Contesting a Will in Louisiana

Discovering that a loved one’s testament leaves you out, or seems to reflect someone else’s wishes, can be painful. Louisiana law allows certain people to challenge a testament, but only on specific grounds and within strict time limits.

The same rules also matter when you write your own testament. A Louisiana estate planning attorney can help you create a plan that is much harder to challenge.

At Richard J. Tomeny Jr. Attorney at Law, we represent heirs, legatees, and executors across Louisiana in disputes over testaments and successions.

Who Can Contest a Testament in Louisiana?

Not everyone who is unhappy with a testament can challenge it. Generally, you must have a real financial interest that would improve if the testament were annulled.

People who may have standing include:

• Heirs who would inherit under Louisiana’s intestacy rules if the testament were set aside
• Legatees named in an earlier testament that the challenged one replaced
• Forced heirs whose reserved share was not respected, through a separate claim explained below

A disappointed friend or relative who would receive nothing either way usually cannot bring a challenge. Our guide to wills in Louisiana explains the types of testaments the law recognizes.

Grounds for Contesting a Louisiana Testament

Lack of Proper Form

Louisiana testaments must follow strict formalities. A notarial testament needs a notary and two competent witnesses, while an olographic testament must be handwritten, dated, and signed by the testator.

If a required formality is missing, the testament is absolutely null. Errors in signatures, attestation clauses, or dates are among the most common grounds for challenge.

Lack of Capacity

The testator must have been able to understand the nature and consequences of the testament when signing it. Under Civil Code article 1482, the person challenging capacity must prove incapacity by clear and convincing evidence.

A diagnosis such as dementia does not automatically prove incapacity. The question is the testator’s condition at the moment the testament was signed.

Undue Influence

Civil Code article 1479 allows a testament to be declared null when another person’s influence substituted their wishes for the testator’s.

Ordinary persuasion or affection is not enough.

Fraud or Duress

A testament procured through deception or coercion can also be annulled under Civil Code article 1478.

Under Civil Code article 1483, fraud, duress, and undue influence must generally be proven by clear and convincing evidence. The burden drops to a preponderance of the evidence when the influencer held a relationship of confidence with the testator and was not related by blood, marriage, or adoption.

Revocation

A testament may also be challenged because the testator later revoked it. Revocation can occur through a new testament, a written act of revocation, or physical destruction.

How a Testament Contest Works

Filing the Action

Under C.C.P. article 2931, a probated testament can be annulled only through a direct action filed in the succession proceeding. The legatees, the residuary heir, and the executor must be named as defendants.

The case is heard as a summary proceeding, which generally moves faster than an ordinary lawsuit. Evidence may include medical records, witness testimony, handwriting analysis, and the circumstances surrounding the signing.

Who Bears the Burden of Proof

C.C.P. article 2932 generally places the burden on the person challenging the testament. If the challenge is filed within three months of probate, those defending the testament must prove its genuineness and proper form.

That three-month exception does not apply to notarial testaments. For those, the challenger always carries the burden of proof.

Deadlines

Civil Code article 3497 sets a five-year prescriptive period for an action to annul a testament. Waiting can still be costly, because evidence fades, witnesses become harder to find, and property may be distributed or sold.

Acting quickly also preserves the more favorable burden of proof available in the first three months after probate, when it applies.

Forced Heir Claims and Settlement

A forced heir who was left out does not need to prove the testament is invalid. Instead, they can bring an action to reduce excessive donations and recover their forced portion, which article 3497 also subjects to a five-year period.

Many disputes resolve through negotiation or mediation rather than trial. A settlement can save the estate money and preserve family relationships.

A Louisiana succession litigation lawyer can evaluate the strength of a claim and pursue the best path, whether in court or at the negotiating table.

How to Make Your Own Testament Harder to Contest

• Use a notarial testament prepared with a lawyer’s guidance.
• Keep beneficiaries out of the room when the testament is discussed and signed.
• Update your testament after major life changes, such as a remarriage.
• Explain unusual choices, such as unequal shares, to reduce surprises.

Our page on planning for blended families covers additional ways to prevent conflict among heirs.

Talk to a Lawyer About a Testament Dispute

Whether you want to challenge a testament or defend one, early advice matters. A Louisiana probate litigation lawyer or Louisiana probate lawyer can review the documents and explain your options.

Contact Richard J. Tomeny Jr. Attorney at Law to schedule a consultation at our Baton Rouge or Metairie office.

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