Code II - Successions & Donations Flashcards
1
Q
What does succession mean?
A
The transmission of the estate of a deceased person to his successors, who have the right to take possesion of estate after complying with laws.
2
Q
What does estate mean?
A
Includes property, rights and obligations of the deceased person, as well as charges that accure after his death.
3
Q
Who is a successor?
A
Person who takes the place of another–universal and particular. 1. Universal–represents the deceased and succeeds to all of his rights and changes. Heirs, universal legatees, and general legatees. 2. Particular–Succees only yo certainr giths relating to a thing sold, ceded, or bequeathed to him. Buyers or donees of a particualr thing, etc.
4
Q
What is the applicable law for successions?
A
Governed by the law in effect on the date of the decedent’s death.
5
Q
What is an intestate succession?
A
Occurs when there is no will, the will is invalid in whole or in party, or the will does not dispose of all the decedent’s property.
6
Q
What is a testate succession?
A
Will of a decedent, in a testament executed in the form prescribed by law.
7
Q
What laws govern a legatee’s right to immovables situated in Louisiana?
A
A legatee must qualify as aperson under the laws of this state; either natural or juridical.
8
Q
What laws govern succession to movables? To immovables?
A
- Movables–governed by the laws of the state in which the decedent was domiciled at the time of his death. 2. Immovables in LA–state of La. 3. Immovables outside LA–laws of the state that would be applied by the courts of the state where the immovable was located.
9
Q
What are the three general ways for a successor to inherit?
A
- In his own right; 2. By representation; 3. By transmission.
10
Q
Who has capacity to inherit?
A
To inherit, one need only be in existence at the time of the decedent’s death for an instant. Includes children conceived and later born alive; artificial insemination. Age and mental capacity are irrelevant as to capacity to inherit. Capacity determined under the law of the state in which the decedent was domiciled at the time of his death.
11
Q
What are the five classes of heirs as to separate property?
A
Descendants; parents and siblings (descendants of siblings by rep) (if both, parents receive usufruct subject to siblings naked ownership); surviving spouse; more remote ascendants; more remote collaterals.
12
Q
Does the most favored class take to the exclusion of other classes?
A
Relatives in the most favored class take to the exclusion of the other classes. Nearest relation in a class, takes to the exclusion of the more distant relatives in the class. Nearest relative in highest class inherits by intestacy.
13
Q
What is a degree? Do persons of a same degree share equally?
A
- A degree is a generation. 2. Closest degree will inherit; parents of the same degree share equally and to the exclusion of the more remote relatives.
14
Q
What is a direct line? What is a collateral line?
A
- Direct–ascendants and descendants. 2. Collateral–count up to the nearest common ancestor, then count to the decedent. Lowest number of steps is the closest relative.
15
Q
How do descendants inherit separate property by intestacy?
A
- Children or their representatives take to the exclusion of other heirs; also includes adopted children, illegitimate children who or formally acknowledged or timely acknowledge filiation. Does not include foster children.
16
Q
How do parents and siblings inherit separate property by intestacy?
A
- Decedent with no descendants–parents and siblings, by representation, succeed.
17
Q
When may a father inherit from a deceased child?
A
Father enjoys: 1. Presumption of paternity as husband of the mother of a deceased child; 2. Presumption by marriage to the mother and formal acknowledgemtn 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. Must file the avowal action within one year of child’s death.
18
Q
What are parents’ usufruct and siblings naked ownership?
A
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 sibling or their descendants continue to have only a naked ownership interest.
19
Q
What is the donation of immovable property exception?
A
Ascendants inherit to the exclusion of all others when they donate an immovable to a descendant, and the D dies without posterity and has not disposed of the immovable. If immovable donated has been alieanted, and full price is not yet due, ascendant as a right to receive the proceeds.
20
Q
What are the obligations imposed on the donor-ascendant upon return of the immovable?
A
If ascendant inherits the immovable property under the exception, he takes it subject to all mortgages and is vound to contribute to payment of debts of the succession of the descendant in proportion to the value of the immovable donated.
21
Q
Who does the estate go to if there are no descendants or parents?
A
Entire estate goes to the siblings of the descedent to the exclusion of all others.
22
Q
What about half-blood siblings? What do they take?
A
Property is divided equally between the paternal and maternal lines. Those who share parents with the deceased sibling take in both line. Half-blood siblings take only in their respective lines.
23
Q
What if there are no siblings, but a parent surviveS?
A
Parents take the entire estate in full ownership.
24
Q
What share does the surviving spouse take?
A
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. Watch out for the spouse that is not divorced, but IS judicially separated.
25
What happens with more remote ascendants?
If the deceased has no surviving descendants, sibling,s parents or surviving spouse, and a grandparent or grandparents survive, then they divide the estate. If one ascendant is nearer in degree than the others, he takes everything. If ascendants in the same degree survive, they divide the states by roots, with one half going up to the maternal side, and one-half going to the paternal side. No represenation is the ascending line--nly works in descending line for siblings.
26
What about more remote collaterals?
If desceased has no surviving descendants, parents, siblings, or ascendants, that the nearest collaterals will take, by counting to the nearest degree. No rep, only equal division by heads.
27
What happens if there are no heirs?
Estate escheats to the state.
28
What is surviving spouse's half of community property?
If one spouse dies, the other spouse has full ownership of her one-half share of all community property, not by inheritance but as owner.
29
Who inherits decedent spouse's half of community property?
1. Children or other descendants--decedent's one-half interest in community property goes to them subject to a usufruct granted by law to the surviving spouse. If child renounces his parent's half of community, the child's descendants inhiert, rather than the deceased parent's spouse. 2. No children or other descendants--if the decedent leaves no descendants, then the decedent's one-half interest in CP goes to the surivivng spouse.
30
Who inherits community property of a putative marriage?
1. Decedent spouse in good faith--spouse's share in CP goes to his successors. Legal and puttive spouses share th other half pro rata. 2. Decedent spouse in bad faith--Entire community is divided between the putative spouse and the legal spouse.
31
What is the Article 890 usufruct of the surviving spouse?
1. Applies only in an intestate situation, decedent may deprive SS in the will. 2. 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. 3. Applies even when the children who inherit are not children of the marriage; SS must give security when the naked owner is not a child of the SS. 4. Continues until the SS dies or remarries, whichever occurs first.
32
What are the inheritance rights of adopted children?
1. Entitled to full inheritance rights if they were born of the decedent's marriage. Concurrence of spouse is required for married person to adopt. 2. Adtoped person may inheirts from his adoptive parents and his natural parents and relatives. However, inheritance rights of bio parents is not reciprocal; legal adoption severs inheritance rights.
33
What are inheritance right of children born outside of marriage?
1. Inherit to the same extent as do children born of marriage if the child is formally acknowledged; parents subsequently marry and acknowledge; child timely files a paternity action; or the father timely files an avowal action.
34
How must a formal acknowledgment occur for child to inherit?
