Art. 2886.Probate of Nuncupative Testament By Private Act; Mystic Testament, When Witnesses Dead, Absent, Or Incapacitated
Book VI. Probate Procedure · Title I. General Dispositions · Chapter 3. Probate and Registry of Testaments · Last amended 1999 · Last verified July 30, 2026
In one sentenceArticle 2886 relaxes the witness requirements for a nuncupative testament by private act or a mystic testament when the prescribed witnesses or notary are dead, absent, incapacitated, or cannot be located, letting the available witnesses, or, in the most limited case, two witnesses recognizing signatures, prove the testament instead.
Full Text of Art. 2886
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A. If some of the witnesses to the nuncupative testament by private act, or to the act of superscription of the mystic testament, are dead, absent from the state, incapacitated, or cannot be located, so that it is not possible to procure the prescribed number of witnesses to prove the testament, it may be proved by the testimony of those witnesses then residing in the state and available.
B. If the notary and all of the subscribing witnesses are dead, absent from the state, incapacitated, or cannot be located, the testament may be proved by the testimony of two credible witnesses who recognize the signature of the testator, or of the notary before whom the act of superscription of the mystic testament was passed, or the signatures of two of the witnesses to the nuncupative testament by private act, or to the act of superscription of the mystic testament.
C. A person's testimony for the purpose of this Article may be given in the form of an affidavit executed after the death of the testator, unless the court in its discretion requires the person to appear and testify orally. All affidavits accepted by the court in lieu of oral testimony shall be filed in the probate proceedings. This Paragraph does not apply to testimony with respect to the genuineness of a will that is judicially attacked.
Articles 2884 and 2885 assume the full slate of prescribed witnesses, or the notary and witnesses, are available to testify. Time and circumstance do not always cooperate, years can pass before a testament surfaces, and witnesses die, move away, lose capacity, or cannot be found.
Article 2886 builds in two fallback tiers for that reality. Paragraph A applies when some, but not all, of the required witnesses to a nuncupative testament by private act, or to a mystic testament's act of superscription, are dead, absent from the state, incapacitated, or cannot be located, making it impossible to gather the number Articles 2884 and 2885 normally require. In that situation, the testament can be proved by whichever of those witnesses remain in the state and are available.
Paragraph B addresses the more extreme case: the notary and every subscribing witness are dead, absent, incapacitated, or cannot be located. Even then, the testament is not necessarily lost. It can be proved by the testimony of two credible witnesses who recognize the testator's signature, or the notary's signature on the act of superscription, or the signatures of two of the original witnesses. Paragraph C carries forward the same affidavit option available under Articles 2883 through 2885.
Frequently Asked Questions
What happens if some witnesses to a nuncupative or mystic testament have died before probate?
Article 2886 lets the testament be proved by the testimony of whichever prescribed witnesses remain in the state and are available, if it is no longer possible to gather the full number.
What if the notary and all the witnesses are gone or cannot be located?
The testament can still be proved by two credible witnesses who recognize the testator's or the notary's signature, or the signatures of two of the original witnesses.
Does this fallback rule apply to olographic testaments too?
No. Article 2886 addresses only nuncupative testaments by private act and mystic testaments; olographic testament proof under Article 2883 already requires only two witnesses.
Can affidavits still be used to prove the testament under these fallback rules?
Yes. Paragraph C allows testimony under Article 2886 to be given by affidavit executed after the testator's death, unless the court requires oral testimony, subject to the same limits that apply under Articles 2883 through 2885.
Source & verification. Article text is reproduced verbatim from
the Louisiana Code of Civil Procedure (legis.la.gov). Enacted by the Louisiana Legislature.
Last verified July 30, 2026.
· Official source
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