LA BAR EXAM CODE II: DONATIONS

Question 1

IV. What are the general rules for donations a.k.a. what types of donations are there?

Answer 1

There are two kinds of donations: donations inter vivos (between living persons) and donations mortis causa (upon death). Property can acquired or disposed of gratuitously only by these forms. Additionally, a donation is generally valid only if: (i) capacity to give and receive exists; (ii) no vices of consent exist; (iii) the requisite formalities are followed; and (iv) substantive limits are not violated (e.g., reprobated dispositions and donations omnium bonorum).

Question 2

What is capacity?

Answer 2

The capacity to donate inter vivos must exist when the donor makes the donation. The capacity to donate mortis causa must exist when the testator executes the testament. Everyone is presumed to have the capacity to be a donor.

Question 3

What are the capacity requirements for a donor?

Answer 3

The capacity requirements for a donor are age (over 16), satisfied mental condition, and not an interdict.

Question 4

What are the capacity requirements for a donee to receive?

Answer 4

A donee must be in existence at the time of the donation for donations inter vivos or at the time of the testator’s death for donations mortis causa.

Question 5

What are the vices of consent? Three types?

Answer 5

A donation that is the product of fraud or duress is null. Likewise, a donation is null when it is the product of influence by the donee or another person that so impaired the volition of the donor as to substitute the volition of the donee or other person for the volition of the donor.

Question 6

What is the violation of a substantive limit by reprobated disposition?

Answer 6

Conditions made in a donation inter vivos or donation mortis causa that are impossible, immoral, or contrary to law are void (e.g., prohibiting marriage, denying a basic civil right).

Question 7

What is a prohibited substitution and how does it differ from a vulgar substitution?

Answer 7

A prohibited donation is a disposition to a first donee to preserve a thing and deliver it at his death to a second donee. A vulgar substitution is a valid donation that provides that in the event the first donee cannot take the gift, a second donee will take.

Remember: “To A, but at his death, to B” is prohibited, but “usufruct to A, naked ownership to B” is permitted.

Question 8

What is the violation of a substantive limit by donation omnium bonorum?

Answer 8

Disposing of one’s property in its entirety through inter vivos donations is a donation omnium bonorum. When this happens, the donation is void.

Question 9

V. For dispositions mortis causa, what are the requisite formalities?

Answer 9

A disposition mortis causa is valid only when made in the form of a testament (a will) authorized by law.

Recall non-probate assets that are jointly held and pass by law.

A testament has no effect unless it is probated in accordance with the Code.

There are only two forms of testaments in Louisiana olographic and notarial.

An ologrpahic testament is one entirely written, dated, and signed in the handwriting of the testator. It is subject to no other requirements as to form. Watch for a preprinted will form - if material portions are in testator’s handwriting, then it is validly olographic.

To probate the will, two witnesses must identify the testator’s handwriting.

A notarial will is self-proving, provided these formalities are followed: (i) the testator must declare in the presence of the notary and two competent witnesses that the document is his will; (ii) the testator must sign each page and at the end of the will (if witnesses are not present when the testator signs, the testament is void); (iii) the will must be dated anywhere on it; (iv) and there must be an attestation clause (declaration that all formalities met) signed by the notary and two witnesses in the presence of the testator and each other.

Question 10

What do we need to know about competency of witnesses to testaments?

Answer 10

Generally, a person cannot be a witness to a testament if he is insane, blind, or unable to sign his name. A person under the age of 16 also cannot be a witness.

Question 11

What do we need to know about executors?

Answer 11

The designation of an executor (or other succession representative), trustee, or attorney handling the estate is not a bequest.

If a testator names an attorney in his testament, it is merely a suggestion.

An executor selects assets to satisfy bequests made by quantum or value, and can allocate a legacy among charities and/or choose the charities.

Question 12

What is a legacy, and what are three types of testamentary dispositions?

Answer 12

When classifying legacies based on their magnitude, there are three types of testamentary dispositions: particular legacies, general legacies, and universal legacies.

Question 13

What is a universal legacy?

Answer 13

The testator gives to one or to several persons the whole of the property, or the “balance,” or “residue” of all of the property left after particular legacies.

Question 14

What is a general legacy?

Answer 14

A general legacy is (i) a legacy of a fraction or a certain proportion of the estate / balance of the estate that remains after particular legacies are discharged; or (ii) a disposition of all or a fraction of specifically one of the categories of property; i.e., “one-half of all my movable property.”

Question 15

What is a particular legacy?

Answer 15

All other bequests not general or universal are particular. (“All of my separate and immovable property”)

Question 16

What is the difference between a joint or separate legacy?

