By Charles L. Stern, Jr.

Louisiana has strict requirements governing the form of certain types of legal documents, such as donations and wills. Failure to comply with those formalities, while they may seem meaningless to non-lawyers, in fact can lead to serious problems.

A recent decision by the Louisiana First Circuit Court of Appeal illustrates the point. In this case, Eschete v. Eschete, 2012-2059 (La. App. 1 Cir. 2/27/14); 2014 WL 783811, two spouses were in the middle of a divorce, and the husband agreed to donate his one-half interest in the former family home to the wife. He visited the office of his wife’s attorney and signed the act of donation. Louisiana law requires that a donation inter vivos (meaning during the donor’s lifetime) be executed before a notary and two witnesses—what is called an “authentic act”—and the recorded version of the act of donation includes the signatures of the husband, the two witnesses, and the notary.

Six months later, the husband had second thoughts, and he filed suit to nullify his donation. His argument was that the donation was not in proper form because it had not been executed “before” the notary and “in the presence of the witnesses,” both being requirements under the Civil Code for an authentic act.

The evidence was that when the husband signed the donation, the notary and one of the witnesses were in an adjoining office with the door open. While they could see the husband making motions that looked like he was signing the document, they could not actually see him place his signature on the document. The trial court held, and the appellate court affirmed, that because the notary and one of the witnesses did not see the husband actually sign the document, the donation was invalid. The husband thus retained his one-half interest in the former family home.

This may sound hyper-technical, and it probably is. After all, there was no question that the husband signed the donation, that the notary and witnesses were close by, and that they saw him make a motion that looked like he was putting his signature on the document. He certainly intended to give his ex-wife his interest in the family home. But none of that mattered. As far as the courts were concerned, the Civil Code says that the notary and witnesses have to see the party sign the document, and unless they do, the donation is invalid.

In Louisiana, sometimes it really is form over substance.