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Every Year LA Jurisprudence Shows Instances in Which Notaries have Failed to Follow Statutory Procedures in the Preparation and Execution of Testaments. Here's Another.

 

 

THE SUCCESSION OF JOHN ROBERT BISCAMP 16-673 STATE OF LOUISIANA COURT OF APPEAL, 3rd CIRCUIT February 1, 2017

 

John Robert Biscamp (Biscamp) died testate on April 6, 2015, survived by two daughters—Alessha Biscamp Kuhn and Tiffiani Biscamp Williams (plaintiffs). Biscamp left equal and undivided interests in his residuary estate to his siblings, Lott, Winnie Lee Fuller, Verna Inez Barnett, Robert Lee Biscamp, and Betty Ann Biscamp (legatees).

 

Though acknowledging his two daughters, the provisions of the testament noted Biscamp's failure to provide for any distribution to them was "intentional."

 

Trial was held on May 10, 2016. The only evidence admitted was a copy of the testament, which consists of a six-page document initialed "JRB" at the bottom of each page. The first four pages set forth the dispositive portion, whereas the last two pages contain an "Affidavit" signed by Biscamp, two witnesses, and a notary. Notably, the pages of the testament are not numbered sequentially 1-6. Rather the second, third, and fourth pages are paginated "2, 3, and 4," respectively, with the sixth page numbered "2." Both the first page and fifth page lack pagination, and the certification of the witnesses on page 3 states the testament "consists of ___ pages[.]"

 

In comparing the will with the provisions of La. C.C. art. 1577, the purported attestation clause by the notary fails to state that the testator (1) declared the will to be his Last Will and Testament to the notary, (2) in the presence of the witnesses.

 

Moreover, with respect to the statements by the witnesses set forth in the paragraph preceding the notary's statement, while this paragraph indicates that the witnesses were "sworn," that the "the Testator signs it willingly in our presence," and that the witnesses sign "in the presence and hearing of the Testator ... and in the presence of each other, ... as witness to the Testator's signing," this clause likewise does not clearly state that the will and necessary signatures were signed in the presence of all persons, including the notary. Thus, this paragraph likewise is defective.

 

Accordingly, it logically follows that the notarial testament with its generalized notarization clause, fails to contain an attestation by the notary identical or substantially similar to the codal form in contravention of the mandates of La.Civ.Code art. 1577. Because the notarial testament at issue does not substantially comply with the formal requirements of La.Civ.Code art. 1577, namely due to its lack of a statutorily acceptable attestation clause, the testament is, by operation of La.Civ.Code art. 1573, "absolutely null."

 

For the reasons discussed above, the Third Circuit affirmed the trial court's judgment, which nullified the notarial testament.

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