successions & donations 2013 barbri outline

SUCCESSIONS AND DONATIONS (INCLUDING WILLS) 1 .

SUCCESSIONS AND DONATIONS (INCLUDING WILLS)

TABLE OF CONTENTS

I. INHERITANCE RIGHTS IN GENERAL-SUCCESSIONS . . . • . . . . . . . . . . . . . . . . . . . . . . . . 1 A. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

1. General Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 a. Succession . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 b. Estate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 c. Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

1) Universal Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 2) Particular Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

d. Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 2. Either Intestate or Testate . . . . . . . . . . . . . . . . • . . . . • . . . . . . . • . • • • . . . . . . . . . . . . . . . 1

a. Intestate Successions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 b. Testate Successions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 c. Intestate Successors-Heirs, Testate Successors-Legatees . . . . . . . . . . . . . . . . . . 2

1) "Legatees" in a Conflicts Context . . . . . . . . . . . . . . • . . . . . . . . . . . . . . . . . . . . 2 d. Conflict of Laws-Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

1) Movables . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 2) Immovables . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

a) Immovables in Louisiana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 b) Immovables outside of Louisiana . . . . . . . . . . . . . . . . • . . . • . • . . . . . . . . . 2

B. GENERAL RULE-THREE WAYS FOR A SUCCESSOR TO INHERIT • • . . . . . . . . . . 2 C. CAPACITY TO INHERIT . . . . . . . . . . . . . . . . . . . • . • . . . . . • . . . . • . . . . . . • . . . . . . . . . . . . 3

1 . Conflict of Laws Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 D. DETERMINING WHO INHERITS BY INTESTACY . . . . . • . . . . . . . . . • • • . . . . . . . . . . . 3

1 . Classes of Heirs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 2. Most Favored Class Takes to the Exclusion of Other Class( es) . . . . . . • . . . . . . . . . . . . 3 3. Counting Degrees (La. Civ. Code arts. 900-901) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

a. A Degree Is a Generation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 b. Closest Degree ''Takes'' . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 c. Direct Line . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 d. Collateral Line . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

E. INHERITANCE OF SEPARATE PROPERTY BY INTESTACY • • . . . • . . . • . . . . . . . . . 4 1 . Descendants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

a. Children or Their Representatives . . . . . . • . . . . . . . . . . . . . . . . . . . . . . • . . . . . . . . 4 b. Adopted and Children Born Outside of Marriage . . . . . . . • . . . . . . . . . • . . . . . . . . 4

2. Parents and Siblings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 a. Decedent with No Descendants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

1) Note--Father's Inheritance Rights and Presumptions of Paternity . . . . . . . . 4 b. Parents' Usufruct and Siblings' Naked Ownership . . . . . • • . . . . . . . . • . • . . . . . . . 5 c. Donation of Immovable Property Exception . . . . . . . • . • • . . . . . • • . . . . . . . . . • . . 5

1) Obligations Imposed on the Donor-Ascendant upon Return of Immovable . 5 d. To Siblings if No Surviving Parents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

1) Representation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 2) Half-Blood Siblings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

e. No Siblings, but Parents Alive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

11. SUCCESSIONS AND DONATIONS (INCLUDING WILLS) borbr1·

3. Surviving Spouse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 4. More Remote Ascendants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

a. One Ascendant Nearer in Degree . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 b. Surviving Ascendants in the Same Degree . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 c. No Representation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

5. More Remote Collaterals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 6. No Heirs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

F. INHERITANCE OF COMMUNITY PROPERTY BY INTESTACY . . . . . . . . . . . . . . . . . 7 1 . Surviving Spouse's Half of Community Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 2. Decedent Spouse's Half of Community Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

a. If Children or Other Descendants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 1) If Child Renounces Parent's Half of Community . . . . . . . . . . . . . . . . . . . . . . . 7

b. If No Children or Other Descendants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 c. Community Property of a Putative Marriage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

1) Decedent Spouse in Good Faith . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 2) Decedent Spouse in Bad Faith . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

3 . The Article 890 Usufruct of the Surviving Spouse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 a. Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

1) Children not of the Marriage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 2) Necessity of Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

b. Duration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 c. Contrast a Surviving Spouse's Usufruct by Will . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

G. INHERITANCE RIGHTS ADOPTED CHILDREN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 1. Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 2. From Whom Can the Adopted Person Inherit? . . • . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 3. Inheritance Rights of Biological Parents Not Reciprocal . . . . . . . . . . . . . . . . . . . . . • . . 8

H. INHERITANCE RIGHTS OF CHILDREN BORN OUTSIDE OF MARRIAGE (FORMERLY, ILLEGITIMATE CHILDREN) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 1 . Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 2. Formal Acknowledgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

a. Reciprocal Inheritance Rights between Children and Father . . . . . . . . . . . . . . . . 9 3. Paternity Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

a. Civil Proceeding Required . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 b. Time Limits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

1) One-Year Time Limit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 2) Former Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

4. A vow al Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 a. Civil Proceeding Required . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 b . Time Limits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

1) If the Child Is Presumed the Child of another Man . . . . . . . . . . . . . . . . . . . . 10 2) If the Child Is not Presumed the Child of another Man . . . . . . . . . . . . . . . . 10

5. Other Possibilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 6 . Further Reference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

I . REPRESENTATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 1 . Effect on Degree Count . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 2. Who May Be Represented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 3. Where Representation Takes Place . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

SUCCESSIONS AND DONATIONS (INCLUDING WILLS) 111.

a. Representation in the Descending Line . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1 1 ) Descendants Inherit per Stirpes . . . . . . . . . . . . . . . . . . . . . . . . . . • . . . . . . . . . 1 1

b. Representation in the Collateral Line Is Limited . . . . . . . . . . . . . . . . . . . . . . . . . 11 4 . Renunciation and Representation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • . . . . . . . . . . 1 1 5. Forced Heirs, Special Rule for Representation . . . . . . . . . . . . . • . . . . . • . . . . . . . . . . . 12

J. PRESUMPTIONS OF SURVIVORSHIP FOR PERSONS WHO PERISH IN A COMMON DISASTER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 1 . Rule of Presumption Currently in Force . . . . . . . . . . . . . . . • . . . • • • . . . . . . . . . . . . . . 12 2 . Former Rule: Law of Commorientes (Simultaneous Death) . . . . . . . . . . . . . . . . . . . . 12 3. Short-Term Survivorship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

K. SEIZIN-"LE MORT SAISIT LE VIF." . . . . . • . . . . . . • . . . • . . . . • . . . . . . . . . . . . . . . . . 12 1 . Universal Successors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 2. Particular Successors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 3. Effects-Transmission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 4. Possession . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 5. Exercise of Succession Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

L. UNWORTHINESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 1 . Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 2. Who May Bring the Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

a. Successor Minor or Interdict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 3 . Grounds for Declaration of Unworthiness . . . . . . . . . . . . . . . . . . . . . . . . . . • . . . . . . . . 13 4. Temporal Elements of Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

a. Where Action Brought . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 b. Prescriptive Period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

5. Effects of Unworthiness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 a. As If Predeceased the Decedent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

1) Intestate Succession . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 2) Testate Succession . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

b. Devolution Rights of Minor Children of Unworthy Successor . . . . . . . . . . . . . . . 14 c. Additional Prohibitive Effects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 d. Obligations of the Unworthy Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

1) If Successor Has Possession of Decedent's Property . . . . . . . . . . • . . . . . . . . 14 2) If Successor Does Not Have Possession of Decedent's Property . • . . . . . . . . 15 3) Additional Duty if Property Value Impaired . . . . . . . . . . . . . . . • . . . . . . . . . 15

e. Effect of Reconciliation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 6. Conflict of Laws Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

M. ACCEPTANCE AND RENUNCIATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 1. Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 2. Presumptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 3. Rules Common to Acceptance and Renunciation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

a. No Acceptance or Renunciation Until Succession Opened . . . . • . . . . . . . . . • . . . 15 b. Succession Must Fall to Person Consciously Accepting or Renouncing . . . . . . . 16 c. Accepting Inheritance but Renunciation of Another's Accretion . . . . . . . . . . . . 16 d . Subsequent Probated or Annulled Testament . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

1) Intestate Successions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 6 2) Testate Successions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 6

e. Legacy Subject to a Suspensive Condition . . . . . . . . . . . . . . • . . . . . . . . . . . . . . . . 16

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f. Prescription . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 g. Effect on Creditors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

1) Can Prohibit Renunciation by Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 2) Oblique Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

4 . Acceptance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 a. Formal Acceptance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 b. Informal Acceptance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

1) Act Without Knowledge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 2) Act of Ownership Required . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 3) Acceptance Manifested by an Act of the Heir . . . . . . . . . . . . . . . . . . . . . . . . . 17

c. When an Act of Renunciation is Really an Acceptance . . . . . . . . . . . . . . . . . . . . . 17 d. Effect of Acceptance--Successor's Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

5. Renunciation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 a. Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

1) Intestate Successions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 2) Testate Successions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

b. Renunciation and Other Inheritance Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 c. Renouncing Relative Can Still Represent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 d. Capacity to Renounce . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 e. Seizin and Renunciation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 f. Attempted Renunciation-Someone Outside Order of Accretion . . . . . . . . . . . . 18

N. PAYMENT OF "ESTATE DEBTS" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 1. General Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

a. Debts of the Decedent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 b. Administration Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

2. Liability of Successors to Creditors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 a. Liability of Universal Successors to Creditors . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 b. Successors as Creditors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 c. New Creditor-Order of How Claim is Satisfied . . . . . . . . . . . . . . . . . . . . . . . . . 19 d. Order of Payment-Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

1) Secured Creditors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 2) Unsecured Creditors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

3. Apportionment of Debts among Successors Themselves . . . . . . . . . . . . . . . . . . . . . . . 19 a. Shifting Responsibility among Successors by Testator or Successors'

Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 b. Charges on Identifiable Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 c. Debts of the Decedent-How Charged . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 d. Administration Expenses-How Charged . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 e. Allocation of Receipts and Expenditures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

1) Succession Representative's Compensation and Professional Services Fees 20 2) Tax Consequences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

f. Certain Classes' Rights and Obligations Protected . . . . . . . . . . . . . . . . . . . . . . . . 20

II. DONATIONS-GENERALLY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 A. OVERVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

1. Two Kinds of Donations in Louisiana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 a. Donation Inter Vivos . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

SUCCESSIONS AND DONATIONS (INCLUDING WILLS) v.

b. Donation Mortis Causa . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • . . • . . . . . . . . . 21 2. Three Requirements for Validity of Donation . . . . . . . . . . . . . . . . . . . . . . • . . . . . . . . . 21

a. Capacity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 b. Formalities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . · . . . . . . . . . . . . . . . . . . . . . . . . . . 21

1) Donations Mortis Causa . . . . . . . . . . . . . . . . . . . . . . . . . . . . • . . . . . . . . . . . . . . 21 2) Donations Inter Vivos . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

c. Substantive Limits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • . . . . . . . . . . . • . . 21 B. CAPACITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

1. Capacity of the Donor to Make Donations . . . . . . . . . . . . . . . . . . . • . . . . . . . . . . . . . . . 22 a. Timing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 b. Age . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 c. Mental Condition of the Donor . . . . . . . . . . . . . . . . . . . . . . . . . • . . . . . . . . . . . . . . 22

1) Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 a) Proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 b) Capacity of Interdicts to Make Donations . . . . . . . . . . • . . . . . . . . . . . . . 22

(1) Full Interdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 (2) Limited Interdiction . . . . . • . . . . . . . . . . . . . . . . . . • • . . . . . . . . . . . . 22 (3) Former Law-"Mentally Infirm" . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

2) Vices of Capacity-Fraud, Duress and Undue Influence . . . . . . . . . . . . . . . 23 a) Effect of Fraud or Duress . . . . . . . . . . . . . . . . . . . . . • . . . . . . . . . . . . . . . 23 b) Effect of Undue Influence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 c) Severability of Donation's Provisions vis-a-vis Extent of Fraud,

Duress or Undue Influence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 d) Burden of Proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 e) Fiduciary Appointments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

3) Former Law-Test Being of "Sound Mind" and Use of Factor Now . . . . . . 24 d. Conflict of Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

1) Capable under Laws of Both States-Vices of Capacity . . . . . . . . . . . . . . . . 24 2) Capable under Laws of One of the States-Vices of Capacity . . . . . . . . . . . 24

2. Capacity of the Do nee to Receive Donations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 a. Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

1) Unborn Children "In Utero" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 a) Posthumously Conceived Children . . . . . . . . . . . . . . • . . . . . . . . . . . . . . . 24

2) Organizations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 b. Donations Subject to a Suspensive Condition . . . . . . . . . . . . . . . . . . • . . . . . . . . . 25 c. Acceptance on Behalf of Minors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

C. REPROBATED DISPOSITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 1. Prohibited Substitutions . . . . . . . . . . . . . • . . • . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

a. Definition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 b. Two Parts for Prohibition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

1) Charge to Preserve Property and Deliver Before Death not Prohibited . . . 25 2) Substitution de eo quod supererit not Prohibited . . . . . . . . • . . . . . . . . . . . . . 25 3) Effect of Prohibited Gift . . . . . . . . . . . . . . . . . . • . . • . . . . . . . . . . . . . . . . . . . . 26

c. Reservation of Usufruct Permissible . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 2. Vulgar Substitutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

a. Period of Survivorship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 b. Temporal Effects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

vi. SUCCESSIONS AND DONATIONS (INCLUDING WILLS)

III. DISPOSITIONS MORTIS CAUSA-WILLS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 A. TESTAMENTS GENERALLY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

1. Only by Testament . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 a. No Testaments by Others or with Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 b. Dispositions Given to the Choice of Third Persons . . . . . . . . . . . . . . . . . . . . . . . . 27 c. Effect only by Probate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

B. FORMS OF TESTAMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 1. Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

a. Compliance with One Form Sufficient . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 b. Testamentary Intent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 c. Elimination of Several Forms with 1999 Revisions . . . . . . . . . . . . . . . . . . . . . . . . 27 d. Conflict of Laws . . . . . . . . . . . . . . • . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 e. Transactions Exempted (from Form Rules) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

1) Life Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 a) Donation of an Insurance Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 b) Distinguishing Annuity from Life Insurance . . . . . . . . . . . . . . . . . . . . . . 28

2) Individual Retirement Accounts (IRAs) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 3) U.S. Savings Bonds . . . . . . . . . . . . . . . . . • . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

2. Olographic Testaments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 a. Formalities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

1) Hand Written . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 2) Signature . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 3) Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • . 29

b. Possible Problems-Necessity of Intent to Dispose . . . . . . . . . . . . . . . . . . . . . . . . 29 1) Letters and Memos . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 2) Pre-Printed Will Forms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

3. Notarial Testaments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 a. Formalities of Standard Notarial Testament . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

1) Execution . . . . . . . . . . . . . . . . . . . . . . . • . . . • . . . . . . . . . . . . . . . . . . . . . . . . . . 30 2) Writing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

a) Signatures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 b) Literacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

3) Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 4) Attestation Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

b. Formalities of the Testament for Persons who Can and Know How to Read But Physically Unable to Sign their Name . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 1) Signature or Mark . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 2) Attestation Clause . . . • . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 1

c. Formalities of the Testament for Sight-Impaired Persons or Persons Unable to Read . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • . . . . . . . . . . . . 3 1 1 ) Execution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 1 2) Dated and Read Aloud . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 1 3 ) Attestation Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 4) Valid for Any Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 1

d. Formalities of Braille Testaments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 1) Witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 1 2) Testator's Ability to Read Braille . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 1

SUCCESSIONS AND DONATIONS (INCLUDING WILLS) vii.

3) Attestation Clause Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 1 e. Formalities of Testaments for Deaf Persons or Deaf and Blind Persons . . . . . . . 32

1) If Testator Unable to Sign Name . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 a) Execution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 b) Attestation Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

2) Additional Standard for Witness Competency . . . . . . . . . . . . . . . . . . . . . . . . 32 3) Choice of Accommodations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

C. COMPETENCY OF WITNESSES TO TESTAMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . 32 1. Deaf Person as a Witness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 2. Literacy Ability of Witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 3. Legatee or Spouse of Legatee as Witness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

a. Extent of Inheritance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 b. Serving as Notary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

D. EXECUTORS AND ATTORNEYS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 1. Designation as Executor not a Legacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

a. Use of Testator's Attorney by Executor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 1) Removal of Estate Attorney for "Just Cause" . . . . . . . . . . . . . . . . . . . . . . . . 33

b . As to Trusts and as to Other Professionals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 2. Delegation of Authority to Executor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

a. Certain Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 b. As to Charities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 c. Delegating Rights as Executor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

3. Notary as Executor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 4. Executor or Attorney as Witness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 5. Recall Capacity Rule for Fiduciary Appointments . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

E. CLASSIFICATION OF LEGACIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 1 . Universal Legacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 2. General Legacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

a. Fraction or Certain Proportion of Estate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 b. Fraction or Certain Proportion of Certain Property Classifications . . . . . . . . . . 35 c . General Legacy of "Residue or Balance of the Estate" . . . . . . . . . . . . . . . . . . . . . 35

3. Particular Legacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 F. JOINT BEQUESTS, TESTAMENTARY ACCRETION AND LAPSED LEGACIES . . 35

1. Joint Bequests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 a. Distinguishing between Joint and Separate Legacies . . . . . . . . . . . . . . . . . . . . . . 35 b. Accretion with Joint Legacies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 c. Death of a Joint Legatee, Rights of Other Joint Legatees . . . . . . . . . . . . . . . . . . . 36 d. Effectuating a Joint Bequest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

1) "Share and Share Alike" or "To Share Equally" . . . . . . . . . . . . . . . . . . . . . . 36 2) Property Left to two or more Persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 6

2. Testamentary Accretion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 a. Seven Grounds for Lapse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 6 b . Effect of Lapse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

1) Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 2) Lapse due to Renunciation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 3) Exception to General Rule: Most Favored Class Rule . . . . . . . . . . . . . . . . . . 37 4) Accretion to Universal Legatee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

v111. SUCCESSIONS AND DONA TIO NS (INCLUDING WILLS)

5) Intestacy Ultimately . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 7 c. Extinction vs. Lapse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

1) Legatee's Entitlement as a Result of Extinction . . . . . . . . . . . . . . . . . . . . . . . 38 2) Object of Legacy "Transformed" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 3) Condemned or Expropriated Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

G. PRIORITIES IN DISBURSING BEQUESTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 1. Testament Governs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 2. Priority of Particular Legacies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 3. Succession not Sufficient to Discharge all Bequests-Order . . . . . . . . . . . . . . . . . . . . 38

a. "Specific Things" First . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 b. Groups and Collections Next . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 c. Distribution of Cash Legacies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

4. Rights of Legatees to Fruits and Products . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 a. Interest on a Money Legacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

H. REVOCATION OR MODIFICATION OF TESTAMENTS . . . . . . . . . . . . . . . . . . . . . . 39 1. Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

a. Form and Extent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 b. No Renunciation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

2. Revocation of Entire Testament . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 a. Revocation Clause in a New Will . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 b. Destroyed Will . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

1) Probating a Copy of a Will . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 a) Proponents' Burden to Rebut Presumption . . . . . . . . . . . . . . . . . . . . . . . 40

2) Destruction-Multiple Originals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 3) Lost Original Will . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

c. Revocation by Authentic Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 d. Revocation by Signed Writing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 e. Result . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

3. Revocation of a Legacy or Testamentary Provision . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 a. Tacit Revocation of a Legacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

1) Subsequent Inconsistent Mortis Causa Disposition . . . . . . . . . . . . . . . . . . . . 41 2) Sale or Donation of Property Bequeathed . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

a) Reacquisition of the Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 b) Jurisprudential Exception-Cash Bequests . . . . . . . . . . . . . . . . . . . . . . . 41

b. Revocation and Form of Will Involved . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 1) Olographic Wills . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 2) Notarial Testaments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

c. Other Modifications of a Legacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 4. Destruction or Revocation-Multiple Wills . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

a. No "Dependent Relative Revocation" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 b. Effect of Revoking the Revocation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

5. Revocation vis-a-vis Additional, Subsequent Children . . . . . . . . . . . . . . . . . . . . . . . . 42 a. Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

6. Grounds for Revocation of Donations Inter Vivos-Applicability to Revocation of Testamentary Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 a. Forced Heir Exception-Revocation due to Ingratitude of Donee . . . . . . . . . . . . 42

I. INTERPRETATION OF LEGACIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

SUCCESSIONS AND DONATIONS (INCLUDING WILLS) 1x.