1. Either by a declaration by the father executed before a notary public in the presence of two witnesses OR the father signing the birth certificate. Child may not be filiated to another man, and the mother must concur.
35
What are the reciprocal inheritance rights between illegitimate child and father?
1. Presumption of paternity when father is married to the mother works in favor of the child and the father both. 2. When father is not married to the mother, presumption of paternity works only in favor of the child and not the father. For father to have inheritance rights from deceased child out of wedlock, he must file an avowal action.
36
How may a child file suit to prove paternity to a biological father for the purpose of inheritance?
1. Must file a paternity suit. Informal acknowledgment is not enough. 2. Burden of proof in an action to establish paternity is on the child. Preponderance of evidence if father is ALIVE; Clear and convincing if father is deceased.
37
What are the time limits for filing a paternity suit?
1. Time limit to file suit to establish filiation is one year from the death of the alleged father. Period is peremptive, so it runs against all persons, minors, and interdicts. Failure to file timely is an absolute bar. Age of child is immaterial.
38
What is an avowal action?
A biological father may file suit to estalish his paternity of a child, even if the child is presumed to be the child of another man. Burden of proof is on the father, and he must prove his paternity by a preponderance of the evidence.
39
What are the time limits for an avowal action?
1. PRESUMED TO BE CHILD OF ANOTHER MAN. Must be filed within one year form the birth of the child; unless the mother decieved father in bad faith regarding his paternity, then father has one year from date he knew/should have known. In any case, action must be filed within one year of the child's death. 2. CHILD NOT PRESUMED OF ANOTHER MAN. Father can file suit at any time, but no later than one year from child's death.
40
What is representation?
Has an effect on degree cound. Descendants of children/siblings of the decedent who would take, but have predeceased the decedent, take by representation--step into shoes of their deceased ancestor.
41
Where does representation take place?
Does not take place in the ascending line; only takes place in the descending or collateral line.
42
Descendants inherit per stirpes?
Multiple descendants in the same degree do not necessarily divide the decedent's estate per capita, but split pro rata the share of a predeceased ancestor whom they represent.
43
How is representation in the collateral line limited?
Only descendants of brothers and sisters of the deceased may inherit by representation.
44
Can someone who has renounced his right ot succeed from another person still represent that other person?
Yes.
45
What are the special rules for representation for forced heirs?
1. 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 or grandchildren whose parent has predeceased the decedent and who are permanently disabled.
46
What is the presumption for survivorship?
If there are no facts to show who died first in a common disaster, each person who perised is effectively presumed to survive the other. Burden of proof is on person claiming through the alleged survivor.
47
What is short-term survivorship?
Testotor may impose a short-term survivorship clause requiring the legate to survive him for a stipulated period of time not to exceed SIX MONTHS.
48
When does a successor acquire ownership of the decdent's property?
1. Immediately upon the decedent's death, a successor acquires ownership, or is seized, of the decedent's property. Rights of the successor are transmitted to his own successors at this death, as is possession. (particular successor may commence a new possession for purposes of acquisitive prescription)
49
Who can exercise succession rights?
Limited if there is a succession representative. Prior to appointment of a rep, 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.
50
What is unworthiness?
When a heir or legatee is judicially declared unworthy, he is deprived of the right to inherit. Must be pronounced by a court in an action filed in the succession proceeding of the decedent.
51
Who may bring an unworthiness action?
Generally, may only be brought 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. An attorney may be appointed for a successor minor or interdict.
52
What are grounds for a declaration of unworthiness?
Convicted of a crime involving the intentional, unjustified killing/attempted killing of the decedent or if not convicted, judicially determined to have participated in. Governor/statutory pardon does not remove the unworthiness.
53
Where must an unworthy action be brought?
1. Must be brought in the succession proceeding; 2. Applicable prescriptive period is five years; intestate succession, runs from date of death; in testate succession, runs from the date of probate.
54
What is the effect of unworthiness on the unworthy successor?
1. Intestate--Treats the unworthy successor as if he predeceased the decedent. 2. Testate00decolution may be pursuant to the testament--look to the testamentary accretion that would apply if the unworthy successor had predeceased the decedent.
55
What are the devolution rights of minor children of unworthy successor?
1. If an unworthy heir's descendant takes under the Civil Code, and the descendant is a minor, neither the unworthy parent nor the other parent has a usufruct over the property that the minor inherits.
56
Whare are other prohibitive effects resulting from being declared unworthy?
Also loses: 1. Right to claim as a forced heir, even if he previously qualified as such; 2. Right to serve in any fiduciary capacity in the succession of the decedent incluidng the right as executor, trustee, attorney or administrator.
57
What are the obligations of the unworthy successor?
1. If successor HAS possession of decedent's property--he must return it with all fruits and products. 2. If successor DOES NOT have possession of decedentn's property--he must acocunt for value of the property (as well as all fruits and products) at the time of the transfer or loss of possession.
58
What is the effect of reconciliation?
Reconciliation/forgiveness will cure the grounds of unworthiness; e.g. attemp to kill.
59
What law governs the unworthiness of an heir?
Determined under the law of the state in which the deceased was domiciled at the time of his death.
60
What are successor's three option on decedent's death?
1. Accept the succession; 2. Renounce the succession; 3. Accept in part and renounce in part.
61
What is the presumption of acceptance for successors?
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. A minor is deemed to accept, but his legal rep may renounce.
62
Can a successor accept or renounce before the death of the decedent?
1. Successor must know of the death of the decedent. Premature acceptance/renunciation is absolutely null.
63
When is an acceptance or renunication valid?
Only valid if a person (1) knows of the death of the decedent; 2. Knows he has rights as a successor. Does not need to know extent of rights/nature of his relationship to the decedent.
64
Can an heir accept an inheritance but renounce accretion?
Yes, an heir can accept an inheritance but renounce the accretion that arises from someone else's renunciation. Also the converse; can be inconsisent.
65
What happens if an acceptance/renunication of rights to succeed by intestacy once a testament is subsequently probated?
1. Intestate--Acceptance/renunication is rendered null. 2. Testate--null if probate annuled/rights are altered/amended.
66
Can a legacy subject to a suspensive condition be accepted or renounced?
Yes, may be accepted or renounced before or after fulfillment of the condition.
67
How long does a successor have to renounce or accept?
No longer a prescription period, as all successors are presumed ot 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.
68
Can a creditor of a successor prohibt his renunciation ot a succession?
Yes, at least to the extent of the debt. Creditor can also exercise oblique action if he shows fraud on the part of the debtor and intent to injure the creditor.
69
Does acceptance need to be formal?
No, acceptance can be either formal or informal. 1. Formal acceptance is express and in writing OR in a judicial proceeding. 2. Informal acceptance is an act that implies intent to accept. Must know the property belongs to decedent; an act of ownership is rquired; acceptance must be manifested by an act of the heir; such as AEL of the inherited share.
70
When is an act of renunciation really an acceptance?
An act of reunciation 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.
71
What is the effect of acceptance on the successor's liability?
