Trahan Successions & Donations Quick Final Guide

PART I: DONATIONS: General: Only way to acquire or dispose of property gratuitously is a donation inter vivos or a donation mortis causa; all donations require a juridical act (voluntary act/expression intended to have legal consequences) Elements:

Gratuitous: Doesn’t need to be purely gratuitous but must be predominately gratuitous; scholars have construed this to mean anything that doesn’t attempt to get a patrimonial (net assets) advantage in return for giving something

2 categories of donations inter vivos:1) Purely gratuitous: made w/o a condition and merely from liberality (generosity)2) Mixed Motives: (not purely gratuitous but possible for theses to be predominately gratuitous – material benefit is connected)

a) Onerous – ex/ sale – each person obtains advantage in exchange for his obligation; done bears a charge (a duty; must do something in return)

Careful not to confuse a suspensive condition and a charge – charge means that there is an agreed upon obligation or duty (bilateral contract) which provides a direct economic benefit to the donor himself and a suspensive condition is more like an invitation to a contract (if you do this I will give you $100) but is not yet onerous [this just to determine if there is even a charge – however you could also have a donation with a suspensive condition attached to it but we aren’t worried about that regarding onerous donations I donate my house to you when I die.

What if a donor imposes an obligation to do something on the donee but wants the donee to perform the obligation for the benefit of a 3P?

Thompson case – any obligation undertaken by donee (whether for the benefit of the donor or a 3P) is onerous mixed transfer (do 2/3 rule to determine whether it is gratuitous)

Loyola case- if the charge is not for the benefit of the donor it is not automatically purely gratuitous

Trahan says: it should be that the charge does not have to benefit the donor, it could be for the benefit of anyone but we should still have to determine if it is gratuitous under the 2/3 rule; talk about both

1) Remunerative- purpose is to recompensate for services already rendered; this stems from a natural obligation to repay but this is not a legal obligation

Disposition of a thing:A. THING: A thing is either common, public, or private; corporeal or incorporeal;

movable or immovable.o Incorporeal – personal rt (rt to collect on a debt), predial (rt of passage), mineral

rightsB. DISPOSITION: Disposition deposit/get rid of (depose) “abusus”

Abusus takes place in two ways either alienation or destruction; alienation is the transferring rights or ownership of a thing (juridical abusus) and destruction is physical (totally get rid of it) Simply borrowing something or watching someone’s pet for the weekend is

not a disposition or doing someone’s laundry is not a donation: A service is not a thing therefore not a donation!

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Remission of a debt (incorporeal personal right) is an abusus of that debt – it is a disposition; but a surety (accommodation party) is not a disposition- it is gratuitous but not a donation b/c no one is transferring rights or ownership

I. Classifications:Time:

o Inter vivos – effective at present (donor still alive) at the time the donee accepts and are irrevocable except for cause

Bilateral juridical act (contract- contract rules apply unless specific rule of donation - therefore must be a meeting of the minds - Form requirements the same as in contracts)

AT PRESENT “At present” means that you make the contract now; you can make a

contract w/a future performance i.e. “this will be donated to you at my death/or on September 15, 2012” which is merely a suspensive term (b/c we know that day will occur); or you could write “this will be donated to you if I die before you” this is a suspensive term b/c we don’t know who will die first; in addition, you could say “I’ll give you my car now but if you die I will take it back” this is a resolutory condition

Resolutory condition – (definition) think of buyer who creates a contract to say if my shipment of supplies does not come in by January, I will buy from you. The shipment comes in so there is no contract.

IRREVOCABLE AT WILL (REVOCABLE FOR CAUSE)o Can’t say I’m going to donate this you but I’m going to come get it whenever I

want to! That is “revocable at will”o Following causes allow the donor to revoke:

1) Ingratitude of donee Donee tried to take life of donor Donee guilty of cruel treatment, crimes, or grievous injury

against donor2) Non-fulfillment/non-performance of conditions3) Legal/conventional return

o Contrast Mortis causa – effective upon donors death and is revocable Unilateral juridical act – therefore contract rules don’t apply; only

reflects the will one person, which means that when the donor dies the donation is effective whether or not the donee wants it and whether or not he even knows about it! Luckily for the donor, he has the ability to renounce the donation

Form requirement (written testament) This is freely revocable during the donor’s lifetime and only becomes

binding upon the death of the donor

o Donations a cause de mort Note that this is a 3rd category of donations in France but it is not allowed

under LA law These are donations that will only take effect upon the death of the donor

however it is completely revocable during the donor’s lifetime– this makes it difficult to tell whether the transfer is “at present”

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This is uncommon and are disguised under the form of transfer known as a “joint tendency” meaning that one person owns something and creates an understanding that he is the half-owner and when one of the two people die, the other person is granted full ownership

Ex/ A donates farm to B but if B dies first then ownership reverts to A DIV subject to a resolutory condition

Ex/ A donates farm to B if A dies first DIV subject to a suspensive condition

II. Predominately Gratuitous: Mixed onerous donation or a mixed remunerative donation We have a mathematical rule to determine whether or not a motive is predominantly

gratuitous. C = charge. S = services. (C and S are interchangeable.). O = donatum. C/S < 2/3 x O. If so, then it is a true donation. If not, it is onerous/remunerative and

therefore not subject to the rules of donations. Value the object of the donation (O) at the time the donation is made

o Remunerative Donation made to recompensate for services rendered Time of Valuation: the date at which service was rendered

o Onerous: This is a donation similar to a sale; determine charges/payment before performance

Time of valuation: LA Doctrine and jurisprudence have two different possibilities, no CC Art. or cases:

Priori method: If you have to value while the obligation is still going on, this is your only choice. You try to determine what the projected value of the charge/service will turn out to be.

Posteriori method: determine the value of the charge/service after it has been performed

o If the charged has been completely discharged (the charge is performed and the donation has taken place) but now someone is challenging whether it was a donation or not the court will choose b/w them. If you are interested in accuracy of economics posteriori is preferable; if interested in motives priori is preferable

III. Scope of the classification: whether or not this is donation – why does it matter?o If it is a donation then you apply the specific rules of donation; if it is not a donation

but just a remunerative/onerative transfer then you apply the rules of obligations;o The rules for capacity

Capacity rule under donation: under 16 years – doesn’t have capacity to donate except in favor of spouse/children; at 16 may make donations mortis causa; can donate inter vivos in favor of spouse/children

Capacity rule under obligations: Emancipated minors can contract/engage in an remunative mixed transfer

o The rules for Consent: Donations: undue influence makes the donation relatively null

Obligations: undue influence is not a vice of consento Object Requirements:

Donations: Although anything can be given in gratuity, the object of a DIV can only be the present property of the donor; future property = null

Obligations: there can be the sale of a future thing

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o Different form requirement: Donation: DIV – authentic act or null

Obligation: transfer of an immovable may be by either act under private signature or authentic act; movables just need consent

o Survivorship – could be both donations and obligationso Collation & Reduction – only for donations not obligationso Also important to know classifications b/c there are difference b/c DIV and DMC

Onerous DMC are exempt from reduction and Trahan thinks collation also

IV. Formation and Validity: 4 requirements for DMC and DIV:1) CAPACITY: Persons involved must have capacity for the donation to be valid

Donor capacity to give; donee capacity to receive CC 1470: All persons have capacity to make and receive donations (except

expressly provided by law) Donative incapacities in general:

o Incapacity of enjoyment: means that it is impossible for a particular right to enter into a person’s patrimony

Incapacity to receive is an incapacity of enjoymento Incapacity of exercise: has the capacity of enjoyment but cannot

obtain the right himself, someone else must act for him i.e. minor trying to enter a contract by himself – can’t do it, need someone else’s help

Can have the incapacity of exercise to give or to receive

Incapacity to receive (Active incapacity) Absolutely incapable of receiveing a donation (even w/ assistance) Any person in existence can receive capacity of enjoyment

Natural Person: Exists from Birth until DeathBirth:

o Natural person: CC 24 definition: from live birth to death; live birth is the general rule but it also includes “a child not yet born” for purposes related to its interests (from fertilization in mother’s body); existence is retroactive – at birth he is said to have existed from the moment of fertilization

o This is not consistent w/ CC 1474: to be capable or receiving a DIV, unborn child must be in utero (implanted in uterine lining) at time donation is made; for DMC unborn child must be in utero from time of death of testator; the donation only has effect if the child is born alive

o Rule: Specific rule trumps general – whenever the zygote implants in uterine wall – child is in existence; test tube babies in freezer is not good enough, they must be implanted (in utero)

Death: o Dead (spontaneous circulatory and respiratory functions have

ceased; if on life support - brain dead total cessation of brain function) or presumed dead (disappeared under circumstances where death seemed certain – 5 year absentee)

Juridical Person:

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1) Corporation – exists when incorporated (articles of incorp are filed w/ the Secretary of State) and dies when corp is dissolved in some way

2) Partnership – exists when formed (if inadvertent- formed moment partnership is formed in mind)

3) Unincorp association – exists when formed – must determine o Unincorp association is a group of people acting together for

some purposes as if it is one person; it is a juridical person distinct from its members; doesn’t come into existence just b/c people have been acting together – there must be an agreement in which 2+ people combine certain attributes to create a separate entity for a legit purpose; ex/ churches

o (Emmert duck hunting case- the people never drew instruments, had no formal meetings or rules – not incorporated association)

A few strange issues:1) Posthumously Conceived children R.S. 9:391.1:o If after donor’s death, the kids are implanted into donor’s wife, the kids can

still receive the donation if born within 3 years of decedent’s death.o For the child to be capable of receiving: (a) need a married couple; (b) both

parents must have made a deposit of his prospective gametes at an authorized clinic before the testator’s death; (c) there must be a granting of permission in writing to the surviving spouse to follow through; and (d) the child must be born within 3 years of the testator’s death.

2) Minority, interdiction, mental defect (deficient comprehension) does not mean the incapacity of enjoyment (incapacity to receive) but the incapacity of exercise3) When do you determine if a person has the incapacity to receive?

o Capacity to receive a DIV must exist at the time donee accepts the donation

o Capacity to receive a DMC must exist at the time of death of the donoro Basically, both of these are saying when the donation takes

effect is the time to make sure that the person can receive itIssues of Proof:

o Standard is a preponderance of the evidenceo If a donation is made to a person that has an incapacity to receive aka

incapacity of enjoyment (b/c doesn’t exist at the critical moment) that donation is null; unclear as to whether it is considered absolutely null or relatively null – authority states relative but principals point to absolute

o If a donation is made to a person that has an incapacity to exercise, the donation is relatively null

Incapacity to Give (Passive incapacity):o Causes:

3) Minorityo under 16 years – doesn’t have capacity to donate except in favor of

spouse/children; at 16 may make donations mortis causa; can donate inter vivos in favor of spouse/children

3) Interdictiono 2 kinds: full and limited

1) Full – is unable consistently to make reasoned decisions regarding the care of his person and property, or to communicate those decisions lacks capacity to

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make or revoke a DIV or DMC; per se incapacity; no matter the kind of donation he makes it is null; must have a curator

2) Limited – Lacks capacity to make/revoke a DIV of property under curator’s control Presumed to lack capacity to make/revoke a DMC with respect to the

property that is under the authority of his curator; rebuttable presumption He has capacity w/ respect to other property not under curator’s control Different levels of intrusion: may be able to take care of self but not

property, property but not self, may only be able to manage certain types of property

3) Inability to understando CC 1477: To have capacity to make a DIV or DMC, a person must also be

able to comprehend generally the nature and consequences of the disposition that he is making (same principal as interdiction) Able to comprehend:

Capable of understanding even though you may not be able to understand the intricacies of the instrument that you are executing; don’t need to actually understand all potential consequences at the time of the execution

Generally Means understanding the basic idea of what that you are giving

something away – don’t need to understand specifics Nature

Must understand he is making a gratuitous transfer or property to someone else; he will no longer be the owner and donee will; donor will not be compensated

Consequences Must understand that he is no longer the owner – can no longer

enjoy it or consider it to be a part of its patrimony and the effect of the donation is that it enhances the patrimony of the donee; these are immediate consequences

Standard: fuzzy – you can make all kinds of arguments; also note that if you donated something then someone explained that fact later – you have the ability to comprehend the donation even if you didn’t understand it at the time of the donation – think of a drunk person; this also may occur w/ a child but note that the child would have the incapacity to give based on minority

o Time: When must the donor have this capacity to give?o DIV at the time the donor makes the donationo DMC at the time the donor makes the testament for the donation

Remember, like before – this is the point of effectiveness of the donation

o Proof: Each stage (general rule and exceptions) ask 2 questions:(1) Who bears the BOP?

o Either person challenging it or person defending it(2) What is the standard of proof?

o Either preponderance of the evidence or clear and convincing

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General Rule: Person who challenges donor’s capacity have BOP: clear and convincing at time donor made DIV or at the time donor made the testament for the DMC

Exception for Limited Interdicts: With respect to property not covered in a limited interdiction order, the limited interdict is presumed to have the capacity to make donations, but this can be rebutted by a preponderance of the evidence by the person challenging the donation. Lower burden of proof.

o We also already saw that if a person is a limited interdict over a certain property, he doesn’t have the capacity to make a DIV and is presumed to lack capacity to make a DMC. The defender of the donation can rebut this presumption (BOP) via preponderance of the evidence.

o Proof: Anything relevant to mental capacityo Clear and convincing to prove the in ability to understand is a high burden; you

probably have to prove that a person was doing crazy things w/ property according to Chandler v. Barret b/c it is possible that a lunatic would be able to understand the consequences of making a donation at the critical moment; in addition, the mere fact that you can’t recall all of what you own or misvalue it does don’t make you unable to understand; CC 1447, cmt c: you only need to have an apporximate understanding of the nature and extent of the donation; if this were a preponderance of the evidence standard where donor forgot whole categories of property/grossly misstated then this would probably be enough

o Effect: Consequence of incapacity:o Incapacity of enjoyment (only because of non-existence) - absolutely nullo Incapacity of exercise - relatively null

2) CONSENT: Refers to consent to a juridical act (donation) which as same meaning as consent to contracts covered in obligations course

o Formation: in contracts there must be an offer and an acceptanceo DIV: must have offer and acceptance for there to be consento DMC: we don’t require acceptance on the part of the donor

o Vices: there must be freedom of consent –if vice found then relatively null (only defective parts become null)1) Fraud:

o Need misrepresentation/suppression of the truth w/ intent to obtain unjust advantage, cause loss, or inconvenience

o The fraud must concern a factor that substantially influenced the consento If there is a duty to speak and you are silent this is fraudo Proof:

o General rule: BOP on person claiming fraud via clear and convincing evidence; evidence can be anything relevant

o Exception: If a “relationship of confidence” existed b/w donor and wrongdoer at the time the donation was made or testament was executed (written) AND the wrongdoer was not then related to the

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donor by consanguity, affinity, or adoption – the challenger has a lower BOP (easier to exploit someone therefore want to make it easier to catch him) – preponderance of the evidence

Issues: Relationship of confidence – includes attorney-client,

principal-agent, doctor-patient, pastor-parishioner… all professional relationships that entail fiduciary duties, husband-wife, parent-child

But if there is a family relationship the BOP goes back to clear and convincing b/c more likely to donate to family; this is written to include 10th cousins, etc.