1 . Intent of Testator is Paramount . . . . . . . . . . . . . . . . . . . . . . . • . . . . . . . . . . . . . . . . . • . 42 a. In Favor of Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 b. Unclear or Mistaken Object . . . . . . . . . . . . . . . . . . . . . . . . • • • . . . . . . . . . . . . . • . . 43 c. After-Acquired Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 d. Contradictory Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • . . . . . . . . . . . . . . 43 e. Legacy to Creditor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

2. Conflict of Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 3. Transitional Rules as to Interpretation for pre-January 1, 1996 Wills, Death after

January 1, 1996-Specifically as to Forced Heirs . . . . . . . . . . • . . . . . • . . . . . . . . . . . . 43 a. Testator's Intent under former La. Rev. Stat. 9 :2501 • . . • . . . • . . . . . . . . . . . . . . 43

1) Law in Effect at Time of Execution Unless • . • • • • • . . . • . . . • . . . • . . . . • . • • 43 2) Determining Testator's Intent if Under Above Situations . . . . . . . . . . . . . . . 44

b. Repeal of La. Rev. Stat. 9:2501-Time of Execution Determines Intent . . . . . . . 44

IV. FORCED HEIRSHIP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • • . . . . . . . . . . . . 44 A. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

1. Constitutional Impetus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 2. Key Concepts of the Current Law on Forced Heirship . . . . . . . . . . • . . . . . . . . . . . . . 44

a. Forced Portion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 b. Legitime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

1) Satisfaction of the Legitime . . . . . . . • . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 2) Legitime Not Satisfied by Usufruct to Forced Heir . . . . . . . . . . . . . . . . . . . . 45 3) No Impermissible Burdens . . . . . . . . . . . . . . . . . . . . . . . • . . . . . . . . . . . . . . . . 45 4) Deprivation Only by "Just Cause"-Disinherison . . . . . . . . . . . . . . . . . . . . . 45

a) "Just Cause" in the Code--Grounds . . . . . . • . • . . . . . . . . • . . . . . . . . . . 45 (1) Required Statement of the Grounds . . . . • . . . . . . . . . . . . . . . . . . . . 46 (2) Grounds Presumed to be True . . . . . . . . . . . . . • . . . . . . . . . • . . . . . . 46

(a) Heir May Rebut Grounds . . . . . . . . . . • . . . . . . • . • . . . . . . . . . . 46 (b) Heir May Prove Reconciliation . . . . . . . . . . . . . . . . . . . . . . . . . . 46 ( c) Authorized Defenses . . . . . . . . . . . . . . . . . . • . . . . . . . . . . . . . . . . 46

b) Grandparents' Exception . . . . . . . . . . • . . . . . . . . . . • . . . . . . . . . . . . . . . . 46 c) Slight Temporal Concerns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 d) Timing of Disinherison Act . • • . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

(1) Personal Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 (2) "Presumptive" Forced Heir . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

c. Disposable Portion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 d. Forced Heirs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

1) First-Degree Descendants 23 Years of Age or Younger . . . . • . . . . . . . . . . . . 47 2) Disabled First-Degree Descendants • . . . . . . . . . . • . . . . . . . . . . . . • . . . . . . . . 47

a) Definition of Disability for Forced Heirship Purposes . . . . . . . . . . . . . . 47 (1) Permanence of Disability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 (2) The "Either/Or" Double Disjunctive . . . . . . . . . . . . . . . . . . . . . . . . . 48

b) Extrapolation of Standard-Inherited, Incurable Diseases . . . . . . . . . . 48 3) Grandchildren . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

a) Predeceased First-Degree Descendants 23 Years of Age or Younger . . 48 b) Disabled Grandchildren . . . . . . . . . • . . . . . . . . . . . . . . . . . . . . . . . . • . . . . 48

3. Application-Calculation of the Legitime of Forced Heir(s) . . . . . . . . . . . . . . . . . . . . 48

x. SUCCESSIONS AND DONATIONS (INCLUDING WILLS) barbr1· a. Recall Specific Fractions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 b. Greenlaw Issue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • . . . . . . . . . . . . . . . • 48

1) Rights of a Forced Heir vis-a-vis Rights of an Intestate Successor . . . . . . . . 49 c. Forced Heir by Representation . . . . . . . . . . . . . . . . • . . . . . . . . . . . . . . . . . . . . . . . 49 d. Query-A Disabled Grandchild's Forced Portion . . . . . . . . . . . . . . . . . . . . . . . . . 49

1) Example #1-Decedent with One Predeceased Child . • . . . . . . . . . . . . . . . • 49 2) Example #2-Decedent with Three Children . . . . . . . . . . . . . . . . . . . . . . . . . 49 3) Greenlaw Rule for Disabled Grandchildren . . . . . . . . . . . . . . . . . . . . . . . . . . 50

4. Change of Forced Portion After Decedent's Death . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 5. "Children" Qualifying as Forced Heirs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

a. Children Born Outside of Marriage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 b. Adopted Children . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

6. Rights of Forced Heirs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . 50 a. Action to Reduce . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 b. Action of Collation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

B. IMPINGEMENT ON THE LEGITIME . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 1. Surviving Spouse U sufruct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

a. Intestacy-the 890 Surviving Spouse Usufruct . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 1) Can Be Dispensed With in a Will . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 2) Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

b. Testamentary Usufruct to the Surviving Spouse . . . . . . . . . . . . . . . . . . . . . . . . . . 51 1) Duration . . • . . • . . . . • . • . . . • . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • . . . . 51 2) Power over Nonconsumables . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 3) No Impingement on Legitime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 4) Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

a) Require v. Request . . . . . . . . . . . . . . • . . . . . • • . . . • . • . . . . . . . . . . • . . . . 52 b) Judicial Remedy in Determining Security . . . . . . . . . . . . . . . . . . . . . . . . 52

2. Forced Portion in Trust . . . . . . . . . . • . . . . . . . . . . . • . • . . . . . . . . • . . . . . . . . . • . . . . . . 52 3. Survivorship Condition . . . . • . . . . • . . . . . . . . . . . . . . . . • . . . . • . . • . . . . . . . . . . • . . . • 52

C. ACTION TO REDUCE . . . . . . . . . . . . . . . . . . . . . . . . • • . . . . . . . . . . . . . . • . . . . . . . • . . . . 52 1 . Timing of Action . . . . . . . . . . . . . . . . . . . . . . . . . • • . . . . . . . . . . . . • . . . . . . . . . . . . . . . . 52 2. Strictly Personal Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

a. Casenote---.S'uccession of Hurd • • • • • • . • . . . . • • . • . . • • • • • • • . • • • • . • • . • • • • • • • 53 b. Suggestion to Keep the Claim Personal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

3. Calculation of the Estate . . . . . . . . . . . . . . . . . . • . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 a. Active Mass . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • . . . . . . . . • . . . 53

1) Estate Property Value . . . . . • . . . . . . . . . . . . . • . . . . . . • . . . . • . . . . . . . . . . . . 53 2) Value of Donations in the Last Three Years . . . . . . . . . . . . . . . . . . . . . . . . . . 53

a) Time of Valuation . . . . • . . . . • . . . . . • . . . . . • . . . . . • . . . . . . . • • • . . . . . . 53 b) Calculation of Years . . . . . • . . . . • . . . • . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

3) Subtract Debts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • . . • . . . . 53 4) Result . • . . . . . . . . . . • . . . . . . . . • . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 5) Calculating the Legitime • . . . . . . . . . . . . . . . . . . . . . . . . . . . • . . . . . . . . . . . . . 53

b. Items Excluded . . . . • . . . . . . . . . . . . . . . . . • • . . . . . . . . . . • . . . . . . . . . . . • . . . . . . 53 1) Immovables in Certain Circumstances-Conflict of Laws Rules . . . . . . . . . 54 2) Life Insurance Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 3) Pension and Profit-Sharing Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

SUCCESSIONS AND DONATIONS (INCLUDING WILLS) xi.

4) Remunerative Donations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

5) Onerous Donations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 6) Donations Given More than Three Years . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 7) Inter Vivos Donations to Spouse of "Previous" Marriage . . . . . . . . . . . . . . . 54

4. Order of Reduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 a. Mortis Causa Gifts Reduced First . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

1) Designating Order of Reduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 2) If No Designation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

b. Once Probate Exhausted, then Inter Vivos Donations . . . . . . . • . . . . . . . . . . . . . . 55 1) Order-Most Recent Inter Vivos Donations First . . . . . . . . . . . . . . . . . . . . . . 55

a) Exception of Order of Reduction-the Insolvent Donee . . . . . . . . . . . . 55 5. Donee's Options-Return or Take Less . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

a. Property no Longer Owned by Donee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 b. If Property Encumbered . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 c. Destroyed or Diminished Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 d. Fruits and Products . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

1) "Demand" in this Context . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 e. Improvements to the Donated Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

D. HISTORICAL TRACKING OF THE LAW OF FORCED HEIRSHIP: GENERALLY 56 1 . Forced Heirs hip before 1982 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

a. Forced Portion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 b. Who Were Forced Heirs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

1) Parents as Forced Heirs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 2. Forced Heirship from 1982 to July 1, 1990 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57


3. Forced Heirship from July 1, 1990 to Succession of Lauga (1993) . . . . . . . . . . . . . . . 57 4. Forced Heirship from January 1, 1996 to June 18, 1996 . . . . . . . . . . . . . . . . . . . . . . . 57


1) "Twenty-three Years of Age or Younger" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 2) Any Age Because of Disability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 3) Grandchildren . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

5. Forced Heirship since June 18, 1996 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

V. COLLATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 A. DEFINITION AND GENERAL PRINCIPLES . . . . . . . . . . . . . . . . . . . • . . . . . . . . . . . . . . 58

1. Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 a. Always Presumed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 b. Distinguishing between "Real" and "Fictitious" Collation . . . . . . . . . . . . . . . . . . 58

2. Waiver of Collation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 a. Unequivocal Language . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 b. Where Stipulation of Waiver Can Be Made . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

1) In Act Itself . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 2) In A Subsequent Authentic Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 3) Dispensation Made by a Will . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

a) Query . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

xn. SUCCESSIONS AND DONATIONS (INCLUDING WILLS) barbrr b) Succession of Fakier . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

B. APPLICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 1. Claimant's Required Status-Who May Demand . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

a. Grandchildren Inheriting by Representation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 b. Not a Forced Heir-Cannot Demand Collation . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

2. To Whom Is It Due? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 3. What May Be Demanded . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

a. Expenditures Subject to Collation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 b. Expenditures Exempted from Collation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

1) Manual Gifts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 2) Gifts for Use During Donor's Life . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 3) School/Necessitous Position Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 4) Gifts more than Three Years before Donor's Death . . . . . . . . . . . . . . . . . . . 60 5) Marriage Gifts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 6) Gifts Received by Those Not Required to Collate . . . . . . . . . . . . . . . . . . . . . . 60

4. From Whom Can Collation Be Demanded? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 a. The Person of Whom Collation Is Required Must Be "In Quality" of an Heir . 61

1) If Heir Holding Property Subject to Collation Renounces . . . . . . . . . . . . . . 61 b. When Grandchildren Are Not Required to Collate . . . . . . . . . . . . . . . . . . . . . . . . 61

C. PROCEDURE-HOW COLLATIONS ARE MADE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 1. General Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

a. In Kind . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 b. Taking Less . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

2 . Immovables . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 a. Option-Take Less or Return in Kind . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 b. Reimbursements to the Donee of an Immovable . . . . . . . . . . . . . . . . . . . . . . . . . . 62

1) Necessary Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 2) Useful Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 3) Expenses for Mere Pleasure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

c. Donee's Liability for Damage to the Immovable . . . . . . . . . . . . . . . . . . . . . . . . . . 62 1) If Do nee Collates in Kind . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 2) If Do nee Elects to Take Less from Succession . . . . . . . . . . . . . . . . . . . . . . . . 62 3) Partial Destruction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

d. Immovable Property Burdened with Real Rights . . . . . . . . . . . . . . . . . . . . . . . . . 63 3. Movables . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

a. Cannot Collate in Kind . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 b. Collation of Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

D. GENERAL OBSERVATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 1 . Keeping Donation, Renouncing Succession . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 2. No Collation After a Judgment of Possession . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 3. Community vs. Separate Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

E. ACTION TO DECLARE SIMULATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 1. Simulation-Definition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

a. True Intent in a Counter Letter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 b. Kinds of Simulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

1) Absolute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 2) Relative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64

SUCCESSIONS AND DONATIONS (INCLUDING WILLS) xm .

F.

2.

3.

4.

Effect and Relationship to Collation a. b.

Attacking Absolute Simulations Limitations of Action to Declare Simulation

Proof of Simulation a. Difficulty b. Generally c. Simulations and Third Party Reliance . . . Distinction from Disguised Donations a.

b.

Donation in Disguise . . . . . . . . .

1) Distinction 2) Note Advantage Bestowed . . . . . . . . .

1) Real Collation 2) Determination of " Advantage" . . . . . . . . . . • .

PRESCRIPTIVE PERIODS . . . . . . . . . . • . . .

1 .

2 . 3.

Action to Reduce (La. Civ. Code art. 3497) Inter Vivos Gifts a.

b. Mortis Causa Gifts Collation . . . . . . . . • . . .

Action to Declare a Simulation

VI. PROHIBITION ON DONATIONS OMNIUM BONORUM . A. B. c. D. E.

DEFINITION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

DONOR DISPOSES OF ALL OF HIS PROPERTY . . . . . •

ACTION TO NULLIFY PRESCRIPTION. . . . . . .

AS TO MOVABLES AND IMMOVABLES . . . . . . . .

1 . 2.

Property Alienated by Onerous Title Property Subject to Real Rights • . . . . .

VII. MARITAL PORTION . . . A.

B.

c. D. E.

IF ONE SPOUSE DIES "RICH" 1 . 2 .

Rich Is Relative Spouse in Need a. Earnings/Earning Capacity

3 . Claimant Spouse Without Fault AMOUNT . . . . . . . . . . . . . . .

1. 2. 3. 4.

No Surviving Children Three Children or less More than Three Children Limits of the Marital Portion

5. Legacies left to the Surviving Spouse . . • . . • .

THE RIGHT . . . . . . . . . . . . . . . . . .

MARITAL PORTION IN TRUST VIOLATIVE OF PUBLIC POLICY . . . . . • . .

• 64 • 64

• • • 64 64

• 64 • • • 64

. . . . . . . . 64 64 64 64

• • • • 64 64

• 65 . . . . . . . . . . 65

• 65 • • 65

• • • 65 • • 65

• 65 • • • 65

65 • 65 • 65

• • • 65 65 65 66

• 66

• 66 • • 66

. . . . . . . . 66 • • 66

• • • 66 • • 66

. . . . . . 66 • • • • • 66

• 66 • 66 • 66 . 67

67 . . . . . . . 67

. 67

VIII. DONATIONS INTER VIVOS . . . . . . . • . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • . . . . . . . . . . 67

xiv. SUCCESSIONS AND DONATIONS (INCLUDING WILLS) ba

A. DEFINITION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 B. CLASSIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67

1 . Types of Donations Inter Vivos . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 a. Gratuitous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 b. Onerous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 c. Remunerative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68

2. Relevance of Classification - Two-Thirds Rule, Form . . . . . . . . . . . . . . . . . • . . . . . . 68 a. Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 b. "Onerous" Donations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 c. "Remunerative" Donations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68

C. GENERAL REQUIREMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 1. Donative Intent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 2. Irrevocability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 3. Present Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 4. Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68

a. Donor's Will . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 b. Payment of Future or Unexpressed Debts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 c. Right of Return . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69

1) Permissible Stipulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 2) Effect of Return and Exception - When the Donor Gets the Property

Back . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 d. Not Applicable to Marriage Donations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69

D. FORM RULES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 1 . Required Contents of the Act of Donation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 2. Confirmation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 3. Form vis-a-vis Classifications of Property Donated . . . . . . . . . . . . . . . . . . . . . . . . . . . 70

a. Immovables . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 b. Movables . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70

1) Corporeal Movables - the Manual Gift . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 2) Incorporeal Movables . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70

a) Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 i) Negotiable and Non-Negotiable Instruments . . . . . . . . . . . . . . . . . . . 70 ii) Stock Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 iii) Checks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 iv) Passbooks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 v) Bearer Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 vi) Certificates of Deposit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 vii) U.S. Savings Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71

b) Investment Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 E. ACCEPTANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71

1. When - Date of Acceptance, Effectiveness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 2. How - Methods of Acceptance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

a. In Act of Donation or Subsequently . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 b. Movable - Donee in Possession . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 c. Immovable - Subsequent Alienation or Encumbrance by Donee . . . . . . . . . . . 72 d. With AU Existing Charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

3. By Whom . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

SUCCESSIONS AND DONATIONS (INCLUDING WILLS) xv.

a. Acceptance Prohibited by Donee's Successors . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 b. Acceptance by Mandatary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 c. Acceptance by Minors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 d. No Acceptance by Donee's Creditors . . . . • . . . . . . . . . . . . . . . . . . . . . . . . . . . . • . 73

F. REVOCATION AND DISSOLUTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 1 . Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 2. Revocation Based on Ingratitude of the Do nee . . . . . . . . . . . . . . . . . . • . . . . . . . . . . . . 73

a. Grounds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 1) Killing Donor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 2) Cruel Treatment, Etc. . ........................................... 73

a) Jurisprudential Example #1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 b) Jurisprudential Example #2 ................................... 74

b. Prescription ........................................................ 7 4 c. Proper Parties ...................................................... 74

1) Donor's Successors as Plaintiffs .................................... 74 2) Donee's Successors as Defendants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74

d. Effect of Revocation ................................................. 74 1) Alienations or Encumbrances by Donee . . . . . . . . . . • . . . . . . . . . . . . . . . . . . 74

a) Before Action Is Filed ......................................... 7 4 b) After Action Is Filed .......................................... 74

i) Movables ................................................. 7 4 ii) Immovables ............................................... 75

2) Restoration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 a) Donee Unable to Return Donated Property ....................... 75

3. Dissolution of an Inter Vivos Donation - Conditions . . . . . . . . . . . . . . . . . .. . . . . . . 75 a. Nonfulfillment of a Suspensive Condition ............................... 75 b. Nonoccurrence of a Resolutory Condition ............................... 75 c. Conditions within the Donee's Control . . . . . . . . . . . • . . . . . . . . . . . . . . . . . . . . . . 75 d. Prescription ........................................................ 7 5 e. Effect of Dissolution of Donation for Non-Fulfillment of Conditions ......... 76

1) Immovables ..................................................... 76 2) Movables . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76 3) Fruits and Products .............................................. 76

4. Condition of Returned Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76 5. Nuance in Civil Code Ancillaries - Donations to a Spouse .................... 76

G. DONATIONS INTER VIVOS IN THE MARRIAGE CONTEXT . . . . . . . . . . . . . . . . . . . 76 1 . Donations Inter Vivos Made by Third Persons in Contemplation of Someone's

Marriage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 7 6 a. Formalities ......................................................... 77 b. Subject to Suspensive Condition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • 77 c. Beneficiaries ........................................................ 77

1) Present Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77 2) Property to be Left at Death ....................................... 77

d. Other Rules Applicable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77 2. Interspousal Donations Inter Vivos ......................................... 77

a. Objects and Beneficiaries ............................................. 77 b. Right of Return not Presumed ......................................... 77

xvi. SUCCESSIONS AND DONATIONS (INCLUDING WILLS) barbrr

c. Nullity if Disguised Donation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78


SUCCESSIONS AND DONATIONS (INCLUDING WILLS)

I. INHERITANCE RIGHTS IN GENERAL-SUCCESSIONS

A. INTRODUCTION

1. General Definitions

a. Succession The term "succession" means the transmission of the estate of a deceased person to his successors. The successors have the right to take possession of the decedent' s estate after complying with applicable laws. La. Civ. Code art. 87 1 .

b. Estate The word "estate" includes the property, rights and obligations of the deceased person, as well as charges (debts and expenses) that accrue after his death. La. Civ. Code art. 872.

c. Successor A successor is, generally speaking, a person who takes the place of another. There are two types of successors: the universal successor and the particular successor. La. Civ. Code art. 3506(28).

1) Universal Successor The universal successor represents the deceased and succeeds to all of his rights and charges. Universal successors include heirs, universal legatees, and general legatees. La. Civ. Code art. 3506(28).

2) Particular Successor The particular successor succeeds only to certain rights relating to a thing sold, ceded or bequeathed to him. Particular successors include buyers or donees of a particular thing, recipients of a particular legacy in a will, or transferees of particular things. La. Civ. Code art. 3506(28).

d. Applicable Law Testate and intestate succession rights are governed by the law in effect on the date of the decedent' s death. La. Civ. Code art. 870B.

2. Either Intestate or Testate Successions are either intestate or testate. La. Civ. Code art. 873.

a. Intestate Successions Intestate succession occurs when there is no will, the will is invalid in whole or in part, or the will does not dispose of all the decedent' s property. La. Civ. Code art. 875. Intestate succession is covered in this first part of these materials.

b. Testate Successions Testate - with a will of the decedent, in a testament executed in the form prescribed by law. La. Civ. Code art. 874.

2. SUCCESSIONS AND DONATIONS (INCLUDING WILLS) borbrr

c. Intestate Successors-Heirs, Testate Successors-Legatees Intestate successors are commonly called "heirs"; testate successors are commonly called "legatees."

1) "Legatees" in a Conflicts Context With respect to immovables situated in Louisiana, a legatee must qualify as a person (natural or juridical) under the laws of this state. La. Civ. Code art. 3530, if2. The rationale of this provision is to preserve the state' s public policy in extreme cases (e.g. , when the law of the testator' s foreign domicile would permit legacies to animals or when foreign law would permit unincorporated associations to own property impermissible in Louisiana).

d. Conflict of Laws-Generally

1) Movables Succession (both testate and intestate) to movables is governed by the laws of the state in which the decedent was domiciled at the time of his death. La. Civ. Code art. 3532.

2) Immovables

a) Immovables in Louisiana Succession (both testate and intestate) to immovables situated in Louisiana is governed by the laws of the state of Louisiana. La. Civ. Code art. 3533, if l .

b) Immovables outside of Louisiana Succession (both testate and intestate) to immovables situated outside of Louisiana is governed by the laws of the state that would be applied by the courts of the state where the immovable is located. La. Civ. Code art. 3534, if l .

B. GENERAL RULE-THREE WAYS FOR A SUCCESSOR TO INHERIT

1 . In his own right;

Example: Father dies, children inherit.

2. By representation (La. Civ. Code art. 88 1 );

Example: Potential heir dies before the decedent, the potential heir 's children may represent him and inherit.

or

3 . By transmission (La. Civ. Code art. 937).

Example: Heir dies after the decedent but before exercising the right to accept or renounce.


C. CAP A CITY TO INHERIT To inherit, one need only be in existence at the time of the decedent's death. This includes children who have been conceived and are later born alive. Age and mental capacity are irrelevant as to capacity to inherit. La. Civ. Code arts. 939-940. There is also a special exception for a posthumously-conceived child when the husband dies, and the surviving widow conceives by artificial insemination of his frozen sperm. La. Rev. Stat. 9 :39 1 . 1 .

1 . Conflict of Laws Rule The capacity of an heir or legatee is determined under the law of the state in which the decedent was domiciled at the time of his death. La. Civ. Code art. 3530, ifl .

D . DETERMINING WHO INHERITS BY INTESTACY-GENERALLY

1 . Classes of Heirs Heirs are divided into five classes and, as to separate property, they inherit in the following order of priority:

a. Descendants;

b. Parents and siblings (and the descendants of siblings by representation);

Note: When the decedent leaves both siblings and a parent or parents, the surviving parent or parents receive a usufruct subject to the siblings' (or their descendants) naked ownership. Ref I.E.2.b., infra.

c. Surviving spouse (not judicially separated);

d. More remote ascendants;

e. More remote collaterals.

2. Most Favored Class Takes to the Exclusion of the Other Class( es) The relatives in the most favored class take to the exclusion of the other class( es). The nearest relation in a class, determined by counting degrees (see I.D.3 . , infra) takes to the exclusion of more distant relatives in that class. In short, the nearest relative in the highest class inherits by intestacy. La. Civ. Code art. 899.

3. Counting Degrees (La. Civ. Code arts. 900-901)

a. A Degree Is a Generation A degree is a generation.

Example: father to son is one degree.

b. Closest Degree "Takes" The closest degree (i.e. , the nearest relative) will inherit. Persons of the same degree share equally and to the exclusion of the more remote relatives.

4. SUCCESSIONS AND DONATIONS (INCLUDING WILLS) barbrr

Example: Three children of decedent share equally and exclude all others.

c. Direct Line Direct line (ascendants and descendants) - There are as many degrees as there are generations.

d. Collateral Line Collateral line (heirs who do not directly descend from each other) - Count up to the nearest common ancestor, then count to the decedent. The lowest number of steps is the closest relative.

F

X B(2)

N(3)

E. INHERITANCE OF SEPARATE PROPERTY BY INTESTACY

1. Descendants

a. Children or Their Representatives Children or their representatives (descendants) take to the exclusion of other heirs.

b. Adopted and Children Born Outside of Marriage This grouping also includes adopted children and children born outside of marriage (formerly called "illegitimate" children) who are formally acknowledged or who timely establish filiation. Specific rules concerning the inheritance rights of these descendants are discussed in more detail below.

Note: The above rule does not include foster children.

2. Parents and Siblings

a. Decedent with No Descendants If the deceased has no descendants, then parents and siblings (and their descendants, by representation) succeed.

1) Note-Father's Inheritance Rights and Presumptions of Paternity A father may inherit from a deceased child when the father: 1 ) enjoys a presumption of paternity as husband of the mother of a deceased child or 2) enjoys a presumption by marriage to the mother and formal acknowledgment that is not rebutted. A father who has only formally acknowledged an "illegitimate" child must file suit to avow paternity to inherit from the child. If the father has not filed the avowal action during the child' s lifetime and he i s still entitled to file the avowal action (i. e. , the child i s not filiated to another man), he must do so within one year of the child 's death or he cannot inherit from

or SUCCESSIONS AND DONATIONS (INCLUDING WILLS) 5 .

the child. La. Civ. Code art. 1 98 . The child i s protected and can inherit from the father in any event, but the father cannot inherit from the child without a suit to avow.

b. Parents' Usufruct and Siblings' Naked Ownership Parents have joint and successive usufruct, and the siblings have naked ownership. If one parent dies, the entire usufruct accrues to the survivor, and the siblings or their descendants continue to have only a naked ownership interest. La. Civ. Code art. 89 1 .

c. Donation of Immovable Property Exception Ascendants inherit to the exclusion of all others when they donate an immovable to a descendant, and the descendant dies without posterity and has not disposed of the immovable. La. Civ. Code art. 897. However, ifthe immovable donated has been alienated by the descendant on a credit basis and the full price is not yet due, the ascendant has a right to receive the proceeds. The donor-ascendant also has a right ofreversion ifthe donee-descendant placed any conditions on the alienation of the immovable. Id.

