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Nurses Should Know the Requirements for Witnessing Patients' Wills.

CASE ON POINT: In re Succession of Shamsie, 759 So.2d 329 - LA (2000)

ISSUE: Nurses should be ready, willing, and able to witness a patient's last will and testament, providing that their employers have no policies to the contrary. Under ordinary circumstances, as long as a nurse is satisfied that a patient is competent, she may witness a patient's execution of his or her will by signing her name in the presence of the testator or testatrix and in the presence of each of the one or more other attesting witnesses as dictated by the laws of the particular state in which the will is executed.

CASE FACTS: On November 19, 1998, James Ali Shamsie, then dying of bone cancer, executed a will in his Shreveport, Louisiana hospital room. The patient had specifically requested that his attorney friend, D. Michael Hayes, a resident of Natchitoches, Louisiana, come to Shreveport to assist him in preparing his last will and testament. During a marathon drafting session (approximately 8 hours) overseen by the attorney, the patient dictated the will provisions to his longtime friend, Louis Guillotte. Guillotte handwrote the patient's final wishes on a four-page document. Guillotte and a hospital nurse, Diane Robbins, served as witnesses to the execution of the will. The will was read aloud to the patient who affixed a signature to each and every page of the document. The will bears the patient's signature in five places. Both, Guillotte and Robbins also signed an attestation clause as witnesses to the will. The attorney claims to have printed his name on the document during the execution of the will. Nevertheless, Guillotte sent the will to attorney Hayes who later added his cursive signature to the document on the line above his printed name. The patient died on December 16, 1998. In accordance with the will provisions, Guillote was named succession administrator on February 3, 1999; he was allowed to withdraw by court order, however, on May 13, 1999. On February 11, 1999, the patient's six children filed a petition to annul the will on the grounds of the patient's mental incapacity at the time of execution of the will and the failure of the document to meet statutory formalities. The petition named Guillotte and Rita Roy, a designated beneficiary, as respondents to an order to show cause why the will should not have been declared null. A hearing was held on July 1, 1999. Based upon the attorney's admission that he placed his cursive signature on the will after the execution of the document, and the fact that Guillotte did not witness attorney Hayes affix his signature at the execution of the will, the trial court declared the will invalid as to form and nullified the document. An appeal followed.

COURT'S OPINION: The Court of Appeals of Louisiana affirmed the judgment of the lower court. The court held, inter alia, that the parties failed to follow state law in executing the will, thus rendering it null and void. The court noted that state law requires certain formalities necessary for the validity of a will. State law requires that a will shall be prepared in writing and be dated and executed in the following manner: In the presence of a notary and two competent witnesses, the testator shall declare or signify to them that the instrument is his last will and shall sign his name at the end of the will and on each other separate page of the instrument. The law further provides that this should be done in the presence of the testator and each of the other witnesses as well as a notary shall sign a declaration, stating substantially that the law had been complied with. The court recognized that in accordance with legislative intent, courts liberally construe and apply such statutes maintaining the validity of a will, if at all possible, as long as it is in "substantial compliance" with statutory requirements. Attorney Hayes identified two documents and explained that during the execution of the will he "printed" his name on the original document. He then left the hospital without a copy of the will. Thereafter, however, he recalled that he spoke with Guillotte who asked him to "sign" the will. After Guillotte sent the document to him, the attorney filled in the blank above his printed name with his cursive signature. Attorney Hayes maintained that he complied with the request because he "didn't see anything wrong with it ..." Attorney Hayes maintained that he could sign a will any time, "it doesn't have to be in the presence ..." Guillotte had testified that although he saw Robbins sign the will, he did not see Hayes sign it during the document's execution.

LEGAL COMMENTARY: The trial court was obviously impressed with Guillotte's testimony and relied heavily on the witnesses's conclusion that Hayes did not sign the document in the presence of the testator and any other witness. It is also evident that the court rejected both Hayes' claim that he signed the will during its execution and Nurse Robbins' statement regarding her "belief" that she saw both Hayes and Guillotte sign the will in the hospital room. Ultimately, the court made the factual determination that Attorney Hayes failed to prove that the will was signed in the presence of the other witnesses and the testator. This made it null and void. Nurses should keep diaries regarding wills and other documents which they have signed as witnesses.

Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for nearly 40 years, he concentrates in health care law with the Providence, R.I., firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Reagan Reports, his legal articles have been published in the most prestigious health law journals. A profile writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers and Marquis Who's Who in American Law.
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Article Details
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Author:Tammelleo, A. David
Publication:Nursing Law's Regan Report
Article Type:Brief Article
Geographic Code:1USA
Date:Aug 1, 2000
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