2) Duress: o Definition: To gain consent by causing a reasonable fear of unjust and

considerable injury to a party’s person, property, or reputationo Proof: the exact same as fraud; BOP always on challenger

o Issues w/ proof: normally threatening to take a lawful action i.e. threatening to sue person unless he donates to you is not normally duress; however cts relax the standards for duress when dealing w/ donation and may call this duress

3) Undue Influence:o Definition: The donation is the product of influence by the donee/3P that

impaired the volition of the donor so much as to substitute the volition of the donee/3P for the volition of the donor

o Proof: the same as duress and fraudo Issues:

o The follow are not undue influence: mere advice, kindness, assistance, persuading/asking (p/a – this can be a thin line)

o Doesn’t matter whether the donee knew about it or not; if it happened via 3P the donation = null

o Issues of Proof: for evidence look to whether the donor took the initiative to make the donation or someone urged him; what was the magnitude of the urging; it is rare to overcome this standard and to prove undue influence; the cts take this very seriously in fact in LA when the standard is C&C no court has ever found undue influence; signs of UI: donee initiative, nagging, isolation of donor from children… basically threats that would not meet duress alone

Reeves case says there are 4 prima facie element of UI: (1) susceptibility (2) opportunity (3) disposition (4) coveted result… but this doesn’t help much b/c more of a self-evident definition; ct says that since UI wasn’t really meant for spousal situations b/c one spouse is the natural object of the other’s affection – there are only specific cases where it might rise to UI: physical or emotional abuse, fraud deceit, criminal conduct (obviously if you show fraud you don’t have to show UI)… but no other jurisdiction in the word draws this distinction so Trahan doesn’t like this result

4) Error: o Donation articles don’t address this vice of consent so we assume that it is not a

vice but that it not true; comment in UI article says don’t mistake UI for error and all other civil law jurisdictions include it

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o DIV there would be a vice of consent b/c it is a contracto DMC this is not a contract but cts often analogize multilateral juridical

acts to contracts so it is arguable that it would be upsetable b/c of error

****Effect of lack of consent or lack of capacity: nullo Incapacity to receive (lack of existence) absolute nullityo Don’t have an article about incapacity to give but contract rule is that if

someone w/ incapacity makes a contract to give, the contract is relatively nullo If there was a lack of consent you can get a declaration of nullity which

suggests that it is a relative nullity

3) CAUSE:o Definition: the reason why a party obligates itselfo It must be present (existent), true, and lawful

o Absent/false cause – results in a relative nullity o Illegal cause – results in an absolute nullity

This nullity applies only to the parts of the donation that are null for cause

o Normal proof rules apply

4) OBJECT: o Definition: Equivocal (capable of being multiple things)o Object of obligation performance of obligationo Object of performance thing o Requirements: existent, possible, determined/determinable, lawfulo Proof: normal rules

o Relative nullity but absolute nullity if unlawfulo Scope of nullity: individual disposition only

IV. Limitations on Donative PowerFORCED HEIRSHIP/DISPOSABLE PORTIONo The donor is only able to give away the disposable portion of his patrimony

o Forced portion (legitime, reserve): portion of the decedent’s estate which the forced heir may not be deprived of (unless the decedent has just cause to disinherit him).

o Disposable portion: the portion of the decedent’s estate that is not reserved for forced heirs. Essentially, this is the portion that the decedent may validly donate

A donation that impinges upon the legitime is not totally null but is reduced to the extent necessary to eliminate the impingement; this is “reduction”

o History: Doesn’t exist in common law but other jurisdictions have it including Western Europe and south of Mexico; Barbarians of Northern Europe took law from Romans (had version of forced heirship) and created the law of forced heirship… the rationale was that the wife and children were all considered owners in the father/husbands property – the whole family owned the property together; modern law has an individualistic view of property law –

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owned by one person so this is a criticism for keeping forced heirship but there were other reasons for keeping this – namely the French custom of “primogeniture” which was giving all of the property to the first born son – this concentrated economic resources in the hands of a few – the law of forced heirship was adopted to create a more democratic distribution of property – it was key to the French Revolution and the civil code; In modern LA, if we didn’t have forced heirship primogeniture would not ensue but FH now serves as a function of social welfare because we only have this for children that are either young or older and disabled (until 1960’s it was for all descendants – couldn’t really rationalize this as well)

o Characteristics of the Limitation:o Rule of Public Order:

o De cujus can’t contract around the rules even if he gets his forced heirs to agree o No direct or indirect impingements; no charges, conditions, or burden may be

imposed on the legitime except those expressly authorized by law i.e. usufruct in favor of surviving spouse or placing legitime in a trust; FH has a right to full ownership of legitime

o “In Kind” not “By Value”:o Jurisprudence says that a FH has a right to a share of ownership not just a right to

a share of the value meaning that a FH can’t get a usufruct worth 25% of the estate if he is entitled to a quarter of the estate… he must have a share in the actual ownership

o A gratuitous disposition in favor of a 3P must come from the disposable portion; if a gratuitous disposition in favor of a forced heir must come from the reserved portion unless declared to be made as an advantage or extra portion

FH can’t keep DIV in addition to legitime unless donation was expressly declared to have been given as an extra portion

Generally: FH can’t claim legacy in addition to legitime unless legacy was intended as an extra portion. Intention doesn’t need to be expressly made for DMC and will be resolved in favor of heir-legatee (they will get both) unless testator has expressed a contrary intention… this is basically

o Prerequisites for Triggering Limitation:o Opening of the succession:

o Someone must die - until death the law of FH doesn’t apply which means that a donor could give away everything he owns during his lifetime and the presumptive FH don’t have any right to do anything until after he dies

o Presence of at least one forced heir – only children in the first degree (grandchildren can only be representatives) who are under 24 years old or b/c of physical/mental infirmity are permanently incapable of taking care of their persons or administering their estates at the time of the decedent’s death

Actually incapacitated – meaning that someone is permanently incapable This doesn’t have to do with the severity of the disability but

how long you are disabled If permanent, you must still be incapable of dealing w/ your own

person and property, this includes descendants who at the time of the decedent’s death have, according to medical documentation, an inherited, incurable disease or condition that may render them incapable of caring for their person or administering their estates in the future

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o Inheritable – don’t know if we are talking about genetics here; MS, cerebral palsy, etc. but we don’t know about alcoholism, diabetes, etc

o Incurable – even if treatable but incureable Presence –

Presence of right: FH exists at the time Presence of Representative: FH’s representative appears

o Possibility #1: Representee: child of de cujus Representative: grandchild of de cujus whose

parent is dead but parent would have been a FH b/c he was under 24 a the time of the de cujus’ death

o Possibility #2: Quasi Representation Representee dies before de cujus; de cujus dies;

the representative (grandchild) is physically incapable of caring for his person and property

Disinherison of a Forced Heir:o CC 1617: FH shall be deprived of his legitime if he is disinherited by the testator, for just

cause, in the manner proscribed; the forced heir’s portion of the legitime becomes part of the disposable portion (not the forced portion)

o Just cause: Just cause for disinheriting FH

Exhaustive list in CC 1621: Parent has just cause to disinherit a child that:

o Is guilty of cruel treatment towards parent– physical mistreatment

o Is guilty of committing a crime towards a parent– punishable by law; although some things so minor that it may not be enough

o Is guilty of inflicting a grievous injury towards a parent– psychological injury

o Has been convicted of a serious felonyo Has married w/o the consent of a parent (if the child is a

minor)o After obtaining the age of majority and knows how to

contact parents but has failed to communicate for 2 years w/o just cause unless the child was on active duty in the military forces of the US

What is just cause? Basically we just don’t want people not to contact for “vain and useless things”

These are all available against the grandchild except that grandchild will not be disinherited for being married as a minor w/o the consent of the grandparent; in addition, if the child exercises abusive behavior toward the grandparent or the parent the grandparent may disinherit

o Formal Requirements:

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o Disinhersion must be made expressly (say the word disinherit- can’t be implied) in writing (in one of the forms prescribed for in testaments – olographic or notarial) and it must be for just cause otherwise it is null

o Disinheritee does not need to be specifically named but his identity must be identifiable from the instrument that disinherits him

o Disinheritor/testator shall express in the instrument the reasons, facts, and circumstances that constitute the cause of the disinhersion otherwise it is NULL; the facts, reasons, circumstances shall be presumed to be true but may be rebutted by a preponderance of the evidence; the unsupported testimony of the disinheritee shall not be sufficient to overcome the presumption

Can’t say “I disinherit you b/c you did me wrong”; you can say “b/c of cruel treatment” but you also need to describe the circumstances

o Although a person may not be a presumptive FH at the time (b/c your kids are at least 24 years old) there may be a situation which renders him incapable of taking care of himself later in life which could allow him to become a forced heir; basically if your kid tries to kill you disinherit him b/c I f the kid ever becomes disabled he will become a forced heir

o Defenses:o Reconciliation

Disinhertee may prove reconciliation w/ the testator after the occurrence of the events identified in instrument as the readon for identifying but must prove via clear and convincing evidence; A writing signed by testator that clearly and unequovically demonstrates reconciliation shall constitute clear and convincing evidence

If you don’t have this writing no particular type of evidence (such as writing- obviously helpful though) is needed

This is showing the reestablishment of the relationship – forgiveness of the offense that gave rise to the estrangement

o Incapacity, lack of intent, justification: A disinherison is not effective if the disinheritee shows that because of

his age or mental capacity he was not capable of understanding the impropriety of his behavior or that behavior was unintentional or justifiable… proof is by a preponderance of the evidence

Quotients of Disposable Portion & Forced Portion:o Quotients depend upon number of FHs

o Number of FHs: number of FH still alive plus number of FH representees Ex/ A and B predecease their father X; X dies when A and B would have

both been 22 yo; A has 2 kids and B has three kids… this is only 2 forced heirs b/c although there are 5 grandkids 2 are representatives of A and 3 are representatives of B! Be careful w/ this

o Quotient-Fixing Rules:General:

o One FH Forced portion: ¼ Disposable portion: ¾

o Two or More FHs Forced portion: ½ Disposable portion: ½

Exceptions:

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o Exception #1: If there is an intestate succession in which the sum of the legitime exceeds the sum of the FH’s intestate share, you reduce the forced portion to his intestate share (law of intestacy says that if someone dies intestate, his descendants are preferred to everyone else)

o Ex/ One FH but 5 descendants; de cujus dies intestate FH would normally get 1/4 but since intestate – divide equally

by descendant heads – each gets 1/5; go w/ the laws of intestacy if the intestate portion is less than the FH portion

o Exception #2: Where 1+ FH (or representatives) are disinherited, is declared unworthy or renounces, we add the amt back to the disposable portion (and other FHs retain their portion as if the FH was still a FH)

o Ex/ 3 FH: A becomes disinherited; B is declared unworthy; C still FHo Since there were 3 FH, the forced portion = ½; each would get a 3rd of

the ½ therefore each would get a 1/6… add the 1/6 from A and the 1/6 from B back into the disposable portion (5/6); C retains 1/6

Shares of the Forced Portion (Legitimes):o How the forced portion is divided depends on whether any of the persons called

to receive it are representatives of the FHo Ex/ 3 kids: A died w/ 2 kids and they act as representative of A; B dies

w/ 3 kids and they act as a representative of B; C is permanently disabled This = 3 FH therefore forced portion = ½; since there are 3

“roots” each gets 1/3 of ½ which = 1/6 to each root; then the two representatives of A must share their portion so they each get 1/12 (1/2 of 1/6); the representatives of B must share so they gt 1/18 each (1/3 of 1/6); C retains 1/6

V. Limitations on Conditions: o No impossible, illegal or immoral conditions allowed (it order for this disposition to

constitute a gratuitous transfer) o In obligations it makes the whole obligation null but in donations is makes the

condition null, not the entire donationA. Illegal/immoral conditions pertaining to personal matters:1) Marriage/celibacy

o Donation on the condition that you never marry – Ruxton case said that an absolute ban on ever marrying is against public policy (inherently personal)- Question is whether we are putting undue pressure on a decision we consider almost a basic right; Ruxton said it was ok to say you can’t be married at the time of my death but you can marry after that

o Questions to ask: (1) How important is this right? (2) How much burden is placed on this right? (Esp. temporal element) (3) What is the reason for this prohibition?