1) Obligations Imposed on the Donor-Ascendant upon Return of Immovable If the ascendant inherits the immovable property under La. Civ. Code art. 897, he takes it "subject to all the mortgages which the donee may have imposed on [the immovable property] during [the donee's] lifetime." La. Civ. Code art. 898. Further, the ascendant who exercises the right of reversion is bound to contribute to the payment of the debts of the succession of the descendant, in proportion to the value of the immovable previously donated. Id.

d. To Siblings if No Surviving Parents In the absence of descendants and if there is no parent surviving, the entire estate goes to the siblings of the decedent to the exclusion of all others. La. Civ. Code art. 892.

1) Representation Representation does take place in the sibling line. Representation is discussed in more detail below.

2) Half-Blood Siblings If there are siblings of different unions (i. e. , half-blood siblings), the property is divided equally between the paternal and maternal lines. Those who share both parents with the deceased sibling take in both lines. Half-blood siblings take only in their respective lines. La. Civ. Code aii. 893.

Example: Father's first wife dies. Father remarries and he and second wife die. Child D of second marriage dies, survived by B and C, who are two living children also from second marriage of Father and second wife. D is also survived by A, who is the only child from marriage of Father and first wife. The result is A gets one-sixth ( 1 16); B gets five-twelfths (5/12); and C gets five-twelfths (5/12). The diagram at the top of the next page may help you visualize this concept:

6. SUCCESSIONS AND DONATIONS (INCLUDING WILLS)

M- 1

e. No Siblings, but Parents Alive

A

F M-2

B C

F-112 M-112

A-116 B- 1/4 B-116 C- 114 C-116

If there are no siblings, and a parent or parents survive, then the parents take the entire estate in full ownership.

3. Surviving Spouse If the decedent has no surviving descendants, parents, or siblings, then the surviving spouse, not judicially separated, inherits to the exclusion of other ascendants and other collaterals. La. Civ. Code art. 894.

GP

M F

H w

Note: Note the phrase, "not judicially separated." Watch out for the spouse who is judicially separated, but not divorced. In that case, the spouse will not inherit the decedent' s separate property.

4. More Remote Ascendants If the deceased has no surviving descendants, siblings, parents or surviving spouse, and a grandparent or grandparents survive, then they divide the estate. La. Civ. Code art. 895.

a. One Ascendant Nearer in Degree If there is one ascendant who is nearer in degree than the others, he takes everything.

GF GF GMi

F M Uncle

x


b. Surviving Ascendants in the Same Degree If ascendants in the same degree survive, they divide the estate by roots with one-half going to the maternal side and one-half going to the paternal side.

GP-Yi GF- GM-1/4

M

x

c. No Representation There is no representation in the ascending line.

5. More Remote Collaterals If the deceased has no surviving descendants, parents, siblings, or ascendants, then the nearest collaterals will take, by counting to the nearest degree. There is no representation here, only equal division by heads. La. Civ. Code art. 896.

6. No Heirs If there are no heirs as discussed above, the estate escheats to the state. La. Civ. Code art. 902.

F. INHERITANCE OF COMMUNITY PROPERTY BY INTESTACY

1 . Surviving Spouse's Half of Community Property If one spouse, say the husband, dies, the surviving spouse, the wife, has full ownership of her one-half share of all community property, not by inheritance but as owner.

2. Decedent Spouse's Half of Community Property

a. If Children or Other Descendants If there are children or other descendants, the decedent' s one-half interest in community property goes to them subject to a usufruct granted by law (La. Civ. Code art. 890) in favor of the surviving spouse (see below at 3 .) .

1) If Child Renounces Parent's Half of Community If a child renounces his parent' s half of community, the child' s descendants inherit, rather than the deceased parent' s spouse. See La. Civ. Code art. 964.

b. If No Children or Other Descendants If the decedent leaves no descendants, then the decedent' s one-half interest in community property goes to the surviving spouse. La. Civ. Code art. 889.

c. Community Property of a Putative Marriage

1) Decedent Spouse in Good Faith If the deceased spouse is in good faith, that spouse' s share in community property goes to his successors. The legal and putative spouses share the other half pro rata.

8. SUCCESSIONS AND DONATIONS (INCLUDING WILLS) bar brr

2) Decedent Spouse in Bad Faith If the deceased spouse is in bad faith, the entire community is divided equally between the putative spouse and the legal spouse.

3. The Article 890 Usufruct of the Surviving Spouse

a. Application Louisiana Civil Code article 890 grants a legal usufruct to the surviving spouse over the decedent' s share of community property and the naked ownership of the decedent' s share to his children. Article 890 applies only in an intestate situation, and the decedent may deprive the surviving spouse of this usufruct by adverse disposition in a will.

Note: Recall that the surviving spouse still owns her one-half share in community property by her own right. Article 890 gives the surviving spouse a usufruct only over the decedent' s one-half interest to which the children would have otherwise succeeded.

1) Children not of the Marriage This usufruct applies even when the children who inherit are not children of the marriage.

2) Necessity of Security Generally, the surviving spouse is not required to give security to the naked owner(s) under the 890 usufruct. However, Civil Code article 573 provides that security is not dispensed with for an 890 usufruct when the naked owner is not a child of the surviving spouse.

b. Duration The 890 usufruct continues until the surviving spouse dies or remarries, "whichever occurs first."

c. Contrast a Surviving Spouse's Usufruct by Will By will (disposition mortis causa), a usufruct can be granted to a surviving spouse even over separate property. La. Civ. Code art. 1499. This 1499 usufruct can also be granted for life without the remarriage restriction in article 890.

G. INHERITANCE RIGHTS OF ADOPTED CHILDREN

1. Generally Adopted persons are entitled to full inheritance rights as if they were born of the decedent' s marriage (legitimate). Concurrence of spouse is required for a married person to adopt.

2. From Whom Can the Adopted Person Inherit? The adopted person may inherit not only from his adoptive parent(s) but also from his natural parents and relatives. La. Civ. Code art. 1 99.

3. Inheritance Rights of Biological Parents Not Reciprocal Natural parents and relatives cannot inherit from the person who is "legally" adopted. For them, the legal adoption severs their inheritance rights.


H. INHERITANCE RIGHTS OF CHILDREN BORN OUTSIDE OF MARRIAGE (FORMERLY, ILLEGITIMATE CHILDREN)

1 . Generally Children born outside of marriage inherit to the same extent as do children born of marriage: ( 1 ) if the child i s formally acknowledged, (2) if the parents subsequently marry and acknowledge, (3) if the child timely files a paternity action, or (4) if the father timely files an avowal action.

2. Formal Acknowledgment A child may be formally acknowledged either by a declaration by the father executed before a notary public in the presence of two witnesses or by the father signing the birth certificate. La. Civ. Code art. 1 96. For the formal acknowledgment to be effective, the child must not be filiated to another man, and the mother must concur.

a. Reciprocal Inheritance Rights between Children and Father For purposes of inheritance rights, the presumption of paternity when the father is married to the mother works in favor of the child and the father both. La. Civ. Code art. 1 95 . However, when the father is not married to the mother, the presumption of paternity works only in favor of the child and not the father. La. Civ. Code art. 1 96. For the father to have inheritance rights from a deceased child born out of marriage, formal acknowledgment is not sufficient; he must file an avowal action. See La. Civ. Code art. 1 98 ; generally "Note," supra under I.E.2.a. 1 ) of this outline and inji-a, I.H.4.

3. Paternity Action A child can file suit to prove paternity to his biological father, even if the child is presumed to be the child of another man. Informal acknowledgment is not enough (although it may be important evidence in the civil proceeding to establish paternity), as it was under prior law; an informally acknowledged child born out of marriage must timely file a paternity suit and obtain a judgment of paternity.

a. Civil Proceeding Required The burden of proof in an action to establish paternity is on the child. The evidentiary standard is a "preponderance" of the evidence if the alleged parent is still alive at the time of the suit, but the standard is "clear and convincing" if the alleged parent is deceased.

b. Time Limits

1) One-Year Time Limit The time limit to file suit to establish filiation is one year from the death of the alleged father.

a) The period is peremptive, so it runs against all persons, minors and interdicts.

b) Failure to file timely is an absolute bar.

2) Former Rule Under prior law, former Louisiana Civil Code article 209C, the action had to be instituted within nineteen ( 1 9) years of the child's birth. This was changed in 2005, and the child' s

10 . SUCCESSIONS AND DONATIONS (INCLUDING WILLS)

age is no longer relevant. Regardless of age, the child has one year from the alleged father's death to institute the action.

.�

4. Avowal Action A biological father may file suit to establish his paternity of a child, even if the child is presumed to be the child of another man.

a. Civil Proceeding Required The burden of proof in an avowal action is on the father, and he must prove his paternity by a preponderance of the evidence.

b. Time Limits

1) If the Child Is Presumed the Child of another Man The action must be filed within one year from the birth of the child. If, however, the mother in bad faith deceived the father regarding his paternity, the action must be filed within one year from the day the father knew or should have known of his paternity or within ten years of the birth of the child, whichever occurs first. In any event, the action must be filed within one year of the child' s death.

2) If the Child Is not Presumed the Child of another Man Father can file suit at any time, but no later than one year from the child' s death.

5. Other Possibilities A contestation action brought by the mother can also give rise to new rights (including inheritance rights) of a child born outside of marriage.

6. Further Ref ere nee Consult generally, section IX. BIOLOGICAL FILIATION of the PERSONS outline.

I. REPRESENTATION

1 . Effect on Degree Count Representation has an effect on degree count. Descendants of children or siblings of the decedent who would take, but have predeceased the decedent, take by representation (i.e. , those relatives ' descendants step into the shoes of their deceased ancestor.)

2. Who May Be Represented Generally, only a deceased person can be represented. La. Civ. Code art. 886. However, there are a few occasions for a form of quasi-representation of a living person in special instances (renunciation, unworthiness, and lapse of a joint legacy under a will to a child or sibling).

3. Where Representation Takes Place Representation does not take place in the ascending line; it only takes place in the descending or collateral line.

Example: Grandfather will not represent a predeceased father of the decedent.

SUCCESSIONS AND DONATIONS (INCLUDING WILLS) 1 1 .

a. Representation in the Descending Line In the line of descendants, representation takes place ad infinitum. La. Civ. Code art. 882.

F

S I • S2 ! J.�···-····-

A / ',,

B

c

1) Descendants Inherit per Stirpes Descendants inherit per stirpes, so that multiple descendants in the same degree do not necessarily divide the decedent' s estate per capita, but they split pro rata the share of a predeceased ancestor whom they represent. La. Civ. Code art. 885.

S l 1 /2

F

A-114 B- 114

b. Representation in the Collateral Line Is Limited In the collateral line, only descendants of brothers and sisters of the deceased may inherit by representation (whole or half blood). La. Civ. Code art. 884.

F

B 2 B 3

N

4. Renunciation and Representation

NO:

4 Cousin

3 Uncle

One who has renounced his right to succeed from another person may still represent that other person. La. Civ. Code art. 887.

Example: "I hereby renounce my rights to my father' s succession. In the event my grandfather dies after my father, I may still represent my father in my grandfather' s succession."


5. Forced Heirs, Special Rules for Representation

bar

For forced heirship purposes, there are special rules: representation is limited to grandchildren whose parent has predeceased the decedent and would not have attained age 24 at the time of the decedent' s death (La. Civ. Code art. 1493(B)) or grandchildren whose parent has predeceased the decedent and who are permanently "disabled." (La. Civ. Code art. 1493(C).)

J. PRESUMPTIONS OF SURVIVORSHIP FOR PERSONS WHO PERISH IN A COMMON DISASTER

1 . Rule of Presumption Currently in Force The rule now is that if there are no facts to show who died first in a common disaster, each person who perished is effectively presumed to survive the other. The burden of proof to establish survivorship is on the person claiming through the alleged survivor. See La. Civ. Code art. 3 1 .

2. Former Rule: Law of Commorientes (Simultaneous Death) When persons perished in a common disaster, the former rule in the Civil Code (former articles 938, et seq.) determined the order in which persons died where there were no circumstances from which an inference could be drawn as to the order of death. The conditions for applying the presumptions of survivorship were that it could not be determined who died first, the deceased persons were entitled to inherit from each other, and the deaths occurred in a common disaster. There were artificial presumptions of survivorship depending on age, but these have been repealed.

3. Short-Term Survivorship In testate successions, the testator may include a short-term survivorship clause in his will and may impose as a suspensive condition that the legatee survive him for a stipulated period of time, not to exceed six months. La. Civ. Code art. 1 52 1 . Formerly, the time frame was limited to 90 days.

Example: "I leave my property to my son. If he does not survive me by six months, I leave my property to my good friend, Sue."

K. SEIZIN - "LE MORT SAISIT LE VIF." Succession occurs at the death of the decedent. La. Civ. Code art. 934. A successor acquires ownership, or is "seized," of the decedent' s property immediately upon the decedent's death. La. Civ. Code art. 935.

1. Universal Successors A universal successor acquires ownership "of the estate." La. Civ. Code art. 935 .

2. Particular Successors A particular successor acquires ownership "of the things bequeathed" to him. La. Civ. Code art. 935.

3. Effects-Transmission The heir transmits the succession to his own heirs. La. Civ. Code art. 937. The heir can institute all actions the decedent could institute, and can prosecute those already commenced. The rights


of the successor are transmitted to his own successors at his death, regardless of whether he accepted the rights. Ref I.B.3 . , supra.

4. Possession Possession of the decedent is also transferred to the successors. La. Civ. Code art. 936. Note the rule that a particular successor may commence a new possession for purposes of acquisitive prescription. Id.

5. Exercise of Succession Rights The exercise of succession rights is limited if there is a succession representative. Prior to the appointment of a succession representative, a successor may exercise ownership rights in terms of his interests in a thing of the decedent' s estate as well as his interest in the estate as a whole. La. Civ. Code art. 938. The alienation, encumbrance or lease of estate things by a successor is subordinate to the power of a succession representative if exercised after the representative has been duly appointed. Id.

L. UNWORTHINESS

1. Generally When an heir or legatee is judicially declared unworthy, he is deprived of the right to inherit. La. Civ. Code art. 945(1 ). Unworthiness is not automatic; it must be pronounced by a court in an action filed in the succession proceeding of the decedent.

2. Who May Bring the Action

x

S - 1 (unworthy) S - 2 ' '

c

Generally, the action may be brought only by a person who would succeed in place of or in concurrence with the unworthy successor, or by one who claims through such a person. La. Civ. Code art. 942.

a. Successor Minor or Interdict If the person who would succeed is a minor or an interdict, the court may appoint an attorney to investigate and pursue the claim. The court may do this on its own motion or the motion of "any family member."

3. Grounds for Declaration of Unworthiness When the potential heir or legatee is convicted of a crime involving the intentional, unjustified killing or attempted killing of the decedent, or, if not convicted, he is judicially determined to have participated in the intentional, unjustified killing or attempted killing of the decedent. Governor's or statutory pardon does not remove the unworthiness. La. Civ. Code art. 941 .


4. Temporal Elements of Action

a. Where Action Brought

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The action to declare a successor unworthy must be brought in the succession proceeding of the decedent. La. Civ. Code art. 94 1 .

b . Prescriptive Period The applicable prescriptive period is five (5) years. In an intestate succession, the prescriptive period begins to run upon the date of death, and in a testate succession, it begins to run from the probate/filing of the testament. La. Civ. Code art. 944.

5. Effects of Unworthiness

a. As If Predeceased the Decedent The law provides for devolution of rights of the unworthy successor as ifhe had predeceased the decedent. La. Civ. Code art. 946.

1) Intestate Succession In an intestate succession, the devolution is as if the unworthy successor predeceased the decedent.

2) Testate Succession In a testate succession, the devolution may be pursuant to the testament. In other words, you look to the rules of testamentary accretion that would apply if the unworthy successor had predeceased the decedent.

b. Devolution Rights of Minor Children of Unworthy Successor If an unworthy heir's descendant takes under La. Civ. Code art. 946, and the descendant is a minor, neither the unworthy parent nor the other parent has a usufruct over the property that the minor inherits. La. Civ. Code art. 946(B).

c. Additional Prohibitive Effects When an heir or legatee is declared unworthy, he also loses:

1) the right to claim as a forced heir, even if he previously qualified as such under La. Civ. Code arts. 1493, et seq.

2) the right to serve in any fiduciary capacity in the succession of the decedent including the right as executor, trustee, attorney or administrator. La. Civ. Code art. 945(5).

d. Obligations of the Unworthy Successor The unworthy successor must either return and/or account depending on whether the unworthy successor has possession of any property of the decedent' s succession.

1) If Successor Has Possession of Decedent's Property If the unworthy successor has possession of any of the decedent' s property, he must return it along with all fruits and products. La. Civ. Code art. 945(2).


2) If Successor Does Not Have Possession of Decedent's Property If he does not have possession because of a transfer or other loss of possession due to the unworthy successor 's fault, he must account for the value of the property (as well as all fruits and products) at the time of the transfer or loss of possession. La. Civ. Code art. 945(3).

3) Additional Duty if Property Value Impaired Even ifthe unworthy successor maintains possession of the decedent' s property, he must account for any impairment in value caused by his encumbrance of the property or failing to preserve it as a prudent administrator.

e. Effect of Reconciliation Reconciliation or forgiveness will cure the grounds of unworthiness. La. Civ. Code art. 943 .

6. Conflict of Laws Rule The unworthiness of an heir or legatee is determined under the law of the state in which the deceased was domiciled at the time of his death. La. Civ. Code art. 3530, iJI .

M. ACCEPTANCE AND RENUNCIATION This topic is common to both testate and intestate successions.

1. Generally When the decedent dies, the successor has three options:

a. Accept the succession;

b. Renounce the succession;

or

c. Accept in part and renounce in part. Partial renunciations are allowed under article 947.

2. Presumptions All successors are presumed to accept, but there is a special rule that provides for compelling a successor, for "good cause," to accept or renounce. La. Civ. Code art. 962. A minor is deemed to accept, but his legal representative may renounce when authorized to do so by the court. La. Civ. Code art. 948 .

3. Rules Common to Acceptance and Renunciation

a. No Acceptance or Renunciation Until Succession Opened A successor cannot accept or renounce before the death of the decedent. La. Civ. Code art. 949. The successor must know of the death of the decedent. La. Civ. Code art. 950. A premature acceptance or renunciation is absolutely null. La. Civ. Code art. 95 1 .


b. Succession Must Fall to Person Consciously Accepting or Renouncing Acceptance or renunciation is only valid if a person ( 1 ) knows of the death of the decedent; and (2) knows he has rights as a successor. He does not need to know the extent of his rights or the nature of his relationship to the decedent. La. Civ. Code art. 950.

c. Accepting Inheritance but Renunciation of Another's Accretion An heir can accept an inheritance but renounce the accretion that arises from someone else' s renunciation. Conversely, the heir can renounce the inheritance but accept accretion that arises from someone else' s renunciation.

d. Subsequent Probated or Annulled Testament

1) Intestate Successions An acceptance or renunciation of rights to succeed by intestacy is null if a testament is subsequently probated. La. Civ. Code art. 952.

2) Testate Successions An acceptance or renunciation of rights to succeed in a testate succession is null if the probate of the testament is subsequently annulled or the rights are altered, amended, or revoked by subsequent testament or codicil. La. Civ. Code art. 952.

e. Legacy Subject to a Suspensive Condition A legacy subject to a suspensive condition may be accepted or renounced before or after fulfillment of the condition. La. Civ. Code art. 953.

f. Prescription Formerly, acceptance or renunciation had to take place within 30 years. The rule was repealed as unnecessary since all successors are presumed to accept. The "good cause" rule of compelling a successor to accept or renounce grants a court discretion to make the successor decide and not impede the administration of the succession.

g. Effect on Creditors

1) Can Prohibit Renunciation by Successor A creditor of a successor may prohibit his debtor's renunciation of a succession, at least to the extent of the debt; the renunciation remains effective as to the debtor-heir. La. Civ. Code art. 967.

2) Oblique Action Note also that whenever a debtor causes or increases his insolvency by failing to exercise a right, the creditor may exercise that right unless it is purely personal to the debtor. La. Civ. Code art. 2044. Recent cases in Louisiana make this oblique action more difficult for a creditor; the Louisiana Supreme Court has held that the creditor must show fraud on the part of the debtor and intent to injure the creditor.

4. Acceptance Acceptance can be either formal (express) or informal (tacit).


a. Formal Acceptance "Formal" acceptance is express and in writing or in a judicial proceeding (e.g. , assumes the quality of a successor in a judicial proceeding, as, for example, a petition for possession). La. Civ. Code art. 957.

b. Informal Acceptance "Informal'' acceptance is an act that implies intent to accept (e.g. , takes possession of the property). La. Civ. Code art. 957.

1) Act Without Knowledge An act without knowledge or an intention to accept is not an acceptance. La. Civ. Code art. 958. The successor must know that the property belongs to estate of the decedent.

2) Act of Ownership Required An act of ownership is required, not a mere custodial act. La. Civ. Code art. 959. Moreover, a conservatory act done to preserve a thing does not constitute informal acceptance.

3) Acceptance Manifested by an Act of the Heir Acceptance is manifested by an act of the heir. It must be an act of ownership such as the alienation, lease, or encumbrance of the inherited share (e.g., a donation or a sale).

c. When an Act of Renunciation is Really an Acceptance An act of renunciation is an acceptance if it is made for a price or if it is gratuitous but made in favor of anyone to whom the inheritance would not otherwise accrete.

d. Effect of Acceptance - Successor's Liability A successor is liable for debts of estate, but liability is limited to the value of the property the heir actually receives, valued at the time of receipt. La. Civ. Code art. 14 16.

5. Renunciation Renunciation must be express and in writing. La. Civ. Code art. 963. It does not have to be by authentic act but likewise. cannot merely be oral.

a. Application The application of the rules of renunciation depends on whether one is dealing with a testate or intestate succession.

1) Intestate Successions For intestate succession, accretion flows as if renouncing heir predeceased the decedent. Thus, if the renouncing heir is a child or sibling of the decedent and has children, his share will now go to his own children instead of to a "co-heir of the same degree." La. Civ. Code art. 964.

2) Testate Successions For testate succession, renunciation is also treated as if the legatee predeceased the testator. However, if there is a "governing testamentary disposition," the testament governs the accretion. La. Civ. Code art. 965 .

1 8 . SUCCESSIONS AND DONATIONS (INCLUDING WILLS)

b. Renunciation and Other Inheritance Rights

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A successor may renounce accretion independent of his acceptance or renunciation of other inheritance rights. La. Civ. Code art. 966. Thus, one can accept the original inheritance for example but renounce what comes by accretion.

c. Renouncing Relative Can Still Represent A relative who renounces his share of a succession may nonetheless represent that person whose succession he renounced in the succession of another. La. Civ. Code art. 887. Ref supra at 1.1.4. (representation).

d. Capacity to Renounce To renounce, the heir must have the capacity to alienate, but for a minor, a tutor may renounce with court authorization.

e. Seizin and Renunciation A person is considered seized of his inheritance from the date of death of the decedent until renunciation is formally effectuated, at which point the renunciation relates back.

f. Attempted Renunciation - Someone Outside Order of Accretion An attempt to renounce a share in favor of someone outside the designated order of accretion is not a true renunciation. One is considered as having accepted the succession and then having donated the share to the intended designee. Since this is a donation, it must be by authentic act to be effective.

N. PAYMENT OF "ESTATE DEBTS" "Estate debts" are debts of the decedent and administration expenses. La. Civ. Code art. 14 15. These issues are common to both intestate and testate successions.