Liable for debts of estate, but liability is limited to the value of the property the heir actually received, valued at the time of receipt.
72
What are the requirements for a valid renunciation?
1. Must be express and in writing, although it does not have to authentic act. Cannot merely be oral.
73
What is the effect of renunciation on the succession?
1. Intestate--accretion flows as if renouncing heir precedeased the decedent. 2. Testate--renunication is also treated as if the legatee predeceased the testator. However, if there is a governing testamentary disposition, the testament governs the accretion.
74
What is the effect of renunication on other inheritance rights?
A successor may renounce accretion independent of his acceptance or renunication of other inheritance rights--can accept the original inheritance for example but renounce what comes by accretion.
75
Can a renouncing relative still represent?
A relative who renounces his share of a succession may still represent that person whose succession he renounced in the succession of another.
76
Who has capacity to renounce?
To renounce, the heir must have the capacity to alienate, but for a minor, a tutor may renounce with court authorization.
77
What happens if someone renounces who is outside the order of accretion?
At attempt to renounce a share in favor of someone outside the designated order of accretion is not a true renunciation. One is consdiered to have accepted the succession and then donated the share to the intended designee. Because this is a donation, it must be by authentic act.
78
What are the estate debts?
1. Debts of the decedent--Those incurred by the decedent; and those arising as a result of hisd eath. 2. Administration expenses--those incurred in the collection/preservation/management of the decedent's estate.
79
What is the liability of successors to creditors?
1. 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. Liability of successors is joint, not solidary.
80
What happens when a successor is also a creditor?
A successor who is a creditor of the estate is paid in the same order of preference as other creditors. He is given no special beneift or detriment merely for being a successor.
81
What is the order of payment for creditors?
1. Secured creditors--creditor will be paid in accordance with the preference/priority of his security right. 2. Unsecured creditors--Share pro rata with other unsecured creditors.
82
How are debts apportioned among successors?
1. Will may make specific provisions for the payment of debts. Rights of creditors cannot be impaired by a testator's will or by agreement among the successors.
83
How are charges on identifiable property allocated?
Estate debts attributable to identifiable proeprty are generally chargable to that property and its fruits and products.
84
How are debts of decedent charged on the succession?
1. Charged ratably to property that is the object of general/universal legacies and proeprty that passes by intestacy, valued at the date of death. If that property is insufficient, the debts remaining are charged in the following order: 1. Ratably to fruits/prodcuts that is the object of general/universal legaics and of property that devolves by intestacy; 2. Ratably to fruits/products of property that is object of particular legacies; and then to the property itself.
85
How are administration expenses charged on the estate?
1. Ratably to fruits/prodcuts that is the object of general/universal legaics and of property that devolves by intestacy; 2. Property itself; 3. Ratably to fruits/products of property that is object of particular legacies; and then to the particular legacy property itself.
86
How are receipts and expenditures allocated?
Allocated to all successors pursuant to fairness and equity. This standard also applies to other expenditures relating to professional services facilitating the succession, e.g., attoreny's fees.
87
What classes of rights and obligations are proteced in the context of payment of estate debts?
1. Rights/obligations of a usufructary with respect to payment of estate debts; 2. Rights/obligations of an income interest in trust with respect to payment of estate debts.
88
What is a donation inter vivos?
A contract by which the donor gratuituously divests himself, at present and irreovcably, of the thing given, in favor of a donee who accepts the thing.
89
What is a donation mortis causa/?
A donation to take effect at death of the donor where he divests himself of all or part of his property and is recovable during the donor's lifetime.
90
What are the three requirements for a valid donation?
1. Capacity to give and receive exists; 2. Requisite formalities are followed; 3. Substantive limits are not violated.
91
What are the form requirements for donations?
1. Inter vivos--Contingent on the object of the donation. 2. Mortis causa--must be made by testament.
92
Is there a presumption of capacity to make and receive donations?
Everyone is presumd to have capacity to make and receive donations except persons whom the law declares incapable. 1. Timing--capacity must exist at time of donation or when testator executes the settlement. 2. A minor under 16 years of age cannot make either an inter vivos or mortis causa donation, except to his pouse or children. A minor between the age of 16-18 can execute a will, but cannot make inter vivos gifts except to his pouse and children.
93
What must the mental condition of the donor be to make donations?
1. Donor must be able to comprehend generally the nature and the consequences of the disposition that he is making. Person challenging capacity must prove by clear and convincing evidence that the donor lacked capacity at the time the inter vivos donation was made/at the time the testament was executed.
94
What is the capacity of interdicts to make donataions?
1. A full interdict lacks capacity to make a juridical act; cannot make or renvoke a donation. 2. A limited interdict lacks capacity to make a juridical act pertaining to property under limited interdiction. Presumption that he has capacity to make donations of property not covered by the interdiction. Challenge his capacity by preponderance of the evidence.
95
What are the vices of capacity?
Fraud, duress, undue influence. 1. Fraud--a donation that is the product of fraud is null. 2. Undue influence--Null when it is the product of influence by donee/other person so impaired the violition of the donee replaced volition of the donor.
96
Is the entire donation null if one provision is void because of vice of capacity?
No, if any provision is not the product of such a vice, then that provisions shall be given effect unless it is null for some other reason.
97
What is the burden of proof to to challenge a donation?
1. Must prove the claim by clear and convincing evidence. If relationship of confidence existed at the time, then challenger need only prove vice by preponderance.
98
Can someone who exercises undue influence on a donor not be permitted to serve as the executor, trustee, attorney or other fiduciary?
Yes, can be prevented from serving in that capacity.
99
What laws apply for capacity?
A person will hae 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.
100
What laws apply when there have been vices of capacity?
1. Capable under the laws of both states--his will shall be held free of vices if ti would be so under the law of either one of the states; 2. Capable under laws of one of the states--hi will shall be hald free of vices only if it would be so under the law of the state where he was considered to have capacity.
101
What is the capacity of the donee to receive donations?
To receive, the donee must be in existence at the time of accpetance of the gift for donations inter vivos or at the time of the testator's death for donations mortis causa. 1. Unbrn child in utero--must be in utero when donation made/testator dies. Child must be born alive. 2. Exception where child is conceived from frozen sperm after father dies and the mother is the surviving spouse, father authorized in writing the use of gametes; and the child is born within three years of the death of the decedent father.
102
When are donations to organizations valid?
A donation to an organization is valid if the organziation exists at the time the donation takes effect.
103
What about donations subject ot 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 filled.
104
What are repropbated dispositions?
Conditions made in a donation inter vivos or disposition mortis causa that are impossible, immoral, or are contrary to law are regarded as never made and are therefore void.
105
What is a prohibited substitution?
A disposition not in trust to a first donee, called an institute, who is charged to perserve 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.
106
What are the two elements for prohibition?
1. 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.
107
What happens if there is a charge on the first donee to preserve the property, but not to deliver before death? Or vice versa?