2) Remarriageo Labarre v. Hopkins: Wife gives husband DMC w/ condition that he never

remarry; ct said that this is ok because not an absolute prohibition on marriage; In LA the second spouse is disfavored – usufruct terminates when surviving spouses remarries and there are children involved – what if there aren’t children involved? We don’t know in LA, France says you can’t when there aren’t kids

3) Divorceo Donation made on condition that donee never get a divorce – in France it is

against public policy b/c the right to not be married is considered a fundamental

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right but the condition limiting divorce would not be ok if there was a legitimate reason – not jus bc of jealousy; We don’t know what LA cts would say

4) Residenceo Doctrine says that restrictions on not changing one’s domicile w/o indication of a

plausible motive is contrary to absolute liberty and the Privileges and Immunities Clause; however some restrictions might be ok; look to the 3 questions

5) Sexo Donations subject to condition of sexual gratification = null; applying rule

difficult b/c rarely expressly statedB. Illegal/Immoral conditions pertaining to Patrimonial matters:

1) Limits on Alienabilityo Hesitant to allow condition which limits donee’s full ownership rights but foreign

doctrine says that it might be ok to do it for a legit purposeo Ex/ Leave donee farm under condition that she not sell it for at least 5 years

o Feitel case said that that 10 years w/o the ability to alienate or encumber the property (not full ownership) is not ok; rationale was that the donee becomes the owner and should have the usus and abusus rights; also don’t want to take the property out of commerce – want to exploit property for economic reasons (less now b/c tree huggers want to see green spaces)

o Factors for assessing reasonableness of condition on alienability: (1) scope (including time) and (2) reason for condition

2) Limits on Partitiono Donor want to give property to multiple donees but doesn’t want to separate

property; you can do this but the condition may not last forever – if you say it shall never be divided, the entire condition will be treated as if it is not there; you can’t get around this by adding a very long time limit either

o The testator or donor can order that the division not occur for a certain time or until the happening of a certain condition, but the time cannot exceed 5 years.

o If ascendant orders that no partition shall be made among minor children/grandchildren during their minority, this shall be observed until the oldest reaches majority at which time they can partition

o CC article expressly says this applies to DMC but probably applies to DIV also3) Limits on the Assertion of Rights (Penal Clauses):

o Penal Clause: Resolutory condition that if the donee attacks the donation itself or the donation to another donee, the attacker will get less or nothing

o Most often penal clauses are designed to disincentivize people from asserting forced heirship rights; not all of these are prohibited

o Ask: what right is at issue? If rights of public interest/order i.e. forced heirship rights or the right to complain for defect of form then the penal clause is null

o DH 60 the father gives son a usufruct and a penal clause – since this is invalid as a right of public order the FH can assert FH rights and keep the usufruct

o Succession of Wagner: o Clause: All property goes to wife, but if son protests, wife gets all the

disposable portion

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o The testator is trying to give 100% ownership of the property to the wife.

He cannot do this because he has to give a FHship percentage to the kids. Therefore, he uses this penal clause as a threat to prevent the kids from challenging the full ownership given to the wife.

o Held: Valid But this violates the FHship rule of public order! See

discussion below about lawfulness of the disposition as grounds for invalidating a penal clause. But the court finds that the penal clause is valid because the FH will get his forced portion even if he objects to the donation.

o Essentially the court found that this is okay: telling the FH he does not get

extra goodies from the disposable portion if he asserts FHship rights, and if he asserts FHship, then he only gets the forced portion.

o Therefore, this case holds that the forced heir can be required to make a

choice between the forced portion and what the decedent wills.o Statement of rule

o Inconsistent and incoherent in Louisiana. Sometimes enforced and

sometimes not.o But the validity of penal clauses determination should be focused on:

o The legality of the disposition that is supposedly immunized from attack. If

the disposition is unlawful, e.g., because of the condition placed upon the donating, then the penal clause is invalid. (But see Wagner, supra, that greatly limits the category of illegal conditions.) To determine whether the condition is legal, look at the nature of the condition. If it touches a rule of public order, then the condition is unlawful, and thus the penal clause is unlawful.

Sanctions: o General rule: If a condition is considered null, only the condition is void and the rest of

the donation remainso Exception: jurisprudential and doctrinal exceptions where we strike down the whole

donation and not just the conditiono Condition for Leverage: When the “determinative and impulsive cause” for

making the donation is simply to get the donee to behave in a manner consistent w/ a condition the whole donation is null – basically, this is saying that in cases where someone doesn’t really want to give a gift but is only doing so for the purpose of manipulation; example is where someone is making a donation on a condition that is illegal or impossible… this will be on exam… say determinative and impulsive cause – this makes there entire donation null

Ask: Would he have made the donation even if you told him of the problem w/ the donation? If yes – then not manipulation if no than manipulation

o Condition for Love: If the “determinative and impulsive cause” for making the donation is for something other than manipulation (i.e. love and affection) then only the condition is null

Limitation on Power to control donee’s disposition and property: prohibition of certain substitutions:

Definitions: “substitution” and “fideicommissum”

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Substitutiono The donation is made with a proviso that at a certain time or upon the occurrence

of a certain event, one donee will be substituted for another.o The first donee is the institute; the second donee is the substitute.

Prohibition o A disposition that is not in trust by which a thing is donated in full ownership to a

first donee (institute aka greve), with a charge to preserve the thing and deliver it to a second donee (substitute aka appele) at the death of the institute, is null with regard to both the institute and the substitute.

o Three requirements to trigger the prohibition: (1) Double liberality (2) Duty to conserve & render (3) Successorial order

o We may find that a substitution meets all 3 requirements for being a prohibited substitution, but it may be possible to interpret it another way so we allow it b/c cts are bias towards honoring juridical acts and wants to honor the will of the donor

o Substitutions = entire donation is absolutely null

Prerequisites for Prohibition:1) Double Liberality

o Defined: To be prohibited, the substitution must contain a grant of full ownership first to one person and then to another; Ex/ testator leaves full ownership of property to his daughter but when she dies, she has to pass on the property to someone else.

o The following are NOT double liberalities:o Joint Legacy – gift given to at least 2 people w/ understanding that if both are

alive when testament takes effect, they will become co-owners. If one dies before the testament takes effect the other joint legatee gets full ownership. This is okay b/c it was not owned by one then the other; if legacy takes effect then one dies – this is also not prohibited b/c ownership has already vested

o Donation dividing usufruct from naked ownership - not double liberality b/c neither usufruct nor naked ownership constitutes full ownership; donating by using the term “for his sole use and ownership” could be interpreted in terms of a usufruct (usus and fructus) or of a full ownership – if you interpret this as a usufruct then not DL

o Donation of Successive Usufructs – Leave give of usufruct to A and say that upon A’s death it goes to B and upon B’s death it goes to C; not full ownership so it is ok

o Vulgar Substitutions – Vulgar = “common”; I want to give this to A but if A can’t take it b/c A predeceases me or is ineligible then I want to give it to B; this is not double liberality b/c ownership never vested in A; A is being passed over

o Double Conditions Legacies – I give gift to A on a certain condition (suspensive or resolutory) but if the condition fails I give it to B; the most common condition is the donee survive the donor by a specific period of time otherwise the donation goes to B:

Resolutory condition: This would mean that when testator dies, A immediately becomes the owner but if A dies within specified period of time then you resolve the gift and to A and give it to B and in doing so say that it was fictitiously owned by B from the beginning

Suspensive condition: Ex/ I leave farm to A, but only if she survives me for a year. If not, farm goes to B

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Who owns the property in an intervening year? dead guy can’t own; in the intervening time the succession will be intestate and intestate successors will own unless the condition is fulfilled in which case A ownership will retroactively vest in A meaning we say that she owned from the beginning

Note that if the condition was for someone to outlive you for a very long time this might not be ok bc during the interim time the intestate successors own the property and due the condition there is a significant restraint on their alienability – it is “an implied condition restricting alienability”; a period of up to 6 months is ok under CC 1521; longer than that and ct must decide b/c might be against public policy – taking it out of commerce

Resolutory and suspensive conditions are governed by a principal of retroactivity in which the happening of a condition effectively wipes out the first donee’s ownership consequently the only vesting of ownership is in the second donee

o Inefficacious substitution – **** Will be on exam***** There will be a prohibited substitution which later becomes null Ex/ Testament that says that A will get full ownership and must not

dispose of the property and when he dies B will become the full owner… obviously this is double liberality… however, if B dies before the testator dies, the prohibited substitution is saved, the legacy “lapses”; the same would happen if A decided to attack the substitution on the ground of undue influence

2) Duty to Conserve and Render:o The institute must have had 2 duties imposed upon him:

1) Duty to Conserve – takes away abusus meaning that the institute must keep the thing in his patrimony during his lifetime2) Duty to Render – institute must eventually turn the donation over to the substitute

o Duties don’t have to be stated, they can be inferred – although general rule was that cts prefer a saving interpretation, the specific rule is that ct will infer the duty to conserve if logical

o Implications that flow from these duties: Prohibition on Alienation: Saying that you can’t sell it is only the duty to

conserve; it doesn’t say anything about rendering the donation to someone else

Residuary legacy: There is a duty to render only if you are forced to leave something; a testament that says that “I give everything to you w/ the condition that upon your death you leave ¼ of whatever is left to our stepson.” This is the duty to render but not the duty to conserve b/c you don’t have to have anything left… you could use it all up (abusus)

Precatory legacy (fidicommissum w/o duty to render): this is when testator says I will leave something to A but I would really like it if when A dies she leaves it to B; there is no legal duty to conserve or render, possibly a moral duty

Fideicommissum w/ power of selection: Testator says, I will give this to you if when you die you will give this so someone else and you can pick who; there is an implied duty to conserve; duty to render must be particularized by the donor – if donor doesn’t specify to whom then no

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prohibited substitution; if you say something like you must leave it to A, B, or C, Trahan thinks that this might be particular enough

3) Successorial Ordero Time of rendering must be tied to time of death of the institute; this is why we have a

problem w/ substitutions – the donor is trying to control part of the institute’s successiono If you says I’m going to give this to my wife but I want it to go to my son when he

reaches majority, this is ok

VI. Regimes Applicable to Particular Types of DonationsA. Donation Inter Vivos:Form Requirements for an “offer of donation” (act of donation): o General: Authentic Act otherwise the DIV is absolutely null

Also applies to donations which are disguised as sales It is possible for the donor to cure the defect w/o starting over and making a new

authentic acto Exception:

For a corporeal movable (including cash and certified checks b/c they are “as good as cash”), manual delivery from donor to donee is a proper donation

By donor himself to donee himself By donor through representative to donee himself

o Mandatary can do anything principal authorizes him to do; if mandatary withdraws money from bank on behalf of principal, the mandatary must have been authorized to do so – bank is also a mandatary of the principal

o You can also appoint your donee as your mandatary; once the donee picks money up from bank there is an effective delivery (again 2 mandataries)

By donor himself to representative of doneeo If donor deposits donation into the donee’s bank account, this is ok

b/c the bank is the mandatary for the donee; this works for tutor also By donor through representative to representative of donee

o Someone can’t be your mandatary if you didn’t appoint them; you can be a mandatary for both parties

By donor himself to both himself and doneeo Ex/ A opens acct in the name of A and B, deposits $100 into account

and B withdraws it – Is it a manual gift of money to B? According to Succession of Miller, “it is sufficient that the will of the donor to give [intent] and actual possession of the movable property by the donee [or representative] operate simultaneously.” This means that when B withdraws it, it is irrevocable and there has been a manual gift; if B hasn’t withdrawn it then donee is not in possession and it is not irrevocable so it is not valid

*Scope: corporeal immovables only this includes cash and certified checks

Corporeal Immovables includes: checks, bonds, and promissory notes CC 1550: Corporeal immovables that is investment property may be donated in writing

signed by donor that evidences donative intent and directs the transfer of the property to the

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donee or his account or for his benefit.  Completion of the transfer to the donee or his account or for his benefit shall constitute acceptance of the donation.

Special rules for DIV that are negotiable instruments:o A negotiable instrument is not the first issuance (making a check/bond and giving it

to a payee) but an instrument becomes negotiable when it is transferred to a 3P Since the first issuance is not governed by these special rules, it requires an

authentic act – (that is if you want to transfer it immediately) or you wait for it to be cashed the donation becomes effective then)

Instrument is bearer paper – payable to bear (don’t have to indorse) Instrument is order paper – indorse and deliver

A Certificate of Deposit (CD) is not a negotiable instrumento Shares of Stock:

Gratuitous stock transfers are made the same way as onerous ones Can donate a stock in 2 ways:

1) Indorsement: must indorse and deliver 2) Assignment: Assignment of rights in a stock certificate – draw up an act of assignment (doesn’t have to be an authentic act) can be an act under private signature

o Transfers to Minors:o Uniform Transfer to Minors Act: makes it easy for parents to donate to kids;

all that is needed is an act under private signatureo More direct, if father wants to buy land for daughter, they can mention this

act in the act of sale Form Requirements for Acceptance of a Donation:Remember, w/ DIV is only binding on donor/produces effects from the day it is accepted!

o General Rule: Acceptance must be in authentic form; it can be in the same document as the offer or in a separate writing (a posteriori) that is in authentic form

o Used to have to get express acceptance, now we don’to Exception: If donor delivers corporeal moveable to donee there is tactic acceptance o Acceptance:

o To determine when the moment of acceptance is, look to contracts and the mailbox rule

o When donation and acceptance are in the same act – effective upon last signatureo When in separate acts – effective when donee signs the act of acceptance –

apparently doesn’t have to tell donor about it!