1. General Definitions

a. Debts of the Decedent "Debts of the decedent" are those incurred by the decedent (e.g. , mortgage on house, credit card bill) or arising as a result of his death (e.g. , cost of his funeral and burial). La. Civ. Code art. 1415 .

b. Administration Expenses "Administration expenses" are those incurred in collection, preservation, management and distribution of the decedent' s estate (e.g. , repairs to property during estate administration, lawn care). La. Civ. Code art. 14 15 .

2. Liability of Successors to Creditors

a. Liability of Universal Successors to Creditors Universal successors are liable for the estate debts, including debts of the decedent and administration expenses, to the extent of the value of the property received by them. La. Civ. Code art. 1416. The liability of successors is joint, not solidary. Id.

SUCCESSIONS AND DONA TIO NS (INCLUDING WILLS) 1 9.

Reference: Definitions at the very beginning of this outline (re: "universal successor").

b. Successors as Creditors A successor who is a creditor of the estate is paid in the same order of preference as other creditors. La. Civ. Code art. 14 1 8. He is given no special benefit or detriment merely for being a successor.

c. New Creditor-Order of How Claim is Satisfied When a new creditor (after court-ordered distribution of the estate to successors or payment has already been made to other creditors) asserts rights, there is a certain order in which his claim can be satisfied: first, from the assets remaining under administration of the estate; next, from the successors to whom distribution has been made; and then from unsecured creditors who received payments, but only in proportion to the amounts actually received by them and only for the share of the new creditor. La. Civ. Code art. 1419.

d. Order of Payment-Generally

1) Secured Creditors If a creditor of an estate is secured (e.g. , a mortgage on estate immovable property or a Chapter 9 security interest in estate movable property), then the creditor will be paid in accordance with the preference and priority of his security right.

2) Unsecured Creditors The unsecured creditors share pro rata with other unsecured creditors. See generally La. Civ. Code art. 3 1 83 (the property of a debtor is the common pledge of his creditors, and proceeds are distributed among them on a pro rata basis).

3. Apportionment of Debts among Successors Themselves

a. Shifting Responsibility among Successors by Testator or Successors' Agreement The testator may, in his will, make specific provisions for the payment of debts. Further, the successors themselves may agree on allocation of payment of estate debts. La. Civ. Code art. 1420. The rights of creditors of the estate, however, cannot be impaired by a testator' s will or by agreement among the successors. Id.

b. Charges on Identifiable Property Estate debts attributable to identifiable property are generally chargeable to that property and its fruits and products. La. Civ. Code art. 1422.

c. Debts of the Decedent-How Charged Debts of the decedent are charged ratably to property that is the object of general and universal legacies and property that passes by intestacy, valued at the date of death. La. Civ. Code art. 1423. If this property is insufficient, the debts remaining are charged in the following order:

1 ) Ratably to the fruits and products of property that is the object of general and universal legacies and of property that devolves by intestacy.

then

20. SUCCESSIONS AND DONATIONS (INCLUDING WILLS) arbrr

2) Ratably to the fruits and products of property that is the object of particular legacies, and then ratably to such property itself. Id.

d. Administration Expenses-How Charged Administration expenses are charged ratably to fruits and products of property that is the object of general and universal legacies and property that passes by intestacy. La. Civ. Code art. 1424. If insufficient, the remaining expenses are charged first to the property itself, next to the fruits and products of property of particular legacies, and then to the particular legacy property itself. Id.

e. Allocation of Receipts and Expenditures Unless otherwise indicated by law or by provision in the testament, receipts and expenditures are allocated to all successors pursuant to fairness and equity. La. Civ. Code art. 1426, ifl .

1) Succession Representative's Compensation and Professional Services Fees Expenditures involving compensation to the succession representative as well as attorneys' fees, accounting fees, and other professional fees incurred in conjunction with administration of the decedent's estate are allocated between debts of the decedent and administration expenses in accordance with this standard. La. Civ. Code art. 1426, 41f2.

2) Tax Consequences The succession representative or all of the successors may, for tax purposes, report receipts and deduct expenditures as authorized by tax law notwithstanding rules in the Civil Code. La. Civ. Code art. 1427.

f. Certain Classes' Rights and Obligations Protected The provisions concerning payment of estate debts discussed here do not supersede:

1) the rights and obligations (laid out in the Civil Code) of a usufructuary with respect to payment of estate debts. La. Civ. Code art. 1428.

Reference section Vlll.A.2.d.6) (entitled, "Debts of Grantor '') in the LOUISIANA PROPERTY & A CQUISITIVE PRESCRIPTION outline as recent changes to the law of usufntct (Act 881 of 201 OJ relate to a usufructuary and the payment of estate debts.

2) the rights and obligations (laid out in the Trust Code in Title 9) of an income interest in trust with respect to payment of estate debts. La. Civ. Code art. 1429.

II. DONATIONS-GENERALLY

A. OVERVIEW In Louisiana, there are two kinds of donations: donations inter vivas and donations mortis causa. Property can only be acquired or disposed of gratuitously by these forms. La. Civ. Code art. 1467. The Civil Code provides forms for both, and these formalities are sacrosanct. Form often becomes substance here; if the form required by the Code is not followed, the donation will be invalid.

b SUCCESSIONS AND DONATIONS (INCLUDING WILLS) 2 1 .

1. Two Kinds of Donations in Louisiana

a. Donation Inter Vivos A donation inter vivas (between living persons) is a contract by which the donor gratuitously divests himself, at present and iITevocably, of the thing given, in favor of a donee who accepts the thing. La. Civ. Code art. 1468.

b. Donation Mortis Causa A donation martis causa is an act to take effect at death of the donor where he divests himself of all or part of his property and is revocable during the donor' s lifetime. La. Civ. Code art. 1 469. It is revocable during the donor' s lifetime.

2. Three Requirements for Validity of Donation Generally, a donation is only valid if: ( 1 ) capacity to give and to receive exists; (2) the requisite formalities are followed; and (3) substantive limits are not violated.

a. Capacity Capacity to make donations (capacity of the donor) and capacity to receive (capacity of the donee) are addressed more fully infi·a at II.B.

b. Formalities Different form requirements govern donations martis causa and donations inter vivas.

1) Donations Mortis Causa Donations martis causa must be by testament. The formalities must be observed or the testament is absolutely null. La. Civ. Code art. 1 573 . Form requirements for donations martis causa are discussed in more detail irifra at III.B.

2) Donations Inter Vivos The form requirements for donations inter vivas are contingent on the object of the donation (e.g. , immovable or movable, incorporeal or corporeal). Form requirements for donations inter vivas are discussed in more detail infra at VIII.D.

c. Substantive Limits Donations are invalid if substantive limits are violated. In general, this includes a discussion of two main concepts: ( 1 ) reprobated dispositions and (2) the prohibition on donations amnium banarum. Reprobated dispositions are addressed infra at II.C. and donations amnium banarum are discussed at VI.

B. CAPACITY Everyone is presumed to have capacity to make and receive donations except persons whom the law declares incapable. La. Civ. Code art. 1470. The rules below apply not only to the creation or execution of donations, but also, with respect to dispositions martis causa, to the revocation of a legacy or testament, the modification of a testamentary provision, and to any other modification of succession rights. La. Civ. Code aii. 1484.


1. Capacity of the Donor to Make Donations

a. Timing Capacity to donate inter vivas must exist when the donor makes the donation. Capacity to donate martis causa must exist when the testator executes the testament. La. Civ. Code art. 147 1 .

b. Age A minor under sixteen years of age cannot make either an inter vivas or martis causa donation, except to his spouse or children. A minor between the ages of sixteen and eighteen may execute a will, but cannot make inter vivas gifts, except to his spouse and children. La. Civ. Code art. 1476.

c. Mental Condition of the Donor

1) Generally The donor must be able to comprehend generally the nature and the consequences of the disposition that he is making. La. Civ. Code art. 1477.

a) Proof The person challenging capacity must prove by clear and convincing evidence that the donor lacked capacity at the time the inter vivas donation was made or at the time the testament was executed. La. Civ. Code art. 1482A.

b) Capacity of Interdicts to Make Donations

(1) Full Interdiction A full interdict lacks capacity to make a juridical act. La. Civ. Code art. 395. Specifically here, a full interdict lacks capacity to make or revoke a donation inter vivas or disposition martis causa. La. Civ. Code art. l 482B.

(2) Limited Interdiction A limited interdict lacks capacity to make a juridical act pertaining to the property or aspects of personal care that the judgment of limited interdiction places under the authority of his curator, except as provided in article 1 482 or in the judgment of limited interdiction. La. Civ. Code art. 395.

(a) With respect to property under the authority of the curator, article 1482 prohibits the limited interdict from making a donation inter vivas. As to making or revoking a disposition martis causa, the limited interdict is merely presumed to lack capacity.

(b) With respect to property that is not under the authority of the curator, the limited interdict is presumed to have capacity to make or revoke donations inter vivas or dispositions martis causa bearing on that property.


( c ) Either of these presumptions (lack of capacity regarding property under authority of the curator & presumption of capacity for other property) may be rebutted by a preponderance of the evidence.

La. Civ. Code art. 1482C.

(3) Former Law-"Mentally Infirm" Formerly, if the donor made a gift when he was judicially declared to be "mentally infirm," then the proponent of the gift had to prove by clear and convincing evidence that the donor had capacity. The term, "mentally infinn" covered such areas as continuing tutorship for a mentally handicapped child as well as an interdiction based on mental incapacity.

2) Vices of Capacity-Fraud, Duress and Undue Influence

a) Effect of Fraud or Duress A donation that is the product of fraud or duress is null. La. Civ. Code art. 1478.

b) Effect of Undue Influence A donation is null when it is the product of influence by the donee or another person that so impaired the volition of the donor so as to substitute the volition of the donee or other person for the volition of the donor. La. Civ. Code art. 1479.

c) Severability of Donation's Provisions vis-a-vis Extent of Fraud, Duress or Undue Influence When a donation is the product of fraud, duress or undue influence, the entire act is not necessarily null. If any provision is not the product of such a vice, then that provision shall be given effect unless it is null for some other reason. La. Civ. Code art. 1480.

d) Burden of Proof A person challenging a donation because of fraud, duress or undue influence, must prove the claim by clear and convincing evidence. La. Civ. Code art. 1 483. However, if a relationship of confidence existed at the time the donation was made, then the challenger need only prove the alleged vice by a preponderance of the evidence, but if the alleged wrongdoer and the donor are related by affinity, consanguinity, or adoption, the standard remains clear and convincing. Id.

Note: Formerly, donations made during the last illness to doctors and ministers who treated the decedent during his last illness were invalid unless the donation was remunerative or onerous or the recipient was a relative of the donor. This prohibition has been repealed, but a vestige remains : the existence of a confidential relationship (e.g. , doctor/patient, minister/parishioner, nurse/patient, or attorney/client) may affect the burden of proof when a donation is attacked on the grounds of undue influence as discussed immediately above.


e) Fiduciary Appointments One who commits fraud, exercises duress, or unduly influences a donor shall also not be permitted to serve as the executor, trustee, attorney or other fiduciary pursuant to a designation as such in a donation or testament. La. Civ. Code art. 1 48 1 .

3) Former Law-Test Being of "Sound Mind" and Use of Factor Now Prior to July 6, 1 99 1 , the exclusive test was whether the testator was of "sound mind." This test was rejected, among other reasons, to overrule cases which held that a testator who was eighteen years or older but who had a mental age of less than eighteen was of "sound mind." Now, the testator's mental age is one factor to consider when determining whether he can comprehend the nature and the consequences of his disposition.

d. Conflict of Laws A person will have capacity to make a testament if, at the time of making the testament, he possessed that capacity under the law of the state ( 1 ) where he was domiciled at the time of making the testament, or (2) where he was domiciled at the time of his death. La. Civ. Code art. 3 529, � 1 .

1 ) Capable under Laws of Both States-Vices of Capacity If the testator was capable under the laws of both states, his will shall be held free of vices if it would be so under the law of either one of the states. La. Civ. Code art. 3529, iJ2 .

2) Capable under Laws of One of the States-Vices of Capacity If the testator was capable under the laws of only one of the states (state of domicile at time of execution of the will or state of domicile at time of death), his will shall be held free of vices only if it would be so under the law of the state where he was considered to have capacity. La. Civ. Code art. 3529, iJ3 .

2. Capacity of the Do nee to Receive Donations

a. Generally To receive, the donee must be in existence at the time of acceptance of the gift for donations inter vivas or at the time of the testator' s death for donations martis causa. La. Civ. Code art. 1472.

1) Unborn Children "In Utero" For a donation inter vivas, an unborn child must be in utero when the donation is made. For donations martis causa, the child must be in utero when the testator dies. In both cases, the child must also be born alive for the donation to be effective. La. Civ. Code art. 1474.

a) Posthumously Conceived Children A special exception in title 9 permits a child conceived after the father is deceased to inherit from the father provided: ( 1 ) the mother is the surviving spouse; (2) the father specifically authorized in writing his surviving spouse to use his gametes; and (3) the child is born within three years of the death of the decedent father. La. Rev. Stat. 9:391 . l .


Note: Other successors whose rights are affected have one year from the birth of the child to disavow paternity.

2) Organizations A donation to an organization is valid if the organization exists at the time the donation takes effect.

b. Donations Subject to a Suspensive Condition If the donation hinges on the fulfillment of a suspensive condition, the donee must have the capacity to receive at the time the condition is fulfilled. La. Civ. Code art. 1473 .

c. Acceptance on Behalf of Minors Gifts to minors may be accepted by tutors or by the trustee if given in trust.

C. REPROBATED DISPOSITIONS Conditions made in a donation inter vivas or disposition mortis causa that are impossible, immoral, or are contrary to law are regarded as never made and are therefore void. La. Civ. Code art. 1 5 1 9. Examples would be prohibiting marriage or denying a civil or basic right. One cannot impose a condition outlined above, but resting the disposition on status existing at death is valid (e.g. , "Provided he or she is not married at my death"). See Succession of Ruxton, 78 So.2d 1 83 (La. 1 955).

1. Prohibited Substitutions

a. Definition A disposition not in trust to a first donee, called an institute who is charged to preserve a thing and deliver it at his death to a second donee, called the substitute, is null, with regard to both the institute and the substitute. La. Civ. Code art. 1 520.

b. Two Parts for Prohibition To be prohibited, there must be a donation to the first donee (the institute) coupled with a double charge: ( 1 ) to preserve the property and (2) to deliver it to another person (the substitute) at the death of the first donee.

1) Charge to Preserve Property and Deliver Before Death not Prohibited A charge to preserve property but no charge to deliver at death, so that the property can be delivered by the first donee to the second donee before that time, is not a substitution and thus is not prohibited.

Example: A charge to preserve property for a child and deliver it to the child at age twenty-five is not a substitution. Pragmatically, it is a "mini-trust."

2) Substitution de eo quod supererit not Prohibited Further, if there is no charge to preserve property by a first donee, but the first donee is obligated to deliver whatever is left of the thing to a second donee, there is no prohibited substitution. This is the substitution de eo quad supererit, or the substitution de residua; it is valid as to whatever remains of the property.


3) Effect of Prohibited Gift If a gift is prohibited, it lapses, but the remainder of the testament is valid.

c. Reservation of Usufruct Permissible

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A testator can grant a lifetime usufruct to one person, and the naked ownership to another. The designation of "usufruct" must be express. Also, a donor may donate property and reserve a usufruct for himself. La. Civ. Code art. 1 522.

Example: "To A, but at his death to B" is prohibited, if it is full ownership to A to begin with. If it is usufruct to A, naked ownership to B, it is valid.

2. Vulgar Substitutions If a gift is in full ownership merely providing that in the event a first donee (legatee or trust beneficiary) cannot take the gift, a second donee will take it, then it is valid. La. Civ. Code art. 1 52 1 . This is not a prohibited substitution but instead is referred to as a "vulgar substitution."

a. Period of Survivorship A testator may indicate in his will that a legatee or trust beneficiary survive the testator for a stipulated period; the stated period cannot be longer than six months (former rule was 90 days, changed in 200 1 to match the time periods of other states' short-term survivorship rules). If the condition is not fulfilled as to the first donee' s survivorship, the second donee will take the gift. La. Civ. Code art. 1 52 1 .

b. Temporal Effects The right of the first donee is suspended until the survivor' s survivorship beyond the stipulated period is determined. If the first donee survives the stipulated period, he is considered to have succeeded to the deceased from the moment of the decedent' s death. If the first donee does not survive the stipulated period, he is considered as never having received the disposition, and the second donee is considered as having succeeded to the deceased from the moment of the donor' s death. La. Civ. Code art. 1 52 1 .

III. DISPOSITIONS MORTIS CAUSA-WILLS

A. TESTAMENTS GENERALLY

1. Only by Testament A disposition mortis causa is valid only when made in the form of a testament (a will) authorized by law. La. Civ. Code art. 1 570. The formalities prescribed for the execution of a testament must be followed or the testament is absolutely null. La. Civ. Code art. 1 573.

a. No Testaments by Others or with Others A testament may not be executed by a mandatary or agent for the testator. Also, more than one person cannot execute a testament in the same instrument. La. Civ. Code art. 1 5 7 1 .


b. Dispositions Given to the Choice of Third Persons Testamentary dispositions committed to the choice of a third person are generally null. La. Civ. Code art. 1 572. There are exceptions concerning executors explained infra under III.D.

c. Effect only by Probate A testament has no effect unless it is probated in accordance with the procedures and requisites in the Code of Civil Procedure. La. Civ. Code art. 1 605; generally, section XX. SUCCESSION AND PROBATE PROCEEDINGS of the LOUISIANA CODE OF CIVIL PROCEDURE outline.

B. FORMS OF TESTAMENTS

1 . Generally There are only two forms of testaments in Louisiana: olographic and notarial (formerly, the "statutory" will). La. Civ. Code art. 1574. A purported testament not in either olographic or notarial form is absolutely null. La. Civ. Code art. 1 573 . The common law oral will (at death) is not recognized in Louisiana.

a. Compliance with One Form Sufficient A testament is valid even though it fails to meet the requirements of the intended fonn if it happens to comply with another form even if unintended to be in that other form.

b. Testamentary Intent In addition to the proper form, testamentary intent (animus testandi) is needed. That is to say, did the decedent intend to convey property at death in the manner indicated by means of the instrument in question? Succession of Hammett, 1 83 So.2d 4 1 6 (La. App. 1 966).

c. Elimination of Several Forms with 1999 Revisions 1 997 Act 1 42 1 (effective July 1 , 1 999) eliminated several forms of testaments previously allowed including: the nuncupative will by public act, the nuncupative will by private act, and the mystic will. Note, however, that if a will was valid under the laws when it was executed, the testament remains valid even after the revisions effective July 1 , 1 999.

d. Conflict of Laws A testamentary disposition is valid as to form if it is in writing and is made in conformity with one of the following:

1 ) the law of the state of Louisiana;

2) the law of the state of making at the time of making;

3) the law of the state in which the testator was domiciled at the time of the making of the testament or at the time of his death;

or


4) with regard to immovable property, the law that would be applied by the courts of the state in which the immovable is situated.

La. Civ. Code art. 3528.

e. Transactions Exempted (from Form Rules) Some transactions that look like gifts and have the same effect as gifts are not subject to the formal rules governing donations. These often occur in the context of donations mortis causa. Life insurance proceeds and U.S. savings bonds, for example, have their own rules and generally pass outside of the estate.

1) Life Insurance Life insurance proceeds pass outside of the probate estate, unless payable to the executor as such; thus, the requisite formalities in the Code for donations have no application. The proceeds will go to the named beneficiary in the policy.

a) Donation of an Insurance Policy Donation of an insurance policy is governed by the Insurance Code and only requires the use of the insurance company's f01m.

b) Distinguishing Annuity from Life Insurance An annuity is different from life insurance and is more like a savings account. The beneficiary of proceeds from an annuity is protected from heirs and legatees, and even from creditors, "saving the rights of forced heirs." La. Rev. Stat. 22 :647B.

2) Individual Retirement Accounts (IRAs) Benefits from an IRA, established by federal law, shall be paid as provided in the IRA agreement to the designated beneficiary of the account. This applies even if a decedent indicates a beneficiary of the IRA in his last will and testament.

3) U.S. Savings Bonds Savings bonds are governed by federal law and also pass outside of the estate; Civil Code formalities do not apply. The bonds can be held in co-ownership, and the named payee will get the funds.

Note: The bonds cannot be used to defeat the rights of forced heirs. First, the legitime must be calculated (discussed infra), and the value of the bonds is included in that calculation. If the legitime has been impinged, the forced heir may have an action against the beneficiary of the bonds.

2. Olographic Testaments The olographic testament is one entirely written, dated, and signed in the handwriting of the testator. It is subject to no other requirements as to form. La. Civ. Code art. 1 575.


a. Formalities

1) Hand Written The olographic will must be entirely written in the handwriting of the testator. Any changes to the testament (additions and deletions) may be given effect only if also made by the hand of the testator. La. Civ. Code art. 1 575. To probate the will, two witnesses must identify the testator's handwriting.

2) Signature The testator' s signature should be at the end of the will. However, if anything is written by the testator after his signature, the will is not invalid, and the court may, in its discretion, consider the writing as part of the testament. La. Civ. Code art. 1 575.

3) Date The olographic will must be dated, and the date can appear anywhere on the testament. An uncertain date will not invalidate the testament; the date is sufficient if the day, month and year are "reasonably ascertainable" from information in the testament. This information can be clarified by extrinsic evidence, if necessary. Id.

Example: John writes entirely in his own handwriting on a card to his wife Susan, "It is my intent to make this writing my last will and testament. I leave all my property to you, my darling wife, Susan on this date in 2008, the date of our 46th wedding anniversary. /s/ John." The date of John and Susan's wedding anniversary can be clarified by extrinsic evidence.

b. Possible Problems-Necessity of Intent to Dispose Intent to dispose of property is essential. This can be problematic to ascertain since the olographic will lacks many of the formalities of the notarial will.

1) Letters and Memos A letter can be a valid olographic will if the requisite intent is present. One case in Louisiana has already held, however, that a memo to an attorney telling him how the "testator" wished his property to be disposed of was not a valid olographic will. Although written entirely by the hand of the testator, signed and dated, the "testator" did not intend that the memo be a will. Hendry v. Succession of Helms, 557 So.2d 427 (La. App. 1 990).

2) Pre-Printed Will Forms If a will is written in the hand of the testator on a form with printed or typed words, a court may ignore all pre-printed matter and uphold the will as a valid olographic testament if testamentary intent can be ascertained solely from the material in the testator's handwriting. Succession of Burke, 365 So.2d 258 (La. App. 4th Cir. 1978).

3. Notarial Testaments The notarial will is self-proving provided the formalities below are followed. There are five principal types of notarial testaments: ( 1 ) the standard notarial testament, (2) the testament for persons who can and know how to read but physically are unable to sign their name, (3) the

30. SUCCESSIONS AND DONATIONS (INCLUDING WILLS) bar

testament for sight-impaired persons or persons unable to read, (4) braille testaments, and (5) testaments for deaf persons or deaf and blind persons.

a. Formalities of Standard Notarial Testament A testator must be able to read and write and sign his name for the standard notarial testament. La. Civ. Code art. 1 577.

1) Execution The execution of a notarial testament must be before a notary and two competent witnesses. The testator must declare in the presence of the notary and two witnesses, that the document is his will. If the witnesses are not present when the document is executed (i. e. , when the testator signs the will), the testament is void.

2) Writing The provisions of the notarial testament may be written, printed, or typed. There is no requirement that the testament even be in the English language, so long as it is written in a language that the testator can read and understand.

a) Signatures The testator must sign on each page and at the end of the will. The testator must know how to and be able to sign his name.

b) Literacy The testator must know how to and be able to read.

