LA BAR EXAM CODE II: MULTIPLE CHOICE SHUFFLE Flashcards
On February 2, Tom’s attorney prepared Tom’s will according to Tom’s directions. On February 4, Tom appeared at his attorney’s office and declared that the will was his.
He then signed the will at the end on each separate page in the presence of his father, Fernando, who then signed the attestation clause as a witness at Tom’s request and his attorney, who then notarized Tom’s signature. On February 24, Tom showed the will to his adult son, Andrew, told Andrew that the signature on it was his, and had Andrew sign the attestation clause as a witness as well. Tom died on June 1, and the will was offered for probate. Both Fernando and Andrew testified to the above facts concerning the execution of the will. Tom’s will gives Andrew the sum of $100,000 and gives the remainder of Tom’s estate equally to his other two sons, Bart and Carlton. Tom, a widower, was survived by Andrew, Bart, Carlton, and Fernando.
- Tom’s will:
(a) Should not be given the effect of probate because the attorney who drafted the will also notarized the will.
(b) Should not be given the effect of probate because Fernando and Andrew are the only witnesses to the will.
(c) Should not be given the effect of probate because Fernando and Andrew did not sign the attestation clause in the presence of each other.
(d) Should not be given the effect of probate because Fernando and Andrew are witnesses to the execution of the will in which they are legatees.
- (c)
In Louisiana, the testator must declare that the will is his and sign his name at the end and on each separate page in the presence of a notary and two competent witnesses. The two witnesses must sign in the testator’s presence, and the two witnesses must sign in each other’s presence and in the presence of the notary. Andrew did not sign in Fernando’s presence. The will is therefore invalid. Answer choice (A) is incorrect because the attorney can both draft and notarize a will. Answer choice (B) is incorrect because in Louisiana, only two competent witnesses are required for a notarial will. Answer choice (D) is incorrect because a will, codicil, or any part of either, is not invalid because it was signed by an interested witness, i.e., a witness who is also a beneficiary, but the legacy to the witness will be invalid.
[Reference La. Civ. Code arts. 1582 and 1582.17
On February 2, Tom’s attorney prepared Tom’s will according to Tom’s directions. On February 4, Tom appeared at his attorney’s office and declared that the will was his.
He then signed the will at the end on each separate page in the presence of his father, Fernando, who then signed the attestation clause as a witness at Tom’s request and his attorney, who then notarized Tom’s signature. On February 24, Tom showed the will to his adult son, Andrew, told Andrew that the signature on it was his, and had Andrew sign the attestation clause as a witness as well. Tom died on June 1, and the will was offered for probate. Both Fernando and Andrew testified to the above facts concerning the execution of the will. Tom’s will gives Andrew the sum of $100,000 and gives the remainder of Tom’s estate equally to his other two sons, Bart and Carlton. Tom, a widower, was survived by Andrew, Bart, Carlton, and Fernando.
How should Tom’s estate be distributed?
(a) Bart and Carlton each take one-half; Fernando and Andrew take nothing.
(b) Fernando, Andrew, Bart, and Carlton each take one-quarter.
(c) Andrew, Bart and Carlton each take one-third.
(d) None of the above.
- (c)
Because the will is invalid (reference answer to question #1 above), the estate will pass by intestacy. In Louisiana, when there is no surviving spouse, the estate passes to the decedent’s descendants equally (by roots). Parents of the decedent take only when there are no surviving descendants. Therefore, Tom’s three children, Andrew, Bart, and Carlton, will take equal shares of Ted’s estate, and Ted’s father, Fernando, will take nothing.
In 2000, Jack, a widower, properly executed a will leaving everything to be shared equally between his adult son and daughter, except for a $5,000 gift to his niece. The next year, Jack properly executed a codicil, deleting his son’s name, saying, “I won’t leave anything to that bum, my son.” Late in 2004, when he was feeling benevolent because of the holiday season, Jack properly executed a new will expressly revoking the 2000 will and its codicil and including his son and daughter, and a $10,000 gift to his niece. Jack did not destroy the 2000 will or the 2001 codicil but across the codicil, he wrote “I revoke” and signed his name but failed to provide a date. This softened mood did not last long, because in early 2005, Jack properly executed a new will leaving everything to his bowling buddy George, all the while muttering under his breath, “I don’t owe them anything, those ungrateful brats.” Jack furiously ripped up the 2004 will.
