By: Carey J. Messina
The Governor has signed into law Act no. 79 of the 2005 Louisiana Legislature which creates New Code fo Civil Procedure Article 2904 allowing for the admissibility of videotape of the execution of a testament. The videotape evidence may be entered in a contradictory trial to probate a testament or in an action to annul a probated testament. For the videotape evidence to be admissible, the testator must be sworn by a person authorized to take oaths and the oath must be recorded on the videotape. The videotape of the execution and reading of the testament by the testator may be admissible as evidence of any of the following:
1. The proper execution of the testament.
2. The intentions of the testator.
3. The mental state or capacity of the testator.
4. The authenticity of the testament.
5. Matters that are determined by a court to be relevant to the probate of the testament.
Videotape is defined broadly under the new provision.
This opens a whole new pandora’s box to the world of will executions. Here are a few thoughts. Wills are normally not “read” at the time of execution unless the testator is sight impaired. Is there a new requirement that wills be read when videotaping is used? Will there be some inference drawn in a will contest if the videoping is not done? Could heirs make claims against the attorney preparing the will if videotaping would have proved proper execution of the testament? What will be the cost of videotaping? In order to determine the intentions of the testator, or the mental state or capacity of the testator does the attorney have to ask questions of the testator? If so, what questions are sufficient? Will the attorney have to have a script to make certain all issues are covered during the videotaping? How many copies of the videotape do you need? Clearly the videotape can be used to annul a testament, so in effect it can be used against the testator who has requested the taping. Do attorneys have to offer videotaping to their clients, or is it just a tool of the trade for the attorney if he feels there will be an attack on the testament? This list is not exhaustive but shows just some of the issues that may be raised.