3) Date The will can be dated anywhere on the will. The date need not even be made by the testator, nor is it required that the will be dated in the presence of the notary and two witnesses. It is common practice to have a typewritten testament that is already dated.

4) Attestation Clause The attestation clause is a declaration by the notary and witnesses at the end of the will that states that all formalities have been met (the "self-proving" element). It is essential that the notary and two witnesses sign the attestation clause and do so in the presence of the testator and each other. It is technically not necessary for the testator to also sign the attestation clause.

b. Formalities of the Testament for Persons who Can and Know How to Read but Physically Unable to Sign their Name The ordinary requirements for a standard notarial testament apply to the execution of a testament by someone physically unable to sign his name, except as modified below. La. Civ. Code art. 1 578, cmt.

1) Signature or Mark If the testator knows how to sign his name but is unable to do so because of a physical infirmity, he may make his mark. If unable to make a mark, he may direct another person to assist him in affixing his mark or to sign for him. La. Civ. Code art. 1 578. This "other person," if required, may be the notary or one of the witnesses. As with the standard


notarial testament, the mark or other person's signature must be on every page and at the end of the testament.

2) Attestation Clause The two witnesses and the notary attest in the presence of one another and the testator that the testator signifies the instrument to be his will, that he is able to see and read and knows how to sign his name but is unable to do so because of a physical infinnity and has affixed, or caused to be affixed, his mark or name where appropriate.

c. Formalities of the Testament for Sight-Impaired Persons or Persons Unable to Read La. Civ. Code art. 1 579

1) Execution The testament under this form must be written and executed in front of a notary and two competent witnesses (both of whom must be able to read and able to sign their names). The testator declares that he heard the will ' s reading and signs or marks every page and at the end. If unable to sign, the reason for such inability must be stated.

2) Dated and Read Aloud The testament must be dated and read aloud to the testator. One of the witnesses, the notary or a third person may be the person who reads the testament aloud. The witnesses and notary, unless he is the one reading the testament, must follow on copies while the testament is being read aloud.

3) Attestation Clause The attestation of compliance must include that the will was read aloud and the notary and two witnesses must sign it in one another' s presence and in the presence of the testator.

4) Valid for Any Person Any person can execute a testament in this form even with its more exacting fonnalities even if they would qualify under the standard notarial testament.

d. Formalities of Braille Testaments La. Civ. Code art. 1 580

1) Witnesses Two witnesses are required, and no need to read aloud.

2) Testator's Ability to Read Braille The testator must know how to and be able to read braille (i.e. , he must know how to read braille physically and intellectually).

3) Attestation Clause Requirements The attestation clause must be in writing, not in braille.


e. Formalities of Testaments for Deaf Persons or Deaf and Blind Persons

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This is a special limited use testament intended only for a person who has been declared physically deaf or deaf and blind and who is able to read sign language, braille, or visual English. La. Civ. Code art. 1 580. 1 .

1) If Testator Unable to Sign Name

a) Execution If the testator knows how to sign his name but is unable to due to a physical infirmity, he may declare or signify by sign or visual English that the document is his will, that he is unable to sign because of physical infirmity, and shall then place his mark on every page and at the end.

b) Attestation Clause The notary and two witnesses, in the presence of each other and the testator, shall then sign the attestation of compliance affirming the testator' s physical inability to sign his name and that the testator has declared such to them by sign or visual English. The clause must be in writing.

2) Additional Standard for Witness Competency In addition to the general rules of witness competency (explained in detail under III.C., infra), at least one of the two witnesses must meet the statutory requirements of a certified interpreter for the deaf.

3) Choice of Accommodations The testator must be given the choice of accommodation services such as large print, braille, or a tactile interpreter.

C. COMPETENCY OF WITNESSES TO TESTAMENTS Generally, a person cannot be a witness to a testament ifhe is insane, blind, or unable to sign his name. A person under the age of sixteen also cannot be a witness. La. Civ. Code art. 1 5 8 1 .

Note: The issue of witness competency i s only discussed in the context of notarial testaments.

1 . Deaf Person as a Witness A deaf person may witness a regular notarial testament (form explained under III .B., supra) but not the notarial testament for sight-impaired persons or persons who do not know how to read. La. Civ. Code art. 1 5 8 1 .

2. Literacy Ability of Witnesses A person who cannot read may not be a witness to a notarial testament for sight-impaired persons or persons who do not know how to read. La. Civ. Code art. 1 5 8 1 .

3. Legatee or Spouse of Legatee as Witness When a legatee or a legatee' s spouse (if married at the time of execution of the testament) is a witness, the legacy to the witness or the spouse of the witness, as appropriate, is invalid, although the testament itself may be valid. La. Civ. Code arts. 1 582 and 1582. 1 . The witness may not even know of the legacy but is deprived of it nevertheless.


a. Extent of Inheritance When a witness-legatee or the spouse of a witness-legatee would be entitled to inherit as an intestate successor (had the decedent died intestate), he/she may inherit the lesser of his/her intestate share or the legacy. La. Civ. Code arts. 1 5 82 and 1 582. 1 .

b. Serving as Notary A legatee may not serve as a notary either, but this prohibition does not extend to spouses of notaries as it does to spouses of witnesses. Also, the notary does not have the right to inherit an intestate share even if it would be less; rather, the notary who is a legatee receives nothing. La. Civ. Code art. 1 582.

D. EXECUTORS AND ATTORNEYS

1 . Designation as Executor not a Legacy The designation of an executor (or other succession representative), trustee or attorney handling the estate is not a bequest. La. Civ. Code art. 1 583 .

a. Use of Testator's Attorney by Executor The naming of an attorney in a will is construed as precatory and is not binding on the executor and the executor is not required to use the named attorney. Succession of Jenkins, 48 1 So.2d 607 (La. 1 986). If the executor does choose to use the named attorney, he can dismiss the named attorney for any reason, not necessarily for just cause.

1) Removal of Estate Attorney for "Just Cause" Article 1 583 and this case sought to overrule the strict requirements in title 9 which required that the designation of an attorney be binding on the executor and that the attorney designated in the testator' s will could only be removed for just cause. La. Rev. Stat. 9 :2448; see generally Succession of Wallace, 574 So.2d 348 (La. 1 99 1 ) (holding the "just cause" provision of La. Rev. Stat. 9 :2448 unconstitutional)

b. As to Trusts and as to Other Professionals The rule mentioned immediately above also applies to naming an attorney for a trust, and most likely also applies to designating accountants and other professionals in a will, as one case has ruled the designation of professionals other than lawyers was precatory in a trust context.

2. Delegation of Authority to Executor Generally speaking, a gift cannot be given to the executor to bequeath to whom he sees fit. La. Civ. Code art. 1 572. There are exceptions to this rule, and these exceptions widen the authority that may be delegated to an executor compared to the law in effect prior to the 1 999 revision of successions law.

a. Certain Assets A testator is permitted to authorize the executor to select assets to satisfy bequests made by value or quantum, so long as the testator selects the value or quantum of the gift. La. Civ. Code art. 1 572, '1!1 .


Example: "I leave all of my property to my three children in equal shares of 1/3 each. Further, I authorize my executor to select assets to satisfy these legacies."

b. As to Charities The testator may also authorize the executor to allocate a legacy among different charities ("entities or trustees of trusts organized for educational, charitable, religious or other philanthropic purposes" in the language of the Code article) and even to select the charity when authorized to do so by the testator. Lastly, the testator may expressly delegate to his executor the authority to impose conditions on those legacies. La Civ. Code art. 1 572, '112.

c. Delegating Rights as Executor A person confirmed as an executor (or other succession representative) may, by power of attorney, designate a person to manage in his stead. This mandatary may also substitute another person to manage in his place but only if the procuration executed by the original executor empowers the original mandatary to substitute. La. Rev. Stat. 9 : 1 5 17 .

3. Notary as Executor The notary to the testament may be named as executor or trustee under the will and still be the officiating notary.

4. Executor or Attorney as Witness An executor or attorney may be a witness if he has not otherwise been named as a legatee.

5. Recall Capacity Rule for Fiduciary Appointments Remember that one who commits fraud, exercises duress, or unduly influences a donor, or whose appointment is procured through such means, shall not be permitted to serve as the executor, trustee, attorney or other fiduciary pursuant to a designation as such in a donation or testament. La. Civ. Code art. 148 1 .

E. CLASSIFICATION OF LEGACIES There are three types of testamentary dispositions: particular legacies, general legacies, and universal legacies. La. Civ. Code art. 1 584.

1. Universal Legacy The testator gives to one or to several persons the whole of the property, or the "balance" or "residue" of all of the property left after particular legacies. La. Civ. Code art. 1 585 . All "residuary" legacies are universal or are treated as universal, but not all universal legacies are residual:

Examples: "all of my estate to A" is universal, but not residual; In the example, "Blackacre to A, the balance of my estate to B," the legacy to B is both residual and universal.

2. General Legacy A "general legacy" is defined in two ways:


a. Fraction or Certain Proportion of Estate A legacy of a fraction or a certain proportion of the estate, or of a fraction or certain proportion of the balance of the estate that remains after particular legacies are discharged is a general legacy. La. Civ. Code art. 1 586.

b. Fraction or Certain Proportion of Certain Property Classifications In addition, a disposition of property expressly described by the testator as all or a fraction or a certain proportion of one of the following categories of property is also a general legacy: Separate or community, movable or immovable, corporeal or incorporeal. La. Civ. Code art. 1 586.

Example #1 : "One-half of all my movable property to B" is fractional and is thus a general legacy.

Example #2: "All of my separate corporeal property" is not a legacy of only "one" of the categories above, and is therefore a particular legacy, not a general legacy.

c. General Legacy of "Residue or Balance of the Estate" For purposes of accretion, when a general legacy is phrased as a residue or balance of the estate without specifying that the residue or balance is the remaining fraction or a certain portion of the estate after the other general legacies, it shall be treated as a universal legacy. La. Civ. Code art. 1 595, if2.

3. Particular Legacy All other bequests that are neither general nor universal are particular legacies. La. Civ. Code art. 1 587. These are usually those of specific property.

Example: "My 201 0 Lamborghini Murcielago LP640 to Katherine" is a particular legacy. If this were the only movable owned by the testator, the terminology used by the testator determines the classification as a particular legacy even if the provision could incidentally be construed as a general legacy (i.e. , "all of my movable property").

F. JOINT BEQUESTS, TESTAMENTARY ACCRETION AND LAPSED LEGACIES

1. Joint Bequests A joint ("conjoint" is no longer used) bequest is when a thing is left to two or more persons without an assignment of parts or shares, so that legatees take an equal percentage of the whole.

Example: "To A, B and C."

a. Distinguishing between Joint and Separate Legacies A legacy to more than one person is either ''joint" or "separate" depending on how it is designated by the testator. La. Civ. Code art. 1 588. It is separate when the testator assigns shares. It is joint when he does not assign shares. Id.

b. Accretion with Joint Legacies When a legacy to a joint legatee lapses (e.g., the joint legatee predeceases the testator), the share of that legatee accretes to the other joint legatees ratably. La. Civ. Code art. 1592.


c. Death of a Joint Legatee, Rights of Other Joint Legatees

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If a joint legatee predeceases the testator, the surviving joint legatees take the entire bequest in full ownership, but if all joint legatees survive the testator, and then one of the joint legatees dies, the legacy does not lapse. He inherits and transmits his share to his successors. The legacy does not go to the other joint legatees.

d. Effectuating a Joint Bequest To accomplish a joint bequest, use the magic word 'joint" or leave a thing to "A and B."

1) "Share and Share Alike" or "To Share Equally" A gift "to share and share alike," or "to share equally," is not a joint bequest. Each party will own a specific portion with no right of survivorship in favor of co-legatees.

2) Property Left to two or more Persons When property is left to two or more persons and it cannot be partitioned, the gift is presumed to be joint.

2. Testamentary Accretion Testamentary accretion takes place when a legacy lapses. It takes place according to the testament if there is a governing testamentary provision. If not, it takes place by law, explained below. La. Civ. Code art. 1 590. Accretion includes the disposition of all lapsed legacies, not just lapsed joint legacies.

a. Seven Grounds for Lapse There are seven grounds for a legacy to lapse:

1) the legatee predeceases the testator;

2) the legatee is incapable of receiving at the death of the testator;

3) the legacy is subject to a suspensive condition which can no longer be fulfilled, or the legatee dies before fulfillment of the condition;

4) the legatee is declared unworthy;

5) the legacy is renounced, but the lapse is only to the extent of the renunciation;

6) the legacy is declared invalid (e.g. , legacy to witness, spouse of witness or notary);

or

7) the legacy is declared null, as for example, for fraud, duress, or undue influence.

La. Civ. Code art. 1 589.


b. Effect of Lapse The effect of a lapsed legacy is accretion. The law favors devolution of a lapsed legacy to another designated legatee in the testament rather than have it devolve by intestacy.

1) Generally When a particular or a general legacy lapses, it goes to the successor who would have received the property under the testament if the legacy had not been made. La. Civ. Code art. 1 59 1 .

Example: "I leave my original edition Harry Potter and the Sorcerer 's Stone to Andy. Subject to that, I leave all of my books to Joe." Andy is then declared unworthy; Joe receives the original edition Hany Potter and the Sorcerer 's Stone because he would have received it had the legacy to Andy not been made in the first place.

2) Lapse due to Renunciation Accretion flows as if the legatee predeceased the testator, but the testament may provide for the accretion by a "governing testamentary disposition." In the absence of such a disposition, the rights of a testate successor who renounces accrete to those persons who would have succeeded to them if the legatee had predeceased the decedent. La. Civ. Code art. 965.

3) Exception to General Rule: Most Favored Class Rule If the legatee whose legacy lapses is a child of the testator or a sibling of the testator, or a descendant of a child or sibling, accretion takes place in favor of descendants of the legatee, joint or otherwise. La. Civ. Code art. 1 593 . These relatives are in a kind of "most favored class," because their relationship to the testator elevates them to a privileged position that cuts across the general rule.

4) Accretion to Universal Legatee All lapsed legacies not disposed of by the Code articles concerning lapse accrete to the universal legatees. Remember: a general legacy that is phrased as a balance or residue of the estate will be treated as a universal legacy for the purposes of accretion. La. Civ. Code art. 1 595.

5) Intestacy Ultimately Any portion of the estate not disposed of pursuant to the rules discussed above devolves by intestacy. La. Civ. Code art. 1 596.

Note: Look for this if there are no universal legatees.

c. Extinction vs. Lapse Extinction is different from lapse: a legacy is extinguished when the property that is the object of the legacy is lost, destroyed or extinguished before the death of the testator. La. Civ. Code art. 1 597.

Note: Events occmTing after the death of the testator are governed by other principles of law (such as the succession representative's duty to preserve and maintain).

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1) Legatee's Entitlement as a Result of Extinction If a legacy is extinguished, the legatee is entitled to any part of the property that remains, and to uncollected insurance proceeds, and to the testator' s right of action against any person liable for the loss.

2) Object of Legacy "Transformed" The legacy of a certain object is not extinguished when the object has been transformed into a similar object without an act of the testator.

3) Condemned or Expropriated Property If the object of the legacy has been condemned or expropriated prior to the testator' s death, the legacy i s not extinguished. Rather, the legatee i s entitled to any uncollected award and also any right of action that the testator may have had concerning the condemnation or expropriation.

G. PRIORITIES IN DISBURSING BEQUESTS

1. Testament Governs First look to the testament for an express declaration as to the preference in the payment of legacies. If there is no guidance from the testament, then the rules below become applicable. La. Civ. Code art. 1 599.

2. Priority of Particular Legacies If the will does not address priorities, then particular legacies have preference and are paid ahead of all others. La. Civ. Code art. 1 600.

3. Succession not Sufficient to Discharge all Bequests-Order When the succession is not sufficient to discharge all bequests, and the testator has not expressed a preference, the order of disposition is:

a. "Specific Things" First Bequests to legatees of "specific things" are satisfied first;

b. Groups and Collections Next Legatees of groups and collections of things are next in line;

c. Distribution of Cash Legacies The cash legacies are distributed on a pro rata basis if the fund is not sufficient to cover all bequests, unless the cash legacy is declared to be remunerative (in "recompense for services"), and if so, it has preference over other cash legacies.

La. Civ. Code art. 1 60 1 .

Note: Bequest o f a bank account depends on the language of the bequest. In one older case, it was not considered a bequest of a "certain object," so it should not be a legacy of a "specific thing" under the order rules above, and may be treated as a bequest of cash. Look at the language carefully.


4. Rights of Legatees to Fruits and Products The successor is entitled to fruits and products attributable to the object of the legacy from the date of death of the testator. The right to distribution of these fruits and products, however, is subject to administration of the succession. La. Civ. Code art. 1 598, �l .

a . Interest on a Money Legacy There is an exception to the general rule of article 1 598 for specific bequests of money. In the absence of a governing testamentary disposition, a legatee of a specified sum of money is entitled to interest at a "reasonable" rate beginning one year from the testator's death. However, the second paragraph of art. 1598 provides that this rule does not apply to a legacy that is subject to a usufruct of a surviving spouse or an income interest in trust to a spouse. In such a case, the spouse is entitled to interest from date of death.

Note: There is also a special provision for the court to modify the rule for non-spousal legatees and pennit delay for payment and/or modification regarding interest.

H. REVOCATION OR MODIFICATION OF TESTAMENTS

1 . Generally A testator may revoke his will at any time (i.e. , testaments are "ambulatory," always revocable)

a. Form and Extent Revocation may be express or tacit, and it may be total or partial.

b. No Renunciation A testator may not renounce the right to revoke his will, nor may he agree to exercise the right under certain conditions.

La. Civ. Code art. 1 606.

2. Revocation of Entire Testament An entire testament may be revoked by authentic act, by a signed writing, by physically destroying the testament or directing that it be destroyed, or by so stating in one of the forms for testaments. La. Civ. Code art. 1 607.

a. Revocation Clause in a New Will Testator declares in a new will that he revokes all prior wills. This must be in the form of a will. La. Civ. Code art. 1 607(2).

b. Destroyed Will If will is revoked by destruction, the destruction must be complete and total either by the testator himself or by someone at his direction. La. Civ. Code art. 1 607(1) .

1) Probating a Copy of a Will When the original of a will cannot be found after a testator' s death, a presumption arises that the testator destroyed the original will with the intent to revoke it. Such a presumption only applies if the testament at issue was readily accessible to the decedent prior to his death.


a) Proponents' Burden to Rebut Presumption To rebut the presumption, the proponents of a copy must present clear proof:

-- that the decedent made a valid testament;

-- of the contents of the testament;

and

-- that the testament was not revoked by the testator.

Succession of Talbot, 530 So.2d 1 1 32 (La. 1 998) and Succession of Hatchell, 868 So.2d 36 (La. App. 1 st Cir. 1 1 /7/03) .

2) Destruction-Multiple Originals Destruction of one of the multiple originals of the same testament gives rise to a presumption that the testament is revoked. Succession of Talbot, 530 So. 2d 1 1 32 (La. 1 988).

3) Lost Original Will With respect to lost originals of wills, clear and convincing proof that a person other than the testator destroyed the will without the direction, consent or permission of the testator would be sufficient to overcome the presumption that the testator revoked the will by destroying it. Succession of Dalier, 1 9 So.3d 8 (La. App. 4th Cir. 8/12/09) (first reported case regarding the probate of a copy of a testament lost in Hurricane Katrina).

c. Revocation by Authentic Act A testament can also be revoked by authentic act. An authentic act cannot be used to add or modify, only to revoke. La. Civ. Code art. 1 607(2).

d. Revocation by Signed Writing Revocation can also occur in a writing entirely written and signed by the testator that identifies the testament to be revoked and clearly expresses intent to revoke. La. Civ. Code art. 1 607(3).

e. Result The result of a valid revocation is either intestacy or revival of an earlier testament that was not destroyed.

3. Revocation of a Legacy or Testamentary Provision A legacy or other testamentary disposition may be revoked by:

so declaring in one of the forms prescribed for testaments;

making a subsequent incompatible testamentary disposition;

making a subsequent inter vivos disposition of the thing and not reacquiring it;


making a signed writing on the testament itself;

Note: This signed writing does not necessarily have to be dated. Also note here that an authentic act, sufficient to revoke an entire testament, is not sufficient to revoke a legacy.

divorce after execution of the testament and at the time of death of the testator, unless the testator provides to the contrary. Testamentary designations or appointments of a spouse (e.g. , executor, trustee, etc.) are likewise revoked under the same circumstances.

a. Tacit Revocation of a Legacy Acts inconsistent with the testament's legacy may also operate as a revocation. This is tacit, so the testament is not physically revoked.

1) Subsequent Inconsistent Mortis Causa Disposition If the testator makes a subsequent mortis causa disposition inconsistent with a prior testament, then this could be tacit revocation. La. Civ. Code art. 1608(2). If the disposition is valid as to fonn, it will revoke the prior disposition even if the new disposition is invalid for some other reason.

2) Sale or Donation of Property Bequeathed If the testator, during his life, donates or sells bequeathed property, the bequest is revoked. La. Civ. Code art. 1 608(3).

a) Reacquisition of the Property The bequest is not revoked if the testator reacquires the property before his death.

b) Jurisprudential Exception-Cash Bequests The jurisprudence has carved out an exception by which this rule does not apply to a cash legacy - alienations of cash during the lifetime of the donor do not revoke the bequest.

b. Revocation and Form of Will Involved

1) Olographic Wills As to olographic wills, additions or deletions on the testament may revoke ifthe testator himself does these acts; otherwise, they are given no effect. La. Civ. Code art. 1575B. Thus, drawing lines or striking portions of a will may revoke provisions of an olographic will, if done by the testator. La. Civ. Code art. 1 608( 4 ) .

2) Notarial Testaments For all other testaments, to revoke, the lines must be signed by the testator, and to add to or revise a disposition, the change must be both signed and dated. (i. e. , be in the fonn of a valid olographic will). See generally La. Civ. Code art. 1 6 1 0.

c. Other Modifications of a Legacy Any other modification of a legacy or other testamentary provision must be in the form of a testament (e.g. , changing executors). La. Civ. Code art. 1 6 1 0.


4. Destruction or Revocation-Multiple Wills

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Destruction or revocation of a second testament automatically revives the first testament unless the first testament was destroyed or revoked by authentic act. The same rule applies if the second testament is invalid instead of destroyed or revoked.

a. No "Dependent Relative Revocation" Louisiana does not recognize the doctrine of "dependent relative revocation." If the first testament is destroyed, and the second testament turns out to be invalid, the first testament is nonetheless revoked and does not "revive."

b. Effect of Revoking the Revocation The revocation itself must not be revoked in order to be effective. La. Civ. Code art. 1 609.

5. Revocation vis-a-vis Additional, Subsequent Children Formerly, the birth, adoption, legitimation, or acknowledgment of a child revoked a testament. former La. Civ. Code art. 1 705 (repealed 1 997 Act 142 1 ). A will would survive under this rule if there was a stipulation in it providing that additional, subsequent children would not revoke the will or if the will provided for such children.

a. Generally The rule now operates so that the birth, adoption, etc. of a child no longer revokes a testament. Note however though, the after-born child is a forced heir until age twenty-four, so birth of a child may clearly affect the testamentary disposition of assets.

6. Grounds for Revocation of Donations Inter Vivas-Applicability to Revocation of Testamentary Provisions The grounds by which donations inter vivas are revoked (see discussion infra) may also revoke a testamentary disposition. La. Civ. Code art. 1 6 1 0. 1 .

a. Forced Heir Exception-Revocation due to Ingratitude of Donee A forced heir cannot lose his inheritance due to ingratitude prior to the testator' s death. If the testator does not expressly disinherit the forced heir, the testator is considered as having forgiven the offense.

