Ward, Hugh T.

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Louisiana Law ReviewVolume 20 | Number 3April 1960Donations Mortis Causa - Requirement of "Abilityto Read" Under New Wills ActHugh T. WardThis Note is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusionin Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact kreed25@lsu.edu.Repository CitationHugh T. Ward, Donations Mortis Causa - Requirement of "Ability to Read" Under New Wills Act, 20 La. L. Rev. (1960)Available at: https://digitalcommons.law.lsu.edu/lalrev/vol20/iss3/13LOUISIANA LAW REVIEW [Vol. XXshould adopt a rule similar to that proposed by the American LawInstitute which would require a "rational basis" '2 5 to appear inthe evidence in support of any verdict upon which the jury is tobe instructed.J. C. ParkersonDONATIONS MORTIS CAUSA - REQUIREMENT OF "ABILITY TOREAD" UNDER NEW WILLS ACTDecedent's niece petitioned for the probate of her aunt's lastwill and testament which had been confected under the provisionsof the new wills act.' Other collateral relatives of decedent op-posed probate of the will, contending that the decedent was un-able to read at the time the will was confected as required by thestatute.2  The proponents offered the testimony of eight wit-nesses in their attempt to prove that the testatrix was able toread.3 The lower court held the will to be null because the pro-25. ALI MODEL PENAL CODE § 1.08(5), Tentative Draft No. 5 (1956). "Thecourt shall not charge the jury with respect to an included offense unless there isa rational basis for a verdict acquitting the defendant of the offense charged andconvicting him of the included offense." Id. at 30. The comment which followsthis section states that: "Subsection (5) states that the court shall instruct thejury with respect to included offenses only in cases where the evidence makes itappropriate to do so. Where the proof goes to the higher inclusive offense andwould not justify any other verdict except a conviction of that offense or anacquittal, it would be improper to instruct the jury with respect to included of-fenses. Instructions with respect to included offenses in such cases might well bean invitation to the jury to return a compromise or otherwise unwarranted verdict."Id. at 42.1. La. Acts 1952, No. 66, incorporated as LA. R.S. 9:2442-2444 (Supp. 1958).2. Four witnesses were called by the opponents. Two of these witnesses, whohad been rather close associates of the decedent, testified that they had assistedher in such things as making change, reading menus, paying bills, and makingtelephone calls. These witnesses were unrelated to any of the parties and wereapparently completely disinterested.The other two witnesses were related to the testatrix and would have sharedin her estate had she been held to have died intestate. One of these witnesses un-equivocally stated that he knew that the decedent could not read.3. Three of these witnesses were related to the deceased and were named lega-tees under the will. Their testimony consisted generally of their observations ofthe testatrix reading the paper.The attorney before whom the will was executed and who was appearing forthe proponents in the case also testified. He stated that he had left a draft ofan olographic will with the decedent the day before the confection of the statutoryinstrument for her to copy. The draft had been in "large lettering." This witnessfurther testified that he had asked the decedent whether she could read and hadreceived an affirmative answer.A sister of one of the legatees under the statutory will testified that she hadseen the decedent copying from the draft of the olographic will left with her bythe attorney.One of the witnesses to the confection of the will stated that the attorney hadread the will aloud and that the testatrix was also reading it aloud at the time.This witness was a client of the attorney before whom the will was executed.The wife of the attorney was another witness to the confection of the will andponents had failed to carry the burden of proving that the de-cedent could read at the time the will was confected. On appeal,held, reversed. A decision as to which party had the burden ofproving the ability of the testatrix to read is unnecessary sincethe proponents have assumed and sustained that burden. Suc-cession of Thibodeaux, 116 So.2d 525 (La. 1959).Under the Louisiana Civil Code testaments disposing of prop-erty mortis causa may take any of four forms, i.e., nuncupativeby public act,4 nuncupative under private signature,5 mystic,6 andolographic.7 A few illustrations of some of the formalities re-quired in the confection of these testaments will make clearer thesimplicity which characterizes the new wills act. The nuncupa-tive will by public act must be dictated to a notary and read backto the testator in the presence of three witnesses residing in theplace8 where the will is executed, or five witnesses not so resid-ingY This procedure must be completed without interruption.10The nuncupative will under private signature may be written bythe testator or dictated to another in the presence of five wit-nesses residing in the place where the will is executed or sevenwitnesses not so residing." This