in the attestation clause–which is designed merely to evidence
compliance with the formalities–should defeat the dispositive portions
of an otherwise valid will.” Moreover, “[t]he principal function of the
witnesses in the attestation requirement is to supply a source of proof
that the testator signed what he formally indicated to be his testament.”
Alas, Louisiana seems to have lost sight of this function. The notarial
will–and the statutory will from which the notarial will was taken–was
meant as “a means of evading the rigid standards of form required of
civil law testaments.” Today, however, the notarial will seems to have
taken on a rigid stricture of its own.
Ronald J. Scalise, Jr., Will Formalities in Louisiana: Yesterday, Today, and
Tomorrow, 80 La. L. Rev. 1331, 1414 (2020) (footnotes omitted).
The majority in this case erroneously requires rigid compliance with codal
provisions. Finding the attestation clause in Mr. Liner’s testament to be in substantial
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compliance with La. C.C. art. 1579 when the entirety of the will is viewed, I must
respectfully dissent.
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SUPREME COURT OF LOUISIANA
No. 2019-C-02011
SUCCESSION OF JAMES CONWAY LINER, III
On Writ of Certiorari to the Court of Appeal,
Second Circuit, Parish of Ouachita
HUGHES, J., additionally concurring.
The will of the testator refers to the interpretation of the substantive
dispositions made in a last will and testament. In Louisiana all testaments are subject
to certain formalities. A testament that does not comport with the requisite
formalities is null and void. Thus the law elevates form over substance.
In the case of a statutory or notarial will, the testator must declare the
instrument is his testament and sign at the end and on each other separate page, and
a declaration to this effect must be signed by testator, the notary, and the witnesses.
If one presumes that the purpose of the declaration is to prevent fraud, the
requirement that the testator declare that he has signed each page of the testament is
the heart of the matter, not a minor technicality. The declaration is a separate
requirement that must be met, in addition to the actual signing of the testament. It
is an enduring mystery why the form provided in the Civil Code is deviated from.
01/27/2021

1

01/27/2021

SUPREME COURT OF LOUISIANA

No. 2019-C-02011

SUCCESSION OF JAMES CONWAY LINER, III

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, SECOND
CIRCUIT, PARISH OF OUACHITA

Crichton, J., dissents and assigns reasons:

I dissent to the majority opinion finding that Mr. Liner’s 2015 testament was
invalid and absolutely null pursuant to C.C. art. 1573. The standard for evaluating
testamentary deviations is, and has always been, that courts “liberally construe and
apply the statute, maintaining the validity of the will if at all possible” as long as the
will substantially complies with statutory requirements. Succession of
Guezuraga, 512 So.2d 366 (La. 1987) ; see also Succession of Holbrook , 13-1181
(La. 1/28/14); 144 So. 3d 845 (“The question presented, however, is whether the
attestation clause signed by the witnesses and the notary is “substantially similar” to
the form found in Art. 1577(2).”). “There is a presumption in favor of the validity of
testaments in general, and proof of the nonobservance of formalities must be
exceptionally compelling to rebut that presumption. ” Successions of Toney , 2016-
1534 (La. 5/3/17), 226 So. 3d 397, 401 (citing Holbrook, 144 So. 3d at 853).
The plain language of C.C. art. 1579(2) reiterates this standard of substantial
compliance, requiring that the notary and witnesses must sign the form attestation
clause provided therein “or one substantially similar.” Further, in the context of the
attestation clause this Court has stated:
There must be an attestation clause, or clause of declaration. However,
its form is not sacrosanct: It may follow the form suggested in the
statute or use a form substantially similar thereto . The attestation
clause is designed to evince that the facts and circumstances of the
confection and execution of the instrument conform to the statutory
requirements. In construing the attestation clause of this type of will,
this court has been most liberal in its determination of whether the

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clause complies in form and whether it evidences the requisites to
supply validity to the instrument. In Succession of Thibodeaux, 238 La.
791, 116 So.2d 525, we reiterated a basic principle of construction of
wills, that the validity of a will is to be maintained if possible. In
construing an attestation clause we will not require strict, technical,
and pedantic compliance in form or in language. Rather, we will
examine the clause to see whether there is substantial adherence to
form and whether it shows facts and circumstances which evidence
compliance with the formal requirements for testamentary
validity.
Succession of Morgan, 242 So.2d 551, 552–53 (1970) (emphasis added).
Where, as here, the deviation from notarial form is minor, the Court may only
find that substantial compliance has not been met where the nonobservance of
formality fails to protect the testator from fraud. In Guezeraga, this Court explained:
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 null ify the will. If not, they should be
disregarded. Thus testators and estate planners will have the security
that the legislature intended to give them.
Guezuraga, 512 So.2d at 368 (citations omitted). Thus, both jurisprudence and the
plain language of C.C. art. 1579 establish that strict compliance with formal
requirements is not required unless the noncompliance fails to guard against fraud .
Despite this well- established standard, this Court deviated from the rule of
substantial compliance in Succession of Hanna, 19-1449 (La. 11/25/19), 283 So.3d
at 493. In Hanna, the Court found that the use of the word “signed” in the attestation
clause, without inclusion of the C.C. art. 1579(2)’s proposed language “at the end of
the testament and on each other separate page,” rendered the otherwise compliant
will invalid and absolutely null, citing Toney, supra.
1 I would revisit Hanna or find

1 While I agreed with the majority’s conclusion in Toney , I note that the formal deviations in that
case were quite distinguishable from those present herein. Toney, 226 So. 3d at 411 (Crichton, J.,
additionally concurring) (highlighting “my concern about the proliferation of widely available and
generic legal templates, which may substantially deviate from form requirements set forth in the
Civil Code.”). In Toney, the dispositive portion of the will failed to comply with C.C. art. 1577(1)
because th e testator did not sign but merely initialed the first two pages of the will . Id. at 404