Recordation: Not necessary if movable; necessary in immovable for it to be effective against 3PSanction: Art. 1845 A DIV null for lack of proper form may be confirmed… o Only a relative nullity may be confirmed! But there is a spectrum of nullity. At one end there

is absolute nullity (don’t need a judgment declaring the nullity, no prescriptive period, anyone can get it declared null, can’t be confirmed or ratified). At the other end is a pure relative nullity (need a judgment declaring nullity, only the protected person can invoke the nullity, prescriptive period, can confirm it).

o The nullity for not following the DIV form has only one characteristic of relative nullity—it can be confirmed. But in every other regard, it is an absolute nullity:

o Anyone can complain of ito No prescriptiono Don’t need a declaration of nullity

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o Revocation: Allows donor to take the donated things back into his patrimony; donations are irrevocable at whim but not irrevocable for cause

o Causes Pseudo Cause:

Non-occurrence of a suspensive condition – donee was never owner; this is “resolved of right” meaning no need to go to court

True Causes: Occurrence of a Resolutory condition – if the condition occurs the

donor gets the property back Ingratitude: 4 ways:

o Donee attempted to murder donor: don’t need conviction just prove by a preponderance of the evidence

o Donee guilty of cruel treatment of donor: intent + physical mistreatment

o Donee guilty of crimes against donor: intentional offenses against person/property defined by criminal law

o Donee guilty of committing grievous injuries to donor: intent + works, behavior, or even attitudes that damage his sentiments, honor, to reputation Potential grounds: adultery, slanderous charges, a seizure

levied by the donee against the donor of whom donee is a creditor, in a proper case the refusal to consent to the revocation

Issue: bringing a serious and shaky charge against the donor is probably grievous injury but what about a serious well-founded claim – don’t know!

Porter v. Porter: suggested what makes a difference is not the nature of the claim/obligation but the factual merits of the claim (no groundless claims); donor wanted to revoke, donees didn’t, donor got crazy/mean and they filed suit against him for breach of contract which – ct found no ground for ingratitude b/c donees justified b/c provoked by outrageous acts of donor

Failure to Fulfill Charges: If a suspensive condition fails, donor doesn’t have to go to ct to get a

declaration of dissolution it is automatic Onerous donations where the donee had an obligation to fulfill (if

charge not fulfilled – donation revoked); potestative is where the donee agrees that condition will only be met if donee does something – a judicial declaration of dissolution is needed

Exception: o Donations to charities: condition/charges that becomes

impractical or impossible of fulfillment: Cy-pres Doctrine Any donation that is charitable [made to an institution that

provides charitable services or services to the public] needs to have a reverter clause if the donor will be allowed to revoke on the grounds of nonfulfillment of a charge.

Where it becomes impractical, impossible, or illegal to comply literally with the charges due to a change in circumstances, the charitable donee [a charitable

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organization, e.g. Red Cross or educational institution] may obtain judicial approval for administering the subject matter of the donation in a different way from what the parties had in mind, though the order will require the donee to administer the donation in a way that will most effectively accomplish the original purpose of the donation.

o Donation to religious institutions: conditions/charges after lapse of 10 years from date of donation – donee may ignore the charge and dispose of the donation in any way he wants

o CC got rid of legal and conventionl returns b/c they are really just revocation based on performance of a Resolutory condition

o Effect of Revocation for cause: it is an action to recover a thing giveno What is the proper remedy? Return of the actual thing given or the value of the thingo Ingratitude: return the thing given unless can’t do that – in which case return the

value of the thing; determine the value of the thing based on the day the revocation was filed

Donor’s heirs may sue to revoke a DIV for ingratitude: Donor has a prescription period of 1 year from time he knew or should have known of ingratitude – if donor dies, he heirs have the remainder of that year to sue; if the donor did not know of the ingratitude, heirs have 1 year from death; if donor started an action then died, heirs can pursue it

Action can be brought against donee or his successors – it is not strictly personal

o Where donee has neither alienated nor encumbered the thing: return of the thing; where he has alienated/encumbered… review hypos DH 87.1 and CC 1559

Revocation for ingratitude does not affect an alienation, lease, or encumbrance made by the donee prior to the filing of the action to revoke.

Donee pays donor for lost value If alienation, lease, or encumbrance is made after the filing of the action and

the thing given is movable, it is effective against the donor only when it is an onerous transaction made in GF by the transferee, lessee, or creditor.  

Donee pays for lost value, otherwise alienation/encumbrance falls and donor recovers the thing

If alienation, lease, or encumbrance is made after the filing of the action and the thing given is immovable, the effect of the action to revoke is governed by the law of registry.

Where act of donation and lis pendens were filed by the donor at time of the alienation/encumbrance, the alienation/encumbrance falls and donor recovers the thing… Otherwise, alienation/encumbrance stands and the donee pays donor for lost value.

o Effect of Failure to Fulfill Charges: Potestative Conditiono Plaintiff: donor/successorso Defendants: donee/successors

An action to dissolve a donation for failure to fulfill the conditions or perform the charges imposed on the donee prescribes in 5 years, commencing the day the donee fails to perform the charges or fulfill his obligation or ceases to do so.

If donee has neither alienated nor encumbered the thing, donee must return Where the donee has alienated or encumbered the thing: (Here we don’t

worry about whether or not the action was filed at the time…)

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Donated thing was a movable: If alienation/encumbrance was onerous and transferee was in GF then alienation/encumbrance stands and donee pays donor for lost value… otherwise encumbrance falls and donor recovers the thing

Where thing donated was an immovable: look to laws of registry (is donation recorded?)o Shall return free of alienation/encumbrances created by donee; if

can’t then return w/ alienation/encumbrances and donee pays lost value

o Effect of Occurrence of a Resolutory conditiono Donor must get a judgment that the donation been dissolvedo Retroactivity: the donation is deemed to have never happened; as if donatum never

left donor’s property but it is subject to the rights of a 3P in immovables – look to laws of registry but not movables

B. Donation Mortis Causa:o Only way to make a DMC is a testament; remember, revocable during donor’s lifetime (any

agreement w/ legatee not to revoke contract is unenforceable)o Special requirements:

o Formal requirements common to all types of testaments: 1) Written act – no oral testaments in LA2) Personal – may not be executed by mandatary/proxy and only one person can execute a testament in the same instrument

2 types of form requirements: Olographic and Notarial1) Olographic testament: CC1575 * Failure to comply = absolute nullity

o Entirely written, dated, and signed in the handwriting of the testator and testator only!Entirely (handwritten) by testator

o Can’t be typed; Succession of Burke: Testator wrote in portions to typed will – ct upheld only those portions; Trahan says bc it must be entirely handwritten by testator the whole thing is null

o “Aided” production sometimes excluded Testator must contribute to movement of the hand; case where he was

shaky - wanted to be steadied, might be ok o Alien handwriting w/o testator’s consent: ignore alien writingo Alien handwriting w/ testator’s consent: whole thing invalid

Exceptions: *Dividing line may not always be clear If alien writing deals w/ something other than date, signature or

disposition then testament is not invalidated Letterhead is ok; act of witness (signatures of witnesses) is ok Testator making someone else fix mistakes (i.e. he transposed the

address of his house, etc.) but this does not create a new disposition or alter the existing disposition; ask – is it merely clerical or is it interpretative? Since we allow parole evidence to interpret the testator’s intent in certain cases and this is merely helping us understand his intent

Dated by Testator: Must be day, month, and yearo Concerned b/c later testament preempts earlier one and b/c of capacity

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o There must be something that constitutes a date that is handwritten in the document that was done by the testator himself! – Video of you w/ time mark making the testament doesn’t count

o Date can appear on any page and in any place but it has to be there!o The date is sufficiently indicated if the day, month, and year are reasonably

ascertainable from information in the testament, as clarified by extrinsic evidence, if necessary (check answers to DH 94.2 & 97.3)

o Christmas Day/Mardi Gras 2011 would be oko Saying, I’m writing this then killing myself – arguable that this isn’t

enough – no jurisprudence; it isn’t enough in Franceo 3/9/00 could mean March 9th or September 3rd – so defender of

testament would be able to admit extrinsic evidence – if no extrinsic evidence is available it will fall

o One date at beginning, another at the end – attempt to show date but it was botched – allows defender to enter extrinsic evidence to show the exact date but if it was written over a period of day we don’t know exactly what this means

Signed by Hand of Testatoro The signature of the testator must be there at the time the document was executed (ad

initio); but you don’t actually have to have the original document just proof that the original document met the requirements at the time the testator executed it

o proof = testament of 2 witnesses proving there was a testament, they recognized the handwriting of the testator, and what the testament said… Hamilton case had one witness but said that the other witness was the suspicious actions/circumstances of the other party who seem to be the ones who cut off the signature

o Best practice is to sign full name but nicknames/aliases/initials will be okay if that is how you are well known

o Anything written by testator after signature doesn’t make the whole testament invalid and the additional writing may be considered by the ct as part of the testament – the ct has full discretion and we don’t know exactly what it would consider

2) Notorial Testaments* Need substantial compliance; if not then absolutely nullo Common Requirements:

1) 4 people required: o Testatoro Notary – must reasonably believe person is qualified to be a notary; if notary is

also a legacy the testament is valid but the dispositions to the legatee/notary are struck down

o 2 witnesses – must be sane, sighted, over the age of 15, and able to sign name; if witness is a legatee the testament is not invalid but the disposition to the legatee/notary is invalid

Exception: if the witness would be an heir in intestacy, then witness/legatee may receive the lesser of his intestate share or the legacy in the testament

2) Process Requirements:o All redactions must be drawn up in writing; it may be done by anyone (written

in crayon by bum on street is ok)o Needs a date – don’t care who does it or where as long as its on the testament

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o Presentment and Declaration/Significant of testator: Generally. There must be a presentment to the testator, who must indicate that he knows what the testament is and that he approves of it as his own testament. Best practice: ask the guy if the document is his testament and get him to say “yes.” The mere fact that he signs the testament does not indicate that the testator has signified that the testament is his.

o Exceptions: Succession of Thibodeaux. There is no express acknowledgement by the testator that the testament is his. The testament is saved under the court’s doctrine of “substantial compliance” with the form requirement. Prior to the signing in this case, the parties had been discussing the fact that they were about to sign the testament. From the circumstances, we can infer that the testator knew that he was signing his testament and not an autograph book.

o May also be done tacticly if someone (lawyer, secretary, etc.) expressly says to him something to the effect of “you are now signing your testament”

o Signature/Mark of Testatoro Must sign at the end of the testament and on each separate page that is

not the last page o Only nee substantial compliance not absolute compliance – if the testator

didn’t sign on the witness attestation clause this is ok – we are concerned w/ the idea that the testator sign on every page that has a disposition

o Ct said that we don’t need a full signature on every page (could have initials) but it is better to have it (substantial compliance)

o Attestation Clauseo In presence of testator and each other, the notary and witnesses shall sign

the following declaration or one substantially similiary: “ In our presence the testator has declared or signified that the instrument is his testament and that he signed it at the end and or each other separate page, and in the presence of the testator and each other we have subscribed our names on ____.” (attestation that they have witnessed the whole process)

o Squires—the written attestation clause did not state that the witnesses had seen the testator sign on every page; it only stated that they saw him sign (but not on every page). Held: substantial compliance.

o Note: substantial compliance applies to all 5 kinds of notarial testaments3) Requirements unique to different kinds of testaments

(1) Standard Notarial Testament: Testator w/o disability: CC 1577o It is a requirement that the testator be able to read and sign name and is

able to physically do both; the rules above apply in full(2) Testator is literate and sighted but physically unable to sign: CC 1578

o Special declaration/signification requirement which indications that testator is able to see, read and write but is physically able to sign his name due to physical infirmity; if totally paralyzed could signify by blinking; doing this requires an additional attestation by the N and 2W sign saying that they witnessed this

o The testator “fixes his mark” at the end of the testament and on each page; Mark may mean a check mark, smiley face, etc… if he is unable then someone may assist him/sign name in place - may be the N or 2W

(3) Illiterate Testator: CC1579

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o Requires a formal reading in testator’s presence in front of N and 2W; 2W’s must be literate, able to hear, and follow along w/ the reading

o After the reading the testator must declare/signify he heard ito Additional attestation which states that it was read and that witnesses

followed alongo Then testator may sign pages of testament if he can; if not see CC 1577

(4) Testator who can read Braille – CC 1580o No requirement that you are blind!o The testament must be written in Braille; normal CC 1577 rules apply;

redactions must be in Braille as well; the attestation doesn’t need to say anything about the fact that it was done in Braille but must be written

(5) Testators who have been declared deaf but can read sign language, braille, or English written in Latin characters CC 1580.1

o There must be a legal finding by a judge in court that the testator is either physically dead or deaf and blind

o Testator must be able to read sign language, braille or visual Englisho Witnesses: must meet the general requirements i.e. know how to sign

name and be able to read the language of the testament; in addition at least one of the witnesses must be a certified interpreter for the deaf

Substantive Requirements of a DMC: * Same as apply to all juridical acts1) Capacity – some capacity requirements that apply distinctly do donation – see DIV2) Consent – Must be real and freely given

o Testator must have belief that the document is going to be a DMC – in Succession of Helms, ct denied the plaintiff’s motion that a letter to de cujus’ lawyer saying what he wanted to be in his testament was in fact a valid testament; testator must intend for document to be his testament

3) Cause - real, present, lawful –see DIV4) Object – possible, determinable, lawful –see DIV

“Rules on Delegation” apply only to DMCo Delegation is giving someone else the power to dispose of your property is it normally

prohibited – if you die w/o a testate the law of intestacy takes overo Exception #1: A testator may delegate to his executor the authority to allocate

specific assets to satisfy a legacy expressed in terms of a value or a quantum, including a fractional share.

o Exception #2: The testator may expressly delegate to his executor the authority to allocate a legacy to a “charitable legacy.”  The testator may identify the charitable legacy or he may authorize the executor in his discretion.  The testator may also give his executor the authority to impose conditions on those legacies.