type of will may also be con-fected by the testator's presentation of the instrument which haspreviously been written to the same number of witnesses, accom-panied by a declaration that it is his last will.' 2 In either case thenuncupative will under private signature must be read in thepresence of the testator and the witnesses by the testator or oneof the witnesses.' s The mystic will is confected by the testator'stestified that the decedent read the will along with the attorney or followed himas he read. She further stated that the decedent signed the will in the presence ofthe attorney and both witnesses.A handwriting expert advanced his opinion that the body of the olographicwill which was purportedly copied from the draft left with the decedent by theattorney had been copied by the decedent.4. LA. CIVIL CODE art. 1578 (1870).5. Id. art. 1581.6. Id. art. 1584.7. Id. art. 1588.8. Id. art. 1594 explains "in the place" to mean the parish where the will isconfected.9. Id. art. 1578.10. Ibid. Under Article 1579 the testator must sign the instrument unless hedoes not know how or is not able; in which case express mention of his failure tosign and the reasons therefor must be contained in the testament. Under Article1580 the will must be signed by all the witnesses if all can write, or at least byone of them for all if the others cannot write.11. Id. art. 1581. Under the provisions of Article 1588, if the will is confectedin the country, three witnesses residing in the place, or five without will suffice,if more witnesses cannot be obtained.12. Id. art. 1581.13. Id. art. 1582. This instrument must be signed by the testator if he knows19601 NOTESLOUISIANA LAW REVIEWpresentation of the instrument to a notary and three witnesses.To preserve secrecy the instrument may be sealed prior to pres-entation or in the presence of the notary and witnesses. 14 Thisform of testament may not be used by those who cannot writeand those who cannot sign their names. 15 The only formal re-quirements of an olographic will are that it be entirely written,dated, and signed by the hand of the testator. 6In 1952 the Louisiana Legislature adopted the new wills act.17Apparently, the purpose of this legislation was to provide amethod of disposing of property mortis causa without many ofthe -technicalities connected with those methods provided by theCivil Code. Under this act the will may be written in any man-ner 8 and must be signed by the testator in the presence of anotary and two witnesses. The testator must sign each page ofthe will and the notary and witnesses must also sign at the endof the will below an attestation stating that the formal require-ments have been met. 19 Another requirement of the statute isthat the testator must have the ability to read.20 It can readilybe seen that the formal requirements of the new wills act aremuch less demanding than those forms provided for in the CivilCode, with the possible exception of the olographic form. Threereported cases in addition to the instant case have been decidedunder the new wills act. In Succession of Pope,2' the will washeld invalid because of a violation of the requirement that thenotary, witnesses, and testator sign the instrument in the pres-ence of each other.2 2 Succession of Eck23 involved a will with ahow or is able, and by at least two of the witnesses if the others do not know how.Those who do not know how to sign must affix their mark.14. Id. art. 1584.15. Id. art. 1586.16. Id. art. 1588.17. La. Acts 1952, No. 66, incorporated as LA. R.S. 9:2442-2444 (Supp. 1958).18. "[A] will shallij5e valid if in writing (whether typewritten, printed, mimeo-graphed, or written in any other manner)." La. Acts 1952, No. 66, § 1, incor-porated as LA. R.S. 9:2442 (Supp. 1958).19. "The foregoing facts shall be evidenced in writing above the signatures ofthe notary public and witnesses and the testator at the end of the will. Such dec-laration may be in the following form or a form substantially similar thereto:(a) Signed (on each page) and declared by testator above named, in our presenceto be his last will and testament, and in the presence of the testator and eachother we have hereunto subscribed our names on this ........ day of ............ 19 .....La. Acts 1952, No. 66, § 1, incorporated as LA. R.S. 9:2442 (Supp. 1958).20. Id. 9:2443. It is interesting to note that the act, when presented to thelegislature, contained the requirement that "those who know not how or are notable to read, and those who know not how or are not able to sign their names, can-not make dispositions in the form of the will herein provided for." The require-ment as to the ability of the testator to write was deleted before passage of theact. See Comment, 28 TUL. L. REv. 288, 289 (1954).21. 