Posted by CTS10866 on 12/5/07 6:45pm
Msg #224531

Fechtner v. Bice was an interesting read:

Writ denied by Fechtner v. Bice, 964 So. 2d 345, 2007 La. LEXIS 2050 (La., Sept. 21, 2007)

PRIOR HISTORY: Appealed from the Twenty-First Judicial District Court In and for the Parish of Tangipahoa. State of Louisiana. Docket No. 2004-004188. Honorable Bruce C. Bennett, Judge.

DISPOSITION: AFFIRMED.

CASE SUMMARYPROCEDURAL POSTURE: Appellant, legatee, challenged the judgment of the Twenty-First Judicial District Court for the Parish of Tangipahoa, Louisiana, dismissing her claims against appellee, notary public, involving the notarization of a document entitled last will and testament.

OVERVIEW: The notary was called to the home of the testator to notarize his last will and testament. The notary witnessed the signing of the document by the testator and two witnesses. The notary then signed the document in his capacity as notary. The testator died, and it was later discovered that the document the notary had notarized was not a valid testament, as it was not drafted in any of the proper forms for a valid testament under Louisiana law. A prior testament was then located and probated. The testator did not grant the legatee any bequests under the prior testament. The legatee filed a petition for damages against the notary alleging that because of his negligence in failing to properly advise the testator as to the validity of the document that was executed, she did not receive the bequest her uncle had desired to give her. The appellate court ruled that the notary could not be held liable for the fact that the document was improperly drafted. The notary was neither asked for nor did he give an opinion as to the validity of the document he was asked to notarize. The notary was not required by law to inspect the document that he did not draft to verify or guarantee its validity.

OUTCOME: The judgment was affirmed.

Reply by Ernest__CT on 12/5/07 9:54pm
Msg #224559

Very interesting indeed!

The court affirmed what has been a sticking point in CT for quite a few Notaries Public. Many Town Clerks (or people in their offices) refuse point blank to notarize Wills because "Our Town Attorney has told us not to" (I may be paraphrasing here). The people who will not notarize a Will (or other document), or those who have the power to tell a Notary Public that they are "not allowed" to notarize a class of document, are quaking in their boots over the possibility of having a legal action taken against them for exactly the kind of case mentioned by CTS10866 (Carolyn).

I have no problem whatsoever notarizing Wills, Living Wills, et cetera, as long as they are _not_ hand-written. See CT's Notary Public Handbook, all you doubters!

Reply by MikeC/NY on 12/5/07 10:35pm
Msg #224567

Re: Very interesting indeed!

Here in NY, we absolutely cannot notarize wills. What we CAN do is notarize "self-proving affidavits", in which the witnesses to the will affirm that they witnessed the signing; attach that to the will, and at probate the court accepts it as prima facie evidence that the will was properly witnessed.

Carolyn's cite of a Louisiana case is interesting,, but not necessarily useful - their legal system is different, so their requirements (especially regarding wills and such) rarely apply to the rest of us...

Reply by JanetLA on 12/6/07 7:30am
Msg #224599

Louisiana Wills

Notaries in Louisiana have no excuse for not knowing the laws and rules pertaining to wills. On our notary exams we have to prepare a will on a blank piece of paper using a scenario provided by the exam committee. The comprehensive exam is 5 hours and requires that the Louisiana civil code be utilized to look up laws, etc. The committee also asks for preparation of obsure forms such as a renunciation of a right to concur... and many more. The rules are so different here, but we are responsible for the documents that we notarize as though we prepared them in some cases. Talk about a difficult line to walk regarding the practice of giving legal advice...It is much more difficult here because we can be held responsible for a document if it is incorrectly prepared.... We can and do prepare wills, mortgages, etc for people. They come to us and ask what they need and we provide it to them. It is a difficult task to tell them what they need without dispensing legal advice. I cannot tell you how many notaries here that are unable to do so...In any case, best wishes to all for your holiday season

Reply by CTS10866 on 12/6/07 2:19pm
Msg #224702

Re: Louisiana Wills

Thank you for the information, you've given me more insight into state requirement differences. Enjoy your holiday. Regards, C.

Reply by MikeC/NY on 12/5/07 10:13pm
Msg #224563

Keep in mind that Louisiana has a different legal system

What happens there doesn't really apply to the other 49 states, so citing case law there doesn't make a heck of a lot of sense....

Reply by Sylvia_FL on 12/5/07 10:20pm
Msg #224564

Re: Keep in mind that Louisiana has a different legal system

Louisiana notaries are civil law notaries. Louisiana law stems from the Napoleonic Code

It is a lot more difficult to become a notary in Louisiana than any other state.

Reply by JK/TX on 12/5/07 10:26pm
Msg #224565

Re: Keep in mind that Louisiana has a different legal system

But if you still get pulled into court..... how far will the 50-100K E&O Insurance go ? Even if you did your job correctly, you still pay. Wills scare me... I've dealt w/many heirs thru probates and affidavit of heirship.... I've seen how vicious they can be.

Reply by CTS10866 on 12/5/07 11:22pm
Msg #224570

Re: Louisiana has a different legal system (Hi Mike)

You are absolutely right. I have a few friends who live in the state and we trade info every so often about what's going on. One of my attorney friends informed me during 2006 that some people actually choose to file their civil cases in France, and if companies don't respond to their court summons, they actually get a binding judgement against them in the USA because there is some sort of shared jurisdiction I have absolutely no idea how to begin to explain in the code. He warned me away from ever purchasing property or doing freelance business there. It's a beautiful place, but sort of like living in a country within a country. The best of both worlds I guess... Regards, C.

Reply by MikeC/NY on 12/5/07 11:48pm
Msg #224573

Re: Louisiana has a different legal system (Hi Mike)

Hi Carolyn -

Not sure about the shared jurisdiction, but I remember it being drilled into me during paralegal training : "except in Louisiana". I was starting to wonder whether I would need a passport to go there... Napoleonic code vs. English common law - same rules don't apply

Reply by Becca_FL on 12/6/07 12:38am
Msg #224578

Re: Louisiana has a different legal system (Hi Mike)

>>> Napoleonic code vs. English common law - same rules don't apply<<<

I heard the same thing. It does make you wonder...

God bless Huey P. Long?

Reply by Sylvia_FL on 12/6/07 5:17am
Msg #224586

Re: Louisiana has a different legal system (Hi Mike)

"God bless Huey P. Long?"

Louisiana's law goes back before Huey P Long. Goes back to around 1821 before Long was born