“Probate” means to prove the authenticity/validity of the testamento Probate takes place on paper, not in person. It is a very simple process.

o Notarial testament, there must be a copy of the testament and an affidavit. o Olographic testament, need two affidavits (and they don’t have to be from

witnesses). Then judge signs the order if everything looks okay.o Prescription: 5 years from date of opening of successiono BOP: proponent of the probate

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Action to annul a probated testament:o Prescription: 5 years form date of probate (date judge signed probate order)o BOP:

o If brought w/in 3 months of the probate – burden on proponent of the probate order to prove authenticity and validity…

o If brought after 3 months – burden is on the person bringing the action to annul to prove inauthenticity and/or invalidity

o Note: under the CC, the BOP is always on the attacker for vices of consent and incapacity; this is not the same – here, authenticity/validity means that “this is the testament signed by that person” so these BOP rules only cover authenticity and form

Legacieso Classification #1: Classification by number of legacies

o Singular = 1 legacy and multiple =2+ Subclassification based on accretion: Legacies to multiple people can be

either joint or separate Joint Legacy: legacies are co-owners – shares are not assigned

o “I leave my farm to A and B” Separate Legacy: testator assigned shares to each legacies

o Examples: could say “one half to each,” “share and share alike” “I leave my farm to A and B in equal portions”

o “I leave immovables to A and B to be divided b/w them equally.” Cts encountered this language and found that it may or may not indicate an assignment of shares based off of the testator’s intent; there is a presumption that it is separate but this is rebuttable – look for overwhelming evidence to the contrary

o Significance is “accretion” Lapse is for more than just death – anything that renders him incapable

of acquiring the property before it enters his hands Accretion w/ respect to joint legacies: means that if property is left to A

and B but A dies (legacy lapses) before testator, the property goes to B Upon lapse of a joint legacy, accretion takes places ratably in

favor of other legatees Separate legacies: if A lapses B doesn’t get the property- general rules of

accretion say that it would go to the person who would have received the property if the legacy wasn’t made to the lapsed legacy

o Classification #2: Based on Manitude/scope of the bequest1) Universal Legacy – gives to legatee the possibility that the recipient of the legacy might end up w/ the entirety of the estate; this concept is called “contingent vocation of a whole” (there can be other gifts to other people, but UL if he could possibly end up w/ the whole thing)

o Key: the classification based on wording of the testament and from this, a projection of whether there’s a possible circumstance under which the L at issue could get the entire estate. NOT dependent upon what actually happens when the testator dies (e.g., whether or not FHs are actually present when testator dies).

o Examples: “I give you all property of which I die possessed,” “You are my only heir/legatee,” “I give you all of my corporeal and incorporeal things,” “I give you all of my immovable and immovable things”

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o Issue 1: “I give you all of my disposable portion” this is still a UL– he may say disposable portion if he has his forced heirs in mind however, it is possible that his forced heirs will not be forced heirs at time of testator’s death or they will renounce in which case the entire estate would be disposable

o Issue 2: “I give you naked ownership” this is not full ownership but when usufruct ends L will be the full owner therefore he is the UL… check DH 103.5

o Issue 3: Leaves several particular legacies to people then gives you the residue/remainder – this is by definition a UL in the CC particular legacies could be renounced or could lapse which causes accretion to UL

o Issue 4: I give you my house and car… this is all he owns; it would only be a UL if the writing communicated that this was everything he owed;

o Issue 5: “I leave all my property to A and B” – this is a joint universal legacy b/c the whole is left to them together

2) General Legacyo Legacy of a fraction of the whole estate, or fraction of the estate after particular

legacieso Example: “¼ of my property to A; ¾ to B,” “1/2 to A and ½ to B, C, D”o Issue: “1/2 to A, then residue to B” this is not universal b/c the above-stated rule

about UL deals w/ situation in which the residue is given to a legatee after a particular legacy, this is a general legacy – if the first legacy is general the residuum will = general

o Legacy of all or a fraction of any one of several specifically enumerated categories of property: movable/immovable, corporeal/incorporeal, separate/communityo Example: “all my movable effects,” “land and other immovables,” “i.e my

immovable property to A,” “separate property and incorporeal property,” “separate property to A and incorporeal property to B” these are total categories that may practically overlap but they are still considered GL;

o Not: “consumables” – only the 6 above categories, so this is a particular legacy by default; “corporeal movables” – you have to dispose of the entire thing is a subsection which excludes incorporeal movables or corporeal immovables

o Doubtful Cases: o Gifts of the whole (“the whole” or “the residue”) to multiple legatees: Is it a

Universal Legacy or a General Legacy? Arises w/ residual legacies:

If gives particular legacies then residue to you – universal If gives general legacies then residue to you - general

Criterion of distinction when there is an apparent disposition of a whole is the legacy joint or separate If Joint legacy – universal If Separate legacy – general

o This is due to rules of accretion3) Particular Legacy

o Default category – legacy that is neither UL or GLo Testator must own the thing, the thing must be determinate or at least

determinableo Examples: “I give you my car” – testator has one car

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o Issue 1: “I give you my car” – testator has 3 cars so which car? Can look to extrinsic evidence to determine testator’s intent, if you discover then it is particular, if it can’t be discerned whether a greater or lesser quantity was intended, go w/ the lesser – if you can’t determine what the object is then the it is unenforceable

o Issue 2: “I leave all of my immovables in LA” – he has other immovables in other states so this is not general by category (other immovables will be given to other legatees); it is not a fraction either b/c you must state the actual numerical form for it to be a general; non-numeric modified = particular legacy

Why does this distinction matter?o Seizin: this is provisional administrative authority which refers to the person who looks

after the de cujus’ property before an administrator is appointed – who has seizing depends on the type of successor a person is

o Powers of seizing – (1) Representation and (2) Possession

o Immediately at the death of de cujus the universal successor acquires ownership of the estate and the particular successor acquires ownership of the things bequeathed to him; universal successor may represent the decedent w/ respect to heritable rights and obligations

o Note that a universal successor is a universal legatee or a general legatee; a particular legatee is a particular successor and he can’t have seizing rights

o Why is this important? UL and UG “tack” his possession of the property onto the de

cujus’ possession A particular successor must start his own possession

Liability:****Immediate transfer of goods upon death – results in personal liability for all legacies if you don’t want the succession – renounce it and you can’t be liable!o Payment of estate debts: universal successors are liable in personam for the

debts of the de cujus (creditor can come after not only property but also them personally); meanwhile particular successor are only liable in rem (creditor can only come after the property itself)

o Universal successors liable in pro rata shares equal to the fraction they received (they are jointly liable); successor can’t be compelled to pay more for the debt than received in assets (there is a cap) – the amt received is determined at the time it was received

Ex/ each universal successor received ½ of $240; debt = $60; creditor can only get $30 from each; if debt =$300, gets only $120 from each and loses the rest

o Payment of Particular Legacies: Payment owed to a particular legacy – universal successors are jointly & personally bound to discharge unpaid particular legacy, each in proportion to the part of the estate he receives

Ex/ Bequest says “I leave $40 to A” and there are 2 universal successors, each owes A $20 – A can’t go after one of them for the full $40… universal successors each get $100

o Particular legatee: Not responsible for estate debt but estate debt attributable to identifiable property is “charged” to that property – Interpretation #1: Charge refers to the estate administrator in the sense

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that he is responsible for selling the burdened asset to pay the debt off Interpretation #2: Particular legatee is only liable in rem (meaning creditor has a security right in the asset)? CC 93 seems to suggest that if particular successor takes the thing after the appointment of a succession representative, the thing is burdened by the creditor’s security interest

See DH 107.3a-b Preference of Payment

o If testator hasn’t declared a preference of payment look to following rules; this is dealing w/ the problem of the de cujus not having enough property left to satisfy all the legacies he left

o Rule #1: Particular legacies discharged first o Rule #2: Where there are multiple particular legacies:

o Discharge the particular things firsto Then the groups of things secondo Lastly, discharge the money but first discharge those expressly declared

to be remunerative (to compensate) then to all others ratably

Lapse of Legacies: for some reason the legacy won’t be executed (exhaustive list)1) Incapacity to receive: o Legatee predeceased the testatoro Legatee incapable of receiving at the death of the testator – not yet in existence

(zygote must be in utero at time of death) 2) Legacy subject to a suspensive condition and the condition can no longer be fulfilled or the legatee dies before fulfillment before fulfillment of the condition3) Legatee is declared Unworthiness4) The legacy is renounced, but only to the extent of the renunciation5) Legacy is declared invalid which here means an absolute nullity

o Ex/ Prohibited substitution – normally absolute nullities don’t need judicial declarations but you can’t have a lapse w/o a judicial declaration

6) Legacy declared null – here means relatively null; for example this may be done due to fraud, duress, undue influence

Effect of a Lapse: The legacy becomes ineffective as to the legatee Accretion can take place – we know that it can take place if written in a testament but it

can also take place by law Accretion by operation of law:

o Principal Rules: Particular and General Legacies – when a PL or a GL lapses accretion

takes place in favor of the successor who, under the testament, would have received it if the legacy had not been made… rule easily forgotten!

Universal Legacies – Legacies that lapse and aren’t disposed of under preceding articles, accrete ratably to the universal legatees. When a general legacy is phrased as a residual/balance of the estate w/o specifying that it is the remaining fraction/certain portion of the estate after the other general legacies, even though that is its effect, it is treated as a universal legacy for purposes of accretion under this article

Joint Legacies – When legacy of a JC lapses, accretion takes place ratably in favor of the other JLs: look for “assignment of shares”

Exception: (Art. 1593)

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The exception for JL and PL/GL. It is an anti-lapse rule. “If a legatee, joint or otherwise, is a child or sibling of the testator, or a descendant of a child or sibling of the testator, then to the extent that the legatee’s interest in the legacy lapses, accretion takes place in favor of his descendants by roots who were in existence at the time of the decedent’s death. The provisions of this Article shall not apply to a legacy that is declared invalid or is declared null for fraud, duress, or undue influence… Review DH 110.7-12 (outline pg. 97-98)

o Prerequisite #1: Familial relationship between legatee and testator: legatee is child, sibling, or descendant of child or sibling of the testator. (child – descendants; siblings – privileged collaterals)

o Prerequisite #3: Legatee must leave descendantso Prerequisite #2: Cause of lapse—some cause other than

invalidity/nullity (absolute nullity or relative nullity involving vices of consent)

Residual Rule: o Any portion that is not disposed under the forgoing rules devolves by

intestacy… Review DH 110.13 (outline pg. 98-100)

Extinction of Legacies:Extinction means that the object of the legacy has been destroyed either physically or juridically; this is not a lapse (people lapse not things); not accretion b/c there is nothing there to accrete To be extinguished, the legacy must be lost, extinguished or destroyed before testator’s death Legatee is entitled to property that remains and uncollected insurance attributable to the loss

as well as the testator’s rights of action against anyone liable for loss/extinction/destruction Legacy of a certain object is not extinguished when the original object of the legacy has been

transformed into a similar object w/o act of testator If object of legacy has been condemned/expropriated prior to testator’s death, legatee is

entitled to any uncollected award and to succeed to any right of action o Principals of Real Subrogation – we don’t know if the above list from CC 1597 is

exhaustive – if not, then may be able to apply principals of real subrogation; o This deals w/ physical and legal destruction (including prescription)

Revocation: Testator can revoke at anytime; right of revocation can’t be renounced Thing given then called back Revoked by law: Only way a testament is revoked by law is when a testator and legatee were

married, the testament was created then they got a divorce; there must have been no reconciliation; testator can provide for the contrary

Revoked by Will: o Can expressly revoke by Testator by:

Declaring it in a form prescribed for testaments (olographic or notarial) or authentic act

Identifies and clearly revokes testament by a writing that is entirely written and signed by testator in his own handwriting

Clearly revoking the provision/legacy by a signed writing on the testamento Can tacticly revoke by:

Destroying testament/ordering its destruction Make a subsequent incompatible testamentary disposition or provision Make a subsequent DIV that is the object of the legacy

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Divorced from legatee after testament executed General revocation revokes the entire testament includes:

o Destruction of the testament by testator/mandatary Issue 1: Only works well when 1 document; often there are multiple so may have

intended to destroy or may have intended to deceive; Succession of Talbot: there is a rebuttable presumption that he wanted to revoke – consider (1) Did T know there were multiples? (2) Did he have access to them so that he could have destroyed them too? (3) Was it destroyed by accident? – trying to determine if he intended to render the testament ineffective – if he was trying to trick then he didn’t want to revoke

Issue 2: What is meant by destroys? Write all over testament scratching names out – is this destruction? More leeway with this law than we used to so we don’t know where the line is but it was probably intended to revoke

o Revocation in Testamentary Form: Valid form – olographic, notarial Intent – must intend that testament is revoked and that the document you are

writing is intended to have the effect of that revocation If olographic testament, don’t need olographic revocation; if notarial testament

don’t need notarial testament; also a probate is not needed You can revoke without having a new testament (dispositive provisions) Make testament; properly revoke; destroy revocation – what happens? The

testament is no longer revokedo Revocation by authentic act:o Revocation entirely handwritten and signed (olographic form w/o date)

If you just say “I revoke my prior testament” – this may not be enough to identify what you are talking about – no case law

Particular revocation revokes part of the testamento Declaration of revocation testament provisions in testamentary formo Subsequent incompatible testamentary form

Ex/ T1 gives universal legacy to X; T2 gives particular legacy to Y; T2 trumps, Y gets his particular legacy and the rest goes to X – not intent to leave X w/ nothing –it is not totally incompatible w/ T1

Issue 1: T1 gives X full ownership of land; T2 gives same land to X and children in a trust until they all die;

Succession of Reeves says that this is compatible b/c you should let trust expire and give land to X’s intestate successor’s b/c would be part of X’s patrimony

Trahan sees incompatibility and that testator seems to have changed his mind – if so, when the trust ended the land was fall to the intestate successors… don’t know for sure

Issue 2: T1 leaves $5000 to X, boat to Y, house to Z, and the rest to U; T2 leave $2000 to X;

If there is a revocation – he will get $2000 - CC1613 says that if you can’t determine if the greater or lesser amt was intended, then go w/ the lesser but this rule only applies to interpretation of legacies not revocation

Succession of Reeves says that it is a “subsequent compatible addition” - culmination is presumed w/ successive legacies of a fungible item – under this, X will get $7000 “testament shall be given effect to every part the law will permit” – don’t know for sure

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Issue 3: T1 is the same as issue 2; T1 says $2500 to X, $2500 and boat to Y, house to Z, the rest to U

Succession of Rolling: This more easily rebuts the presumption of culmination b/c it gives he same legacy in a different way – T1 incompatible w/ T2; tried to determine testator’s intent including the fact that she wrote the second one reciting the formal parts of a testament; also her use of codicil – aware of method for changing portions of testament w/o affecting the remainder of the bequests

Issue 4: Does the revocation need to be substantively valid? Succession of Ryan: T2 contained a prohibited substitution, and was

therefore null. However, the testator clearly intended to revoke T1 because the provisions were incompatible. Even though the new testament was substantively invalid, it revoked the prior testament.

o Result is that the thing purported to be disposed of goes intestate b/c T2 is invalid

Issue 5: T1 gives book to X; T2 gives same book to Y; expressly revokes T2 via olographic form:

CC1609: T2 revokes T1; but revoking the revocatory action resurrects T1

o Alienation of a thing earmarked for legacy Occurs when testator makes subsequent DIV of the thing that is the object of the

legacy; if testator reacquire the thing, there is no revocation Questions:

o Simulation – contract by mutual agreement, doesn’t express true intent of parties

o Absolute simulation – parties intend that contract shall produce no effects; no intention to transfer ownership – does this change anything

Issue: No effects – ownership doesn’t change; but do we assume that he did this as a trick – so property wouldn’t go to person designed in testament? We don’t know if this is revocation!