Then in 2011, Jack, perhaps sensing his own mortality, drafted a new will (all in his own handwriting) with provisions identical to the 2004 will. He signed the will but failed to provide a date on the will. He threw the 2005 will in the fire, saying, “Sorry, George.” Suddenly, Jack clutched his chest, collapsed on the floor, and died. He was found by the neighbors when they came for dinner that night. He was survived by his son, daughter, and niece.
Which will should be probated?
(a) The 2000 will because it was never revoked.
(b) The 2011 will because it was the last writing of Jack expressing his intent.
(c) None, Jack’s estate should be distributed by the laws of intestacy.
(d) The 2000 will with the 2001 codicil, because the 2001 codicil was not properly revoked.
- (a)
Answer choice (A) is correct because the 2000 will was never revoked. The 2004 will that revoked the 2000 will and 2001 codicil was revoked by physical destruction. [See La. Civ. Code art. 1607(A)] A testament that is revoked by a subsequent testament may be revived by revocation of the second testament. La. Civ. Code art. 1609, cmt.] However, answer choice (D) is not correct because the codicil was validly revoked by a signed writing on the instrument itself. [See La. Civ. Code art. 1607 (C)] No date is necessary. Answer choice (B) is incorrect because a valid olographic will must be signed and dated by the testator. Answer choice (C) is incorrect because the 2000 will is valid and therefore will dictate how Jack’s estate will be distributed.
In 2000, Jack, a widower, properly executed a will leaving everything to be shared equally between his adult son and daughter, except for a $5,000 gift to his niece. The next year, Jack properly executed a codicil, deleting his son’s name, saying, “I won’t leave anything to that bum, my son.” Late in 2004, when he was feeling benevolent because of the holiday season, Jack properly executed a new will expressly revoking the 2000 will and its codicil and including his son and daughter, and a $10,000 gift to his niece. Jack did not destroy the 2000 will or the 2001 codicil but across the codicil, he wrote “I revoke” and signed his name but failed to provide a date. This softened mood did not last long, because in early 2005, Jack properly executed a new will leaving everything to his bowling buddy George, all the while muttering under his breath, “I don’t owe them anything, those ungrateful brats.” Jack furiously ripped up the 2004 will.
Then in 2011, Jack, perhaps sensing his own mortality, drafted a new will (all in his own handwriting) with provisions identical to the 2004 will. He signed the will but failed to provide a date on the will. He threw the 2005 will in the fire, saying, “Sorry, George.” Suddenly, Jack clutched his chest, collapsed on the floor, and died. He was found by the neighbors when they came for dinner that night. He was survived by his son, daughter, and niece.
How will Jack’s estate be distributed?
(a) Niece gets $5,000, son and daughter each get one-half of Jack’s estate.
(b) Niece gets $5,000, daughter gets everything else, and son gets nothing.
(c) Niece gets $10,000, son and daughter each get one-half of Jack’s estate.
(d) Son and daughter each get one-half.
- (a)
As Jack’s estate is governed by the 2000 will (reference answer to question #3 above), the son and daughter will get one-half, and the niece will take her $5,000 gift.
F, age 62 and a resident of Lafayette Parish, is a wealthy real estate developer with a daughter, D, age 28, a resident of St. Landry Parish. F also has a son, S, age 32, a financially responsible stock broker living in Dallas, Texas. D received a substantial inheritance from her grandparents, F’s parents. D is not married now, but has been married previously three times. She is paying final spousal support to each of her three former husbands. F creates an inter vivos trust for D for the duration of D’s life, naming Lawyer Larry as the attorney to handle the trust and S as trustee. The trust instrument also indicates that any legal action involving the trust must be litigated in the district court in Acadia Parish. The instrument for D’s trust provides that the trustee is to pay trust income to D, “provided that she does not marry.
D seeks to institute legal action on the trust. Which court is the proper venue?
(a) The district court in Lafayette Parish if that is where F was domiciled when he created the trust.
(b) The district court in St. Landry Parish.
(c) The district court in Acadia Parish.
(d) Any Louisiana parish district court indicated by S as trustee.
