Donations Mortis Causa Flashcards
Donation Mortis Causa “DMC”
Definition
Testamentary donation to take effect at donor’s death and is revocable during lifetime of donor
DMC
Capacity
DONOR: Must be able to generally comprehend nature and consequences at the time testament is executed
DONEE: Must be in existence, or in utero, at death of decedent
DMC
Substantive requirements
ANIMUS TESTANDI “Testamentary Intent”
* Decedent intends for instrument to be last will
* Intent to give assets
* At death
DMC
Olographic testamentary form
(1) Entirely handwritten in handwriting of testator;
Portions not handwritten are ignored; Remaining must satisfy requirements
(2) Dated; AND
Reasonably ascertainable from information in testament, as clarified by extrinsic evidence
(3) Signed
At end of testament; Inclusion of any writing after signature up to court discretion
DMC
Notarial testamentary form
(1) Written
Typed or handwritten
(2) Dated
Reasonably ascertainable from information in testament, as clarified by extrinsic evidence
(3) Signed
At end of dispositive provisions AND on each page
(4) In presence of notary and two witnesses
Notary:
* Commission is parish where will signed
Witnesses:
* May NOT be insane; blind; under 16 years of age; or unable to sign name
(5) Declaration
(6) Attestation clause
One provided by civil code, or one “substantially similar”
DMC
Death Beneficiary Designations
Requirements
(1) Takes effect at death;
(2) Is generally freely revocable during the decedent’s lifetime; AND
(3) Is made by contract , and not in the form of a last will and testament
DMC
Prohibited dispositions
Donor imposed conditions/substitutions permitted, UNLESS contrary to law or good morals
DMC
Prohibted conditions
Marriage;
Alienation of Property;
Penalty in Terrorem
* Validity of penalty clause dependent on challenge validity
DMC
Prohibited substitutions
(1) Double disposition in full ownership;
(2) Charge to preserve and render; AND
* Precatory/Hopeful language not binding
* “Substitution of the residuum”: Double disposition in full ownership with no charge to preserve
(3) Successive order
Effect: Null for both institute and substitute
DMC
Modification
Testamentary form
* No date sufficient for revocation, but not appointment/creation
DMC
Revocation
Of entire will;
Of legacy; or
For cause
Timing: DMC revocable at any time during lifetime of donor; Right of revocation may not be renounced or waived
DMC
Revocation of entire will
(1) Physical destruction: So completely destroyed as to render it impossible to offer in court for probate
* Rebuttable Presumption of Revocation: Inability to fill will in possession of testator
– Burden of Proof: Proponent must prove testator did not intend revocation
(2) Written declaration of revocation in testamentary form or authentic act
(3) Handwritten and signed writing identifying and clearly revoking testament
* Date not required, since reference to prior testament is
DMC
Revocation of entire legacy
(1) Declaration of revocation in testamentary form
(2) Subsequent incompatible valid testamentary disposition
(3) Subsequent inter vivos disposition of thing that has not been reacquired
(4) Signed writing on testament clearly revoking provision or legacy
(5) Divorce from legatee after execution of testament and at time of death, unless provided otherwise by testator
DMC
Revocation for cause
Requirements: INGRATITUDE
* Donee attempted to take life of donor; OR
* Donee guilty of cruel treatment, crimes, or grievous injury towards donor
– Any act naturally offense
DMC
Revocation of revocation
Revocation of testament or legacy may be revoked prior to testator’s death