Answer 16

It is separate when the testator assigns shares. It is joint when the testator does not assign shares. Ex., “to A and B” = joint; ex., “share and share alike / share equally” is separate.

Question 17

How are legacies interpreted?

Answer 17

The intent of the testator controls the interpretation of his testament. If the language ascertaining the testator’s intent is not clear, the Code provides rules of construction.

Question 18

Why might a legacy lapse, and what is the effect of lapse?

Answer 18

There are seven reasons a legacy may lapse:

(i) predeceased legatee
(ii) incapable legatee
(iii) suspensive condition on legatee not fulfilled
(iv) unworthy legatee
(v) renounced legacy
(vi) declared invalid
(vii) declared null (e.g., fraud duress, undue influence).

PISCURDIDN. Pig Injects Silly Chuck Under Rose’s Desk in Dog’s Nest.

Testamentary accretion takes place when any legacy lapses. Accretion takes place in order: (i) according to the testament; (ii) for lapsed legacies of children/siblings of decedent, accretes in favor of his descendants by roots who were in existence at time of decedent’s death (most favored class rule); (iii) lapsed joint legacy accretes ratably in favor of other joints; (iv) lapsed particular or general legacy accretes in favor of successor who, under the testament, would have received the thing if the legacy were never made; (v) a lapsed legacy not disposed by this point devolves by intestacy - look for this if no universal legatee.

Question 19

How is a legacy extinguished?

Answer 19

A legacy is extinguished when the property that is the object of the legacy is lost, destroyed, or extinguished before the death of the testator. In certain instances, the legacy is not extinguished . . .

Question 20

How may a dispositions mortis causa testament be revoked or modified?

Answer 20

A testator may revoke his will at any time. A revocation may be express or tacit, and it may be total or partial. A testator may not renounce the right to revoke his will, nor may he agree to exercise the right under certain conditions.

Revocation of the entire testament may be done by physical destruction, revocation clause in a new will, authentic act, or revocation by signed writing.

Question 21

What is important to recall about revocation of the entire testament by physical destruction?

Answer 21

When an entire testament is revoked, it results in either intestacy or revival of an earlier testament that was not destroyed. If a will is revoked by destruction, the destruction must be complete and total either by the testator or by someone at the testator’s discretion. The accidental destruction of a will does not revoke it–even if the testator later decides he wants to revoke it–because the intent to revoke must be present at the time of the physical act of destruction.

Question 22

How are revoked legacies or testamentary provisions handled?

Answer 22

Revoked legacies are treated as if they were not written. The rest of the will be valid. A legacy or other testamentary disposition may be revoked by:

(i) so declaring in one of the forms prescribed for testaments;
(ii) making a subsequent incompatible testamentary disposition;
(iii) making a subsequent inter vivos disposition of the thing and not reacquiring it (but alienations of cash do not revoke a bequest);
(iv) making a signed writing on the testament itself (need not be dated); or
(v) divorce after execution of the testament and before the death of the testator, unless the testator provides to the contrary.

Question 23

What is important about the interpretation of legacies?

Answer 23

The intent of the testator controls the interpretation of his testament. If the language ascertaining the testator’s intent is not clear, follow the rules of construction in the Code.

A disposition is to be interpreted in a sense in which it can have effect. A disposition is effective if it can be ascertained what object the testator intended to give. Testamentary dispositions are to be interpreted to refer to the property owned by the testator at death. When a testament contains contradictory provisions, the one written last prevails. A legacy to a creditor is not applied toward the satisfaction of the debt unless the testator clearly indicates otherwise.

Question 24

VI. What is the doctrine of forced heirship, and how does the forced portion work?

Answer 24

Descendants of the first degree 23 years of age or younger are forced heirs as are descendants of any age who are incapable of taking care of their persons or administering their estate. Forced errors are entitled to a portion of the decedent’s estate. The forced portion is a portion of the estate reserved for all forced heirs collectively. The forced portion is generally 1/4 if there is one forced heir, and 1/2 if there are two or more forced heirs.

Question 25

How can the legitime a.k.a. forced portion of a particular forced heir be disinherited?

Answer 25

A forced heir cannot be deprived of the legitime unless the decedent has just cause to disinherit him. Defenses to disinhersion are reconciliation, incapable of understanding, or arguments that the behavior was unintentional or justified.

Question 26

What creates an impingement on the legitime?

Answer 26

Permissible impingements (i.e., exceptions to the forced heir taking his legitime in full ownership) are: (i) the usufruct granted to the decedent’s surviving spouse and (ii) the placing of the forced portion in trust.

Question 27

What is an action to reduce?