- (c)
When the inter vivos trust instrument itself indicates a court, that parish district court is the proper court for all matters concerning the trust. The other rules addressed for the proper court involving litigation on an inter vivos trust are secondary to this primary rule. Therefore, since
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Acadia Parish was designated by F in the instrument, all matters concerning the trust will be litigated there. [See La. Rev. Stat. 9:2235]
F, age 62 and a resident of Lafayette Parish, is a wealthy real estate developer with a daughter, D, age 28, a resident of St. Landry Parish. F also has a son, S, age 32, a financially responsible stock broker living in Dallas, Texas. D received a substantial inheritance from her grandparents, F’s parents. D is not married now, but has been married previously three times. She is paying final spousal support to each of her three former husbands. F creates an inter vivos trust for D for the duration of D’s life, naming Lawyer Larry as the attorney to handle the trust and S as trustee. The trust instrument also indicates that any legal action involving the trust must be litigated in the district court in Acadia Parish. The instrument for D’s trust provides that the trustee is to pay trust income to D, “provided that she does not marry.
S, as trustee, joins in D’s legal action and retains Attorney Abby (a Louisiana-licensed attorney) to handle the matter. D objects, arguing that Lawyer Larry must represent all trust parties and matters. Which lawyer should be designated and why?
(a) Lawver Larry because he was the initial counsel indicated in the trust document created by F as settlor.
(b) Attorney Abby only if she is appointed as S°s agent for service of process.
(c) Lawyer Larry because the appointment of an attorney in the trust instrument is binding on the trustee.
(d) Attorney Abby because the trustee can select the attorney to handle legal matters involving the trust and the appointment of an attorney in the trust instrument is not binding on the
trustee.
- (d)
The trustee shall select the attorney to handle legal matters involving the trust. [La. Rev. Stat. 9:2241] Here, S, as trustee, has selected Attorney Abby in that capacity. Any selection of an attorney by a settlor of a trust is simply precatory and is not binding on the trustee.
F, age 62 and a resident of Lafayette Parish, is a wealthy real estate developer with a daughter, D, age 28, a resident of St. Landry Parish. F also has a son, S, age 32, a financially responsible stock broker living in Dallas, Texas. D received a substantial inheritance from her grandparents, F’s parents. D is not married now, but has been married previously three times. She is paying final spousal support to each of her three former husbands. F creates an inter vivos trust for D for the duration of D’s life, naming Lawyer Larry as the attorney to handle the trust and S as trustee. The trust instrument also indicates that any legal action involving the trust must be litigated in the district court in Acadia Parish. The instrument for D’s trust provides that the trustee is to pay trust income to D, “provided that she does not marry.
Continually frustrated with how things are going, D now seeks to remove S as trustee arguing that S cannot serve as a trustee under Louisiana law. Who wins?
(a) D wins because non-Louisiana residents cannot serve as trustees to Louisiana trusts.
(b) S wins because any natural person can serve as a trustee to a Louisiana trust so long as he/she is an American citizen or a resident alien.
(c) Swins but only if he appoints as secondary trustee an FDIC insured organization within 30 days of the creation of the trust.
(d) D wins because in a trust of this trpe between family members. the settlor must always also be the trustee.
- (b)
The Trust Code in Title 9 of the Louisiana Revised Statutes indicates that any natural person who is an American citizen or resident alien can serve as the trustee of a Louisiana trust. La. Rev. Stat.
9:1783(A)(1)] There is no requirement by law that the trustee be a resident of Louisiana so (A) is incorrect. Answer choice (C) is incorrect because the appointment of a secondary, alternate or contingent trustee (while advisable) is not required to create a valid Louisiana trust. Answer choice (D) is incorrect because no exception dealing with trusts among family members is addressed in the general rule concerning who may serve as a trustee. [See La. Rev. Stat. 9:1783]
Jack died on July 1, 2010 leaving a valid Louisiana will dated January 1, 2010. At the time of his death, Jack was survived by Jill and Jeremy, two adult children (both age 26 and neither suffering from any mental capacity or physical infirmity) and Jennifer, his wife from whom he was estranged (but not legally divorced), his adult niece Susanna and his best friend Samson. Jack’s will left all of his assets to his niece, Susanna. Jack’s assets at the time of his death were his 2008 Lamborghini (valued at $325,000 and $55,000 cash in his personal savings account. Jack also left behind an Individual Retirement Account (IRA) at Local Bank with $60,000 vested in it. Listed as beneficiary on his IRA was Samson; the beneficiary listing was signed by Jack and dated on 01/15/2008 and witnessed by his IRA plan administrator. Local Bank acknowledged in writing receiving Jack’s beneficiary designation form the same day (01/15/2008. Samson, as beneficiary to the IRA, collected the $60,000 shortly after Jack’s death. Jack left no other relatives at the time of his death and all of the assets listed above were his separate property.