Not a substiution, and thus not prohibited. If the gift is prohibited, it lapses, but the remainder of the testament is valid.
108
Can one instead grant a lifetime usufruct to one person, and naked ownership to another?
Yes, the designation of usufruct must be express. A donor may donate property and reserve a usufruct for himself.
109
What is a vulgar substitution?
If a gift is in full ownership merely providing that in the event a first donee cannot take the gift, then a second donee will take it, then it is valid. Not a prohibited substitution.
110
What is the period of survivorship for vulgar substitution?
A testator may indicate in his will that a legatee or trust beneficiary survive the testator for a stipulated period; the state period cannot be longer than six months. If condition is not fulfilled as to first donee's survivorship, than the second donee can take the gift.
111
What are the temporal effects of vulgar substitution?
Right of the first donee is suspended until the survivorship beyond the stipulated period is determined. If first doness survives the stipulated period, he is considered to have succeeded the deceased from the moment of the decedent's death. If he does not, then second donee is considered to have succeeded the deceased from the moment of the donor's death.
112
What is the result of not following formalities prescribed for the execution of a testament?
Must be followed or the testament is absolutely null.
113
Can a testament be executed by others or with others?
A testament may not be executed by a mandatary or agent for the testator. More than one person cannot execute a testament in the same instrument.
114
What about dispositions given to the choice of third persons by will?
Testamentary dispositions given to the choice of third persons are generally null. (Can't appoint someone in will to dispose of your property)
115
What are the two forms of testaments?
Only two forms of testaments: olographic and notarial. Any other will is absolutely null; common law oral wills are not recognized in Louisiana. Testamentary intent is also necessary. If a will was valid under the laws when it was executed, the testament will remain valid even if the will is no longer recognized.
116
What happens whe a will failes to meet the requirements of the intended form, but complies with another form?
It will be valid if it happens to comply with another form.
117
What conflict of laws apply to testamentary dispositions?
A testamentary disposition is valid as to form if it is made in writing and is in conformity with: 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 his death ; 4. with respect to immovable, the law that would be applied by state in which the immovable was located.
118
What transactions are not subject to the formal rules governing donations?
1. Life insruace proceeds pass outside the probate estate; go to the named beneficiary. 2. Benefities of the IRA go to the designated beneficiary, applies even if different beneficary in will. 3. U.S. Savings bonds go to beneficiary (but cannot be used to defeat the rights of forced heirs)
119
What is an olographic testament?
Entirely written/dated/and signes in the handwriting of the testator. 1. Handwriting--must be entirely handwritten; handwriting must be identified by two witnesses; 2. Signature should be at the end of the will, but the court may consider writing after the signature; 3. Date may appear anywhere on the testament; need only be readily ascertainable.
120
What about intent?
Intent to dispose of property is essential; you need to intend the document to be a will.
121
What about pre-printed will forms?
If a will is written in the hands of the testator on a form with printed/types words, court can ignore all pre-printed matter and uphold the will as a valid olographic testament if the testamentary intent can be ascertained solely from the material in the testator's writing.
122
What is a notarial will?
Self-proving will provided the formalities are followed. Five types: 1. Standard notarial testament; 2. Testament for people who can read but cannot sign their name; 3. Testament for sight-impaired persons/persons unable to read; 4. Baraille testaments; 5. Testaments for deaf persons/blind persons.
123
What are the required formalities for a standard notarial testament?
1. Testator must be able to read and write and sign his name. 2. Must be before a notary and two competent witnesses. If the witnesses are not present when the document is executed, the testament is void. 3. May be written, printed, or typed. 3. Testator must sign on each page and at the end of the will. Testator must know how and be able to read. 4. Date can be anywhere on the will. 4. Must contain an attestation clause.
124
What is required for the attestation clause?
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). Essential that the notary and two witnesses sign the attestation clause and do so in the presence of the testator and each other. Testator does not need to sign the attestation clause.
125
What testament if uses for persons who can/know how to read but are physically unable to sign their name?
1. May make mark/2. Notate in the attestation clause.
126
What testament is used for sight-impaired persons or persons unable to read?
1. Must be written/executed in front of a notary and two witnesses. Testator declares that he heard the will's reading and signs/marks every page and at the end. Attestation clause indicates the will was read aloud.
127
Who can be a witness to a testament?
A person must be older than 16; cannot be insane; blind; or unable to sign his name. 1. A deaf person may witnesses a regular notarial testament; but the for sight-impaired or persons who do not know how to read; 2. 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.
128
What happens if a legatee or her spouse is witness to the testament?
Legacy to the witnesses or spouse is invalid, even if the testament itself may be valid. Witness may not even though of the legacy. 1. Safety net--if legatee would have been entitled to inherit as an intestate successor, may inherit the lesser of her intestate share or the legacy.
129
Can a legatee serve as a 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, notary does not have right ot inherit an intestate share even if it would be less; rather the ntoary who is a legatee receives nothing.
130
Does an executor have to use the testator's attorney?
1. Naming of an attorney in will is considered precatory and is not binding on the executor. Can dismiss the named attorney for any reason, not only just cause.
131
Can the testator delegate authority to executor?
Generally speaking, a gift cannot be given to the executor to bequeath to whom he sees fit.
132
What are the exceptions to the rule that a gift cannot be delegated to an executor?
1. Executor can select assets to satisfy bequests made by value or quantum, so long as the testator selects the value or quantum of the gift. 2. May allocate a legacy among different charities; and may even select the charity when authorized to do so by the testator. 3. Executor may, by power of attorney, designate a person to manage in his stead.
133
Can a notary be named as executor?
Yes, the notary to the testament may be named as executor and still be the officiating notary.
134
Can an executor be a witness?
Yes, if he has not otherwise been named as a legatee.
135
What are the three types of legacies?
1. Particular legacies; 2. General legacies; 3. Universal legacies.
136
What is a universal legacy?
Testator gives to one or to several persons the whole of the property; and the balance or residue of all the property left after particular legacies?
137
What is a general legacy?
1. Fraction/certain proportion of estate--a legacy of a fractice or certain proportion of estate is a general legacy. 2. Can also describe a legacy of all or a fraction or certain proprotion of a kind of property--separate/community; movable/immovable; corporeal/incorporeal. can only be ONE of these categories.
138
What happens if a general legacy is phrased as a residue/balance of the estate but does not specify that the reisdue/balance is the remaining fraction or a certain protion of the estate?
It shall be treated as an universal legacy.
139
What are particular legacies?
All other bequests that are neither general nor universal are particular legacies; usually of specific property.
140
What are joint bequests?
A joint bequest is when a thing is left is left to two or more persons without an assignment of parts or shares, so that legatees take an equal percentage of the whole. 1. Legacy is separate when left in two shares; joint when testator does not assign shares. 2. If legacy to joint legatee lapses, the share of that legatee accretes to the other joint legatees ratably.
141
What happens if a joint legatee dies?
1. Predeceases testator--takes the entire bequest in full ownership; 2. All joint legatees survive the testator--he inherits and transmits his share to his successors.