Answer 27

The action to reduce is brought to remedy an impingement on the legitime cause by donations that exceed the disposable portion. Generally, any donation that impinges on the legitime of a forced heir may be reduced to the extent necessary to eliminate the impingement.

Question 28

What is an action of collation?

Answer 28

The collation action is based on the presumption that the decedent means to treat all children similarly and any gift prior to death was merely an advancement (i.e., common law advancement). The process of the return of the property is referred to as collation. Only a forced heir may assert an action of collation.

Be sure to identify the individual who is a forced heir and list the grounds for that classification.

Question 29

What is an action to declare simulation?

Answer 29

A contract is a simulation when the parties agree that it does not express their true intent. The true intent can be expressed in a separate writing which is called a counter letter (this required to prove a simulation). Simulation is absolute if the parties intend that the contract produce no effects. Placing title in someone else’s name as a purported sale of property, solely to avoid creditors is a classic example of a simulation. The simulation is relative if the parties intend that contract produce an effect different from the effect recited in the contract (e.g., a donation disguised as a sale). Heirs can attack absolute simulations.

Question 30

IX. What is a donation inter vivos? What are the three classifications?

Answer 30

A donation inter vivos is a contract by which a donor gratuitously divests himself at present and irrevocably of the thing given to a donee and the donee accepts it.

There are three kinds of inter vivos donations: gratuitous, onerous, and remunerative.

A gratuitous donation is one for which the donor receives no return advantage.

An onerous donation is burdened with charges imposed on the donee that result in a material advantage to the donor (in exchange for the “gift”).

A remunerative donation is a “gift” that is meant to compensate the donee for services rendered.

Onerous and remunerative donations are not true donations, and different rules apply to them.

Question 31

For donations inter vivos, what are the requisite formalities?

Answer 31

Substantively, (i) the donor must have donative intent; (2) the donation must be irrevocable (exceptions to this); (3) only present property may be donated.

Generally a donation inter vivos must be made by authentic act or it is an absolute nullity. Donations inter vivos for immovables must be filed for registry to affect third parties. A gift of a corporeal movable can be by manual delivery. The donation of incorporeal movables evidenced by a certificate, etc., or other writing may be made by authentic act.

Question 32

But above all else, what is important to remember about inter vivos donations?

Answer 32

A donation inter vivos is without effect until it is accepted by the donee. watch for this Even if the donor has the requisite intent to give the gift, if acceptance is absent or ineffective, the gift fails.

Question 33

How are donations inter vivos testatments revoked or dissolved?

Answer 33

Donations inter vivos are generally irrevocable with certain exceptions. A donation inter vivos may be revoked only for in gratitude of the downy. A donation may be dissolved for the non-fulfillment of a suspensive condition or the occurrence of a resolutory condition. A donation may also be dissolved for the non-performance of other conditions or charges.

Revocation based on ingratitude of the donee occurs only where: (i) the donee has attempted to take the life of the donor, or (ii) the donee is guilty of cruelty, crimes or grievous injuries towards the donor.

Watch terminology, there is a clear distinction between revocation and dissolution. The only ground for revocation is ingratitude. Dissolution may be for any number of reasons. Dissolution may be by judicial decree post lawsuit or by automatic right.

Question 34

How do donations inter vivos come up in the marriage context?

Answer 34

A donation intervivos in (i) contemplation of the prospective marriage must be made (ii) by a single instrument in authentic form (iii) expressly stating that the donor makes the gift in contemplation of the marriage.

Question 35

What is Louisiana conflicts law as it applies to testamentary dispositions?

Answer 35

Louisiana conflicts law provides that a testamentary disposition is valid as to form if it is in writing and is made in conformity with:

(1) The law of this state; or
(2) the law of the state of making at the time of making; or
(3) the law of the state in which the testator was domiciled at the time of the making or at the time of death; or
(4) with regard to immovables, the law that would be applied by the courts of the state in which the immovables are located.

Question 36

When does a testament take effect?

Additionally, what if a testament has taken effect outside Louisiana, but involves Louisiana property?

Answer 36

A testament has no effect unless it is probated in accordance with the procedures and requisites of the Code of Civil Procedure.

A testament admitted to probate outside Louisiana shall be governed by the provisions of the Uniform Probate Code which state that a will duly proved, allowed, and admitted to probate outside of this state, may be allowed and recorded in the proper court of any parish in this state, in which the testator shall have left any estate. The executor or any other person interested in the will must file the will with a petition for probate and proper proceedings must be had as would be required on a petition for the original probate of a domestic will.

Key point to recall: recordation of a copy of an out-of-state probated will in the conveyance records of a parish in Louisiana is not sufficient. One needs to present the will to a proper court.