4. Code II: Successions and Donations Flashcards
Succession
Succession is the transmission of the estate of a deceased person to his successor.
An estate includes the property, rights, and obligations of the decedent, as well as the charges (debts/expenses) accruing after his death.
Modes of Inheritance
- in his own right
- by representation
- by transmission
Inheritance by Transmission
heirs taking the succession rights of a successor who died after the decedent but before exercising the right to accept or renounce
Intestate Succession
occurs when:
(1) the decedent leaves no will
(2) the will is invalid (in whole or part) OR
(3) the will does not dispose of all of the property
Classes of Heirs
(1) descendants;
(2) ascendants (parents, siblings, and siblings’ descendants);
(3) spouse not judicially separated; and
(4) collaterals
Absent representation, a higher class will exclude a lower class. Within a class, the closest in degree will exclude those further in degree.
Inheritance of Separate Property by Intestacy: Order
- Descendants
- Parents and Siblings (and siblings descendants)
- Spouse not judicially separated
- more remote ASCENDANTS
- more remote COLLATERALS
- the state of LA
Inheritance of Separate Property by Intestacy: Descendants
If the deceased has descendants, they inherit to the exclusion of other heirs.
Intestate Inheritance of Separate Property by Intestacy: NO Descendants
If the deceased has no descendants, then his parents and siblings (and descendants of siblings) inherit to the exclusion of others.
Parents have a joint and successive usufruct and the siblings have naked ownership. If there is no parent surviving, the entire estate goes to the siblings of the decedent to the exclusion of all others.
Inheritance of Separate Property: Half Siblings and Step Siblings
For half-siblings, the estate will be divided into maternal and paternal halves.
Step-siblings inherit nothing.
Inheritance of Separate Property: Surviving Spouse not Judicially Separated
If the deceased has no surviving descendants, parents, or siblings, the surviving spouse, not judicially separated, inherits to the exclusion of other ascendants and collaterals.
Intestate Inheritance of Community Property: Surviving Spouse’s Half
If one spouse dies, the surviving spouse has full ownership of her 1⁄2 share of all community property.
Intestate Inheritance of Community Property: Decedent’s Half
- If there are descendants, the decedent’s 1⁄2 interest in community property goes to them subject to a usufruct granted by law in favor of the surviving spouse.
- If the decedent has no descendants, the surviving spouse succeeds to the decedent’s 1⁄2 interest in the community property.
Surviving Spouse’s Usufruct Termination
The usufruct terminates upon death or when the surviving spouse remarries, whichever occurs first.
Inheritance Rights of Adopted Children
- can inherit from both adopted AND bio fam
- only adopted fam can inherit from adopted child
- foster kids get nothing
Security in Usufruct
may be requested only by naked owner ONLY if naked owner is NOT the child of the surviving spouse OR is a forced heir
Representation
allows one who would not inherit in his own right to slide into the shoes of another
only applies when the decedent:
(1) has a predeceased
(2) descendant OR sibling
(3) who has descendants of their own
inheritance occurs by ROOTS
Quasi-Representation
usually yields same result if sibling or descendant of the decedent RENOUNCES or is declared UNWORTHY and has descendants of his own
Seizin
Succession rights vest at the moment of the decedent’s death, and therefore, the successor acquires ownership (or is “seized”) of the decedent’s property immediately upon the decedent’s death.
“le mort saizet le vie”
Effect of Seizin
the rights of the successor are transmitted to his successors at his death, regardless if they accepted the rights
Unworthiness Grounds
- convicted of a crime involving intentional killing or attempted killing of the decedent
- judicially determined to have participated in the intentional, unjustified killing or attempted killing of the decedent
not automatic — must be pronounced and done in succession proceedings
Effect of Unworthiness
unworthy heir does not succeed
treated as predeceasing the decedent
Standing for Action Declaring Unworthiness
must be brought by person who would succeed in place of or in concurrence with the unworthy successor
must be brought in succession proceedings
Defenses for Unworthiness
- reconciliation
- forgiveness
Successor’s Options
successor may:
- accept
- renounce
- accept in part and renounce in part
Reconciliation
- tacit reconciliation – infer reconciliation if the decedent does not disinherit the unworthy heir, only creates evidence of reconciliation
- other evidence: still hang out together; invite over for dinner; attend important life events.