142
How does one effecuate a joint bequest?
1. Must use word "joint" and leave a thing to "A and B". 2. To share and share alike, and to share equally, is not a joint bequest. 2. If property is left to two or more persons and cannot be partitioned, the gift is presumed to be joint.
143
What is testamentary accretion?
Takes place qhen a legacy lapses. 1. Legatee predeceases the testator; 2. Legatee is incapable of receiving at the death of the testator; 3. Legacy is subject to a suspensive condition which can no longer be fulfilled/legatee dies before the fulfillment of the conditionl 4. Legatee is declared unworthy; 5. Legacy is renounced, but the lapse is only to the extent of the renunciation; 6. Legacy is declared invalid; 7. Legacy is declared null.
144
What is the effect of a lapsed legacy?
1. Accretion. Law favors devolution of a lapsed legacy to another designated legatee in the testament rather than have it devolve by intestacy. 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.
145
What is the effect of a lapse due to renunciation?
Accretion flows as if the legatee predeceased the testator; flows to those persons who would have succeed to them if the legatee had predeceased.
146
What is the exception to the general rule for a lapsed legacy?
If the legatee whose legacy lapses is a child of the testator or a sibling of the testator, or a descendant of child/sibiling, then accretion takes place in favor of descendants of the legatee. These relatives are in a kind of most favored class.
147
What about accretion to the universal legatees?
All lapsed legacies not disposed of by other provisions relating to accretion accrete to the universal legatees. A general legacy that is phrased as a balance or residue will be treated as a general legacy for the purposes of accretion.
148
What happens to portitions of the estate not resolved by accretion rules?
Any portion not dipsosed devolves by intestacy.
149
What is extinction?
A legacy is extinguished when the proeprty that is the object of the legacy is lost, destroyed, or extinguished BEFORE the death of the testator. 1. Legatee is thereafter 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. Not extinguished if the legacy is merely transformed. 3. Not extinguished if the legacy has been condemned/exporpriated; entitled to collect award or right of action.
150
What are priorities in disburing bequests?
1. Testament governs; 2. If will does not address priorities, then particular legacies have preference and are paid ahead of all others.
151
If succession is not sufficient to discharge all bequests, what is the order?
1. Specific things; 2. Groups and collections of things; 3. Distribution of cash legacies to be distribued to cover all bequests pro rata unless the cash legacy is declared to be renumerative.
152
What are the 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. Right to distribution is subject to the administration of the succession.
153
What is rule for legatee's right with respect to interest on a money legacy?
1. Entitled to reasonable interest rate one year from testator's death, unelss the legacy is to a surviving spouse.
154
Can a testator revoke his will at any time?
Yes, revocation may be express r tacit; and it may be total or partial. A testator may not renounce the right to revoked his will, or agree to exercise the right only under certain conditions.
155
How can an entire testament be revoked?
May be revoked by authentic act, by a signed writing, or by physically destroying the testament or directing that it be destroyed, or by stating in one of the forms for testaments. Also: 1. Revocation clause in a new will that states he revokes all prior wills. 2. If will is revoked by destruction, must be compete and totaly. If an original cannot be found fater a testator's death, a presumption arises if the will was readily accessible to decedent that the testator destroyed the original will with the intent to revoke it.
156
What is the proponent's burden to rebut presumption that testator revoked the will?
Clear proof that the decedent made a valid testament; the contents of the testament; and that the testament was not revoked by the testator.
157
What presumption arises if one of multiple originals of a testament is destroyed?
Presumption arises that the testament is revoked.
158
What happens if the original will was lost?
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.
159
Can a testament be revoked by authentic act?
Yes, a testament can also be revoked by authentic act--cannot be used to add or modify, only to revoke. (notary + two witnesses)
160
Can a testament be revoked by a signed writing?
Revocation can also occur in a writing entirely written and signed by the testator that identified the testament to be revoked and clearly express the intent to revoke. NO DATE REQUIREMENT.
161
What is the result of a valid revocation?
1. Intestacy or revival of an earlier testament that was not destroyed.
162
How can a legacy or testamentary provision be revoked?
1. Declaring in one of the forms prescribed for testaments; 2. Making a subsequent incompatible testamentary disposition; 3. Making a subsequent inter vivos disposition of the thing and not reacquiring it; 4. Making a signed writing on the testament itself--signed writing does not need to be dated; 5. divorce after execution of th e testament and still divorced at the time of the death of the testator.
163
Is an authentic act sufficient to revoke a legacy?
No, although an authentic act is sufficient to revoke an entire testament, it is NOT sufficient to revoke a legacy. (counter-intuitive but that's the rule)
164
When may tacit acts operate as a revocation?
Acts inconsistent with the testament's legacy may also operate as a revocation. 1. Subsequent inconsistent mortis causa disposition--if the disposition if valid as to form, it will reovke the prior disposition even if the new disposition is invalid. 2. Sale or donation of property bequeathed--if the testator donates or sells bequeathed property, the bequest is revoked--but, not revoked if the testator acquires the property before his death; doea not apply to cash bequests.
165
What are revocation requirements with respect to the different forms of wills?
1. Olographic wills--additions or deletions on the testament may revoke if the testator himself does these acts, otherwise they are given no effect. 2. Notarial testamaents--To revoke, the lines must be signed by the testaotr, and to add to or revise a dispostion, the change must be moth signed and dated. 3. Any other modification of a legacy or other testamentary provision must be in the form of a testament.
166
What about destruction and revoation of multiple wlls?
1. Destruction/revocation/invalidity of a second testament AUTOTMATICALLY REVIVES THE FIRST TESTAMENT unless the first testament was destroyed or revoked by authetnic act.
167
What happens if the first testament is destroyed and the second testament turns out to be invalid?
First testament is nonetheless revoked and does not revive.
168
What happens if additional children are born or acknowledged after a testament?
1. Birth, adoption, or acknowledgement of a child does not revoke a testament. The after-born child is a forced heir until age 24, so birht of a child may clearly affect the testamentary disposition of assets.
169
Can a forced heir lose his inheritance due to ingratitude?
No, unless testator expreslly disinherits the forced heir.
170
What law governs succession rights?
As a general matter, succession rights are governed by the law in effect at the time of the decedent's death. 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.
171
What controls the interpretation of the testament?
The intents of the testator controls the interpretation of his testament. If the langauge of the testament is clear, than an interpretation of the testator's intent is not necessary. If the language is not clear, than other rules come into play.
172
What rules goven the interpretiation of the testament when the intent is not clear?
1. Should be interpreted in favor of effect. 2. If the amoutn of objection cannot be determined, a determination for less is required. 3. Only applies to property at the time of testator's death, not the time of the testament; 4. If a testament contains contradictory provisions, the one written last prevails. A legacy contained some of or all of the objects prevails over a legacy of a collection of all the objects. 5. A legacy to a creditor is not applied to the satisfcation of the debt unless the testator clearly indicates otherwise.