In class, Trahan said -1608(3) should probably be written to say a subsequent VALID disposition of a thing…

o Relative simulation – parties agree contract will produce effects that are different from those stated in the contract

o If the DIV is relatively null (could be for lack of capacity, lack of proper form, etc.) then there is no subsequent transfer and the donation is not revoked (we think – what if the intention was clearly to revoke?)

o Signed writing on the testament itself which clearly revokes Acceptable: draw line through successor’s name and bequest and signs testament;

circle and write the word revoked and signs; you don’t have to use word revoke – can use anything to indicate intention to revoke but looking for trouble

Requirements: indication of revocation and signature; this is a relaxation of the old requirement which used to need olographic form

o Post-Testamentary Divorce Must have made testament when married, then got divorced; if the reconcile the

testament takes effect again Divorced testator can provide for the contrary if he wants to

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o CC 1610.1: Same grounds that authorize an action for revocation of a DIV authorize action for revocation of DMC including failure to fulfill suspensive condition, legal/conventional return, ingratitude, failure to fulfill charges Revocation for ingratitude: Testator can revoke for these reasons at any time

(freely revocable); intestate successors can revoke on these grounds if testator didn’t revoke if the testator was aware of the ingratitude, etc. – the prescription period runs for 1 year from date testator was made aware; if testator didn’t know, prescription runs from the date successors were made aware… a revocation for ingratitude is strictly personal and can’t be brought against wrongdoer’s successors (can only be brought against wrongdoer)

Withdrawal of a revocation: o CC1609: Revocation of a testament/testamentary provision [made in any manner

other than physical destruction of the testament, subsequent inter vivos disposition or divorce] is not effective if the revocation itself is revoked prior to testator’s death If you tear up the first testament there is no way that you can revive it! Effect of a rebuttable by testator’s intent– you want to know the literal

interpretation CC 1609 cmt: Testatament revoked by a subsequent testament: T1 is revoked by

T2 then T2 is revoked – T1 is “revived” (becomes effective again) These rules apply to revocations that are undated but signed writing

Interpretation:o Testator’s intent controls; a saving construction is preferred (want to interpret so as to

give the provisions effect)o Uncertainty: CC 1613: if identification of an object is unclear in a testament, the

disposition is effective if it can be ascertained that object the testator intended to give. If it cant be ascertained whether whether greater or lesser quantity was intended – go w/ lesser – Trahan doesn’t like this and tired of talking about this X given 100 shares in T1 then 50 in T2: CC1613 indicates that X would get 50

shares; jurisprudence says cumulative = 150o Property Acquired after testament included: Interpretative rule of time: If you say “I

leave all my property to X” then you buy a house and die – house goes to X until you give a clear indication to the contrary.

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PART II: SUCCESSIONS:

General Principals: Principal 1: Opening of a succession:

o Procedural – successor/creditor goes to cto Substantive– moment of the de cujus’ death* What we are interested in!

Actual Death: Irreversible cessation of spontaneous respiration and circulatory functions; life

support– if we can’t tell whether respiration/circulation has ceased – look for irreversal cessation of brain function

Options for proof: Documentary or testimonial:o Official death certificate signed by attending physician/coronero Affidavit of 2 people w/ knowledge; filed on recordo If affidavit and evidence is permitted – ct may require further evidence

Presumed Death:1) Disappearance upon exposure to great peril – refers to disappearance in circumstances in which death seems certain (highly probably), death is established w/o dead body

o Proof: Preponderance of the evidence; must have circumstances in which death is highly likely

Need calamity (disaster which could cause immediate death) and contemporaneous disappearance

Bennet case: sick guy disappears – this is not enough, need calamity but (might have been able to use absent person)

2) Missing in Action – Active member of armed forces, reported missing, armed service to which he was attached accepts the presumption of death

o Proof (of predicate facts): certified copy of official certificate of armed service to which he was attached indicating service accepted presumption of death

3) Absent Person – Absent for 5 years; has to representative, whereabouts are unknown and cannot be ascertained by diligent effort (call hospital, hire PI, etc.)

Fixing/Reversing the Opening date (for everything but absent person): o Actual date of death is determined by the ct: day of death, calamity, MIA – ct has

considerable discretion; with presumed deaths we are guessing at when the de cuju died – what if we discover the actual date of death later? Don’t know;

o If “dead” guys shows up: Death from exposure to great peril – don’t know; no mechanism MIA: prescription: 30 years: successors must return property itself – if

encumbered, gets “damages” for diminished value; if transferred property gets value plus “damages” for diminished value; in addition, the “successor” must return the annual revenues of the property – w/in 5 years 2/3; b/w 5-7year ½; 7+ nothing

Fixing/Reversing the Opening date for an absent person:o Actual date of death initially determined by ct based on whatever info you have; if

later there is clear and convincing evidence establishing a different date of death the initial judgment will be amended and the people recognized as successors in respect to the initial date are bound to restore the estate to the new successors (but may keep the fruit during the time of his possession) - if the property was already alienated by the initial successor then we assume he shall give the new successor the value

o If “dead” guys shows up again- he gets his property back in the condition in which it is found from “successors” or from 3P that “successor” made transfer to- if encumbered can get diminished value from “successors”; however, if alienated just

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get net proceeds + diminished value; if in GF, the “successors” can keep the fruits and the rights to improvements placed on immovables: there is no prescription period

Order of Opening: Commorientso When we have 2 people that are first in line to inherit from each other but they die

together so we cant tell who dies first – Approach #1: Rules based on characteristics pertinent to survivability:

assume child died 1st, if of age – younger one survived longer; woman died lst this is the approach in most civil law jurisdictions

Approach #2: In LA, we use “independent devolution” – meaning that for each person we assume he died last - if husband and wife both die: (1) For H’s succession – assume he survived his wife so he doesn’t lose his half of the community property and it flows to his successors; (2) for W’s succession – assumed she survived her husband, she doesn’t lose her half to it goes to her successors

Principal 2: Aptitude to succeed: Must be capable and worthyIssue #1: Incapacity: Must have come into existence and not gone out of existenceComing into existence: Means that person was born before de cujus dies or was conceived before de cujus dies (provided he is born later)

Conceived here only means fertilization which is different from DMC/DIV which says that you must be in utero meaning that fertilized egg was implanted – this is a disconnect; could say that no capacity for donations but capacity for intestate successions? Could call this specific legislation that trumps the general (and we allow capacity of successor for mere fertilization)

Determination of time of conception:o R.S. Post-Humously Conceived Child: (1) fertilized after father’s death (2)

implanted into womb of widow (3) w/ written permission of the father (4) born w/in 3 years of father’s death

Clinic has record of when conception took placeo General presumptions of paternity: law of filiation

Husband of mother presumed to be father of child born w/in 300 days of termination of mother’s marriage (includes death of husband and divorce); assumption that child was conceived in that marriage so even if mother remarried within the 300 days the first husband is the father

300 days is approximately 10 months!Not Going out of Existence: Actual Death, presumed death, or declared dead

Person presumed to be dead at the time of the opening of the succession – if he returns later he can recover his inheritance (in the condition in which it is found) from those who succeeded in his default; this includes net proceeds for alienated things and the diminution of value of things encumbered

Effect of Incapacity: If someone does not have capacity, transmission occurs meaning that the succession

would pass you over and go to the next successor Issues w/ representation: not possible seizing

Procedure: Don’t need a judicial ruling of incapacity – can do it yourself but it can be challenged in

which case the BOP is a preponderance of the evidence

Issue #2: Unworthiness to succeed

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Drafters took out definition but is analogous to the concept of disinhersion where a FH is able to be disinherited from his share

The only cause of unworthiness is a due of a judicial determination of successful/attempted intentional, unjustified killing of deceased

o Action must be brought in the succession proceedings of the decedent; requires a conviction or judicial pronouncement

o Prescription: intestate – 5 years from death; testate – 5 years from probate Must be by intent – negligent killing is not intentional; conviction of

manslaughter (strangles when angry) does require intent – this is general intent means that all that is required is that a reasonable person would expect death to flow as a result of this action but the CC doesn’t address whether we need specific or general intent; Perrier case mother in coma at hospital – took her off of life support to prevent her from executing another will – one LA ct said that this was not intent but it was a close call and we aren’t really sure; acting under advice of doctor but not total cessation of brain function? What about self-defense – intentional but justified

Need a conviction (criminal proceeding) or judicial determination (may be in the very action that seeks to declare him unworthy or can be in a collateral civil action i.e. wrongful death suit)

Affirmative Defense of reconciliation: o Proof of reconciliation with or forgiveness by the de cujus

Only for attempted murder b/c dead men don’t forgive Express – could be a letter of forgiveness Tacit – behavior that indicates reconciliation; failure to disinherit does

not mean that reconciliation is presumed – you have to show that de cujus knew you tried to kill him and knew you would inherit but didn’t disinherit

Proof: o Need a judicial declaration of unworthiness – can’t just run w/ idea of

unworthiness on your own; a conviction by itself will not be sufficient – you also need to get the judicial declaration of unworthiness in a succession proceeding

o Standing to suit: not just anyone can bring this action against a successor, it may only be brought by a person who would succeed in his place or in concurrence w/ the successor that is potentially being declared unworthy – basically the person w/ a financial interest in the issue – next in line or may be getting larger share

Effects of Unworthiness:o Unworthy party totally loses stake in devolution of the estate

Intestate: unworthy successor – act as if he predeceased de cujus Testate: unworthy heir – look to rules of accretion

o He must turn over possession to worthy heirs and must all turn over all fruits collected from goods in his possession

If it was donated to successor– you can get it back from donee or donee’s successor

If is was transferred onerously – and 3P was in GF (no fraud) the transaction remains in tact and you can seek recourse against the unworthy party

Characteristics:o Retroactively – one declared unworthy, you are retroactively considered to have

never been entitled to be a successor

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o Relatively – effects relative to person declared unworthy and to the succession in which the declaration comes this means if you are declared unworthy in your fathers succession but your grandfather later dies you can inherit as a representative of your father

INTESTATE SUCCESSION: Presumed will theory- if you don’t say where you wanted your property to go, we presume

you wanted it to go to your family; in addition, we presume that you wanted to give it to your closest family

Natural duty theory – it would be unjust to deprive family of reciprocal right of succession

Classification of Heirs: Relations by consanguinity (blood), adoption, or affiliation (marriage)1) Descendants

Direct line below de cujus; consanguinity and adoptive – kids, grandkids, no in-laws)2) Ascendants

Direct line above de cujus; consanguinity and adoptive – parents, grandparents Privileged ascendants- first degree – parents only

3) Collaterals Includes siblings, aunts/uncles, cousins, nieces/nephews; consanguinity and adoptive Privileged ascendants – first degree –siblings and their descendants (nieces & nephews)

4) Surviving spouse not judicially separated Only category not consanguinity or adoptive; obviously, only deals w/ married people;

only separated in covenant marriage; this is the only affinity successor in law of intestacy

Modalities of Heirship: to be an intestate successor, you must “come” to the succession in one of three manners and each has different consequences attached to it

Manner #1: intestate successor in your own right o You as successor are in line to inherit

You die, stuff goes to kids Descendant of Privileged Collateral is “in his own right” when he is the

person keeping that class alive – no descendants or other siblings Manner #2: Representation

o In cased of forced heirship the FH represents his parent o CC 882: Reps in direct line of descendants: this places child of FH in the same

place, degree, and rights as his FH as a fiction of law (if parent and child die this right goes to grandchild, grandchild dies then goes to great grandchild, etc.)

o There is no representation of ascendants Manner #3: Transmission

o Piggy-backing; rights of a successor are transmitted to his own successors upon his death (occurs whether you even know that you are a successor to begin w/)

Rules of Devolution: Propinquity (Proximity) of Consanguinity Rule #1: Rankings among classes: Higher classes exclude lower classes Rule #2: Ranking w/in classes: People of the same class are ranked by degree; the closer

degree excludes the further degree

There are two sets of devolution rules – one for separate and one for community property