I. INTERPRETATION OF LEGACIES As a general matter, succession rights are governed by the law in effect at the time of the decedent' s death. La. Civ. Code art. 870B. However, when a testament uses a term whose legal effect has changed after the date of the testament' s execution, the court may consider the law in effect at the time of the execution of the testament to ascertain the testator' s intent. La. Civ. Code art. 1 6 1 lB .

1. Intent of Testator is Paramount The intent of the testator controls the interpretation of his testament. La. Civ. Code art. 1 6 1 l A. If the language of the testament is clear, an interpretation of the testator' s intent is not necessary. If the language ascertaining the testator' s intent is not clear, the rules below come into play.

a. In Favor of Effect A disposition is to be interpreted in a sense in which it can have effect, rather than in a sense in which it has none. La. Civ. Code art. 1 6 12 .


b. Unclear or Mistaken Object If the identification of an object given is unclear or erroneous, the disposition is effective if it can be ascertained what object the testator intended to give. La. Civ. Code art. 16 13 . If quantity as to an object cannot be determined (more or less), a determination for less is required. Id

c. After-Acquired Property Testamentary dispositions are to be interpreted to refer to the property owned by the testator at death, unless the contrary is clearly expressed. La. Civ. Code art. 1 6 14. There is no longer a presumption that the testament speaks as of the time it is executed.

d. Contradictory Provisions When a testament contains contradictory provisions, the one written last prevails. La. Civ. Code art. 1 6 1 5 . Nonetheless, when the testament contains a legacy of a collection of objects and also a legacy of some or all of the same objects, the legacy of some or all of the objects prevails. Id.

Example: Legacy # 1 : "All my blue ray discs to Jessie." Legacy #2: "My Special Edition The King 's Speech blue ray disc to Nancy." The particular legacy to Nancy will prevail, and he is entitled to only that blue ray disc with Jessie getting the rest in the collection.

e. Legacy to Creditor A legacy to a creditor is not applied toward the satisfaction of the debt unless the testator clearly indicates otherwise. La. Civ. Code art. 1 6 16 .

2. Conflict of Laws The meaning of words and phrases in a testament is determined by the law of the state expressly designated by the testator or the law of the state clearly contemplated by him when making the testament. If these selections are non-existent, the law of the state in which the testator was domiciled at the time of making the testament is applied. La. Civ. Code art. 353 1 .

3. Transitional Rules as to Interpretation for Pre-January 1 , 1996 Wills, Death after January 1 , 1996-Specifically as to Forced Heirs When a person dies, his estate is governed by the substantive provisions of the law in effect at his death. But when a person dies testate on or after January 1 , 1 996, and the testament was executed before January 1 , 1 996, there was an issue of ascertaining the testator' s intent to interpret a legacy that could be relevant, albeit slightly.

a. Testator's Intent under former La. Rev. Stat. 9 :2501 La. Rev. Stat. 9 :250 1 , now repealed, provided that the testator' s intent is ascertained as follows:

1) Law in Effect at Time of Execution Unless The testament is governed by the law in effect at the time the testator executed the will unless the will:


a) manifests an intent to disinherit or to restrict the forced heir to the legitime under the law in effect at the time of the testator' s death, or

b) leaves the forced heir an amount less than the legitime under the law in effect at the time the will was executed, or

c) omits a forced heir and the language of the will indicates an intent to restrict the forced heir to an amount less than the legitime under the law in effect at the time the will was executed.

2) Determining Testator's Intent if Under Above Situations In the three instances referred to in 1 ) a), b) and c ), the testator's intent is that the testament be governed by the forced heirship law that became effective in 1 996.

b. Repeal of La. Rev. Stat. 9:2501-Time of Execution Determines Intent La. Rev. Stat. 9:2501 was repealed in 200 1 , so there are no arbitrary rules in place; the court has to ascertain intent on a case-by-case basis, but may look to the law in effect when the testament was executed to determine intent.

IV. FORCED HEIRSHIP

A. INTRODUCTION

1. Constitutional Impetus An amendment to Article XII of the Constitution of the State of Louisiana was approved by voters of the state on October 2 1 , 1 995. It provides as follows:

Section 5 . Successions, Forced Heirship and Trusts

(A) The legislature shall provide by law for uniform procedures of successions and for the rights of heirs or legatees and for testate and intestate succession. Except as provided in Paragraph B of this Section, forced heirs hip is abolished in this state.

(B) The legislature shall provide for the classification of descendants, of the first degree, twenty-three years of age or younger as forced heirs. The legislature may also classify as forced heirs descendants of any age who, because of mental incapacity or physical infirmity, are incapable of taking care of their persons or administering their estates. The amount of the forced portion reserved to heirs and the grounds for disinherison shall also be provided by law. Trusts may be authorized by law and the forced portion may be placed in trust." (italicized emphasis added)

2. Key Concepts of the Current Law on Forced Heirship

a. Forced Portion A portion of the estate called the "forced portion" is reserved for all forced heirs collectively. The forced portion is one-fourth ifthere is one forced heir, and one-half if there are two or more forced heirs. Donations made by the decedent may not exceed the forced portion.


b. Legitime The forced portion of a particular forced heir is called his "legitime."

1) Satisfaction of the Legitime As a general rule, the legitime can be satisfied only by full ownership or by naked ownership burdened with the usufruct of the decedent' s surviving spouse, or by putting the legitime in trust. La. Civ. Code art. 1496.

2) Legitime Not Satisfied by Usufruct to Forced Heir Granting a usufruct (or an income interest in trust) to the forced heir will not satisfy the legitime, even if the actuarial value of the usufruct (or the income interest) exceeds the value of the legitime in full ownership. La. Civ. Code art. 1 502.

3) No Impermissible Burdens There cannot be any charges, conditions, or burdens on the legitime except those expressly allowed by law as briefly listed in II.A.2.a. 1 ) ., supra. La. Civ Code art. 1496. Permissible impingements on a forced heir's legitime are addressed further under II.B. , infra.

4) Deprivation Only by "Just Cause"-Disinherison A forced heir cannot be deprived of the legitime unless the decedent has ''just cause" to disinherit him. La. Civ. Code aii. 1494. For a disinherison of a forced heir to be valid, it must be in one of the forms prescribed for wills, and made expressly and for "just cause" or it is null. La. Civ. Code arts. 1 6 1 8- 1 6 1 9. The person disinherited must be named or otherwise identifiable from the instrument that disinherits him. Id. art. 1 6 19.

a) "Just Cause" in the Code--Grounds There are eight enumerated grounds of ''just cause" listed in La. Civ. Code art. 1 62 1 A. No other grounds exist beyond these eight grounds. Id. art. 1 620. The grounds include:

or

striking the parent (a "mere threat" is insufficient); cruelty or "grievous injury"; attempted murder of parent; accusing the parent of a capital offense "without any reasonable basis"; using violence against the parent to prevent the parent's will from being executed; minor child marrying without the consent of the parent; conviction of a felony by the child for which the punishment could be life imprisonment or death;

failing to communicate after attaining the age of majority, without just cause, for a period of two years, unless the child was in the military forces of the United States at the time.

Note: The cause of disinherison must occur prior to the execution of the instrument disinheriting the forced heir. La. Civ. Code art. 1 62 1 B.


(1) Required Statement of the Grounds The disinherison is required to state the "reason, facts or circumstances" for which the heir is disinherited. La. Civ. Code art. 1 624.

(2) Grounds Presumed to be True The grounds for disinherison are presumed to be true, but the heir may overcome the disinherison in several ways:

(a) Heir May Rebut Grounds The heir may rebut the grounds by proving by a preponderance of the evidence that the grounds are not true. The unsupported testimony of the heir alone will not suffice. La. Civ. Code art. 1 624.

(b) Heir May Prove Reconciliation The heir may prove reconciliation with the testator, after the occurrence of the reasons listed for disinherison in the instrument, provided he does so by clear and convincing evidence. La. Civ. Code art. 1 625A. A writing that is signed by the testator that "clearly and unequivocally" demonstrates reconciliation constitutes "clear and convincing" evidence. Id. art. 1 625B.

Note: Notice the standard for the burden of proof is different for these two exceptions.

(c) Authorized Defenses The heir may overcome the disinherison by establishing an authorized defense. The defenses are that:

- because of age or mental capacity, the heir was not capable of understanding the impropriety of his behavior;

- the behavior was unintentional; or - the behavior was justified under the circumstances.

The burden of proof to establish such a defense is on the heir by preponderance of the evidence (unsupported testimony of the heir alone does not suffice).

b) Grandparents' Exception Grandparents can disinherit a grandchild on all grounds listed above whether the offending act is against the grandparent or the parent except when a minor child marries without the parent' s consent. La. Civ. Code art. 1 622.

c) Slight Temporal Concerns In the major successions revision of 1 999, La. Civ. Code art. 1 62 1 and other related articles were repealed, leaving the term, 'just cause" in La. Civ. Code art. 1494 without any examples of what could constitute "just cause" for purposes of disinherison of a forced heir. This was rectified in 2001 when Act 573 (effective June 22, 200 1 ) reenacted La. Civ. Code art. 1 62 1 establishing the eight grounds listed


above. While 2001 Act 573 attempts to make new article 1 62 1 retroactive as well as prospective, the problem may still remain as to how to interpret and define "just cause" as to forced heirship for a decedent who dies within the two-year gap between July 1 999 and June 22, 200 1 .

d) Timing of Disinherison Act Disinherison only takes effect upon death.

(1) Personal Action Disinherison is personal. If the disinherited child dies before the testator, his children may represent him for the forced share in the grandparent' s succession (assuming they qualify as forced heirs).

(2) "Presumptive" Forced Heir A person may be disinherited even though he was not a "presumptive" forced heir at the time the act for which he is disinherited occurred. La. Civ. Code art. 1 623 . Likewise, if the person to be disinherited does not qualify as a forced heir at the time the decedent dies, then it is unnecessary to disinherit him.

c. Disposable Portion The disposable portion is the remainder of the decedent' s estate left over after the forced portion is disposed of. La. Civ. Code art. 1495, if l . The decedent may dispose of the disposable portion freely. If there is no forced heir, donations may be made to the whole amount of the property of the donor, with some exceptions . La. Civ. Code art. 1497.

d. Forced Heirs The following classes of descendants qualify as forced heirs:

1) First-Degree Descendants 23 Years of Age or Younger Descendants of the first degree who are "twenty-three years of age or younger" qualify as forced heirs. La. Civ. Code art. 1 493A. For purposes of article 1 493, a child is twentythree years of age or younger until he attains the age of twenty-four years. La. Civ. Code art. 1 493D.

2) Disabled First-Degree Descendants Descendants of the first degree of any age who are disabled also qualify as forced heirs. La. Civ. Code art. 1493A. The disability must exist at the time of the decedent's death.

a) Definition of Disability for Forced Heirship Purposes The disability may be either a physical infirmity or mental incapacity. The impairment must be so severe that the disabled child is either permanently incapable of taking care of his person or permanently incapable of administering his estate. See La. Civ. Code art. 1493A, C, & E.

(1) Permanence of Disability 1 995 Act 1 1 80 of the Louisiana legislature, implementing the state constitutional provision on forced heirship (La. Const. art. XII, §SB), did not express the concept of "permanence" with regard to the disability. However, in the First


Extraordinary Session of 1 996, the state legislature added the word "permanently" to qualify that the nature of the disability should not be temporary, even if severe.

(2) The "Either/Or" Double Disjunctive "Disability" is defined as a double "either/or" proposition. The origins of this rule are found in the former law of interdiction, and more particularly, the rules regarding limited interdiction. The jurisprudence in that area is sparse, and it does not deal with the concept of "permanence" (discussed immediately above) but may nevertheless be helpful. See generally, section XIII. INTERDICTION of the PERSONS outline.

b) Extrapolation of Standard-Inherited, Incurable Diseases The disability standard explained immediately above includes descendants of any age who have an "inherited, incurable disease or condition" that may render the descendant incapable of caring for their persons or administering their estates in the future. La. Civ. Code art. 1493E. This condition must exist at the time of the decedent's death and must be supported by medical documentation. Id.

3) Grandchildren Grandchildren qualify as forced heirs in specially designated instances, not in their own right but by representation.

a) Predeceased First-Degree Descendants 23 Years of Age or Younger A grandchild may represent his predeceased parent for purposes of forced heirship if the parent would have been twenty-three years of age or younger at the time of the decedent/grandparent' s death. La. Civ. Code art. 1 493B .

b) Disabled Grandchildren A grandchild may also represent a predeceased parent no matter the age of the predeceased parent at the time of the decedent/grandparent's death, if the grandchild is disabled as discussed in A. 1 .c.2)a) & b ), supra.

3. Application-Calculation of the Legitime of Forced Heir(s) Forced heirs are customarily determined by roots, i.e. , as descendants of the first degree. La. Civ. Code art. 1493A. The legitime of a forced heir is determined by dividing the forced portion by the number of descendants who qualify as forced heirs at the time of the decedent' s death.

a. Recall Specific Fractions The forced portion is one-fourth if there is one forced heir, and one-half if there are two or more forced heirs.

b. Greenlaw Issue If the fraction that would otherwise be used to calculate the forced heir' s legitime is greater than the fraction to calculate what the forced heir would be entitled to inherit under intestate law, the legitime is reduced to the smaller fraction, i.e. , the intestate fraction. La. Civ. Code art. 1495, �2.

ar SUCCESSIONS AND DONA TIO NS (INCLUDING WILLS) 49.

Example: A testator has five children, only one of whom is 23 or younger; the intestate fraction is less than the forced portion, e.g. , 20% is the intestate fraction if there are five children, but 25% is the forced portion. Succession of Greenlaw, 1 45 La. 255, 86 So. 786 ( 1 920).

1) Rights of a Forced Heir vis-a-vis Rights of an Intestate Successor An intestate successor has no right to demand reduction or "fictitious collation" to calculate his share. A forced heir has these rights, even if his legitime is reduced under this rule. See IV.A.6., infra. Even if the fractions are the same, a forced heir will always have greater rights than an intestate successor. A forced heir can demand reduction, for example.

c. Forced Heir by Representation Historically, a representative only counted for his portion of the forced portion of the descendant of the first degree that he represents. See La. Civ. Code arts. 8 8 1 , et seq. That may not be the case under the new rules.

d. Query-A Disabled Grandchild's Forced Portion The forced portion of a disabled grandchild may differ from above. Examples:

1) Example #1-Decedent with One Predeceased Child Suppose decedent has only one child, who predeceases him and would be 24 or older. That child leaves two children of his own. If one grandchild is competent and the other is disabled, is the forced portion one-fourth or one-eighth? Suppose the predeceased child's two children are both disabled so both are now forced heirs. Is the forced portion onefourth, which is divided between them, or is it one-half because there are two forced heirs?

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2) Example #2-Decedent with Three Children Suppose the decedent has three children, two of whom are over 23 and not disabled, and the other child would also be over 23 but he predeceases the decedent, leaving one child who is disabled. Clearly the legitime of that grandchild is one-fourth. But what if the predeceased parent had two children, only one of whom is disabled? Is the legitime still one-fourth, or is it one-eighth? Or is it one-sixth because of the interaction of La. Civ. Code art. 1495, if2 (the Greenlaw rule)?

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3) Greenlaw Rule for Disabled Grandchildren

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The rule from Greenlaw and the second paragraph of article 1495 may apply in the situation of disabled grandchildren who represent a predeceased parent. The language clearly fits.

4. Change of Forced Portion after Decedent's Death If the forced heir renounces his legitime, is disinherited or declared unworthy, his legitime becomes disposable and the forced portion is reduced accordingly. The legitime of each remaining forced heir is not affected. La. Civ. Code art. 1 500.

5. "Children" Qualifying as Forced Heirs

a. Children Born Outside of Marriage A child born outside of marriage (formerly called "illegitimate") whose filiation is lawfully established may be a forced heir to the same extent as a child born of marriage.

b. Adopted Children Children who are legally adopted qualify as forced heirs to the same extent as children born of the marriage.

6. Rights of Forced Heirs Forced heirs have two basic rights: the action to reduce and the action of collation

a. Action to Reduce The action to reduce is brought to prevent impingement on the legitime caused by donations that exceed the disposable portion. The action is described in more detail under IV.C., infra.

b. Action of Collation The collation action is based on the presumption that the decedent means to treat all children similarly and any gift prior to death was merely an advancement (i. e. , common law advancement). Formerly, any child could assert it, even if not claiming as a forced heir, but now only children who are forced heirs may do so.

B. IMPINGEMENT ON THE LEGITIME Generally, no charges, conditions or burdens may be imposed on the legitime except those expressly authorized by law. La. Civ. Code art. 1 496. Permissible impingements (i. e. , exceptions to the forced heir taking his legitime in full ownership) are: ( 1 ) the usufruct granted to the decedent's surviving spouse and (2) the placing of the forced portion in trust.

1. Surviving Spouse Usufruct

a. Intestacy-the 890 Surviving Spouse Usufruct Recall that the usufruct granted to the surviving spouse of a decedent under article 890 arises only in intestacy. It applies only to community property and terminates upon the surviving spouse's remarriage. Naked ownership is inherited by the descendants of the decedent.


1 ) Can B e Dispensed With in a Will A testator can deprive his surviving spouse of the article 890 usufruct by so providing in his will or by making an "adverse disposition" (i.e. , a disposition adverse to the 890 usufruct).

Examples: "All of my property to my children in full ownership" or "All of my property to third party X''

2) Security Generally, security is dispensed with by operation of law when a surviving spouse has a legal usufruct under article 890. La. Civ. Code art. 573A(2). However, the usufructuary may be compelled to provide security for an 890 usufruct when the descendant/naked owner is not a child of the surviving spouse/usufructuary or when the naked owner is a child of the usufructuary but qualifies as a forced heir. In this second scenario, the usufructuary may have to provide security to the extent the 890 usufruct affects the forced heir's legitime.

b. Testamentary Usufruct to the Surviving Spouse A testator may grant to his surviving spouse a usufruct, by will, over both separate and community property including the forced portion. La. Civ. Code art. 1499, il l .

1 ) Duration The 1 499 usufruct may be granted for life and is not necessarily required to terminate upon remarriage of the surviving spouse (like the 890 usufruct).

Note: The 1499 usufruct will be for the life of the surviving spouse unless the will designates a shorter time.

2) Power over Nonconsumables The usufructuary may be granted the power to dispose of nonconsumables, as provided in the law of usufruct.

Note: Reference section VIIJ.A.2.c.5) (entitled, "Disposition of Nonconsumables Subject to Usufruct ") in the LOUISIANA PROPERTY & ACQUISITIVE PRESCRIPTION outline as recent changes to the law of usufruct (Act 881 of2010) relate to a usufructuary 's power over nonconsumables.

3) No Impingement on Legitime This usufruct is expressly stated as not being an impingement on the legitime irrespective of its duration, the property it covers (as separate or community), whether the forced heir is a descendant of the surviving spouse, and whether or not the usufructuary has the power to dispose ofnonconsumables. La. Civ. Code art. 1 499, il2.

,

4) Security Further, the usufructuary under 1499 is not required to provide security to the naked owner unless the testator expressly requires it or as permitted when the legitime is affected. La. Civ. Code art. 1499, ill .


a) Require v. Request A forced heir may "request" security when a usufruct in favor of a surviving spouse affects his legitime and he is not a child of the surviving spouse. A forced heir may also "request" security to the extent that a surviving spouse' s usufruct over the legitime affects separate property. La. Civ. Code art. 1 5 14.

Note: Article 1 5 14 does not inflexibly require security; it authorizes a forced heir to "request" it. The usufructuary is not necessarily required to post a bond as security, which could be onerous.

b) Judicial Remedy in Determining Security If security is owed to the naked owner by the surviving spouse usufructuary, the court may fashion an appropriate remedy to protect the forced heir which may include: ordering the execution of notes, mortgages, or other documents as the court deems necessary. Moreover, the court may impose a mortgage or lien on property (community or separate, movable or immovable) subject to the usufruct, as security. La. Civ. Code art. 1 5 14; La. Rev. Stat. 9: 1 202.

2. Forced Portion in Trust The forced portion may be placed in trust. La. Civ. Code art. 1496; La. Const. art. XII, §5B. The Trust Code in Title 9 formerly required that the income attributable to the legitime be paid to the forced heirs at least annually but now requires only that it be distributed as necessary for the health, education, support, and maintenance of the forced heir, considering all other sources of income and support.

3. Survivorship Condition A short-term survivorship condition in a will is not valid with regard to the legitime of a forced heir unless both the forced heir and his descendants do not survive the stipulated period (not to exceed six months). La. Civ. Code art. 152 1 .

C. ACTION TO REDUCE Generally, any donation that exceeds the amount a person may dispose to the prejudice of forced heirs may be reduced to the extent necessary to eliminate the impingement. La. Civ. Code art. 1 503 .

1 . Timing of Action A reduction action may only be brought after the death of the donor. La. Civ. Code art. 1 504. The action is not automatic; it must be raised by a person entitled to enforce the action.

2. Strictly Personal Action The action to reduce is a personal claim of the forced heir. It can be brought only by a forced heir, his successors, or an assignee of these classes whose assignment is express, conventional and is made after the death of the decedent. La. Civ. Code art. 1 504. Since the claim is personal, creditors of the deceased and creditors of the heir cannot require reduction of excessive donations that impinge on the forced portion. Succession of Henican, 248 So.2d 385 (La. App. 4th Cir. 1 97 1 ).


a. Casenote--Succession of Hurd Because of the supremacy of federal law over state law, a trustee in bankruptcy was held to be able to assert the personal right of the bankrupt to demand collation, which is a personal action. In effect, the trustee in bankruptcy in this case exercised the right in place of the forced heir. Succession of Hurd, 489 So.2d 1 029 (La. App. 1 st Cir. 1 986). Civil Code article 1 504 attempts to restrict the possibility of such an application.

b. Suggestion to Keep the Claim Personal To protect the forced heir from his creditors, it may be safer to use a spendthrift trust.

3. Calculation of the Estate

a. Active Mass The amount of the forced portion cannot be determined until the "active mass" is calculated. Formula is : value( all estate property) + value( donations in the last three years) - debts = active mass

1) Estate Property Value First determine the value of all property left at the time of the death of the decedent including the decedent' s full ownership of his one-half of community property. La. Civ. Code art. 1 505A. This is called the "aggregate."

2) Value of Donations in the Last Three Years To the aggregate, you fictitiously add the value of inter vivas donations made within three years of the decedent's death. La. Civ. Code art. 1 505A and La. Rev. Stat. 9 :2372.

a) Time of Valuation The gift by inter vivas donation is valued at the time the gift was made, not at the time of the decedent' s death.

b) Calculation of Years Three years is not the preceding three calendar years but is instead the three periods of 365 days, starting from the date of the decedent' s death.

3) Subtract Debts Debts of the estate are then deducted from the aggregate amount of the above two values . La. Civ. Code art. 1 505B.

4) Result The result of the above computations is the "active mass."

5) Calculating the Legitime The legitime of each forced heir is then calculated by applying the proper fraction to the active mass result. La. Civ. Code art. 1 505B.

b. Items Excluded The following items are generally excluded from the calculation above.


1) Immovables in Certain Circumstances-Conflict of Laws Rules Immovables in some instances are excluded, depending on certain conditions under Louisiana's conflict of laws provisions. The exceptions, where calculation in the active mass does occur, are:

a) If the decedent is domiciled in Louisiana and left at least one forced heir in the state, the value of immovables located in other states is included in the calculation of the active mass. La. Civ. Code art. 3534, if2.

b) If the decedent is domiciled outside of Louisiana at the time of his death, immovable property in Louisiana is subject to Louisiana's forced heirship rules, including its value in calculating the active mass, only if there is at least one forced heir living in Louisiana at the time of the decedent's death. La. Civ. Code art. 3533, if2.