Note: the longer time goes on and the decedent doesn’t disinherit, strengthens the argument for tacit reconciliation
Prerequisites to Acceptance/ Renunciation
- decedent must be DEAD at time of acceptance/ renunciation
- successor must know of:
- the death of the decedent
- that he has rights as a successor
premature acceptance/ renunciation = absolutely null
Acceptance
A successor is presumed to accept succession rights.
- minor = deemed to accept but legal rep can renounce when expressly authorized by court
- can be formal or informal
Successor’s Liability
Universal successors are liable for estate debts, to the extent of the value of the property received by them.
An intestate heir is liable to the creditor for the payment of the debt in proportion to the part he received in the succession.
Estate Debts
Estate debts include debts of the decedent and administration expenses.
Payment of Estate Debts - Creditor Rule
Renunciation
AFTER decedents death and AFTER successor knows of the death and his rights to succession
must be EXPRESS and in WRITING
Effects of Renunciation
When an intestate successor renounces, his rights accrete to the person who would have succeeded to them if the successor had predeceased the decedent.
Formal Acceptance
express and in writing or in a judicial proceeding
Informal Acceptance
by action implying an intent to accept
Types of Donations
- donations inter vivos
- donations mortis causa
Donations Inter Vivos
K by which donor gratuitously divests himself
AT PRESENT
AND IRREVOCABLY
of the thing given
in favor of donee
who accepts the thing
Donations Mortis Causa
must be housed in a valid testament or it is absolutely null
act that takes effect AT DEATH of the donor whereby donor divests himself of all or part of his property
REVOCABLE DURING HIS LIFETIME
Requirements for a Valid Donation
- Capacity
- No vices
- form AND
- substantive limits respected
Substantive Limits
If a donation attempts to include future property, the portion of the donation that concerns future property is null.
For a donation mortis causa, it can only be made in a testament authorized by law.
Capacity
presumed
need:
1. capacity to receive (DONEE)
2. capacity to give (DONOR)
Capacity to Receive: When?
- DIV = at time of acceptance
- DMC = at death of testator
Capacity to Receive
donee must be in existence
or in utero and later born alive
Capacity to Give: When?
- DIV = when donor makes donation
- DMC = when testator executes will
Capacity to Give: Age
- under 16 = only give to spouse or child, cant have a spouse under new laws
- 16-17 = DMC to anyone/ DIV to spouse or child
- 18 anything
Capacity to Give: Mental Condition
must comprehend generally the nature and consequences of the disposition
challenger bears BOP by clear and convincing evidence
Capacity to Give: Interdicts
- full = no capacity to give
- limited = depends on judgment of limited interdiction
Vices of Donations
- fraud
- duress
- undue influence
BOP to Prove Vices of Donations
BOP on challenger clear and convincing
UNLESS unrelated and relationship of confidence then preponderance
Fraud
misrepresentation or suppression of the truth
with the intention to either gain an unjust advantage for one party
OR to cause a loss or inconvenience to the other
Duress
reasonable fear of unjust and considerable injury
to a party’s person,
property, or
reputation
Undue Influence
when a donation is a 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
Effect of Vice of Consent
If a donation is tainted by a vice of consent, the donation is null and severed from the rest of the act.
One who commits a vice may not serve as an executor, trustee, attorney, or other fiduciary capacity pursuant to a designation as such in a donation or testament.
One who commits a vice may not serve as . . .
an executor, trustee, attorney, or other fiduciary capacity pursuant to a designation as such in a donation or testament.