Rules of Devolution of Non-community Property Order of classes: *if none are present, the estate belongs to the State

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(1) Descendants – full ownership(2) Privileged ascendants (parents) and/or privileged collaterals (siblings or siblings kids)

o If only privileged collaterals – full ownership (split by head; diff rule for half sib)o If only privileged ascendants – full ownership (split by head)o If de cujus leaves one in both classes – privileged collaterals get naked ownership

and privileged ascendants get usufruct Both parents alive: joint and successive usufruct (indivision) More than one child alive: share in indivision in proportion by head

(3) Surviving Spouse not judicially separated – full ownership(4) Other (unprivileged) ascendants – full ownership(5) Other (unprivileged) collaterals – full ownership

Descendants: Leave children: 5 kids – one from first marriage and another is a stepson – stepson not blood/adoption –

only have 4 descendants – each get a 4th (divide by head) Leave 2 kids and 1 grandkid – kids each get half

Privileged Ascendants and/or privileged collaterals Half siblings – divide by maternal and paternal line – each line gets half – this is further

divided by head; See SH 17.2 (pg. 127 outline); the child of the PC is only considered a PC in its own right when there is no descendant and there is no one else of the same degree

Surviving Spouse not judicially separatedOther Ascendants

If you have grandparents on both sides – maternal line gets half and paternal line gets half… of both grandparents in line are alive – each gets half of that (1/4)… remember – must be in the same degree can’t have maternal grandfather and paternal great-grandfather! If they are not of the same degree you don’t do the maternal/paternal division

Other Collaterals Most important: Nearest degree will exclude all others Don’t split by maternal/paternal line like ascendants or half-siblings; split life full-

siblings by head

Rules of Devolution: Community Property Rule #1: Descendants are NOT EXACLY first in line; the surviving spouse not judicially

separated is first in line for the usufruct and the descendant(s) are first in line for naked ownership (equal portions by head if same degree; if not by root for representation)

Rule #2: If no descendants then SSNJS is the full owner [Rule #3: If the de cujus has disposed of the property by testament the SSNJS will not

receive the usufruct doesn’t matter in intestacy obviously, but remember that it exists] Remember, if de cujus dies and there is no surviving spouse – there is no community

property so we don’t have to worry about this What would happen if the SSNJS would renounce? Above rule states that the rights of

intestate successors who renounce or are declared unworthy – if intestate successor renounces we would treat her as if she died before the de cujus – if she died there would not be community property

Complications:

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Representation:o Fiction of law; effect of which is to put representative in the place, degree, and

rights of the persons represented; can assert rights someone else had but for the fact the other successor died before the de cujus

o Who can be a representee? Descendants and siblingso Who can be a representative? ONLY descendants of siblings or descendants of

descendants (can go all the way down the line of descendants “ad infinitum”o Requirements for Representee:

Representee is dead Representee is alive but renounces – representative can represent him

through “quasi representation” Representee is alive but is unworthy – the effects are personal to the

representee so the representative can represent him through “quasi representation”

o Requirements for Representative: Representative doesn’t have to be alive… can have a representee, then a

representee/representative who dies then a representative who represents that line (that specific branch in the root)

Aptitude to accept succession of representee: Must be worthy as to the de cujus; we don’t care whether or not you were worthy as to the representee (strictly personal)

o Ex/ A – grandfather; B – father; C – son… if B is unworthy/renounces, C can still succeed though B’s representation to A’s succession; the only way C is barred is if he is declared unworthy/renounces A’s succession

o Methods of division: Partition by roots, if root has branches subdivide roots by head, if

branches have branches subdivide thoseo Sometimes get greater rights than ascendant they are representing i.e. if

representee is unworthy as to de cujus but representative is not; in Destrehan/Morgan cases ct decided not to collate b/c they said representatives had greater rights – they said the relied on French doctrine but French doctrine seems to say that we should collate debts of a representee (representative isn’t losing) but the representative should not be responsible for paying his debts

Transmission: o This is basically the same thing as representation but the representee has exactly

the same rights as the representative o This occurs when the de cujus dies then his successor dies immediately after; the

transmittee steps ino Here, the transmittee would have to collate; if the transmitter was

unworthy/renounced, the transmittee couldn’t transmito Practically: Rather be representative than come in on your own right (avoid own

problems); rather come in on your own right than through transmission (take on someone else’s problems)

Anomalous Succession: Retour Successoral – Happens rarely but occurs when:(1) There was a DIV of an immovable from ascendant to descendant(2) Ascendant is asking for his property back(4) De cujus dies w/o posterity (w/o descendants of his own)

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(5) Object of the donation must still be in the succession or at least part of the price is still owed – if ascendant will receive the credit right to collect, this is “real subrogation” – it is only going to apply to sales w/ unpaid prices – would also be able to assert de cujus’ right to reclaim property for de cujus’ claim of lack of capacity; ascendant would not get insurance right on something that was destroyed b/c it is not a credit right

Ascendant will take the donatum subject to all mortgages and servitudes (real rights) the donee may have imposed in his lifetime; this is like a reverter clause which is a legal return (property DIV reverts back to donor if donee predeceases him)

If you leave a DMC transferring property to someone - it is considered in the de cujus’ succession; same thing if you made a DIV in your lifetime

Adopted Children: Issue #1: Who can adopted child inherit from? Issue #2: Who inherits from adopted de cujus?

Full Adoption: Any kind of adoption other than step-parent Adopted child gets to inherit from adoptive family AND blood family Only adoptive family inherits from adopted de cujus – blood does not

Partial Adoption: This is where step-parent legally adopts you Ex/ A is born to Mom and Dad; Dad dies, Mom remarries D; D takes legal action to

adopt – result is that the relationship b/w A and Dad is relinquished and a new one is created b/w A and D

Adopted child gets to inherit from relinquishing parent’s family and non-relinquishing parent’s family (both biological parents and step-parent)… adoptive relations

Adopted child died – this permits the non-relinquishing parent’s family and the adoptive step-parent’s family to inherit however the relinquishing parent can’t inherit

Illegitimates Old law was harsh on illegitimate kids; now, we were treat them the same as legitimate

children but the issue is whether or not they were properly filiated to the de cujus father Presumption #1: Husband of mother is father of child (married) Presumption #2: Child born after end of marriage but w/in 300 days of the end, is

presumed to have been conceived during the marriageo All other children illegitimate, at least at first

Presumption #3: If first husband/successor obtains a paternity judgment of disavowal the second husband is presumed to be the father. However – the second huband/successor may disavowal paternity if he institutes a disavowal action w/in 1 year from the day the first husband’s disavowal action is final

Disavowal Action:o Proof: BOP on father successor/Clear and Convincing; testimony alone is not

enough – it shall be corroborated w/ other evidenceo Prescription: 1 year from the husband learned/should have learned of the birth of

the child BUT if husband lived separate and apart from mother continuously during the 300 days immediately preceding the birth of the child, this prescription period doesn’t start until the husband/successor is notified that someone has asserted that the husband is the father of the child

o If prescription has started to run and husband dies: his successor w/ an adverse interest may institute an action for disavowal of paternity which is subject to prescription period of 1 year which starts to run on day of husband’s death

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o If prescription has NOT started to run and husband dies: successor has a prescription period of 1 year from day successor is notified in writing that a party has asserted that husband was the father

Contestation and Establishment Action:o Action taken by the mother that her former husband is not the father and her

present husband is the father; it may ONLY be instituted if the present husband has acknowledged the child via authentic act or signing the birth certificate

Must get both judgments – can’t say H1 is not the father and leave it at that; also can’t say neither H1 or H2 are the father; kid needs a daddy

o Proof: BOP on Mother/Clear and Convincing Evidence/Testimony corroborated w/ other evidence

o Prescription: Must begin w/ 2 year of child’s birth and 180 days of marriage to second husband

Modes of Filiation: CC 195: Kid isn’t filiated to a father; man marries mother; man (w/ the concurrence of

the mother) acknowledges the child through authentic act or by signing the birth certificate is presumed to be the father of that child.

o Allows father to benefit from the childo He may later disavow if he thinks he is not really the father but he only has180

days from marriage or from the acknowledgment (whichever is later) CC 196: Kid isn’t filiation to a father; man acknowledges child through authentic act or

by signing the birth certificate – this creates a presumption that he is this father. This creates a presumption only on behalf of the child [except in custody, visitation and child support cases] and does NOT create a presumption in favor of the father which means that kid can inherit from father but father can’t inherit from kid

o No benefit to father – this is the only case!!!!!o Can revoke w/in 60 days w/o cause or at any time by clear and convincing

evidence CC 197: Kid can institute an action to prove paternity even if he is presumed to be

someone else’s kid by a preponderance of the evidence and can be done at any timeo If the alleged father is dead - it must be via clear and convincing evidence and it

must be made w/in 1 year of alleged father’s deatho Proof: Ct may order parties to submit samples on it on merit; any party whose

blood is involved may request it if they have a sward affidavit alleging fact which intend to prove/paternity – includes mother, child, putative father and sometimes sibling, co-heirs, etc; we don’t want a father to acknowledge if not the biological father – that would make the acknowledgment null; biological forced heirs have an important financial interest but it is outweighed;

o Allows father to benefit from the child CC 198: Avowal Action – inverse paternity action; man trying hard to be father

o A man may institute an action to prove paternity at any timeo In all cases, the action shall be instituted w/in 1 year of the death of a childo Allows father to benefit from the child

Exception: If child is presumed to be another man’s child the putative father

has one year from birth BUT if in bad faith the mother deceives the putative father

regarding paternity, the action shall be instituted w/in 1 year from the day the father knew/should have known of his paternity OR w/in 10 years from birth

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o Whichever comes first Recap:

o Child can inherit if: Subsequent marriage + formal acknowledgement Formal Acknowledgment (birth certificate or authentic act: AA doesn’t

have to be the purpose of the AA itself – can be in a testament) Paternity action in which child/rep of child establishes he is the bio child

of the father Avowal Action – dad takes action to establish paternity

o Father can inherit if: Subsequent marriage + formal acknowledgment Paternity action in which child/rep of child establishes he is the bio child

of the father Avowal Action – dad takes action to establish paternity

Spousal Rights True spouse – legally valid marriage Putative Spouse –marriage is not a legal marriage; think you are married but you aren’t Absolutely Null: Prior marriage, same sex, marriage of an ascendant, descendant or

collateral w/in the 4th degreeo Produces civil effects in favor of the party who contracted in GF; ends when the

find out (become in BF) Child that comes from GF marriage is a successor

o Exception: if cause of the nullity was prior marriage, the prior wife gets the civil effects (Duped H2/W2 not valid successor); same sex marriage never valid (no successors)

Relatively Null Marriage: Vice of consent – consent not freely given b/c duress caused marriage to occur, a party was incapable of discernment at the time marriage was contracted (insanity, mental retardation, intoxication and naivete)

o Produces civil effects until the marriage is declared null Polygamy Issue: How do we split separate property b/w 2 wives in GF? Equally How do we split community property b/w 2 wives in GF?

o Hypo: H1 and W1 – buy house and have child (C); they divorce H1 marries W2 – they buy a boat; H1 dies

House and boat – community property; Wives = GF Disposition of the house from the first marriage is easy – H1’s half of

community property is given to C as naked owner and given to W1 as a usufruct

Disposition of boat – if H1 is in good faith give C naked ownership of H1’s share then split the usufruct b/w the wives… each wife has a ¼ usufruct; if H1 in bad faith – C doesn’t get any of the community property – his half of the boat is split – in naked ownership b/w the two wives, again a ¼ each… analogy from Prince case

Spousal Rights: Monogamous cases either w/ 1 spouse or a putative spouseo Surviving Spouse is 3rd in line for separate propertyo Special rights for community property – gets usufruct of over the deceased

spouses’ half and spouses’ kids get a usufruct over that half (could be step-kids

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of surviving spouse) – the kids take the naked ownership in equal portions by heads but if there are no descendants, the wife gets full ownership

Child renounces succession – right to naked ownership falls to grandchild bc we pretend that the child (representee) predeceased the de cujus

o Duration: usufruct terminates when surviving spouse dies/remarrieso Usufructs:

Real right of limited duration; can be over a consumable (i.e. money) or a non-consumable (land, houses, stock)

Usufruct over consumable things: – usufructuary becomes owner and may consume alienate or encumber as he sees fit; at termination of ownership he is bound to pay the naked owner the value of the thing he had at the commencement of the usufruct or deliver him the thing in the same quantity/quality

Usufruct over non-consumable things : usufructuary has the right to posses them and to derive the utility, profits, advantages, that they may produce under the obligation of preserving their substance; he is bound to use them as a prudent administrator and to deliver them to the naked owner at the termination of the usufruct

Kinds of Fruits : Things produced by/derived from another thing w/o diminution of its substance; 2 kinds: natural and civil fruits

Natural – product of earth/animals Civil – revenues derived from a thing by operation of law or by

reason of a juridical action i.e. rentals, interest, and certain corporeal distributions (here, we are talking about a civil usufruct)

Security : Usufructuary shall give security that he will use property subject to the usufruct as a prudent administrator and will fulfill all obligations imposed on him. Generally, security is not required b/c this is a legal usufruct

Exception #1: Naked owner is a FH that is only the child of he de cujus (surviving spouse’s step-child)

Exception #2: Naked owners is a FH and the child of both the spouses – the surviving spouse may be compelled to provide security to the extent that a usufruct affects the legitime of a FH

Remember, we are still studying the law of intestacy, so this is what happens to community property when the de cujus didn’t have a will… So, what if he had a will which stated that he wanted to give someone other than his wife his half of the community property.

o Issue: “I give all of my property to my wife” and he has 2 FHs: this obviously is a testament giving away his community property but this gives his wife more rights – it would have been better if drafters had said that “the surviving spouse shall have a usufruct over the de cujus’ share of the community property to the extent that the de cujus has not disposed of it adversely to the surviving spouse. Courts have interpreted this to mean that the kids will get ½ the naked ownership and the wife will get the usufruct. [Note: the usufruct is considered a permissible impingement on a FH.] If he had said “I leave all of my property to my friend Marcel,” this is a disposition adverse to the surviving spouse (she is getting less) so she would not get the usufruct. “I leave all my property to the church.” Again, FH would sue for reduction, church gets property, and wife gets nothing. “I leave my property to my child.” This is probably also adverse.