2) Life Insurance Proceeds Life insurance proceeds paid on the life of the donor and the premiums used to pay for the insurance are not included. Further, if the proceeds are paid to a forced heir or for his benefit, they are credited toward satisfaction of his legitime. La. Civ. Code art. 1 505C.

3) Pension and Profit-Sharing Proceeds Pension and profit-sharing plan proceeds, including IRA accounts, are not included. La. Civ. Code art. 1 505D. Again, if the benefits are paid "to or for the benefit of' a forced heir, they are credited toward his legitime.

4) Remunerative Donations Remunerative donations are not included, and the gift may not be reduced, unless the value of the services rendered is less than two-thirds the value of the property. La. Civ. Code art. 1 5 1 0. In such a case, the gratuitous portion of the donation may be included.

5) Onerous Donations Onerous donations are not included, and the gift may not be reduced, unless the expenses incurred by the donee in carrying out the conditions is less than two-thirds the value of the property. La. Civ. Code art. 1 5 1 1 . Again here, the gratuitous portion of the donation may be included.

6) Donations Given More than Three Years All gifts made to anyone more than three years before the donor' s death are exempt.

7) Inter Vivos Donations to Spouses of "Previous" Marriage Inter vivas donations to a spouse of a "previous" marriage, made during that marriage, are exempt. La. Rev. Stat. 9:2373 . The provision applies only to donations inter vivas made on or after January 1 , 1 996 and was not affected by Act 77 of that year's special session (which enacted the current law of forced heirship). In light of the general threeyear cut-off on donations, the relevance of this provision is limited, especially for bar exam purposes.

bar SUCCESSIONS AND DONATIONS (INCLUDING WILLS) 55.

4. Order of Reduction

a. Mortis Causa Gifts Reduced First All donations mortis causa are reduced first. La. Civ. Code art. 1 507.

1) Designating Order of Reduction A testator may expressly designate the order of reduction in a will; that is to say, he may declare a preferred legacy shall be paid in preference to others. In that case, the legacy will not be reduced until the other legacies are exhausted.

2) If No Designation In the absence of a designation by the testator, among the legatees, particular legacies have preference over universal legacies if there are enough assets in the probate estate to satisfy the legitime.

b. Once Probate Exhausted, then Inter Vivos Donations Once the probate estate has been exhausted, the inter vivas donations are then reduced. La. Civ. Code art. 1 508. This reduction is a return of the property to the estate, but the donee can elect to pay instead.

1) Order-Most Recent Inter Vivos Donations First The most recent gift is reduced first. La. Civ. Code art. 1 508. That is to say, the donee of the most recent gift is required to return or pay first and then the process proceeds successively to the more remote gifts (i.e. , the donee of the next most recent gift, and so on until the forced portion is satisfied).

Note: The reduction of inter vivas donations does not go beyond gifts made within three years of the date of the decedent's death. La. Rev. Stat. 9 :2372.

a) Exception to Order of Reduction-the Insolvent Donee A forced heir can skip over an insolvent donee in the order of reduction addressed above under IV.C.4.b . 1 ) and claim his legitime from the next preceding donee's donation(s) and so on to the donee of the most remote donation. La. Civ. Code art. 1 509. If the donee from whom the forced heir claims pays the share of the insolvent donee, the paying donee is subrogated to the rights of the forced heir against the insolvent donee. Id.

5. Donee' s Options-Return or Take Less When the donated property is owned by the donee or his successors by gratuitous title, the owner may elect to return it or take less from the donor' s succession. La. Civ. Code art. 1 5 1 3 . The donee' s election rights may be limited depending on whether the property is no longer in the hands of the donee or if it has been encumbered with real rights.

a. Property no Longer Owned by Donee If the property has been alienated by the donee, the donee must return the value the property had at the time the donee received it from the donor. La. Civ. Code art. 1 5 1 3 .


b. If Property Encumbered If the property has become encumbered by real rights, the donee is accountable for the property's diminution in value as a result of the encumbrance. La. Civ. Code art. 1 5 13 .

c. Destroyed or Diminished Property If the donee still owns the property, and it is diminished in value or destroyed, whether by accident or due to the fault of the donee, the value (to the extent of the diminution) is used if the donee elects to return the property, but in any event the donee is accountable for the value of the property at the time of the gift.

d. Fruits and Products Fruits and products (e.g. , dividends or mineral royalties) derived from the donated property after the decedent' s death must be returned but only after written demand is made on the donee. Fruits and products are restored from the day of written demand, Those fruits and products received before such demand belong to the donee. La. Civ. Code art. 1 5 12 .

1) "Demand" in this Context The donee keeps all fruits and products that accrue before the donor's death because, as a general matter, a demand for reduction cannot be made until after the donor has died. The "demand" addressed in article 1 5 12 is not necessarily a judicial demand, as in an action to reduce excessive donations, but any written demand. La. Civ. Code art. 1 5 12, cmt. b.

e. Improvements to the Donated Property The donee does not get credit for the cost of improvements, since the value is the date of gift.

D. HISTORICAL TRACKING OF THE LAW OF FORCED HEIRSHIP: GENERALLY The right to claim as a forced heir is governed by the law in force at the time of the death of the decedent. La. Civ. Code art. 870B. The exam may present a decedent who dies in the relatively distant past, so it is necessary to briefly present the historical developments of who could be classified as a forced heir. Consider also the volatility of the law of forced heirship in the 1 990s, and the presentation below becomes all the more warranted.

1 . Forced Heirship before 1982

a. Forced Portion The forced portions were as follows: one child, one-third; two children, one-half; three or more children, two-thirds.

b. Who Were Forced Heirs If the child predeceased the decedent, his children (the decedent's grandchildren) represented him, but the number of grandchildren did not alter the fraction of the forced portion.

1) Parents as Forced Heirs Parents were forced heirs if no children survived the decedent - before 1 979, as to both separate and community property, and after 1 979, only as to separate property.


2. Forced Heirship from 1982 to July 1, 1990

a. Forced Portion The forced portions were as follows: one child, one-fourth; two or more children, one-half.

b. Who Were Forced Heirs If the child predeceased the decedent, his children (the decedent' s grandchildren) represented him, but the number of grandchildren did not alter the fraction of the forced portion.

3. Forced Heirship from July 1 , 1990 to Succession of Lauga (1993) 1 990 Act 147 (effective July 1 , 1 990) changed the rules so that not all children would be forced heirs, but only those children who were twenty-two years of age or under, or children twentythree years of age or older who because of physical or mental problems either could not take care of themselves or could not take care of their property. The Louisiana Supreme Court, in Succession of Lauga, declared Act 147 unconstitutional holding that the act violated the "core" principle that all children are entitled to an equal share of a forced portion of the decedent' s estate. The decision effectively revived the law of forced heirship as i t existed from 1982 to July 1 , 1 990.

4. Forced Heirship from January 1, 1996 to June 18, 1996 To overcome the decision in Lauga, the Louisiana Constitution was amended by voter referendum approved on October 2 1 , 1 995. The exact language of that amendment is located at IV.A. I . , supra. Implementing legislation for the constitutional amendment was adopted in the 1 995 Regular Session of the Louisiana State Legislature ( 1995 Act 1 1 80)

a. Forced Portion The forced portions were as follows: one forced heir, one-fourth; two or more forced heirs, one-half.

b. Who Were Forced Heirs Not all children who survive the decedent were forced heirs under Act 1 1 80. Forced heirs were only the following:

1) "Twenty-three Years of Age or Younger" Children "twenty-three years of age or younger," so that children twenty-four years of age or older were not forced heirs. Notice that the article did not say "attained the age of twenty-three years."

2) Any Age Because of Disability Children of any age who, because of physical or mental disability, who either could not take care of themselves or could not take care of their property were also considered forced heirs under Act 1 1 80.

Note: The exact language was "desendants [sic] of any age who, because of mental incapacity or physical infirmity, are incapable of taking care of their persons or administering their estates." Article 1493 as enacted by Act 1 1 80 did not limit descendants to descendants of the first degree. Did descendants therefore include grandchildren, who otherwise might have been excluded?

58. SUCCESSIONS AND DONATIONS (INCLUDING WILLS) borbr1�

3) Grandchildren Grandchildren, but (assuming the disability exception above applied only to children) only those grandchildren whose parent (the decedent' s child) is deceased and would not have "attained the age of twenty-three years" (not twenty-four) at the time of the decedent's death. Note the discrepancy between the ages required for being a forced heir in one's own right and being a forced heir by representation.

5. Forced Heirship since June 18, 1996 Act 77 of the First Extraordinary Session of the Louisiana State Legislature in 1 996 (effective June 1 8, 1 996) replaced and entirely superseded 1 995 Act 1 1 80. The discussion of the substantive provisions of forced heirship presented above under IV.A. are those enacted under Act 77 as amended slightly.

V. COLLATION

A. DEFINITION AND GENERAL PRINCIPLES

1. Generally Collation is the supposed or real return of goods to the mass of a succession that an heir makes of property that the heir received in advance of his share of the succession. The return is done so that such property received by that heir may be divided together with the other effects of the succession. La. Civ. Code art. 1227. When a parent favors a particular child with various gifts during the parent' s lifetime, the child should return the property or its equivalent to the parent' s succession to be distributed among all o f the children. The process o f the return o f the property is referred to as collation.

a. Always Presumed Collation is presumed unless it has been expressly forbidden (or "waived," see infra under V.A.2.). La. Civ. Code art. 1230.

b. Distinguishing between "Real" and "Fictitious" Collation "Real" collation (as opposed to the "fictitious" collation used simply to add values to calculate the "active mass" for forced heirship) is based on a presumption that the decedent means to treat all children equally and that what he or she gives to one of them prior to death is only an advance. Collation does not require an impingement of the legitime. The concept is similar to the common law rule of advancements.

2. Waiver of Collation Collation can be waived: the decedent (donor) may stipulate that what he gave was intended as an extra portion and need not be collated.

a. Unequivocal Language The language dispensing with collation must be unequivocal. La. Civ. Code art. 1 233 .

b r SUCCESSIONS AND DONATIONS (INCLUDING WILLS) 59.

b. Where Stipulation of Waiver Can Be Made La. Civ. Code art. 1232.

1) In Act Itself The stipulation may be made in the act of disposition itself (i. e. , in the donation inter vivos itself).

2) In A Subsequent Authentic Act The waiver of collation can also be made subsequently in an act before a notary and two witnesses (an authentic act).

3) Dispensation Made by a Will Dispensation may be made in a will, and may dispense collation as to gifts made before and after the date of the will.

a) Query What is the effect of a subsequent revocation of the will?

b) Succession of Fakier Simply leaving the disposable portion to the heir from whom collation is demanded does not evidence a dispensation from collation. Succession of Fakier, 541 So. 2d 1 372 (La. 1 988).

B. APPLICATION

1 . Claimant's Required Status-Who May Demand The claimant demanding collation must be a descendant of the first degree

(of the decedent) who qualifies as a forced heir at the time of the decedent' s death. La. Civ. Code art. 1 235 .

a. Grandchild Inheriting by Representation If a grandchild inherits by "representation" (even though he personally is not a "descendant of the first degree"), he may nonetheless be able to demand collation for gifts given to other children, since he stands "in the place and degree" of the parent he represents. See La. Civ. Code art. 88 1 .

Note: The revision comment (comment c) to Article 1 235 says that grandchildren cannot demand collation, because that was the intention of the drafters of the rule. The language of 1 235 was intended to confine the right to actual descendants of the first degree. However, there is no case. on point; it is arguable that, by virtue of Article 88 1 , the drafters of 1235 did not accomplish this goal, because the grandchild stands in "the degree" of his predeceased parent.

b. Not a Forced Heir-Cannot Demand Collation If a child has attained the age of 24, and is not disabled, he cannot demand collation.

2. To Whom Is It Due? The collation action is made only to the succession of the donor-decedent. La. Civ. Code art. 1 242.


3. What May Be Demanded

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Collation is due for what has been expended by the father and mother in order to provide for their descendant who would eventually take in their succession, or for the payment of that particular descendant' s debts. La. Civ. Code art. 1243.

a. Expenditures Subject to Collation Collation applies only to inter vivos gifts made within three years of the donor's death, valued as of the date of gift. Collation does not apply to a legacy or any form of donation mortis causa; it applies only to inter vivas gifts. See La. Civ. Code art. 1 235 . See Jordan v. Filmore, 120 So. 275 (La. 1 929); but see also Succession of Higgins, 275 So.2d 447 (La. App. 4th Cir. 1 973).

b. Expenditures Exempted from Collation

1) Manual Gifts Gifts by the father, mother or other ascendant, by their own hands, to one of their children for his pleasure or use are exempted. La. Civ. Code art. 1245. Examples include birthday gifts, Christmas presents or usual occasional gifts (social gifts); these gifts must be usual or customary to be exempt from collation.

2) Gifts for Use during Donor's Life Gifts of funds spent for the use and benefit of the donor during his lifetime are also exempt.

3) School/Necessitous Position Expenses Expenses of board, support, and education paid for by the donor (i.e. , paid to the dependent in a necessitous position or in school). La. Civ. Code 1244.

4) Gifts more than Three Years Before Donor's Death Gifts made more than three years before the donor died.

5) Marriage Gifts Marriage presents are generally not subject to collation, provided they do not exceed the disposable portion. La. Civ. Code art. 1244.

6) Gifts Received by Those Not Required to Collate Gifts and donations received by those who are not required to collate are also exempt. See V.B.3., immediately infra.

4. From Whom Can Collation Be Demanded? Children and grandchildren of the decedent may be required to collate gifts received by them via donations inter vivas from their fathers, mothers or other ascendants but only if those from whom collation is demanded are called to the succession of the donor.


a. The Person of Whom Collation Is Required Must Be "In Quality" of an Heir To be required to collate, the donee (the recipient of the inter vivas donation) must be "a presumptive heir" (i.e. , have appeared in the quality of an heir to the donor 's succession at the time of the gift.) La. Civ. Code art. 1238.

Example: Grandpa Jack makes an inter vivas donation to Sam, his grandchild after the death of Sam's father (Jack' s son). Sam was a presumptive heir (i. e. , appeared "in the quality" of an heir) of Jack at the time of the gift since Sam's father was deceased at the time of the gift. Therefore, Sam was a presumptive heir of Jack by representation at that time, and Sam would be required to collate the gift made by Jack if demanded to do so.

1) If Heir Holding Property Subject to Collation Renounces The collation rules provide that a child may avoid the duty of collating property by renouncing the succession. La. Civ. Code art. 1237. One legal issue is whether or not the heir has validly renounced the succession so as to not be obligated to collate under article 1 237. Ref Section of this outline (renunciation must be express and in writing) concerning renunciation.

b. When Grandchildren Are Not Required to Collate Gifts made to a grandchild by his grandparent during the life of the parent (i.e. , a grandchild not appearing in the quality of an heir) are always considered exempt from collation. Grandchildren in these cases are expressly exempted by the Civil Code. La. Civ. Code art. 1239A.

Note: Therefore, if Sam's father had been living, in the example above, at the time of the gift from Jack to Sam, then Sam would not have been a presumptive heir of Jack at the time of the gift, and Sam would not be required to collate his gift from Jack.

C. PROCEDURE -HOW COLLATIONS ARE MADE Collations are made in kind or by taking less from the decedent' s succession. La. Civ. Code art. 1 25 1 . Collating in kind or taking less is determined by whether the things subject to collation are immovable or movable. La. Civ. Code art. 1254. For both immovables and movables, valuation is determined at time of donation. See La. Civ. Code art. 1235.

1 . General Definitions

a. In Kind Collation is made in kind when the thing that has been given is delivered up by the donee to rejoin the "mass of the succession" of the donor. La. Civ. Code art. 1252.

b. Taking Less Collation is made by taking less when the donee diminishes the portion he inherits, in proportion to the value of the object that has been donated to him, and he takes that much less from the donor' s succession. La. Civ. Code art. 1253.


2. Immovables (La. Civ. Code arts. 1 255- 1 282)

a. Option-Take Less or Return in Kind

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The favored heir either takes less from the succession, or returns the property in kind. If the donee sells the property, he loses his option to return it in kind.

b. Reimbursements to the Donee of an Immovable There are situations where the donee of an immovable is entitled to reimbursement for expenses and improvements to the immovable to be collated. The right to reimbursement depends upon the type of expense at issue. There are three types of expenses: necessary, useful, and those for mere pleasure. La. Civ. Code art. 1 259.

1) Necessary Expenses Necessary expenses are those that are indispensable for the preservation of the thing. Coheirs are bound to allow the donee the necessary expenses he has incurred for the preservation of the estate. La. Civ. Code art. 1 257.

2) Useful Expenses Useful expenses are those that increase the value of the immovable, but without which the estate can be preserved. A donee who collates in kind must be reimbursed by his coheirs for these expenses which improve the estate, in proportion to the increase in value which the estate has received. La. Civ. Code art. 1256.

3) Expenses for Mere Pleasure Expenses for mere pleasure are those which are only made for the accommodation or convenience of the owner of the estate, with no attendant increase in the estate's value. These expenses need not be reimbursed, but the donee has the right to remove improvements if such removal can be done without damaging the property. La. Civ. Code art. 1258.

c. Donee's Liability for Damage to the Immovable The donee is accountable for any damage or deterioration caused by his own fault or negligence. La. Civ. Code art. 1 260. Liability hinges on the collation option the donee elects.

1) If Donee Collates in Kind If the donee elects, in proper form, to collate in kind, and the immovable property is subsequently destroyed without fault on the part of the donee, the loss is borne by the succession. La. Civ. Code art. 1 26 1 .

2) If Donee Elects to Take Less from Succession If the immovable is destroyed after the donee has declared that he wishes to collate by taking less from the succession, the loss is borne by the donee. La. Civ. Code art. 1 263.

3) Partial Destruction If the immovable property is only partially destroyed, it shall be collated, in any event, in the state in which it is at the time of the partial destruction. La. Civ. Code art. 1 262.


d. Immovable Property Burdened with Real Rights If immovable property returned in kind is burdened with real rights, such as a mortgage, the donee is accountable for the diminution in value caused by the imposition of the real right. La. Civ. Code art. 1 28 1 .

3. Movables (La. Civ. Code arts. 1283- 1288)

a. Cannot Collate in Kind Donee may not collate in kind; must take less. La. Civ. Code art. 1283.

b. Collation of Money Collation of money may be made by returning to the succession a like amount of money or by taking less from the succession. La. Civ. Code art. 1285.

D. GENERAL OBSERVATIONS

1. Keeping Donation, Renouncing Succession Descendant may keep the donation and avoid collation by renouncing the succession. But, the property will still be subject to claim of forced heir for reduction, if it impinges on the legitime.

2. No Collation after a Judgment of Possession Collation cannot be demanded after a judgment of possession has been rendered, if the claimant participated in obtaining the judgment.

3. Community vs. Separate Property If community property is donated, only use the decedent' s one-half of the value for collation.

E. ACTION TO DECLARE SIMULATION

1. Simulation-Definition A contract is a simulation when the parties agree that it does not express their true intent. La. Civ. Code art. 2025.

a. True Intent in a Counter Letter The true intent can be expressed in a separate writing which is called a counter letter. La. Civ. Code art. 2025

b. Kinds of Simulation

1) Absolute The parties intend that the contract produce no effects.

Example: a purported sale in which the vendor actually remains the owner. Placing title in someone else' s name as a purported sale of property, solely to avoid creditors, is a classic example of a simulation.

64. SUCCESSIONS AND DONATIONS (INCLUDING WILLS) barbr1·

2) Relative The parties intend that the contract produce an effect different from the effect recited in the contract. Example: a donation disguised as a sale.

2. Effect and Relationship to Collation

a. Attacking Absolute Simulations Heirs can attack absolute simulations. Since title is not transferred, there is no need to collate.

b. Limitations of Action to Declare Simulation The action to declare a simulation is not limited to protecting the legitime. It is an absolute nullity and the entire property is brought back to the succession.

3. Proof of Simulation

a. Difficulty It is difficult to prove a simulation.

b. Generally As a general rule testimonial or other evidence cannot be used to negate or vary the contents of an authentic act or an act under private signature. If it is in the "interests of justice," such evidence can be introduced to prove a simulation. La. Civ. Code art. 1 848.

c. Simulations and Third Party Reliance Simulations cannot be attacked, however, as to a third party who has relied on the public records.

4. Distinction from Disguised Donations The following transactions resemble simulations, but are not:

a. Donation in Disguise A sale of immovable property made by parents to their children where no purchase price has been paid or where the consideration paid was less than one-fourth of the real value of the property. La. Civ. Code art. 2444.

1) Distinction Unlike an absolute simulation, title is transferred. Even if the disguised donation is in the proper form for a donation, it can be attacked.

2) Note Cross-reference the formalities required for onerous donations.

b. Advantage Bestowed If a parent has sold a thing to his child at a low price, or has bought something for the child, or has spent money to improve the child's estate, this is an "advantage" that is subject to collation even though it is technically not a donation or is an indirect one. La. Civ. Code art. 1 248.

r rr SUCCESSIONS AND DONATIONS (INCLUDING WILLS) 65.

1) Real Collation This is subject to real collation.

2) Determination of "Advantage" The advantage (part donation) is determined from what the property could have brought at the time of the sale to the child. Exception: A low cash consideration with the excess paid by services to the donor may be a valid sale.

F. PRESCRIPTIVE PERIODS

1 . Action to Reduce (La. Civ. Code art. 3497)

a. Inter Vivos Gifts For inter vivos gifts, five years from the death of the donor.

b. Mortis Causa Gifts For mortis causa gifts, five years from the date of probate of the will.

2. Collation Ten years from the date of death, unless the heir has participated in the succession and a judgment of possession has been rendered, which will bar the action. See La. Civ. Code art. 3499.

3. Action to Declare a Simulation The action to declare a simulation is imprescriptible.

VI. PROHIBITION ON DONATIONS OMNIUM BO NORUM

A. DEFINITION Disposing of one' s property in its entirety through inter vivos donations.

B. DONOR DISPOSES OF ALL OF HIS PROPERTY If the donor does dispose of all his property , the donation is void. The donor must keep at least enough for his subsistence.

C. ACTION TO NULLIFY Action to nullify the donation may be brought by the donor during his lifetime, or by his heirs upon his death.

D. PRESCRIPTION The action is imprescriptible.

E. AS TO MOVABLES AND IMMOVABLES Donation of a movable is null and as to an immovable:


1 . Property Alienated by Onerous Title

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I f the donee has alienated the immovable property by onerous title, donee must return the value the immovable had at the time of the donation.

2. Property Subject to Real Rights If the immovable is subject to real rights, the donee is accountable for the diminution in its value.

VII. THE MARITAL PORTION N.B. Technically, marital portion is a testable topic of the Civil Code I exam, not the Civil Code II exam. It is discussed in detail in section IV.C. of the COMMUNITY PROPERTY outline. It is presented here so that you may better understand how it is related to the other concepts of estate distribution.

A. IF ONE SPOUSE DIES "RICH" If one spouse dies "rich " in comparison with the survivor, the survivor may claim the marital portion from the succession of the deceased spouse.

1. Rich Is Relative "Rich" is a relative term and you must look at the comparative wealth of each spouse when the first spouse dies.

2. Spouse in Need The spouse is considered "in need" if she cannot maintain the same standard of living.

a. Earnings/Earning Capacity Earnings and earning capacity are not taken into account in determining the term "in need."

3. Claimant Spouse Without Fault If the claimant spouse is separated from the decedent spouse at the time of the decedent' s death, the claimant spouse must be without fault in regard to the separation to claim the marital portion.