173
What conflict of laws apply to interpreting testaments?
Meaning of words/phrases should be determined from the law of the state expressly designated by the testator or the law of the state clearly contemtplated by hime when making the testament. If these don't apply, then the law of the state in which the testator was domiciled at the time of making the testament is applied.
174
What is forced heirship?
A portion of the estate--called the 'forced portion' is reserved for all forced heirs collectively. One-fourth if there 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.
175
Who is a legitime?
The forced portion of a particular forced heir is called his legitime. 1. Generally, the legitime can be satisfied only be full ownership or by naked ownership burdened with the usufruct of the decedent's SS, or by putting the legitme in trust. 2. Legitime is not satisfied by granting usufruct to a forced heir, or by income interest in trust. 3. Cannot be any charges/conditions on the legitime.
176
When can a forced heir be deprived of the legitime?
A forced heir can only be deprived if the decedent has just cause to inherit him. Must be: 1. In one of the forms prescribed for wills; 2. Made expressly; and 3. For just cause. Person disinherited must be named or otherwise identifiable from the instrument that disinherits him.
177
What are eight grounds of just cause?
Striking a parent (mere threat not enough); Cruelty or grievous injury; Attempted murder of parent; Accusing the parent of a capital offense without any reasonable basis; Usuing violence against parent to preven will from being executed; Minor child marrying without the consent of the parent; Conviction of a felonyby the child for which the punishment could be life imprionsmen or death; Failing to communicate after attaining age of majority, without just cause, for a period of two years (unless in military).
178
When must the cause of the disinherison must occur?
Must occur prior to the execution of the instrument disinheriting the forced heir.
179
What is the requirement statement of the grounds for disinherision?
1. Must state the reason, facts, or circumstances for which the heir is disinherited; 2. Grounds are presumed to be true.
180
How can heir rebut grounds for disinhersion?
1. Heir may rebut grounds by preponderance of the evidence that the grounds are not true. Unsupported testimony of the heir will not suffice. 2. Heir may prove reconiciliation by clear and convincing evidence; e.g., a writing signed by testator evidencing reconciliation is one way.
181
What are the authorized defenses for an heir to overcome disinhersion?
1. Heir was not capable because of age/mental capacity of understanding the impropriety of his behavior; 2. Behavior was unintentional; 3. Behavior was justified under the circumstatnces. Burden of proof is preponderance of the evidence.
182
What is the grandparents' exception for disinhersion?
1. Can disinherit on all grounds regardless of whether the offending act is against the grandparent or the parent except when a minor child marries without the parent's consent.
183
When does disinhersion take place?
1. Only takes effect upon death. 2. Disinhersion is personal. If the disinherited child dies before the testator, his children may represent him for the forced share in the grandparent's succession if they qualify as forced heirs. 3. 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.
184
What is the disposable portion?
Remainder of the decedent's estate left over after the forced portion is disposed of. Decedent may dispose of the disposable protion freely.
185
Who qualifies as a forced heir?
1. First-degree descendants 23 years of age or younger; 2. Disabled first-degree descendants--disability must be either a physical infirmity or mental capacity. Must be permanently incapable of taking care of person/estate. May suffer incruable diseased that may render them incapable in the future--condition must exist at time of the decedent's death and be supported by medical documentation. 3. Grandchildren--not in their own right but by representation if predeceased parent would ahve been 23 years of age or younger; or, if the grandchild is disabled, no matter the age of the parent.
186
How is the legitime of the forced heir calculated?
Determined by dividing the forced portion by the number of descendants who qualify as forced heirs at the time of the decedent's death. (Forced portion is one/fourth of the estate if there is one forced heir, and one-half of the estate if there are two or more forced heirs).
187
What is the Greenlaw issue?
If the fraction that would otherwise by used to calculate the forced heir's legitime is greater than the fraction to calculate what the forced heir would be entitled ot inherit under intestate law, the legitime is reduced to the smaller fraction.
188
What are the rights of a forced heir versus the rights of an intestate successor?
An intestate successor has no right to demand reduction or fictitious collation to calculate his share. Even if their fractions are the same, a forced heir will always have greater rights than an intestate successor; forced heir can demand reduction.
189
What is the disabled grandchild's forced portion?
1. Law is unclear; the rule from Green law may apply in the situation of disabled grandchildren who represent a predeceased parent.
190
What happened if the forced heir renounces his legitime?
His legitime become sdisposable and the forced portion is reduced accordingly. The legitime of each remaining forced heir is not affected; e.g., they don't get more because one forced heir dropped out.
191
When do children who are illegitimate or adopted qualify as forced heirs?
1. An illegitimate child whose filiation is lawfully established may be a forced heir to the same extent as a child born of marriage; 2. Children who are legally adopted qualify as forced heirs to the same extent as children born of the marriage.
192
What are the right of forced heirs?
1. Action to reduce--brought to prevent impingement on the legitime caused by donations that exceed the diposable portion; 2. Action of collation--based on the presumption that the decedent means to treat all children similarly and any gift prior to death as merely an advancement. Only forced heirs may claim this.
193
What is impingement on the legitime?
Generally, no charges/conditions/burdens may be imposed on the legitime except those expressly authorized by law. Permissible impingments--1. Suriving spouse susufruct: Arises only in intestacy and applies only to community property and terminates upon remarriage. Naked ownership is inherited by the descendants fo the decedent. Can be dispended of in a will. Usufructary may be compelled to provide security when descendant is not a child of the SS or when the naked owner is a child but qulaifies as a forced heir. Usfructary MAY have to provide secuirty to the extent the usufruct affects the forced heir's legitime.
194
What is the testamentary usufruct ot the surviving spouse?
Testator may grant to his surviving spouse a usufruct, by will, over both separate and community property including the forced portion. Granted for life and is not required to terminate upon remarriage of the surviving spouse (unlike 890 usufruct) Will be for life unless the will specifies a shorter time.
195
What is the usufructary's power over nonconsumables?
Usufructary is granted the power to dispose of nonconsumables as provided in the law of usufruct.
196
Is the testatmentary usufruct under 1499 an impingement on the legitime?
This usufruct is expressly stated as not being an impingment on the legitime irrespective of its duration, the proeprty it covers, whether the forced heir is a descendant of the surviving spouse, and whether or not the usufructary has the power to dispose of nonconsumables. Not required to provide security unless required by testator, although under Article 1514 a forced heir may request it.
197
What judicial remedy is available for determining secuirty from a SS usufructary?
Court may fashion an appropriate remedy to preotect the forced heir which may include: ordering the execution of notes/mortgages/or other documents as the court deems necessary.
198
Can the forced portion be placed in trust?
Forced portion may be placed in trust; income attributable to the legitime must be distrinbuted as necessary for the health/education/support and maintenance of the forced heir, considering all other sources of income and support.
199
Is a short-term surviorship provision in a will valid with regard to the legitime of a forced heir?
No, unless both the forced heir and his decendants do not survive the stipulated period-- not to exceed six months.