230 La. 1049, 89 So.2d 894 (1956).22. "In the presence of the notary and both witnesses the testator . .. shall[Vol. XXNOTESdouble attestation clause with the signature of the testator afterthe first and the signature of the notary and witnesses after thesecond of the clauses. The opponents of the will argued that thestatutory requirement that the attestation clause be above thesignature of the notary, witnesses, and testator at the end of thewill had been violated.2 4 Noting that the purpose of the require-ment that the will be signed at the end was to prevent fraudulentadditions thereto, the court determined that the end of the willmeant that place where the dispositive provisions ended andtherefore did not include the second of the attestation clauses be-low which only the signature of the notary and witnesses ap-peared.25 The court further pointed out that the requirementthat the testator, notary, and witnesses sign below the attesta-tion clause had been met since the testator had signed below thefirst such clause and the notary and witnesses below the second.The Eck decision also stands for the proposition that the com-petency of witnesses to a will under the new wills act is to bedetermined by the provisions on that subject in the Civil Code.In Succession of Nourse26 the testator's signature appeared onlyonce on each page of the instrument. The validity of the will wasattacked on the theory that the statute required the testator tosign on each separate sheet of the instrument and also sign theattestation clause at the end of the will.2 7 In disposing of thisargument the court held that the signature of the testator ful-filled the formal requirements of the statute.The court in the instant case was faced with the problem ofapplying the statutory requirement that the testator have theability to read in order to confect a will under the new wills act.The lower court had found that the proponents had not sustainedthe burden of proving that the testatrix could read at the timethe will was confected. Although the Supreme Court declined theopportunity to decide which party had the burden of proof underthe circumstances, it reversed the lower court's decision, findingsign each separate sheet of the instrument. The notary and both witnesses mustsign at the end of the will (a) In the presence of the testator, and (b) In thepresence of each other." La. Acts 1952, No. 66, § 1, incorporated as LA. R.S.9:2442 (Supp. 1958).23. 233 La. 764, 98 So.2d 181 (1957).24. See note 19 supra.25. See Note, 32 TUL. L. REv. 521 (1958).26. 234 La. 691, 101 So.2d 204 (1958).27. See note 19 supra.1960]LOUISIANA LAW REVIEWthat the proponents of the will had assumed and carried the bur-den of proving the ability of the testatrix to read. Under the evi-dence adduced upon the trial of the case it appears that the courtmight well have affirmed the lower court's decision that thetestatrix did not have the ability to read at the time the will wasconfected.2 1 In view of the fact that the Supreme Court willusually accept a lower court's findings on questions of fact wherethe credibility of witnesses is involved,29 the instant decision maybe indicative of a liberal attitude toward the statutory require-ment that a testator have the ability to read in order to make useof the new wills act.Since the comparatively few formal requirements imposed bythe new wills act are devised to prevent fraudulent practices, itappears that they should be rigidly enforced. However, whenthere is no indication of fraud, such as in the instant case, it isfelt that the court may properly take a more liberal attitude asto the weight of conflicting evidence in construing the formalrequirements of a testament.Hugh T. WardFEDERAL JURISDICTION - DOCTRINE OF EQUITABLE ABSTENTIONAPPLIED TO CIVIL RIGHTS CASEDeclaratory and injunctive relief were sought in a three-judgefederal district court' convened to hear constitutional challengesto five Virginia segregation laws.2  Federal jurisdiction was28. See notes 2 and 3 8upra.29. See, e.g., Orlando v. Polito, 228 La. 846, 84 So.2d 433 (1955).1. 28 U.S.C. § 2281 (1952) provides that the following factors will necessitatethe convening of a three-judge court: (1) injunctive relief must be requested;(2) plaintiff must ask that state officers be restrained from enforcing a statestatute or an order of a state administrative agency; (3) the contention must bemade that the statute or order violates the Federal Constitution. The fact that athree-judge court always sits as a court of equity has enabled the doctrines ofequitable discretions to enter the picture. See MOORE, COMMENTARY ON THEJUDICIAL CODE 51-54 (1949) ; Comment, 19 LOUISIANA LAW REVIEW 813 (1959).2. 4 VA. CODE §§ 18-349.9-18-349.37 (Supp. 1958); 7 VA. CODE §§ 54-74,54-78, 54-79 (1958).3. 28 U.S.C. § 1343 (1952) : "Civil Rights and Elective Franchise"The district courts shall have original jurisdiction of any civil action au-thorized by law to be commenced by any person;"(1) To recover damages for injury to his person or property, or because ofthe deprivation of any right or privilege of a citizen of the United Staes, by anyact done in furtherance of any conspiracy mentioned in section 1985 of Title 42;"(2) To recover damages from any person who fails to prevent or to aid inpreventing any wrongs mentioned in section 1985 of Title 42 which he had knowl-edge were about to occur and power to prevent;[Vol. XX

Donations Mortis Causa - Requirement of  Ability to Read  Under New Wills Act

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Donations Mortis Causa - Requirement of Ability to Read Under New Wills Act

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