Who is entitled to the Lamborghini and the $55,000 cash in the savings account?
(a) Jennifer only
(b) Jeremy and Jill
(c) Jeremy, Jill and Susanna
(d Susanna only
- (d)
Susanna, as the only legatee of Jack’s valid 01/01/2010 will, gets the Lamborghini and the $55,000 in cash Jack left at his death. Since the facts indicate that the will is “valid.” we are to assume no defects in formalities. Therefore, there would be no occasion to assume Jack’s estate would pass by intestacy leaving any of the other parties in the fact pattern- Jennifer, Jill or Jeremy in a position to take under the laws of intestacy. (B) and (C) are incorrect as they would lead the examinee to assume that Jack’s will and bequest to Susanna possibly impinges upon the legitime of Jill and Jeremy. [See, e.g., La. Civ. Code art. 1496] However, the legitime is the forced portion of a particular forced heir and neither Jill nor Jeremy qualify as forced heirs since the facts indicate they are 26 years old and are not permanently incapable of taking care of themselves or administering their affairs.
Jack died on July 1, 2010 leaving a valid Louisiana will dated January 1, 2010. At the time of his death, Jack was survived by Jill and Jeremy, two adult children (both age 26 and neither suffering from any mental capacity or physical infirmity) and Jennifer, his wife from whom he was estranged (but not legally divorced), his adult niece Susanna and his best friend Samson. Jack’s will left all of his assets to his niece, Susanna. Jack’s assets at the time of his death were his 2008 Lamborghini (valued at $325,000 and $55,000 cash in his personal savings account. Jack also left behind an Individual Retirement Account (IRA) at Local Bank with $60,000 vested in it. Listed as beneficiary on his IRA was Samson; the beneficiary listing was signed by Jack and dated on 01/15/2008 and witnessed by his IRA plan administrator. Local Bank acknowledged in writing receiving Jack’s beneficiary designation form the same day (01/15/2008. Samson, as beneficiary to the IRA, collected the $60,000 shortly after Jack’s death. Jack left no other relatives at the time of his death and all of the assets listed above were his separate property.
Who is entitled to the $60,000 IRA funds?
(a) Susanna
() Jill and Jeremy
(c) Samson
(d) Jennifer
- (c)
Samson is entitled to Jack’s Individual Retirement Account (IRA) at Local Bank. At issue is whether the beneficiary designation of Samson takes precedence over the general legacy of all Jack’s assets (pre-sumably including the IRA funds) in the 01/01/2010 will to Susanna. Under federal law and state law, benefits payable by reason of death from an individual retirement account must be paid to the designated beneficiary. [26 U.S.C. § 408(g); La. Rev. Stat. 9:24491 Generally, if there is a designated beneficiary, the will has no effect whatsoever on an individual retirement account of the testator. In his January 1. 2010 will. Jack left all of his property to his niece. Susanna. However. Jack designated Samson as the beneficiary of the IRA and signed and dated the beneficiary designation form all on January 15, 2008. Thereafter, the bank acknowledged in writing that it had received the beneficiary designation form. Therefore, Samson, as the designated beneficiary, is entitled to the IRA funds.
Jack died on July 1, 2010 leaving a valid Louisiana will dated January 1, 2010. At the time of his death, Jack was survived by Jill and Jeremy, two adult children (both age 26 and neither suffering from any mental capacity or physical infirmity) and Jennifer, his wife from whom he was estranged (but not legally divorced), his adult niece Susanna and his best friend Samson. Jack’s will left all of his assets to his niece, Susanna. Jack’s assets at the time of his death were his 2008 Lamborghini (valued at $325,000 and $55,000 cash in his personal savings account. Jack also left behind an Individual Retirement Account (IRA) at Local Bank with $60,000 vested in it. Listed as beneficiary on his IRA was Samson; the beneficiary listing was signed by Jack and dated on 01/15/2008 and witnessed by his IRA plan administrator. Local Bank acknowledged in writing receiving Jack’s beneficiary designation form the same day (01/15/2008. Samson, as beneficiary to the IRA, collected the $60,000 shortly after Jack’s death. Jack left no other relatives at the time of his death and all of the assets listed above were his separate property.
