The Donation With No Witnesses
Marie holds a Louisiana notary commission in Lafayette Parish. Her neighbor Elise asks her to prepare a donation of Elise's house in Scott to Elise's nephew, Paul. Marie drafts an "Act of Donation Inter Vivos" that recites "State of Louisiana, Parish of Lafayette" and includes Paul's acceptance in the same document. On signing day, only Elise, Paul, and Marie are present. Elise and Paul sign; Marie signs and affixes her seal. No witnesses sign. Marie tells them the document is "fully notarized" and can be recorded "whenever." Six months later, Paul applies for a loan against the house. The lender's title company rejects the donation because the conveyance records for Lafayette Parish show no donation. Elise is now hospitalized, and Paul asks Marie to "add two witnesses" to the original document and then record it. Marie has never had a donation rejected before and wonders whether the omission matters.
1. Was the instrument an authentic act? Identify every defect in form and explain why each matters.
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No. An authentic act under Louisiana law must be executed before a notary and in the presence of two witnesses, and signed by the parties, the witnesses, and the notary (La. Civ. Code art. 1833). Here only the notary was present with the parties. The absence of two witnesses is not a technicality: the witnesses are part of what makes the writing an authentic act.
The second defect is that a donation inter vivos of immovable property must be made by authentic act under penalty of absolute nullity (La. Civ. Code art. 1536). Because the writing never became an authentic act, it cannot carry the donation. The acceptance in the same document is helpful only if the underlying act is valid; it does not cure the missing witnesses.
The venue recital ("Parish of Lafayette") is not itself a defect, but the notary's certificate should accurately state where the act was executed. Marie's statement that the document was "fully notarized" was incorrect and created reliance on an invalid act.
2. What must be done to make the donation valid and effective against third parties? Can Marie simply add two witnesses to the original now?
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The donation must be re-executed as an authentic act: Elise (if she has capacity), Paul, two witnesses, and Marie must all be present, and all must sign. If Elise lacks capacity, a different path (such as a court-supervised procedure or a valid power of attorney, if one exists) must be considered; a notary cannot supply capacity after the fact.
Recording is separate from validity. A donation of immovable property must be recorded in the conveyance records of the parish where the property is located to be effective against third parties. Paul's lender correctly looked for a recorded act and found none.
Marie may not add witness signatures to the original. That would falsely certify that the witnesses were present at the 2024 signing and would convert a defective act into a false record. Depending on how it is done, it could expose Marie to discipline and to civil liability. The witnesses must actually be present at the new execution, and the new act must be recorded.
3. Assume Paul is Marie's godson and asks her to keep the defect quiet and to record the original "as is." What should Marie do, and what duties are implicated?
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Marie should decline. Recording an act she knows is not an authentic act, or adding witnesses who were not present, would be a false notarial certificate. A notary's duty runs to the integrity of the act and to the public record, not to a neighbor or godchild.
She should explain the defect to Elise and Paul in plain terms, document what happened, and offer to prepare and execute a corrected act if Elise is able. If Elise is not able, Marie should not improvise a cure; the parties need legal advice about capacity and succession.
Marie should also correct her earlier statement that the document was "fully notarized." If she has already recorded or transmitted the defective act, she should consult the Secretary of State's office and her own counsel about correcting the record. The ethical issues are candor, avoiding false certificates, and not using the commission to benefit a person to whom she is personally close.