There are some instances in which a statute provides the exact language that will be legally sufficient on a particular issue. For example, Louisiana law provides the exact language of what will constitute a valid Living Will.
Another example relates to a valid Last Will and Testament, and recent Louisiana cases demonstrate two seemingly conflicting principles:
- If you follow the exact statutory language, you will be safe.
- If you vary from the exact statutory language, sometimes you might be safe but other times you won’t.
Recent Cases That Demonstrate These Principles
Louisiana law prescribes the precise form in which a Last Will and Testament will be valid as a “statutory will” under the law. Civil Code Article 1577(1) states that the testator “shall sign his name at the end of the testament and on each other separate page.”
In the recent case of Succession of Frabbiele, the testator placed his initials on the first two pages of a three-page Last Will and Testament and signed his name on the third page. The trial court determined that this was “substantial compliance” and that the Last Will and Testament was valid.
The Louisiana Supreme Court decided that the act of placing initials did not meet the requirement that the testator “sign his name” and held that the testament was invalid. The law required that the testator sign his name. Placing initials did not meet this requirement. Therefore, the law was not met and the Last Will and Testament was not valid.
On the surface, this seems simple enough. The law gives you a path to a safe harbor with clear language. If that path is not followed, the safe harbor will not be available.
The problem is that there are other cases where “substantial compliance” has been held to be sufficient. Article 1577(2) and Article 1579(2) of the Civil Code provide the exact language of an “attestation clause” that must appear on any statutory Will. Civil Code Article 1579(2), for example, requires that the attestation clause state that “the testator … signed his name at the end of the testament and on each other separate page …” However, Article 1579(2) goes on to say – and Article 1577(2) says the same thing – that a testament will be valid if its attestation clause is “substantially similar” to the specific prescribed language.
In 2019 in the case of Succession of Liner, the Louisiana Supreme Court was faced with an attestation clause that stated only that “the Will was signed and declared by [the testator] …” The clause did notstate that the testament was signed by the testator at the end and on each separate page. The Will was in fact signed at the end and on each other separate page, but the attestation clause did not include the reference to “and on each other separate page.” The Louisiana Supreme Court found this Last Will and Testament to be valid despite non-compliance with the literal requirements of Article 1579(2), on the ground that the language contained in the testament was “substantially similar” to the exact prescribed statutory language.
After Succession of Liner was decided, other courts utilized that ruling by the Supreme Court to validate deviations from the law concerning testaments that they nevertheless found to be in “substantial compliance,” even if the applicable law did not expressly allow any wording other than the specific language prescribed in the statute.
In Succession of Frabbiele, the Supreme Court tries to put a stop to that practice. Articles 1577(2) and 1579(2) specifically allow language that is “substantially similar.” Article 1577(1) does not. The Supreme Court appears to be giving guidance for the future: precise compliance will be required unless the law itself allows language that is “substantially similar.”
Takeaway: Follow the Exact Statutory Language
So, even though there are a number of reported cases that find validity through “substantial compliance” when the law appears mandatory, that window appears to be closing. The safest policy is to follow the exact statutory language. The law gives you the safe harbor, so follow it. Even if the law allows for something “substantially similar,” one can never know whether a court will find something to be “substantially similar” or not. The safest policy is to follow the letter of the law exactly.