(1) Personal Matters/ Decisions of the Donee – prohibition of marriage
(2) Patrimonial Matters: interfere with donee’s free exercise of rights
(3) Penal Clauses: if you challenge this donation you lose the donation
Examples of null conditions
Prohibited Substitutions
(1) property not in trust
(2) given in full ownership
(3) by donor to first donee (institute)
(4) who must preserve and deliver it at his DEATH
(5) to the second donee (substitute)
This prohibited substitution is null as to both donee and will lapse but the rest of the testament is valid.
Vulgar Substitutions
when a donation is made to one donee that provides if the first donee cannot take the gift, then it will go to a second donee
= NOT null
The testator may include a requirement that the legatee survive him for a period of no longer than six months.
Forms of Testaments
- Olographic Testament
- Notarial Testament
Olographic Testament
An olographic testament must be written, dated, and signed in the handwriting of the testator.
Signature in Olographic Testament
The signature should appear at the END of the will,
although anything written after does NOT invalidate the will – and the court may consider the writing as part of the testament.
The courts generally find initials to NOT qualify as a signature.
Date in Olographic Testament
An uncertain date does NOT invalidate the will as long as the date is reasonably ascertainable from the information in the testament
and CAN be clarified by extrinsic evidence.
Pre-Printed Will
valid if testamentary intent can be ascertained SOLELY from handwritten portion
Conflict of Law for Testamentary Dispositions
Louisiana conflicts law provides that a testamentary disposition is valid as to form if it is in writing and made in conformity with:
(1) the law of this state;
(2) the law of the state where it was made at the time of making;
(3) the law of the state where the testator was domiciled at the time of making or at the time of death; OR
(4) for immovables, where the immovable is located
Notarial Testament Requirements
The standard notarial testament, only from a testator who can read and sign his name, requires:
(1) a written document;
(2) executed before a notary and two witnesses;
(3) a declaration by the testator in the presence of the witnesses and notary that the document is his last will and testament;
(4) signature on every page and at the end;
(5) a date; and
(6) an attestation clause
Attestation Clause Requirements
- signed in the presence of the notary and the witnesses
- stating that the formalities have been met, specifically stating the testator signed or declared this to be his last will and testament in the presence of the notary and witnesses, the testator signed on each page and at the end in the presence of the notary and witnesses, and the notary and witnesses signed the attestation clause in the presence of both the testator and each other
CANNOT be Witnesses to Testament Under PENALTY OF NULLITY
- insane
- blind
- unable to sign name
- under 16
Legatee as Witness
A legatee or legatee’s spouse (at the time of execution) cannot be a witness,
BUT this will not nullify the testament – it will only nullify the legacy.
If legatee witness would have been intestate successor then he inherits the lesser of intestate and legacy share
Legatee as Notary
A legatee cannot be the notary – this will nullify the legacy.
Legatee gets nothing
Does NOT NULLIFY TESTAMEMT
Testator Names Attorney in Testament
= merely precatory
Testator Delegation to Executor
executor can:
1. select assets to satisfy bequests made by value or quantum
2. allocate among charities (even choose and impose conditions)
Classification of Legacies
legacies can be classified by magnitude (universal/ general/ particular) or by number of legatees (joint/ separate)
Universal Legacy
A universal legacy is one where the testator gives the entirety of his property or the balance after particular legacies.
General Legacy
A general legacy is one where the testator gives a fraction or certain portion of the estate or a fraction or certain proportion of the balance remaining after particular legacies;
or a fraction of one of the following categories:
separate/ community
immovable/ movable
corporeal/ incorporeal
The legacy cannot have overlapping categories and can still be general.
Particular Legacy
A particular legacy is one that is not universal or general
A specific bequest
Joint Legacy
A joint legacy is one to more than one person where the testator does not assign shares.
If the decedent does not assign shares and does not expressly designate the legacy as separate, it is joint.
