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Louisiana Bar Exam > Code II > Flashcards

Code II Flashcards

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2
Q

Five ways to revoke testamentary provision

A
  1. Declaration in form prescribed for testament
  2. Subsequent incompatible testamentary disposition
  3. Subsequent inter vivos disposition & not reacquiring it
  4. Signed writing on testament itself
  5. Divorce after execution
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3
Q

4 ways to revoke an entire testament

A
  1. Authentic Act
  2. A signed writing identifying testament that clearly expresses intent to revoke
  3. Physical destruction of will
  4. Revocation clause in a subsequent will
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4
Q

Priority in disbursing bequests

A
  1. Specific things - particular legacies
  2. Groups and collections
  3. Cash - unless remunerative then pay first above other cash disbursements
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5
Q

Revocation of a donation inter vivos

A

Must be brought w/in 1 year of knowledge of act of ingratitude.

  1. Donee attempts to take life of donor, or
  2. is guilty of cruel treatment or grievous injury
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6
Q

Grounds for disinherison

A
  1. Striking parent
  2. Cruel treatment
  3. Attempted murder
  4. Accuse parent unjustly of a crime
  5. Use of force or violence to prevent will from being executed
  6. Minor marries without consent
  7. Conviction of a felony - hard labor or death
  8. Failure to communicate with parent without just cause for two years
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7
Q

Most favored relative rule

A

Child or sibling of deceased testator - accretion takes place in favor of child/siblings descendants.

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8
Q

Disinherison

A

Only of a forced heir

  1. In form required for will
  2. Must expressly state reason for disinheriting
  3. just cause
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9
Q

Ways that a legacy may lapse

A
  1. Predeceased
  2. Incapacity
  3. Unworthy
  4. Revoked
  5. Invalid
  6. Null - fraud/duress
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10
Q

Separate legacies

A

“Share and share alike”, “share equally”Each legatee gets their share only. Portion goes intestate if lapses

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11
Q

Joint legacy

A

Does not assign shares.If lapses for one legatee - share accretes to surviving joint legatees ratably

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12
Q

Greenlaw rule

A

If the fraction that would be used to calculate FH’s legitime is greater than that which would be used in intestacy, the smaller fraction applies

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13
Q

Lack of capacity

A

Unable to comprehend generally the nature and consequences of the disposition that he is making.

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14
Q

Undue influence

A

Donee or other person so impaired the volition of the donor so as to substitute their volition for that of the donor.

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15
Q

Notarial Will

A
  1. Written,
  2. dated,
  3. signed at end of testament + signed at the end of each page.
    a: in the presence of a notary and
    b: two witnesses (16 or older, not blind).
  4. Attestation clause must be signed at end of will
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16
Q

Olographic will

A

Written, signed and dated entirely in the hand of the testator.

Note: Date sufficient if can show day, month and year from extrinsic evidence contained in the document.

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17
Q

Renunciation

A

Only able to renounce after decedent has died, and must be express and in writing.

*must also know of decedent’s death and rights as an heir

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18
Q

Prohibited substitution

A
  1. A disposition, not in trust to a first donee, (institute)
  2. With a charge to
    a. preserve a thing, and
    b. deliver it at his death
  3. to a second donee, (substitute)

Result: null in re: both institute and substitute.

19
Q

A donation whereby the donee is given a thing with the charge to pass it on to another individual if they don’t accept.

A

Vulgar substitution

20
Q

Requirements of a donation

A
  1. Capacity to give - able to comprehend, generally, the nature and consequences of the disposition
  2. Capacity to receive
  3. Donation valid in form
21
Q

A “sale”that disguises the parties true intent

A

Simulation - absolute simulations are a nullity.