B. AMOUNT La. Civ. Code art. 2434

1. No Surviving Children If there are no surviving children the spouse can take one-fourth of the succession in full ownership.

2. Three Children or less If there are three children or less, the spouse still can take one-fourth of the estate but only in usufruct.

3. More than Three Children If there are more than three children, the spouse takes a child' s share in usufruct.

4. Limits of the Marital Portion Marital portion is limited to an "amount" of $ 1 million. Query: does this mean actuarial value if marital portion is in usufruct? La. Civ. Code art. 2434.


5. Legacies Left to the Surviving Spouse Any legacies left to the surviving spouse and payments due to the spouse as a result of the decedent' s death must be counted as part of the marital portion.

C. THE RIGHT The right is personal, nonheritable, and prescribes in three years from date of death.

D. MARITAL PORTION IN TRUST The marital portion may be placed in trust, whether it is a usufruct or one-fourth of the succession in full ownership.

E. VIOLATIVE OF PUBLIC POLICY It is against public policy to contract, by matrimonial agreement or otherwise, to waive or renounce the marital portion until after the decedent spouse dies. Solution: Insurance, retirement plan proceeds, testamentary trust, etc.

VHI. DONATIONS INTER VIVOS Act 204 of the 2008 Regular Session of the Louisiana Legislature enacted a revision of the Civil Code articles concerning donations inter vivos effective January 1 , 2009. The revision modernizes and streamlines rules that were originally part of Louisiana's Civil Code of 1 825 and carried over to the 1 870 Civil Code. The new articles clarify existing rules on donations inter vivos and facilitate changing economic conditions consistent with technological advancements including electronic commerce and transactions. The rules below refer generally to the new law effective 01/01/2009. For comparative analysis, some references to the law of donations inter vivos from the 1 870 Civil Code as amended (effective up until 1 2/3 1 /2008) are also discussed.

A. DEFINITION A donation inter vivos is a contract by which a donor gratuitously divests himself at present and irrevocably of a thing given to a donee, and the donee accepts it. La. Civ. Code art. 1468.

B. CLASSIFICATION

1 . Types of Donations Inter Vivos Historically, the Code distinguished three kinds of inter vivos donations: gratuitous, onerous and remunerative. These express categories were removed in the Act 204 Revision because the latter two categories (onerous and remunerative) are not really donations. The underlying purpose for the distinction has been preserved for form reasons.

a. Gratuitous A gratuitous donation is one made without condition on the donee.

b. Onerous An "onerous" donation is burdened with charges imposed on the donee that result in a material advantage to the donor (in exchange for the "gift").


c. Remunerative A "remunerative" donation is a "gift" and is meant to compensate the donee for services rendered.

2. Relevance of Classification - Two-Thirds Rule, Form The rules as to form governing gratuitous inter vivas donations do not apply to those obligations once referred to as onerous and remunerative donations. The revision of the law of donations inter vivas clearly expresses this rule in the first part of the chapter.

a. Generally Generally, the two-thirds rule works this way: the value of the services rendered by the donee or the cost of the charges imposed by the donor must be equal to or greater than two-thirds of the value of the gift or the rules of form governing gratuitous inter vivos donations will be applicable. Rules as to form are discussed in detail infra at VIII.D.

b. "Onerous" Donations The rules concerning fonn do not apply to a donation that is burdened with an obligation imposed on the donee that gives a material advantage to the donor, unless the cost of performing the obligation is less than two-thirds of the value of the donated thing valued at the time of donation. La. Civ. Code art. 1 526.

c. "Remunerative" Donations These rules of form also do not apply to a donation that is made to recompense for services rendered that are susceptible of being measured in money unless the value of those services is less than two-thirds of the value of the donated thing valued at the time of donation. La. Civ. Code art. 1 527.

C. GENERAL REQUIREMENTS There are some substantive requirements to have a valid gift, even if the all-important form is proper.

1. Donative Intent Donative intent is needed in addition to the requisite formalities.

2. lrrevocability A donation must be irrevocable. However, there are significant exceptions to this general rule; see discussion infra under VIII.F. for exceptions.

3. Present Property The donor may only donate present property. If a donation attempts to include future property, the portion of the donation that concerns future property is null. La. Civ. Code art. 1 529.

4. Conditions Generally, the donor may impose charges or lawful conditions that are not "contrary to good morals" on the donee as he pleases with some exceptions. La. Civ. Code art. 1 528. These permissible conditions do not necessarily make the donation onerous. The effect of nonfulfillment or nonperformance of conditions is explained infra at VIII.F.3 . (Dissolution).


a. Donor's Wm A donation inter vivas conditioned on the donor's will is null. La. Civ. Code art. 1530.

b. Payment of Future or Unexpressed Debts A donation inter vivas conditioned on paying debts and charges other than those existing at the time of the donation is also null unless these debts and charges are expressed in the act of donation. La. Civ. Code art. 1 53 1 .

c. Right of Return

1) Permissible Stipulation The donor is allowed to stipulate a right of return of the donated property should he survive the donee only, or if he survives the donee's descendants. La. Civ. Code art. 1 532.

Example: I give my mother's wedding ring to you, but if you die before me, it shall return to me.

2) Effect of Return and Exception - When the Donor Gets the Property Back If stipulated, the donated thing returns to the donor free of any alienation, lease or encumbrance made by the donee or his successors after the donation took place.

Exception: a transferee of the donee who acquires the donated thing for value and in good faith is not obligated to the original donor. The donor's recourse in that situation is to recover damages for his loss from the donee and the donee's successors by gratuitous title. La. Civ. Code art. 1 533 .

d. Not Applicable to Marriage Donations The exceptions above, including the restriction on donating future property, are not applicable to donations in the marriage context, explained at VIII.G., infra.

D. FORM RULES Generally, a donation inter vivas must be made by authentic act or it is an absolute nullity. La. Civ. Code art. 1 54 1 . There are several very important exceptions based on the classification of prope1iy involved under D.3 . , infra.

1 . Required Contents of the Act of Donation The act of donation shall identify the donor and the donee, and must contain an adequate description of the thing donated. These requirements are satisfied if the identities and description are either contained in the act of donation itself or are reasonably ascertainable from information contained in the act. Extrinsic evidence can be used to clarify an identification or description where necessary. La. Civ. Code art. 1 542.

Note: The "reasonably ascertainable" standard is borrowed from the rule in La. Civ. Code art. 1 575 concerning dates on olographic testaments.


2. Confirmation A donation inter vivas that is null for lack of proper form may, however, be confirmed by the donor. This confirmation must be in the form required for a donation and is retroactive to the date of the original invalid donation. La. Civ. Code art. 1 845 .

3. Form vis-a-vis Classifications of Property Donated Generally, an inter vivas donation of an immovable or an incorporeal movable must be made by authentic act; there are exceptions spelled out below. A donation of a corporeal movable can be effectuated by more relaxed rules.

a. Immovables When the donation inter vivas affects an immovable, or a real right thereto (for example, the gift of a usufruct), the act of donation, as well as the act of acceptance (whether in the same or a separate act), must be filed for registry in the conveyance records in the parish in which the immovable is located to affect third parties. See La. Civ. Code art. 3338 .

b. Movables

1) Corporeal Movables - the Manual Gift A gift of a corporeal movable can be by manual delivery without any further formality, or it may be made by authentic act (in which case delivery is not necessary). La. Civ. Code art. 1543.

2) Incorporeal Movables

a) Generally The donation (or acceptance) of certain incorporeal movables such as those evidenced by a certificate, document, instrument, or other writing, and made transferable by endorsement or delivery, may be made by authentic act or in accordance with the rules particular to the specific type of incorporeal movable involved. La. Civ. Code art. 1 550, if l .

i) Negotiable and Non-Negotiable Instruments Negotiable and non-negotiable instruments (e.g. , promissory notes) may be donated validly in accordance with the rules of Louisiana' s commercial laws in Title 1 0. La. Rev. Stat. 10:3-203(b).

ii) Stock Certificates Stocks in certificate form, whether publicly traded or closely held, are covered and their donation and acceptance comport with the rule in article 1 550; remember that transfer alone is not enough: donative intent is always required.

iii) Checks If intended to give the money represented by the check to the payee, a gift of a check is not a completed gift until the check has been cashed, since payment can be stopped. A gift of a check itself(e.g. , A gives B ' s check to C), however, is complete without cashing.


Delivery of a certified check is complete upon receipt and valid under article 1 550 since the funds for such an instrument are already set aside in the bank and cashing is not necessary.

iv) Passbooks Passbooks are usually deemed incorporeal, thus needing an authentic act for a valid donation inter vivas. A bank account opened in the name of another person is not a completed gift if the "donor" retains the right of withdrawal. Opening an "or" account (e.g. , in names of "A or B") is not a gift. If A opens the account with his funds and B draws out the funds, B has the burden of proof by "strong and convincing" evidence to show that A intended a gift to B. Instead of using an authentic act, the donor may withdraw the money and deliver it manually.

v) Bearer Bonds A United States "bearer" bond is donated by manual delivery and is covered. However, other "bearer" bonds formerly required an authentic act; now they may be donated under commercial laws regarding instruments.

vi) Certificates of Deposit Certificates of deposit are incorporeal instruments and as such, are covered by the new rule in 1 550.

vii) U.S. Savings Bonds The donation and transfer of U.S . bonds are governed exclusively by federal law, and authentic act or delivery under provisions of article 1 550 or any other Louisiana law will not apply.

b) Investment Property An incorporeal movable classified as "investment property" under Chapter 9 (Louisiana's version ofUCC Article 9) may be donated by a writing signed by the donor that evidences donative intent and directs the transfer of the property to the donee or his account or for his benefit (an authentic act is not required). Completion of the transfer process constitutes acceptance of the donation. La. Civ. Code art. 1 550, if2. Examples would include stock (whether certificated or not), mutual funds, most bonds, certificates of deposit in an investment account, and annuities in an investment account (as a general matter though, most annuities are governed by the terms of the annuity contract itself).

E. ACCEPTANCE A donation inter vivas is without effect until it is accepted by the donee. La. Civ. Code art. 1 544. Previously the rule provided that if the donee accepts the donation at some point after the donation itself, the donation had effect only from the date of the donor being notified that the donee had accepted the donation. The concept of "notification" of the donor has been removed from the new article.


When the donation is effective (upon acceptance), ownership or "other real right" (e.g. , gift of a usufruct by donor A to donee B) in the donated thing is transferred to the donee. La. Civ. Code art. 1 55 1 .

1 . When - Date of Acceptance, Effectiveness The acceptance must be made during the lifetime of the donor. La. Civ. Code art. 1 544, 4111 . The donation must also be accepted during the lifetime of the donee; if the donee dies before acceptance, his successors cannot accept for him. La. Civ. Code art. 1 546.

2. How - Methods of Acceptance

a. In Act of Donation or Subsequently Acceptance may be made in the act of donation or by a "subsequent" act in writing. La. Civ. Code art. 1544, 4112. The acceptance does not have to be in authentic form, just in writing. The previous rule required that a subsequent acceptance also be by authentic act, but the revision relaxes the rule to be that a simple writing suffices.

Note: The Louisiana Supreme Court upheld a gift where the donees accepted the gift a day before the donors signed the act of donation. See Tweedel v. Brasseaux, 433 So.2d 133 (La. 1 983). The comments to the revision state that the new law is not intended to change that result.

b. Movable - Donee in Possession A donation of a movable is also accepted and has full effect if the donee has been put into corporeal possession by the donor (i. e. , completion of the manual gift). La. Civ. Code art. 1 544, 41f3.

c. Immovable - Subsequent Alienation or Encumbrance by Donee A subsequent alienation or encumbrance of an immovable by the donee shall be considered an act of acceptance and is effective against third parties upon recordation of any act or other document which alienates or encumbers the property, regardless of form, filed in the parish in which the immovable is located. La. Rev. Stat. 9:237 1 .

d. With All Existing Charges The donee takes the donated thing subject to all of its charges, even those that the donor imposes in the time frame between the time of donation and the time of acceptance. La. Civ. Code art. 1549.

3. By Whom The general rule is that a donee must accept a donation personally, but there are exceptions (spelled out below).

a. Acceptance Prohibited by Donee's Successors If the donee dies before accepting the donation, his successors may not accept for him. La. Civ. Code art. 1 546.

r rr SUCCESSIONS AND DONATIONS (INCLUDING WILLS) 73.

b. Acceptance by Mandatary If delivery is made to an agent or mandatary, the gift is complete if the mandatary is the donee's mandatary and the acceptance of the donation is within the scope of the mandate. La. Civ. Code art. 1 545.

c. Acceptance by Minors A donation to an unemancipated minor may be accepted by the minor' s parent or other ascendant of the minor, or by his tutor, even if the person accepting is also the donor. La. Civ. Code art. 1 548.

d. No Acceptance by Donee's Creditors The donee' s creditors may not accept the donation for him if the donee refuses or neglects to accept the donation. La. Civ. Code art. 1 547. Note that this is not the same rule as for successions.

F. REVOCATION AND DISSOLUTION Donations inter vivas are generally irrevocable with certain exceptions. Watch the terminology: the revision of the law of donations inter vivas makes a clear distinction between revocation and dissolution. The only ground for revocation is ingratitude, and the grounds for such are specifically defined (see infra). Dissolution, on the other hand, may be for any number of reasons; for some of those reasons, there must be a lawsuit filed Gudicial dissolution) or consent of the parties, but in others, dissolution is automatic (of right).

1. Generally A donation inter vivas may be revoked because of ingratitude of the donee. A donation may be dissolved for the nonfulfillment of a suspensive condition or the occurrence of a resolutory condition. A donation may also be dissolved for the nonperformance of other conditions or charges . La. Civ. Code art. 1 556.

2. Revocation Based on Ingratitude of the Do nee

a. Grounds The grounds for revocation are limited. Revocation based on ingratitude of the donee occurs only in the following two cases: where the donee has attempted to take the life of the donor, or where the donee is guilty of cruel treatment, crimes or grievous injuries toward the donor. La. Civ. Code art. 1 557. Formerly, there was a third ground, refusing the donor food when in distress, but it has been removed as unnecessary.

1) Killing Donor Donee tries to kill or actually does kill the donor.

2) Cruel Treatment, Etc. The donee is guilty of cruel treatment, or guilty of crimes or grievous injury to the donor.

a) Jurisprudential Example #1 "Grievous injury" sufficient to revoke a donation has been defined by Louisiana jurisprudence as any act "naturally offensive" to the donor. Perry v. Perry, 507 So.2d 88 1 (La. App. 4th Cir. 1 987).


b) Jurisprudential Example #2 Cruel treatment or grievous injury sufficient to revoke a donation may include adultery by a spouse; filing suit against a parent falsely alleging criminal activity; and slandering the memory of the donor. See, for example, Perry v. Perry, 507 So.2d 8 8 1 (La. App. 4th Cir. 1 987); Spruiell v. Ludwig, 568 So.2d 1 33 (La. App. 5th Cir. 1990); Sanders v. Sanders, 768 So.2d 739 (La. App. 2d Cir. 2000).

b. Prescription The action to revoke based on ingratitude must be brought within one year from the date the donor knew or should have known of the act of ingratitude. La. Civ. Code art. 1 558, ifl . Previously, the action had to be brought within one year from the day of the act of ingratitude or from the day the act was made known to the donor.

c. Proper Parties Generally, only the donor may have a donation revoked for ingratitude, but ifhe dies after having already commenced an action to revoke and then dies, his successors may continue it.

1) Donor's Successors as Plaintiffs If the donor dies before the prescriptive period explained in F.2.b. supra accrues, the action may be brought by his successors, but only within the time remaining in the oneyear period. If the donor died without knowing or having reason to know of the act of ingratitude, then the successors have one year from the death of the donor to file the action. La. Civ. Code art. 1 558, if2.

2) Donee's Successors as Defendants If the donee is deceased, the action for revocation may be brought against the donee's successors. La. Civ. Code art. 1 558, if4. Previously, a revocation action could not be brought by the donor "against the heirs of the donee." Former La. Civ. Code art. 1 56 1 .

d. Effect of Revocation

1) Alienations or Encumbrances by Donee

a) Before Action Is Filed Revocation for ingratitude does not affect an alienation, lease or encumbrance made by the donee before the action to revoke is filed. This is simply a restatement of the previous rule.

b) After Action Is Filed

i) Movables If an alienation, lease or encumbrance of a movable is made after the filing of the action to revoke, the alienation, lease or encumbrance is effective against the donor only when it is an onerous transaction made in good faith by the transferee, lessee or creditor.


ii) Immovables When an alienation, lease or encumbrance of an immovable is made after the filing of the action to revoke, the effect of the action to revoke is governed by the law of registry.

Note: The grounds for ingratitude, unlike conditions or charges, will not appear in the act of donation or in the public records, so this rule means that a donor who files an action to revoke a donation of immovable property should file a notice of lis pendens in the public records in order to affect third parties. This rule is meant to protect good faith transferees who can rely on the absence of a notice of lis pendens in the public records.

2) Restoration If the action to revoke based on ingratitude is successful, as a general rule the donee must return the thing donated as well as the fruits and products of it. La. Civ. Code arts. 1 560, 1 566. The change from the old law here is that the donee is not given the option of returning the thing or tendering its value to the donor; he must return the thing if possible.

a) Donee Unable to Return Donated Property If the donee is not able to return the actual thing, the donee must restore the value of the donated thing, measured at the time the action to revoke is filed. La. Civ. Code art. 1 560.

3. Dissolution of an Inter Vivos Donation - Conditions Donations can be permissibly subject to conditions which may be suspensive (e.g., a gift in contemplation of a marriage) or resolutory (e.g. , a gift of land to be used and maintained as a public market place). The nonfulfillment or nonoccurrence of these conditions, respectively, can dissolve a donation inter vivos.

a. Nonfulfillment of a Suspensive Condition If a donation is subject to a suspensive condition, the donation is dissolved of right when the condition can no longer be fulfilled. La. Civ. Code art. 1 562, if l .

b. Nonoccurrence of a Resolutory Condition If a donation is subject to a resolutory condition, the occurrence of the condition does not of right operate a dissolution; in this instance the donation may be dissolved only by the consent of the parties or by a judicial decree. La. Civ. Code art. 1 562, iJ2.

c. Conditions within the Donee's Control If a donation is made on a condition that the donee has the power to perform or prevent, or the donation depends on the performance of a charge by the donee, the nonfulfillment of the condition or the nonperformance of the charge does not, of right, dissolve the donation; the donation may only be dissolved by the consent of the parties or a judicial decree. La. Civ. Code art. 1 563.

d. Prescription The prescriptive period for an action to dissolve for failure to fulfill the conditions or perform the charges imposed on the donee is five years from the day the donee fails to perform the


charges or fulfill his obligations or ceases to do so. La. Civ. Code art. 1 564. The former rule seemed to point to the general Code article for personal actions of ten-year liberative prescription. See generally La. Civ. Code art. 3499.

e. Effect of Dissolution of Donation for Non-Fulfillment of Conditions

1) Immovables If a donation of an immovable is dissolved for the non-fulfillment of a condition, the immovable must be returned even if the donee has alienated it by onerous title (subject to the laws ofregistry). If the thing cannot be returned free from third-party rights, the donor may still accept the thing and the donee is liable for any diminution in value. In the absence of return of the actual thing or return of the thing in impaired condition, the donee must restore the value of the donated thing measured at the time the action to dissolve is filed. La. Civ. Code art. 1 565, ifl .

2) Movables If a donation of a movable is dissolved for the non-fulfillment of a condition, an alienation, lease or encumbrance by the donee or his successors is effective against the donor only when it is by onerous title made in good faith by the transferee, lessee, or creditor. La. Civ. Code art. 1 565, if2.

3) Fruits and Products When a donation is dissolved, the donee or his successor must restore (or pay the value of) the fruits and products of the donated thing from the date of written demand. Further, when the action is for dissolution based on nonperformance of a condition, the court has discretion as to when to order or value the restoration if the failure is due to the donee's fault (i.e. , the court may order return of fruits and products from an earlier date than written demand if the conditions imposed by the donor were not fulfilled due to the donee's fault). La. Civ. Code art. 1 566.

4. Condition of Returned Property If the donee (or his successors) is obligated to return a thing and cannot do so in essentially the same condition it was in at the time of the donation, the donor may choose to receive the thing in its present condition and require its return and in that case hold the donee liable for any diminution in value at the time of the delivery. La. Civ. Code art. 1 567.

5. Nuance in Civil Code Ancillaries - Donations to a Spouse Note that donations inter vivas to a spouse can be made revocable if the donation is by authentic act and the right of revocation is expressly reserved. La. Rev. Stat. 9:235 1 .

G. DONATIONS INTER VIVOS IN THE MARRIAGE CONTEXT

1 . Donations Inter Vivos Made by Third Persons in Contemplation of Someone's Marriage A donation inter vivas in contemplation of a prospective marriage is governed by the rules for inter vivas donations in general unless those general rules are modified by the rules discussed below. La. Civ. Code art. 1 734. If a donation in contemplation of marriage does not comply with the rules presented below, it is not necessarily null, but will be subject to the general rules on inter vivas donations.

SUCCESSIONS AND DONA TIO NS (INCLUDING WILLS) 77.

a. Formalities The gift shall be made by a single instrument in authentic form expressly stating that the donor makes the gift in contemplation of marriage. It shall be signed at the same time and place by the donor and by both prospective spouses. La. Civ. Code art. 1 735.

b. Subject to Suspensive Condition The donation shall be conditioned suspensively on the prospective marriage actually taking place. La. Civ. Code art. 1 736.

c. Beneficiaries

1) Present Property The donor may donate any of his present property to one or both of the spouses under these rules, but not to their common descendants, whether already born or yet to be born. La. Civ. Code art. 1 737.

2) Property to be Left at Death The donor may donate all or any of the property he will leave at his death ( 1 ) to one or both of the prospective spouses or (2) to one or both of the spouses and if they (or one if donating only to one spouse) cannot take (predecease the donor, or renounce or are declared unworthy after succession opened), to their common descendants. In either case there is a presumption that the donor intended to donate to the spouses' common descendants, even if they are not mentioned in the act of donation. La. Civ. Code art. 1 738 .

d. Other Rules Applicable Other general rules as to revocation, representation (substitution of spouses' common descendants here), accretion/legacy lapse, acceptance and renunciation and payment of estate debts as presented above are applicable in this context.

2. Interspousal Donations Inter Vivos A person can make a donation inter vivas to his future or present spouse in contemplation or in consideration of their marriage. The rules specific to this type of act are suppletive to the general rules of donations inter vivas (and include the rules as to donations inter vivas in contemplation of a prospective marriage, respective differences considered - most are alike though). If a particular donation does not comply with the rules of interspousal donations inter vivas, it is not necessarily null, but will be subject to the general rules on inter vivas donations. La. Civ. Code arts. 1 744, 1 745 .

a. Objects and Beneficiaries The donor may donate any of his present property or all or any of the property he has at death to the donor' s future or present spouse under these rules, not to their common descendants whether already born or yet to be born. La. Civ. Code art. 1 746.

b. Right of Return not Presumed If present property, it is presumed not to have been made subject to the resolutory condition that the donor survive the donee and his descendants. La. Civ. Code art. 1 748.


c. Nullity if Disguised Donation

bo

A donation of property that the donor will leave at his death is absolutely null if i t is disguised or made to a person interposed to his spouse (i.e. , a "dummy donee"). Examples in the Code of such "interposed parties" would be a child of the donee spouse who is not among the spouses' common children or a person to whom the donee spouse is a presumptive successor at the time the donation is made, even if the donee spouse does not thereafter survive that person. La. Civ. Code art. 1 75 1 .

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