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****Skipped to Pg. 449: Distribution of the Estate: COLLATION: Principal of equity in which all heirs that received DMC or DIV from the de

cujus must “return” it into the de cujus’ estate in order to partition the estate equitably b/w all heirs

o Supposed (credit) or real return (property) into the mass of succession which an heir makes of property which he received in advance of his share; property is then divided together w/ the other effects of succession

o Rationale: Equalizes treatment of heirs and we assume that is what de cujus wanted Who collates?

Generally all descendants: o Exception# 1: Descendant who renounces/disinherited/declared unworthy will

not have to collate. They will be forced to collate if the remaining amt in the inheritance is not enough for the legitimate portion of the other children – including in the succession of the deceased the property which the person would have collated – he shall be required to collate up to the sum necessary to complete such legitimate portion

Ex/ A and B are 19; de cujus had given A a gift of $100k then died a week later broke; A renounces – B is a FH; there would be 2 FHs so the forced portion is ¼ of the estate – A is forced to collate up to $25k

o Exception #2: Descendants who received a gift but are not one of the heirs to the estate don’t have to collate.

o Exception #3: Descendants who were NOT personally and directly benfitted gratified by the deceased.

If grandpa give grandkid $100 then grandkid dies – father inherits the gift then grandpa dies; father doesn’t have to collate b/c the gift indirectly benefited him

If grandpa gives dad a gift then grandpa dies and dad renounces succession – the child/representative was not personally gratified by that gift so he doesn’t have to collate

Exception #1 to Personal Gratification Rule: Any gift made to grandchild during the parent’s lifetime is not collate-able

Exception to Personal Gratification Rule: If grandchild is inheriting in his own right (representee is declared unworthy or renounces – quasi representation – pretend the representee predeceased the representative: post-unworthiness accretion), he is not obliged to collate the gifts given to his father by his grandfather but he does collate if he is representing his father (remember, dead direct ascendant is necessary for representation to occur).

Who has the right to demand collation?o Descendants who are of the first degree (children of de cujus) who qualify as FH

FH only include descendants of the first degree under the age of 24 at the de cujus’ death or are permanently incapable and only applies to gifts made within 3 years prior to the death of the de cujus; representatives of FH may not force collation

What can be collated?o Evident Donations:

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Purely gratuitous, onerous and remunerative that (that qualifies as gratuitous)

Ex/ Dad about to die, gives me land subject to condition that I care for him until death – land worth $100; caring for him worth $10; I have to collate $90

o Disguised Donations The sale of immovable by parent to child may be attacked by the FH as a

donation in disguise if those heirs can prove that no price was paid or that the price paid was less than ¼ of the value of the immovable at the time of the sale.

Simulation: mutual agreement where contract terms don’t express parties true intentions and the true intent is expressed in a separate writing called a coverletter

Relative simulation: intended to produce effects just not the ones which are expressed in the contract

o Various other gratuities and advantages including: That which has been expended by parent to procure establishment of the

descendant- this is basically spending money on the child’s behalf ex/ would be if parents helped you start a business, but we think it also covers personal expenses; includes paying for your school

The de cujus’ payments of descendant’s debts Sale of property from de cujus to descendant at a “very low discount”

What is a discount/very low? If the cost is ¼ the actual price we treat it as a disguised donation but if it is more than ¼ we treat it as a sale at a low price? For purposes of donations, it doesn’t matter which one it is – they are both collateable

Lesion: Type of sale at a very low price – successor can demand that the sale is rescinded via lesion when the object of the sale was an immovable, the price was less than 50% the fair market value, and the successor brings action w/in 1 year of sale (if multiple successors – they can each bring an action for their respective shares)

2/3 rule of gratuitous donations? Whether it is a sale or a donation matters for purposes of form,

capacity, and consent – Ex/ if not made in authentic act then it is valid for a sale but null for a donation; if unduly influenced then null for donation and valid for sale b/c it is not a vice of consent for sales

All of these may be plausible but Trahan doesn’t know how to distinguish the line b/w them all! He has no idea… bottom line if you “sell” something worth $100 to someone for $90, the $5 is collateable

If the de cujus has paid for descendant’s purchase If the de cujus has spend money to improve the descendant’s estate If the de cujus donated the use of something to his child. Generally the

donated use value is not collated if the donated use was temporary or intermitted, customary/normal; if it was not customary and affected the de cujus’ patrimony (probably not de minimus effects though) – then we collate; Ask: does this go beyond just customarily helping out a bit?

o Things you don’t collate: Things donated 3 years prior to de cujus’ death

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DMC are not subject to collation (LASC ruling); only DIV; therefore collation only takes place if the de cujus is intestate or if there is a mixed succession (where some but not all things will be given away); Ex/ Testate succession in which father leaves daughter a universal legacy over the estate – FH son can’t force her to collate (universal legacy over the forced portion only?)

Manual Gift: Better term is a “customary gifts” – things that are given to kids in normal course of upbringing of small value - don’t ever talk about whether something was handed over! This is ridiculous; want to know what is reasonable and modest – this may be determined by the family – are they insanely wealthy? Trahan rule of thumb – over $1000 not manual gift

Expenses for board, support and education – this is fulfillment of a parental duty of child support; definitely applies until 18 years; beyond this we may look at this differently and will collate

Marriage presents which do not exceed the disposable portiono Remember that the law of collation is suppletive law! There is an “effect by will”

meaning that you can deny the ability to collate; but collations is presumption absent an express statement – remember, we want to look to the intent of the testator; so, how do we exempt collation? It must be a juridical act w/ capacity, consent, etc. free of defects, etc. – testamentary form, authentic form, probably olographic too

The most difficult issue here is form – CC says that you must state that you want to deny collation you must express an unequivocal intention to do so but Trahan is annoyed b/c the court said that if you say “I want to give everything to Camille” – the logic here is that you wanted to deny your other daughter the ability to force Camille to collate (makes sense in terms of intent but it is directly contrary to the CC – legislation that says express OR implied as long that the implied intent is really strong)

Written: What do you have to say? Clearest Clearest: “I dispense child X/all children from collation” We also understand “I give this to you as an advantage and extra

portion” to mean collation Must be another equivalent term, provided they indicate in an

unequivocal manner the will of the donor Can be in the donation (written), in an authentic act after the

donation, or in the testament itself

o Trahan wants to say that there are 3 ways to collate:Value Given1) Take less – Here, we borrow the rules for reduction. If A was given $50 then estate was worth $150 and de cujus dies. Total of the estate should be = $200 each gets $100; since A already has $50 he only takes $50 more while B takes the full $1002) Pay money – Here, A given $50, estate worth $10 at death; estate should total = $60; each should get $30; A must directly pay B $20, B keeps the $10 of the estate to equal $30In-Kind: 3) Give the actual thing back – “In kind return”

o Rules for determining which way you collate:

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o If the thing is a movable you can only take less or pay money; can’t give backo If the thing you’re given is an immovable you can usually chose except:

If the thing you’re given is destroyed If it is given to a 3P Donor can dictate the mode of collation!

Prescription to demand collation – 10 years from death

REDUCTION:STAGE 1: Calculate the Mass of the EstateSTEP 1:– Determination & Valuation of all assets left at death (look to value at time of death)

o Include all assets belonging to testator at his death – this means movables and immovables, corporeals and incorporeals (credit rights) under deceased’s control or held in his name or owed to him at death…

o This includes assets earmarked for legacies, things “on loan” or “on deposit” w/ others, and the deceased credit rights against successors (including forced heirs)

o But it is more than this – it includes assets which seem to have left the testator’s patrimony but they have not b/c they are absolutely null DIV including:

o Absolute simulations (intend for contract to be null), donations or sales in improper form, prohibited substitutions, other transfer that violate rules of public order (illegal conditions); if something is relatively null (if drunk/high when you gave it away) until it is declared null it is valid…

o Assets that left the deceased patrimony, which can be can be called back into it are considered part of his patrimony if they are in fact called back into it. Includes:

o Things that are relatively null DIV; these are effective and treated like a normal donation until the are judicially declared absolutely null (heritable right); normally 5 year prescription from the time the nullity ceased (if incapacity or duress) or discovery of the nullity (if error or fraud)

Ex/ person deprived of reason/interdicted/fraud/undue influence/lesionary sale (successors have sezin; can exercise w/in 1 year peremption from sale)

Issue: if someone has a thing under a relative nullity and sells to a 3P the 3P must be reimburse the amount he paid; successors will get the thing back but they also must pay

o Things that are in a position to be revoked (ingratitude only –)Excluded things:

o If de cujus had rights of things that terminated at time of de cujus’ death ex/ his usufructs o Assets required by the deceased subject to a resolutory term/condition tied to deceased’s

deatho Assets subject to “the right of successorial return: in favor of an ascendant of the

deceasedo Assets of familial character and of low value such as family heirlooms

STEP 2: Deductions of Debts: Now, Total Assets at Death - Debtso Regardless of what CC says that step 2 is to FAB; the only assets left to satisfy the

creditors are what the de cujus leaves at death. If not you would be giving creditors a right to go after things the de cujus already gave away (DIV).

o What debts are deducted?o Those not subject to modalities, are subject to condition/term (provided condition

is fulfilled or the term has arrived), debts to heirs (including forced heirs) and legatees, includes taxes owed by deceased, property taxes, student loans, credit card debt and funeral charges!

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o What is not deducted? o The costs of reduction and estate taxes (paid by successors)

STEP 3: Fictitiously Add Back (FAB) – this means you must give the thing value – look to time of donation! But only FAB those things donated w/in 3 years of de cujus’ death!

o This is “fake” because it is not a distribution, you aren’t getting anything back; applies to anyone in the world that you gave something too not just stuff given to your descendants

o What is included? o DIV and other advantages (same as collation) made 3 years prior to the death of

the donor – expenses incurred for establishment for heir, payment of heir’s debts, sale of a thing at a very low price to an heir (not if it was a sale at a very low price to someone NOT a child), annuities/insurance bought by de cujus for heir, but NOT Treasury Bills; Note: if FH renounces/exempted by will you still FAB it

o Special ruleso Remunerative (person decides to pay you for a service you donated) and

onerative donations (sale for less)… these are not included at all if the person gave value/paid an amount equal to 2/3 FMV; if they did not then only the difference b/w the value/payment given and the FMV of the thing is added back (NOT the difference b/w the value given and 2/3!!!!)

o What is not included?o Donor’s life insurance including the premium and pay out, retirement plan

including contributions and pay outo Certain gratuities exempted by law (also exempted from collation):

manual/customary gifts, expenses for support or education of a child, and Federal T-Bills… basically, follow the laws on collation here

o But if donor exempted by will, you MUST FAB it! It is fake anyway! Exempted by law – don’t FAB it Exempted by will – FAB it

STEP 4: Division of the active mass between the disposable and forced partso Simply multiply the (Quotient) x (the Mass of the estate)o 1 FH: Forced portion is ¼; 2+: Forced portion is ½ then divide by head (if representative

then root to branches)o If there are 3 forced heirs, the forced portion is ½; if one renounces, his portion

leaves the forced portion and enters the disposable portion (reducing the forced portion); the forced portion becomes 1/3 and the disposable portion becomes 2/3

Reduction STAGE 2: Imputation: Satisfaction of the Legitimeo Stage 1 just tells us how much the FHs are owedo Now we want to determine how to get them what the are owed; we only look to reduction

if whatever is left free by the deceased (unalienated property) or is donated to the FH via a DMC does not satisfy that amount

STEP 1: Application of “free assets” inherited by intestacyo First thing to impute: Look to Law of Succession

o Intestacy - Descendants are the first in line to inherit. Does it satisfy the legitime?

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o Testacy – FH may have been given a DMC. Does it satisfy the legitime?STEP 2: Imputation

o Second thing to impute: o Any DIV or gratuity that was FAB-ed will now be “credited” to the FH

o Third thing to impute:o Life insurance and retirement benefits (so probably annuities)

o Remember, don’t impute things exempted from collation by will b/c it should be considered an “extra portion”

STEP 3: Reductiono FH, FH representatives, FH transferees (assignment of creditors) can force reduction

against anyone who received an DIV 3 years prior to deatho Order:

o First thing to reduce: Legacies: All DMC (in a testament a testator can expressly state an order of preference and the preferred legacy will not be reduced until all other legacies exhausted)

Legacies are proportionately reduced to the amount given so if the testator left $10 to A and $40 to B and C the FH is owed $20… we know that A has 1/5 of the total, $20 x 1/5 = $4, and that B had 4/5 of the total, $20 x 4/5 = $16… this is the total that C is owed. If C was actually owed $50, A and B would be left with nothing

o Only if the legitime is still not satisfied do we look at inter vivos donations and gratuities

General rule: Reverse temporal reduction – start w/ most recent and work your way backwards

Exceptions: Skip insolvent donees but a donee who pays the share of an

insolvent donee is subrogated to the rights of the FH against the insolvent donee (get money back from him later);

Also skip DIV that have integrally imputed to a legitime (meaning if things were imputed to a FH to satisfy his portion of the legitime don’t take it back from him if another FH is still owed something… skip it and proceed to the next DIV)… however, if the imputation satisfied one FH’s portion (this is considered the principal imputation) and there was a surplus/excess, that amount may be imputed to the FH still in need (subsidiary imputation)

There is also an exception if the FH has been given an “extra portion” – can seek reduction of that amount

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