Separate Legacy
A separate legacy is one to more than one person where the testator assigns shares.
Lapsed Legacy
(1) legatee predeceases testator
(2) legatee incapable of receiving
(3) legacy subject to suspensive condition that cannot be fulfilled
(4) legatee declared unworthy
(5) legatee renounces
(6) legacy is invalid
(7) legacy is null
= when legacies lapse they accrete
Accretion of Legacy
The accretion of lapsed legacies follows an order for where the legacy should end up.
- First, look to any governing testamentary provision specifying what will happen upon lapse. If so, the legacy accretes how the testator provided.
- Second, look to the most favored class rules, which applies if the legatee is descendant or sibling of the testator; the legatee has descendants of their own; AND the lapse is not caused by invalidity or nullity. If this rule applies, the legacy accretes to the legatee’s descendants.
- Third, determine if the legacy is joint. If so, the legacy accretes to the other joint legatees.
- Fourth, A particular or general legacy accretes to the successor who would have received the property had the legacy not been made (e.g. specific wine bottle in a collection or a ring for all jewelry).
- Fifth, any remaining lapsed legacies not resolved by the prior rules accrete to the universal legatee or to the general legatee if the general legacy is phrased as a balance or residue.
- Sixth, any remaining lapse legacies devolve by intestacy.
Accretion of Legacy (STEPS)
- governing testamentary provision
- most favored class rule
- joint legacy?
- particular/ general?
- universal or general legatee in residue
- by intestacy
Most Favored Class Rule
applies if:
1. the legatee is descendant or sibling of the testator
2. The legatee has descendants of their own; AND
3. the lapse is not caused by invalidity or nullity
If this rule applies, the legacy accretes to the legatee’s descendants.
Extinction of Legacies
occurs when the property that is object of the legacy, before the testator’s death, is lost, destroyed, or extinguished.
if partial = legatee gets what is remaining
Revocation of Entire Testament
(1) physical destruction
(2) revocation in the form of testament
(3) revoke in an authentic act
(4) signed writing in testator’s hand identifying you want will to be revoked (no date necessary)
Revocation of Legacy
NOT THE SAME AS LAPSE = REVOKED IS TREATED AS NEVER WRITTEN
(1) state intent to revoke in the form of a testament
(2) subsequent incompatible testamentary dispositions
(3) subsequent inter vivos disposition without re-acquiring the property
(4) a signed writing on the testament itself
(5) post-testamentary divorce
(6) any grounds for revocation for an inter vivos donation (ingratitude)
Multiple Testaments
if a subsequent testament is revoked or invalid, the prior testament is revived unless prior testament was destroyed
revocation is ineffective if it is revoked
Interpreting Legacies: Generally
If the language of the testament is clear, it should be applied as written.
Testamentary intent is the controlling factor in interpreting legacies.
Interpreting Legacies if Testamentary Intent is Unclear
- if the identification of an object is unclear or erroneous as to quantity = less is required
- dispositions refer to property owned by the testator at death unless the contrary is clearly expressed
- a legacy to a creditor is not applied toward satisfaction of the debt unless the testator clearly indicates so
Interpreting Legacies: Contradictory Provisions
When a testament contains contradictory provisions, the one written last prevails.
Interpreting Legacies: Collection/ Overlap
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 (meaning the particular legacy prevails over the general legacy).
Forced Heir
Descendants of the first degree who are 23 years of age or younger qualify as a forced heir.
Forced Heirship
Absent disinherison, forced heirship is when a decedent must reserve a portion of his active mass for his forced heirs collectively.
Forced Heirs in their Own Right
(1) first degree
(2) descendant AND
(3) EITHER:
- 23 or younger OR
- disabled
Forced Heirs: Disability
PIMP IIDD
Descendants of the first degree of any age who are disabled also qualify as forced heirs.
Disabled in this context means at the decedent’s death, the heir has a physical or mental incapacity that renders him PERMANENTLY incapable of taking care of his person or administering his estate.