200
What is an action to reduce?
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 impingment. 1. Reduction action may only be brought after the death of the donor; 2. Strictly personal action; may only be brought be a forced heir, his successors, or an assinged of these classes whose assingment is express. Creditors of heir cannot required reduction of excessive donations that impinge on the forced portion.
201
What is the 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.
202
How do you calculate the estate property value?
1. Determine the value of all property left at the time of the death of the decedent, including the decedent's full ownership of his half-share of community property. This is called the agregate. 2. Fictitiously add the value of inter vivos donations made within three years of the decedent's death *three periods of 365 days starting from date of decedent's death; 3. Subtact debts from the aggregate amount of donations + aggregate. 4. The result is the active mass.
203
How do you determine the legitime from the active mass?
The legitime of each forced heir is then calculated by applying the proper fraction to the active mass result.
204
What items are excluded from caluabating the legitime's share?
1. Non-La Immovables, unless the decedent is domiciled in Louisiana and left at least one forced heir in the state; 2. If decedent is domiciled outside Louisiana at the time of his death, La-immovables are calculated in the active mass if there is at least one forced heir living in Louisiana at the time of the decedent's death.
205
What items apart from immovables are excluded from calculating the active mass?
1. Life insurance proceeds *if paid to forced heir, credited toward satisfaction of his legitime; 2. Pnesion and profit-sharing proceeds are not included, if paid "to or for the beneift of" a forced heir, they are credited toward his legitime; 3. Renumerative donations are not included; 5. Onerous donations are not included; 6. Any donations made three years prior to donor's death are exempt; 7. Inter vivos donations to spouses of a previous marriage, made during that marriage are exempt.
206
What is the order of reduction for satisfcation of the legitime?
1. All donations mortis causa are reduced first; look to testament first, if nothing in testament, particular legacies have preference over universal legacies if there are enough assets in the probate estate to satisfy the legitime.
207
Once the probate estate has been exhaused, what happens next?
1. Inter vivos donations are then reduced--a return of property to the estate, but the donee can elect to pay instead. Most recent inter vivos donations are reduced first. Does not go beyond three years of gifts.
208
What are the donee's option in an action for reduction?
1. When the donated property is owned by the donee or his successors by gratuitious title, the owner may elect to return it or take less from the donor's succession. If 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. Donee must account for fruits and products of property from date of written demand. Donee does not get cost of improvements to donated proeprty.
209
What is collation?
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. Collation is presumed unless it has been expressly forbidden.
210
What is real collation?
Based on a presumption that the decedent means to treat all children equally and what she gives prior is only an advance.
211
Can collation be waived?
Yes, if the decedent in unequivocal language stipulates that what was given was intended as an extra portn and need not be collated.
212
Where can waiver of collation be made?
1. In act of inter vivos donation; 2. In a subsequent authentic act; 3. In a will. 4. Simply leaving the disposable portion to the heir from whom collation is demanded does not evidence a dispensation from collation.
213
Who can demand collation?
1. Claimant demanding collation must be a descendant fo the first degree of the decedent who qualifies as a forced heir at the time of the decedent's death. 2. If grandchild inherits by representation, he may be able to demand collation. 3. If a child has attained the age of 24/is not disabled, he cannot demand collation.
214
Who does the collation action proceed against?
The collation action is made only to the succession of the donor-decedent.
215
What can be demanded in a collation action?
Collation is due for what has been expended by the father/mother in order to provide for their descendant who would eventually rake in their succession. Collation only applies to inter vivos gifts made within three years of the donor's death. Does not apply to any donations mortis causa.
216
What expenditures are exempted from collation?
1. Manual gifts, by their own hands, e.g. birhtday or xmas gifts. 2. Gifts for use during donor's life; 3. School necessities/education; 4. Gifts made more than three years prior to decedent's death; 5. Marriage gifts; 6. Gifts recvied by those not required to collate.
217
From whom can collation be demanded?
Children and grandchildren of the decedent may be required to collate gifts recevied by them via donations inter vivos but only if those from whom collation is demanded are called to the succession of the donor. To be required to collate, the donee must be a presumptive heir, i.e., appeared in the quality of an heir to the donor's succession at the time of the gift.
218
Can an heir avoid collation by renouncing the succession?
Yes, under Article 1237, a child may avoid the duty of collating property by renouncing the succession.
219
When are grandchildren not required to collate?
Gifts made to a grandchild during the life of the PARENT are always considered exempt from collation.
220
How are collations made?
Collations are made in kind or by taking less from the decedent's succession. For both immovables and movables, valuation is determined at the time of donation.
221
How is collation made in kind?
When the the thing that has been given is delivered up to the donee to rejoin the mass of the succession of the donor.
222
When is collation made by 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 t ohim, and he takes that much less from the donor's succession.
223
How does collation relate to immovables?
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 retun it in kind.
224
When is a donee of an immovable entitled to reimbusument for the expenses of the immovable to be collateD?
1. Necessary expenses--those that are indispensable for the preservation of a thing. These should be allowed to the donee. 2. Useful expenses--those that increase the value of the immovable, but are not necessary to preserve the estate. Must be reimburse by coheirs in proprotion to the increase in value. 3. Expenses for mere pleasure--no right to reimbursement, but the donee has the right to remove improvements if such removal can be done without damaging the property.
225
What is the donee's liability for damage to the immovable?
1. Donee is accountable to any damage/deterioration caused by his own fault or negligence. If Donee collates in kind--loss of immovable is borne by the succession. If Donee elects to take less from the succession--Loss is borne by the donee. Partial destruction--Shall be collated in the state in which it is at the time of the partial destruction. Immovable property burdened with real rights--donee is accounatable for the diminutition in value caused by the imposition of the real right.
226
How does collation relate to movables?
1. Donee cannot collate in kind; must take less. 2. Collation of money may be made by returning to the succession a like amount of money or by taking less from the succession.
227
What happens if the defendant renounces the succession?
Donation may keep the donation. But, the property will be subject to claim of the forced heir for reduction, it is impinges on the legitime.
228
What happenes if community property is donated?
Only use the decedent's one-half of the value for collation.
229
What is an action to declare simulation?
1. A contract is a simulation when the parties agree that it does not express their true intent. 2. True intent can be expressed in a separate writing which is called a counter letter. 3. Heirs can attack an absolute simulation--since title is not transferred, there is no need to collate.
230
How are simulations distinguished from disguised donations?
A donation in disguie is not a simulation, because title is transferred.
231
Is an advantage bestowed subject to collation?
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 trying 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 indirection one.
232
What are the prescriptive periods for actions to reduce; collation; action to reduce a simulation?
1. Action to reduce--inter vivos gifts, five years from the death of the donor; 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. 3. Action to declare a simulation--imprescriptible.
233
What is a donation omnium bonorum?
Disposing of one's property entirely through inter vivos donations. This is void. Action to nullify the donation may be brought by the donor during his lifetime, or by his heirs upon his death. This action is imprescriptible.