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that, as a brief writ grant without reasons , the ruling has little precedential value to
the Court. 2 In a critique of this Court’s trend from “substantial compliance” to
“substantially strict compliance,” Professor Ronald Scalise highlights that scholars
have rightly criticized Louisiana’s approach, lamenting that the appellate courts have
“unfortunately continued the approach of rigid adherence to the wording of the
attestation clause found in the Civil Code” in the wake of Toney and Hanna. Ronald
J. Scalise, Jr., Will Formalities in Louisiana: Yesterday, Today, and Tomorrow, 80
La. L. Rev. 1331, 1351 (2020) (internal citations omitted)
Continuing this trend of strict compliance, the majority finds that the word
“signed” is not substantially similar to the form attestation clause provided in C.C.
art. 1579(2) because it establishes only that the will was signed once, not at the end
and on each separate page. Succession of Liner , 19-2011, p. 7 (La. 1/27 /21), -- So.
3d --. In my view, this reasoning fails to follow this Court’s longstanding rule that
the formal requirements for notarial wills are to be liberally construed in light of the
presumption of a will’s validity. Holbrook, supra. Applying this principle of liberal
construction, I believe that an attestation clause’s indication that it was “signed”
satisfies the statutory requirements, as “signe d” may be interpreted to mean the

(“[W]e note that La. Civ.Code art. 1557(1) unambiguously requires the testator to ‘ sign his
name at the end of the testament and on each other separate page ,’ and merely initialing
undoubtedly falls short of this requirement. ”). The attestation clauses also omitted any indication
that the testator signed the will before the notary as required by C.C. art. 1577 (1) and, in fact ,
appeared to indicate the notary wa s not present . Toney, 226 So. 3d at 405. Since the primary
purpose of an attestation clause is to ensure the testament was executed per the formal requirements
set forth in C.C. art. 1577(1), the deviation as to the notary being present was not substantia lly
compliant with the form attestation clause provided in C.C. art. 1577(2) . Cf Succession of Porche,
288 So. 2d 27, 29 (La. 1973) (“When, in fact, the instrument as a whole shows that [the statutory]
formalities have been satisfied, we see no reason why technical variations in the attestation
clause— which is designed merely to Evidence compliance with the formalities— should defeat the
dispositive portions of an otherwise valid will. ”).
In sum, the Court in Toney did not rely on a singular deviation in reaching its opinion, and it does
not stand for the proposition that inclusion of the words “at the end” or “on each other separate
page” in the attestation clause is a threshold requirement for a will to be valid. I accordingly would
find that Hanna’s reliance on Toney was in error.
2 In any case, Hanna is distinguishable from the facts at present because the attestation clause of
Mr. Liner’s 2015 will, unlike the testament deemed invalid in Hanna, provides the number of
pages contained in the will, which provides additional protection against fraud.

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testament was signed completely, including “at the end” and “on each other separate
page” necessitating signature. Coupled with the fact that the 2015 will was actually
signed at the end and on each other separate page, its failure to copy word-for-word
the C.C. art. 157 9(2) form attestation clause does not indicate “an increased
likelihood that fraud may have been perpetrated.” Guezuraga, supra. Nor is the
deviation present “exceptionally compelling” such that it rebuts the presumption of
the will’s validity. Toney, supra. Finding that the majority has elevated form over
substance in this instance, I dissent.

SUPREME COURT OF LOUISIANA
NO. 2019-C-02011
SUCCESSION OF JAMES CONWAY LINER, III
ON WRIT OF CERTIORARI TO THE
COURT OF APPEAL, SECOND CIRCUIT, PARISH OF OUACHITA
CRAIN, J., dissenting.
For the reasons assigned by Chief Justice Weimer, I respectfully disagree with
the majority’s conclusion the subject attestation clause is not substantially similar to
the provision in Louisiana Civil Code article 1579(2). I additionally find further
support in the language of the attestation clause, which specifically identifies “the
Will” as the “foregoing instrument, consisting of eight (8) pages.” The witnesses
and notary attested “the Will was signed . . . by Testator . . . in our presence .”
Because “the Will ” is expressly identified as consisting of eight pages, one can
reasonably infer the witnesses and notary saw the testator sign all eight pages
comprising “the Will.” Giving meaning to all of it s terms, the attestation clause
substantially complies with A rticle 1579(2). A t a minimum, the clause does not
present the type of “exceptionally compelling” nonobservance of formalities
necessary to rebut the presumption of the testament’s validity. See Successions of
Toney, 16-1534 (La. 5/3/17), 226 So. 3d 397, 401.
Louisiana adopted the statutory will, the predecessor to the notarial will, from
the common law
as a means of evading the rigid standards of form required of civil law
testaments, any deviation from which caused a will to be declared null.
The minimal formal requirements of the statutory will are only
designed to provide a simplified means for a te stator 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.
01/27/2021

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Succession of Porche, 288 So. 2d 27, 30 (La. 1973). The majority’s rigid application
of Article 1579(2) continues this court’s recent jurisprudential trend back to the
“rigid standards” for testamentary formalities that our legislature sought to avoid .
We should not embrace overly technical applications of those formalities when there
is no suggestion of fraud or undue influence in the execution of the will. As recalled
by Justice Tate, “When the intent of the testatrix is clearly manifest . . . the law and
the evidence in will cases should not be confined in the Bastille of a technical judicial
construction.” Succession of Porche, 288 So. 2d at 30 ( quoting Succession of Eck,
233 La. 764, 775, 98 So. 2d 181, 185 (1957)). The subject testament complies with
the statutory formalities and clearly expresses the testator’s intent. We should honor
that intent and uphold the will.