Disabled is also when the heir has an inherited, incurable disease diagnosed at the decedent’s death that may render the heir permanently incapable for caring for his person of administering his estate.
Forced Heir by Representation
Forced heirs, by representation, are descendants who had a predeceased parent AND
either the PREDECEASED PARENT would still be 23 or younger at the decedent’s death
OR the grandchild is disabled.
Amount of Forced Portion
- 1 forced heir = forced portion is 1/4 estate
- 2+ forced heirs = forced portion is 1/2 estate
Greenlaw Exception
if the fraction that would be used to determine legitime of a forced heir is greater than the intestate share to which he is entitled, he gets the lesser of the 2 fractions
If a forced heir renounces his legitime, is disinherited, or declared unworthy, his legitime becomes ________.
If a forced heir renounces his legitime, is disinherited, or declared unworthy, his legitime becomes DISPOSABLE.
Disinherison
only way to deprive forced heir of legitime
To disinherit, a decedent must have just cause that exists BEFORE the instrument of disinherison.
Just Cause for Disinherison
EXCLUSIVE list:
(1) striking the parent or raising the hand to strike
(2) cruelty or grievous injury
(3) attempted murder of the parent
(4) accusing the parent of a capital offense “without any reasonable basis”
(5) violence against the parent to prevent the parent’s will from being executed
(6) minor child marrying without the consent of the parent
(7) conviction of a felony by the child for which the punishment could be life imprisonment or death
(8) despite knowing how, failing to communicate after attaining the age of majority, without just cause, for a period of 2 years, unless the child was in the military forces
Form for Disinherison
- in the one of the forms prescribed for testament,
- made expressly,
- name or identify the forced heir,
AND - include the reasons, facts, or circumstances for which the forced heir is disinherited
Reasons/ Facts/ Circumstances for Disinherison BOP
The grounds are presumed to be true but can be rebutted by a preponderance of evidence.
Defenses to Disinherison
- reconciliation
- incapacity
- unintentional
- justified
Defense to Disinherison: Reconciliation
The forced heir may avoid disinherison if he proves by clear and convincing evidence that he and the testator reconciled AFTER the occurrence of the grounds for disinherison.
Defense to Disinherison: Other Defenses
He can also defend against disinherison by proving, through the preponderance of evidence, that he was not capable of understanding the impropriety due to age or incapacity; his behavior was unintentional; or his behavior was justified.
Effect of Disinherison
If the disinherited forced heir dies before the testator, his descendants may qualify as forced heirs if they satisfy the requirements of forced heirs by representation.
If the disinherited forced heir is alive at the testator’s death, his descendants cannot qualify as forced heirs.
Impingement of the Legitime
generally, forced heir gets legitime in full ownership
EXCEPTIONS:
- decedents surviving spouse allowed a usufruct
- legitime may be placed in trust
Action to Reduce
the event of an impingement, the forced heir’s remedy is to bring an action for reduction, which allows him to require certain people to return advantages given to them by decedent within 3 years prior to the decedent’s death.
Prescription for Action to Reduce
- DIV = 5 years from decedent’s death
- DMC = 5 years from probate
Active Mass
Legitime in Trust
income must be distributed as necessary for health, education, support, and maintenance of the forced heir
METHOD FOR ACTION TO REDUCE
Collation
The collation of goods is the supposed or real return to the mass of the succession which an heir makes of property which he received in advance of his share or otherwise, in order that such property may be divided together with the other effects of the succession.
- always presumed
- based on idea hat decedent means to treat children equally/ anything given prior to death is just in advance of his inheritance
Decedent can WAIVE Collation
by express language in:
1. donation itself
2. subsequent authentic act OR
3. a valid testament
Prescription for Collation
10 years from death of decedent
Who can demand collation?
only forced heirs in 1st degree (representing can extend to 2d degree)
Demand Collation from WHOM?
