Mr “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.