With the proliferation of legal forms on the internet, people often consider doing their own wills to try to save money. If you’re not a trained lawyer, you probably assume the wills you find on the net meet legal requirements just because “they’re there.” That is a very dangerous assumption as you are getting ready to see.
The 2017 case of Toney, out of Louisiana, is the perfect example to bring this point home. In Toney, the Louisiana Supreme Court denied probate of a will which a non-lawyer scraped off the internet and tried to customize.
The will’s attestation clause and self-proving affidavit looked valid and would probably fool 10 out of 10 non-lawyers. They had all the legal-sounding jargon everyone expects to see.
The attestation clause of the will stated:
We, the undersigned, hereby certify that the above instrument, which consists of 3 pages, including the page(s) which contain the witness signatures, was signed in our sight and presence by Ronnie R. Toney (the “testator”), who declared this instrument to be his/her Last Will and Testament and we, at the Testator’s request and in the Testator’s sight and presence, and in the sight and presence of each other, do hereby subscribe our names as witnesses on the date shown above.
The self-proving affidavit stated:
I, Ronnie R. Toney, the Testator, sign my name to this instrument this 2 day of August, 2014, and being first duly sworn, do hereby declare to the undersigned authority that I sign and execute this instrument as my Will and that I sign it willingly, in the presence of the undersigned witnesses, that I execute it as my free and voluntary act for the purposes expressed in the Will, and that I am eighteen years of age or older, of sound mind, and under no constraint or undue influence.
Testator Signature: Ronnie R. Toney [signed]
Ronnie R. Toney
We, Angela Dutel and Robert A. Davis and William Orazio, the witnesses, sign our names to this instrument, being first duly sworn, and do hereby declare to the undersigned authority that the Testator signs and executes this instrument as the Testator’s will and that the Testator signs it willingly, and that the Testator executes it as the Testator’s free and voluntary act for the purposes expressed in the will, and that each of us, in the presence and hearing of the Testator, at the Testator’s request, and in the presence of each other, hereby signs this will, on the date of the instrument, as witnesses to the Testator’s signing, and that to the best of our knowledge the Testator is eighteen years of age or older, of sound mind and memory, and under no constraint or undue influence, and the witnesses are of adult age and otherwise competent to be witnesses.
Can you spot anything wrong in those 2 passages? I doubt it. However, the Court found the issues and started its discussion by telling us what the requirements are for a valid will:
In Succession of Brown, 458 So.2d 140, 143 (La.App. 1 Cir. 1984), the First Circuit succinctly summarized the three required elements of a valid attestation clause under La. R.S. 9:2442(B)(2), La Civ. Code. art. 1577(2)’s similarly-worded counterpart, as follows:
The attestation clause set forth in the statute… requires the notary and witnesses to declare (1) the testator signed the will at its end and on each separate page, (2) the testator declared in the presence of the notary and witnesses that it (the instrument) was his will, and 3) in the presences of the testator and each other, they (the notary and witnesses) signed their names on a specified date.
(Emphasis in original.) In this case, none of these three requirements is fully met. As to the first requirement, although the third page of the will states it “was signed in our [the three witnesses’] sight and presence,” it does not mention that the will was signed on each separate page as specified in the sample attestation clause.
Additionally, neither the will nor the affidavit contains a declaration that the notary viewed the will being signed (only the affidavit is notarized). Similarly, as to the second clause, although the witnesses signed a clause affirming that the testator “declared this instrument to be his/her Last Will and Testament,” the notary made no such declaration. Finally, as to the third requirement, although the witnesses declare “to the undersigned authority… that each of us, in the presence and hearing of the Testator … and in the presence of each other, hereby signs this will, on the date of the instrument” (emphasis added), the witnesses do not mention signing the will in the presence of the notary…
In his brief, the applicant suggests that the testament at issue originated from a form found on the internet. This hypothesis is supported by the appearance of the word “COUNTY” in the affidavit. Although we are sympathetic to the fact that a testator could errantly use such a form in ignorance, to hold the propounded testament in substantial compliance with La. Civ.Code. art. 1577 would essentially negate any value to the distinct form requirements which our legislature has chosen to put in place.
So there you have it. Toney officially died without a will. That had to feel like a punch in the gut for the people he named as his beneficiaries.
Most estate-planning documents are fairly straight-forward and won’t break the bank to have a qualified attorney prepare.