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Legal Documents: be careful

Louisiana divorceMr “E” filed for a divorce. While the divorce was pending, he entered into a property settlement with Mrs. “E” and went to Mrs. E’s lawyer’s office to sign a donation of his interest in their home to his wife. In essence, he signed an authentic act (notary and two witnesses) making his wife the sole owner of their home.

Six months after the divorce became final, Mr. E Sued Mrs. E and claimed the donation he had made was null. His grounds? That the donation was not signed in the “presence” of  the witnesses and the notary.

The case went to trial with Mrs. E being represented by the same lawyer who had prepared the act of donation. The position of Mrs. E was that everyone was in each other’s “presence”  because the office is small and although one witness brought him the document to sign, the notary and other witness could clearly see him sign. One witness testified that she did not know what he was signing, but that since it was on a clipboard it was office policy to sign documents this way.

Mr. E admitted that the other witness and notary could probably see him from the other room when he signed, but that they were not literally in the same room when he signed.

The issue for the court was then to decide what the statute means when it says that an authentic act must be signed by the person making the donation, the notary and the witnesses, all “in the presence of each other”. After looking at other cases, the judge decided that the donation was indeed null since they were not in the presence of each other.

Mrs. E’s lawyer stressed that under Louisiana law, an authentic act has to be assumed to be correctly executed absent strong evidence to the contrary. The case was appealed on this basis, but the First Circuit Court of Appeals ruled again in favor of Mr. E.

It is a strong lesson for everyone, especially lawyers, that the strict language of the statutes when it comes to legal documents must be firmly adhered to. If not, litigation like this can be the result.

Joint Wills are Null in Louisiana

I think most lawyers in Louisiana run into this problem: husband and wife want to do a “joint” will leaving everything to each other. When they are told they cannot do a joint will, they become suspicious that perhaps the lawyer is just trying to inflate the price by charging for two wills instead of […]

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Divorce trumped by beneficiary form

It happens all the time: someone gets divorced but does not think to change the beneficiary of their life insurance and other benefits. Louisiana has some specific laws governing what happens when someone divorces but still has the ex listed as their beneficiary on their insurance forms. Did they just forget to take the ex […]

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National Estate Planning Week

October 15-21 is National Estate Planning Awareness Week. And, of course, there are numerous articles on the subject that have just come out. Some are good, some so-so, and some totally miss the mark. That is especially the case for residents of Louisiana where our laws deviate from the other 49 states in significant ways. […]

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Bloated Law Books

The Louisiana statutes suffer from Extreme Bloat. The Code Napoleon was intended to contain all the laws in one volume so that the citizens of Louisiana could know what is expected of them. From our state, to Washington and all the regulatory agencies, it is now possible to run afoul of the law almost daily […]

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The Legal Perils of Posting Reviews

Are you opening a can of worms by posting an unfavorable review? We are all tempted to “get back” at companies or people we feel treated us unfairly. The trouble is, it has become all too easy to post on sites like Angie’s List or Yelp without thinking through the possible legal ramifications. The fact […]

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Estate planning: include your kids

We see it all the time: parents need to talk about their mortality with their adult kids, but never find the right opportunity. A new study from Fidelity Investments confirms what we have always known: there is a huge disconnect between what adult kids believe and what their parents believe. Adult children and their parents recognize […]

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Constitutional Amendments

Citizens of Louisiana will face an array of confusing amendments to the state Constitution on Tuesday. There are nine proposed amendments, some of which don’t make much sense while at least one does the opposite of what it seems. The best summary I have seen of the amendments and what the results of voting for […]

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Legislature deems pro wrestling a sham?

Fact-checking funny and dumb laws I was looking at some of the dumb state laws from around the country at this site. I always wonder whether what they have is made up, or maybe are laws that  actually once existed but were repealed years ago. You know, laws like “It is illegal to tie your horse […]

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The Tale of Two Sisters

Series: The insanity of forced heirship Forced heirship extends to those who “may” become incapable in the future. Mrs. “Smith” had her lawyer prepare her will in 2007 which left nothing to her son and two daughters. She left everything to her sister. In their wisdom, the Louisiana Legislature decreed in 2003 that any child […]

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