Assume all facts in the fact pattern above except that Jack dies with no will. Who is entitled to the Lamborghini and the $55,000 cash in the savings account in that scenario?
(a) Jeremy and Jill in full ownership
(b) Susanna in usufruct with naked ownership to Jeremy and Jill
(c) Jeremy and Jill in usufruct with naked ownership to Jennifer
(d) Jennifer in full ownership
- (a)
Since the facts indicate that Jack left only separate property, and assuming he had no will, his descendants, Jill and Jeremy, would take the Lamborghini and the $55,000 cash in the savings account in full ownership. [See La. Civ. Code art. 888] As Jack’s descendants, Jill and Jeremy would take to the exclusion of Susanna, Jack’s only other living blood relative. Therefore, answer choice (B) is incorrect. Had Jack not had descendants and assuming that Susanna as his niece was his only living relative then she would take as a descendant of Jack’s sibling. [See La. Civ. Code art. 892]. Further, hierarchy mandates Jill and Jeremy taking to the exclusion of Jennifer as well so answer choices (C) and (D) are incorrect. Had Jack not left any relatives at all (including Jill, Jeremy or Susanna), only then would Jennifer as his wife take if the “estrangement” from her was not a judicial separation. [See La. Civ. Code art. 894]
Jack died on July 1, 2010 leaving a valid Louisiana will dated January 1, 2010. At the time of his death, Jack was survived by Jill and Jeremy, two adult children (both age 26 and neither suffering from any mental capacity or physical infirmity) and Jennifer, his wife from whom he was estranged (but not legally divorced), his adult niece Susanna and his best friend Samson. Jack’s will left all of his assets to his niece, Susanna. Jack’s assets at the time of his death were his 2008 Lamborghini (valued at $325,000 and $55,000 cash in his personal savings account. Jack also left behind an Individual Retirement Account (IRA) at Local Bank with $60,000 vested in it. Listed as beneficiary on his IRA was Samson; the beneficiary listing was signed by Jack and dated on 01/15/2008 and witnessed by his IRA plan administrator. Local Bank acknowledged in writing receiving Jack’s beneficiary designation form the same day (01/15/2008. Samson, as beneficiary to the IRA, collected the $60,000 shortly after Jack’s death. Jack left no other relatives at the time of his death and all of the assets listed above were his separate property.
Assume now for purposes of this question only that Jeremy and Jill were both age 20 at the time of Jack’s death and that Jack left a will as stated in the hypothetical (and all other facts in the hypothetical remain true and correct). Which of the following is true?
(a) No difference than the correct answer for #9 above
(b) Susanna’s legacy under the will can be subject to the action to reduce if brought by either Jeremy or Jill.
(c) Jeremy or Jill can demand collation of Susanna.
(d) None of the above
- (b)
Any donation that impinges upon the legitime of a forced heir is not null but is reducible to the extent necessary to eliminate the impingement. [La. Civ. Code art. 1503] Under the factual modification specifically for this question, Jill and Jeremy would qualify as forced heirs as they would be 23 years old or younger. [See La. Civ. Code art. 1493] As such, Jack would leave two forced heirs, making the forced portion of his estate one-half, with the legitime of Jill and Jeremy each being one-fourth. [See La. Civ. Code art. 1495] The action to reduce is a personal claim of forced heirs, here Jill and Jeremy. [See La.
Civ. Code art. 1504] Thus, (B) is the correct answer choice. (A) is not correct because the change in Jill and Jeremy’s age makes them qualify as forced heirs. Collation, addressed in answer choice (C), is not at issue because there has not been any receipt of any of Jack’s assets before his death by any heirs
- Abigail in a wave of altruism for her younger sister Beth prepares a document entitled “Act of Donation” in which the following is declared: “Today, on 01/01/13, I hereby donate my house and property located in St. Tammany Parish to my sister, Beth, so long as she doesn’t use the property for a dwelling of more than three people.” Abigail typed the document herself, executed it before a notary and two witnesses and filed it in the public records of St. Tammany Parish. Beth promptly wrote a letter to Abigail on 01/03/13 thanking her for the donation and accepting it. On 01/04/13, Beth then immediately moves into the home with her husband, Michael. Beth is 8 1/2 months pregnant when she moves in to the home on the property and gives birth to twins two weeks later. All four of them live in the house on the property.