Relative simulations - disguised donations that follow the formalities of the donation they contemplate are acceptable

22
Q

Donation of all or substantially all of ones property

A

Donation omnium bonorum - absolute nullity

23
Q

ORDER of SP by Intestacy

A 
descendants 
parents & siblings 
surviving spouse
ascendants
more remote collaterals
24
Q

Three Types of Legacies

A

Universal (balance/residue of estate after particular legacies)

General (fraction/portion of estate after particular legacies; cannot have Universal AND General legatees)

Particular (neither universal or general - specific things)

25
Q

ORDER of CP by Intestacy

A 
descendants
surviving spouse (+ 1/2 ownership in indivision in own right) 
parents & siblings 
ascendants
more remote collaterals
26
Q

universal legacy

A

testator gives all property to the legatee or the balance of his estate after particular legacies.

27
Q

general legacy

A

a legacy of a fraction of the estate, a fraction/portion after particular legacies, legacy of all/fraction of one of the following: separate or community property, movable or immovable property, corporeal or incorporeal property.

28
Q

particular legacy

A

anything that is not universal or general.

29
Q

Forced Heir

A

children 23 or younger (not yet attained the age of 24); children of any age who are permanently incapable of taking care of his person or administering his estate because of a physical or mental infirmity;

grandchildren whose parents predeceased their grandparent and would have been under 24 when the grandparent died or whose parents predeceased and the grandchild is permanently incapable because of physical or mental infirmity.

A child of the testator who, with medical documentation, has inherited an incurable illness that will render him permanently incapable of taking care of himself or administering his estate.

30
Q

separate

A

when the testator assigns shares to two or more legatees;

will be separate when use words “share and share alike” or “share equally”.

31
Q

forced portion

A

part of the estate reserved for the forced heirs; 1 FH = ¼ of the estate; 2+ FH = ½ of the estate.

32
Q

legitime

A

the part of the forced portion that each FH is entitled to receive

33
Q

calculating the legitime

A

apply the legitime fraction to the active mass of the estate.

calculating the active mass =
value of all property at death – estate debts + donations inter vivos made 3 years before decedent’s death (fictitious adding back).

34
Q

collation

A

fictitious or real return of property received in advance of his share of the inheritance to the mass of the succession by an heir;

may be demanded by a 1st degree descendant who is a forced heir; children and grandchildren who were presumptive heirs at the time of the donation will be required to collate unless they renounce their succession rights.

35
Q

DIV - definition

A
  1. a contract whereby the donor divests himself
  2. at present and irrevocably
  3. of a thing given to the donee and
  4. the donee accepts it.
36
Q

Acceptance of DIV

A

the DIV is without effect until it is accepted by the donee; must be accepted during the lifetime of the donor and the lifetime of the donee; cannot be accepted by the donee’s successors.

37
Q

Partial revocation for olographic testaments

A

in the hand of the testator - no signature or date required

38
Q

Partial revocation for notarial testaments

A

deletions must be signed;

additions or revisions must be signed AND dated

39
Q

Who may claim a successor unworthy?

A

action to declare a successor unworthy must be:

  1. brought by a person who would succeed in place of or inconcurrence with the successor, or
  2. by one who claims THROUGH such a person.
40
Q

Unworthy successor (reasons)

A

A successor shall be declared unworthy if:

  1. the successor is convicted of a crime involving the intentional killing or attempted killing of the decedent, or
  2. is judicially determined to have participated in the intentional, unjustified killing or attempted killing of the decedent.
41
Q

Probating a will

A

When original copy can’t be found after death it creates the presumption the will was destroyed
* if the testament at issue was readily accessible to decedent prior to death.

to rebut that presumption show clear proof

  1. The decedent made a valid testament
  2. The contents of the testament
  3. That the testament was not revoked
42
Q

intestate law, descendants generally succeed to the property of their ascendants by ___________

A

They inherit in equal shares by heads if they are in the same degree. They inherit by roots if all or some of them succeed by representation.

Representation takes place “ad infinitum” in the direct line of descendants.

Louisiana Bar Exam (10 decks)

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