(1) descendants of the decedent
(2) who were given an advantage by the decedent
(3) who are called to succession [can avoid by renouncing succession rights]
Special Grandchildren Succession Rules
- given by grandparents AFTER his parents death = collate
- given by grandparents BEFORE his parents death = no collate
What property can be collated?
advantages made by decedent within last 3 years of his life
valued at date of donation
What cannot be collated?
- gifts given by decedents for pleasure/ play so long as they are customary
- expenses of board/ support/ education
- marriage gifts
- legacies
Donations Inter Vivos
k by which donor gratuitously divests himself at present and irrevocably of a thing given to donee and donee accepts it
- gratuitous
- onerous
- remunerative
Gratuitous DIV
donor receives no return advantage
rules apply always
Onerous DIV
DIV burdened with charges imposed on the donee that result in material advantage to the donor
rules apply where he donee’s cost of performing are less than 2/3 of the value of the thing donated
Remunerative DIV
gift to compensate the donee for services rendered
rules apply where the donee’s services cost less than 2/3 of the value of the thing donated
DIV Requirements
- donative intent,
- irrevocability,
- present property, and
- no charges or conditions that are illegal or contrary to good morals.
future property = null
Substance of DIV
In the act of donation or reasonably ascertainable from information contained in the act as clarified by extrinsic evidence, identify:
- the donor
- donee, and
- the property donated
DIV Form
Generally, an authentic act is required for donations.
There are several notable exceptions:
(1) Corporeal movables may be donated by manual delivery;
(2) Incorporeal movables that are evidenced by a certificate, document, instrument, or other writing and are made transferable by endorsement or delivery may be made by authentic act OR in accordance with the rules particular to that type of incorporeal movable.
DIV of Immovables
When the donation inter vivos affects an immovable or a real right therein, the act of donation and the act of acceptance must be in writing and be recorded in the conveyance records of the parish where the immovable is located to affect third parties.
Acceptance of DIV
A donation inter vivos must be accepted by the donee during the LIFETIME of the donor and the donee.
Generally, acceptance may be made in the donation itself or by a subsequent writing.
Acceptance of DIV of Movable Property
For movable property, the donation inter vivos is accepted if the donee has been put into corporeal possession by the donor.
Acceptance of DIV of Immovable Property
For immovable property, a donee’s subsequent alienation or encumbrance of the property is considered an acceptance
and is effective against 3rd parties upon recordation in the parish where the immovable was located.
Revocation of DIV
The only ground for revocation is ingratitude.
The two causes of ingratitude are
1. if the donee killed or attempted to kill the donor OR
2. the donee is found guilty of cruelty or crime against the donor
Prescriptive Period for Action to Revoke
within 1 year from the date the donor knew or should have known of the act of ingratitude
Effect of Revocation of DIV
A successful revocation means that the donee must restore the thing and fruits and products.
If he cannot, he must restore the value of the thing, measured at the date the action to revoke is filed.
Dissolution of Donations
A donation may be dissolved for:
-non fulfillment of a suspensive condition,
-occurrence of a resolutory condition, or
-nonperformance of other conditions or charges.
Effect of Dissolution: Immovable
donee must return thing and its fruits and products
Reserved Portion in Forced Heirship
The reserved portion is called the forced portion.
Each Forced Heir’s Portion is Called …
the legitime.
Remainder of the Estate After the Forced Portion
called the disposable portion, and the decedent may dispose of it freely.
Codicil
A codicil must be in the same form as a testament which in Louisiana, is either olographic or notarial.
Active Mass Calculation
Net Estate (Assets-Debts) + Donations IV w/in 3 years of death.
- Exclude: life insurance proceeds, retirement benefits, onerous/remunerative donations, donations to former spouse.
- Include: bonds
Conditions
conditions that are impossible, immoral, or contrary to law are null
(null provisions will be read out and rest of donation stands)