234
What is the marital portion?
If one spouse dies rich in comparison with the survivor, the survivor may claim the marital protion from the succession of the deceased spouse. To determine rich, cases use 5:1 ratio. Spouse is considered in need if she cannot maintain the same standard of living.
235
Can a separated spouse claim the marital portion?
If the claimant spouse is separated from the decedent spouse at the time of the decedent's death, claimant souse must be without fault in the separation.
236
What is the amount of the marital portion?
1. No surviving children: spouse can take 1/4 fo the succession in full ownership; 2. Three children or less; 1/4 of the succession, but only in usufruct; 3. More than three children: takes a child's share in usufruct. Marital portion is limited to $1million. Any legacies left to the surviving spouse are counted toward the marital portion.
237
What is the right to claim the marital protion?
Right is personal, nonheritable, and prescribes three years from the date of death. Against public policy to contract to waive or renounce the marital portion until after the decedent spouse dies.
238
What is a donation inter vivos?
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.
239
What are the three former categories of donations inter vivos?
1. Gratuitous--made without condition on the donee; 2. Onerous--burdened with charged imposed on the donee; 3. Renumerative--meant to compensate for services rendered. Significance of this classification--the rules as to form governing gratuitous inter vivos donations do not apply to those obligations that are not gratuitous.
240
What is the two-thirds rule for gratuitous donations?
Value of the serviced rendered/costs of charges imposed must be at least two-thirds of the value of the gift or the rules of form governing gratuitous inter vivos donations will be applicable.
241
What are the general requirements for gratutious doantions?
1. Donative intent is necessary; 2. A donation must be irrevocable; 3. Donor may only donate present property; 3. Donor may impose conditions that are not contrary to good morals. But a donation inter vivos conditioned on the donor's will is null, as is a donation inter vivos conditioned on paying debts/charges other than those existing at the time of the donation.
242
What is the right of return?
Donor is allowed to stipulated a right of return of the donated property should he survive the donee, or if he survives the donee's descendants. Not applicable to donations in the context of marriage.
243
What form requirements must a donation inter vivos comply with?
A donation inter vivos must be made by authentic act or it is an absolut e nullity. Exceptions for certain types of property. Act of donation must identify the donor and donee to a reasonably ascertainable standrd; extrinic evidence can be used to clarify an identifiaction or description when necessary.
244
What happens if a donation inter vivos lacks proper form?
Can be confirmed by the donor; must be in the the form required for a donation.
245
What form rules govern an inter vivos donation of an immovable?
Act of donation as well as the act of acceptance must be filed in the registry in the conveyance records in the parish in which the immovable is located to affect third parties.
246
What form rules govern an inter vivos donation of a corporeal movable?
A corporeal movable can be delivered by manual delivery without any formality; or it may be made by authentic act in which case delivery is not necessary.
247
What form rules govern an inter vivos donation of an incorporeal movable?
Donation or acceptance of certain incorporeable movbles may be made by authentic act or in accordance with the rules particular to the specific type of incorporeal movable invovled. 1. Negotiable instruments--may be donated in accordance with Titel 10; 2. 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 1550, donative intent is always required; 3. Checks--gift of money is not complete until the check is cashed; 4. Passbooks--usually deemed incorporeal, needed an authetnic act for a valid donation; 5. Bearer bonds--donated by manual delivery; 6. COD are incorporeal instruments; 6. U.S. Savings bonds--covered by federal law.
248
What form rules govern an inter vivos donation of investment property?
An incorporeal movable classified as investment property under Chapter 9 may be donated by a writing signed by the donor that evidences donative intent and directs transfer of property to the donee for his benefit. Authentic act is not required.
249
What is acceptance of a donation inter vivos?
A donation inter vivos is without effect until it is accepted by the donee. 1. Acceptance must be made during the lifetime of the donor. The donation must also be accepted during the lifetime of the donee; if the donee dies before acceptance, his successors cannot accept for him.
250
How can a donee accept an act of donation?
1. Acceptance need only be in writing; do not need an authentic act. 2. A donation of a movable is also accepted and has full effect if the donee has been put into corporeal possession by the donor. 3. Subsequent AEL of an immovable by the donee shall be considered an act of acceptance and is effective against third parties upon recordation of document evidencing AEL. 4. 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.
251
Whom may accept a donation inter vivos?
General rule is that a donee must accept a donation personally, but there are exceptions. 1. If donee dies before accepting the donation, his successors may not accept for him. 2. If delivery is made to an agent or mandatary, the gift is complete if the mandatory is the donee's mandatary and the acceptance of the donation is within scope of mandate; 3. A donation to a minor may be accepted by parent even if person accepting for minor is also the donor; 4. Donee's creditors may not accept the donation for him if the donee refuses or neglects to accept the donation.
252
When can a donation be revoked?
Grounds for revocation are limited; can revoked on the grounds of ingratitude of the donee. 1. Killing donor; 2. Cruel treatment/crimes injurious to donor. Action to revoke must be brought within one year from the date the donor knew/should have known of the act of ingratitude.
253
Who can revoke a donation for ingratitude?
Generally, only the donor may revoke, but if he dies after commencing an action to revoke, his successors may continue the action.
254
When can donor's successors bring an action to revoke?
1. If donor dies before the prescriptive period runs, the action may be brought by his successors, but only within the time remaining in the one-year period. 2. If donor dies before learning of the ingratitude, then the successors have one year from the death of the donor to file the action. 3. If donee is deceased, action for revocation may brought against the donee's successors.
255
What is the effect of revoking a donation inter vivos?
1. Before action is filed--does NOT affect an AEL made by donee before the action to revoke is filed. 2. After action is filed--AEL of a movable is effective against the donor only if it is an onerous transaction made in good faith by the transferee. AEL of an immovable is governed by the law of registry.
256
What is restoration of a donation inter vivos?
If action to revoke on the grounds of ingratitude is successful, the donee must return the thing donated as well as its fruits and products. If donee is unable to return the thing, the donee must restore its value, measured at the time the action was filed.
257
What is dissolution of an inter vivos donation?
Because donations can be subject to suspensive or resolutory condition, the nonfulfillment of those conditions can dissolve a donation inter vivos. 1. Suspensive--dissolved of right when the condition can no longer be fulfilled; 2. Nonoccurence--donation may be dissolved only by consent of the parties or by a judicial decree.
258
What is prescriptive period for an action to dissolve the donation inter vivos?
Five years from the day donee fails to perform the charges or fulfill his condition or ceases to do so.
259
What is the effect of dissolution?
1. Immovables--immovable must be returned even if the donee has AEL by onerous title. If thing thing cannot be returned free from third-party rights, donor may still accept thing and donee is liable for diminuition in value; or donee returns value of thing at the time the action is filed; 2. Movables--AEL of the movable is only effective against the donor if the transfer was made by onerous donation to the good faith transferee; 3. Fruits and products--Must restore the value or F/P from the date of written demand.