Abigail seeks to retake ownership of the St. Tammany Parish home and property.
Can she do so? Why or why not? Which one of the following best describes why Abigail can or cannot retake the house and property?
(a) Abigail cannot retake the property because she executed a valid donation inter vivos and it cannot be subject to the type of condition in the hypothetical.
(b) Abigail can retake the property of right with no further action and Beth and her family must immediately vacate the premises upon demand by Abigail.
(c) Abigail can retake the property but only by consent of her and Beth or by judicial decree.
(d) Abigail cannot retake the property because Beth has developed a valid right of habitation.
- (c)
If a donation is subject to a resolutory condition, the occurrence of the condition does not of right operate a dissolution; in that case, the donation may be dissolved only by the consent of the parties or by a judicial decree. [La. Civ. Code art. 1562, 2] When an obligation is subject to a resolutory condition, that obligation is immediately enforceable, but comes to an end if the uncertain event occurs. [La. Civ.
Code art. 1767]. Here, Beth immediately moved into the home that Abigail had donated to her and the language of the donation indicated that the donation was to take effect immediately. Further, Beth accepted only two days later. Thus, this would make this a resolutory condition and not one that could likely be classified as a suspensive condition which would make answer choice (B) the correct answer.
Answer choice (A) is not correct because this type of condition (e.g., how many people can live in a particular dwelling unit) is not of the type that would be considered immoral, impossible or illegal either in fact or as applied to Beth’s pregnancy. [See, e.g., La. Civ. Code art. 1519] (D) is incorrect because the right of habitation is a right to dwell in the house of another, and here Abigail intended to relinquish ownership of the house to Beth, not have her merely reside in it for a specific time as something less than an owner. [See La. Civ. Code art. 630]
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Zelda, a 30-something tech millionaire, who runs a successful crowd funding website out of Baton Rouge has never seen eye to eye with her father Xavier, currently age 77. Xavier’s only other child is Carrie, Zelda’s 28-year-old sister. Xavier was previously married to
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Irene, Zelda and Carrie’s mother, but Irene passed away in 2011. Xavier’s parents are deceased and he has no siblings; his only other living relative is Zelda’s son, Marcus. Marcus father is deceased and Marcus has no other living relatives aside from Zelda and Xavier.
Zelda, being successful in her business wanted to make sure Carrie was okay since Carrie struggled in school and could never make ends meet. In the middle of 2013, after a particularly good couple of quarters in her website’s business, Zelda prepared a document she called, “ Act of Renunciation,” in which she wrote the following:
“I have been lucky with my business and have more than enough money for Marcus and me. Since my father never helped me one bit, he will definitely not help Carrie. So, I hereby renounce and reject any potential inheritance from him so that it will go to Carrie.”
She signed and dated the document, 07/01/13, and gave it to her sister, Carrie for safekeeping.
Xavier died on 07/03/13 without a will
- Who is entitled to Xavier’s estate?
(a) Carrie only
(b) Carrie and Marcus
(c) Carrie and Zelda
(d) Carrie, Zelda and Marcus
- (c)
Although the fact pattern would lead the examine to believe that Zelda attempted to renounce her share of Xavier’s estate, her renunciation was not valid. A person may not renounce rights to succeed before the death of the decedent. [La. Civ. Code art. 949] Here, Zelda attempted to execute an act of renunciation on 07/01/2013 but Xavier died after this date, albeit by only two days. As such, the renunciation is not valid. Answer choice (A) is not correct because even if Zelda’s renunciation was valid, Zelda’s interest in Xavier’s estate would pass to her son Marcus, not Carrie, and that would make (B) correct.
Again, however, the renunciation was not valid so the normal rules of intestacy apply and Carrie and Zelda take in equal proportions, making (C) the correct answer choice. (D) is not correct because Marcus would not take ahead of his mother, Zelda
Zelda, a 30-something tech millionaire, who runs a successful crowd funding website out of Baton Rouge has never seen eye to eye with her father Xavier, currently age 77. Xavier’s only other child is Carrie, Zelda’s 28-year-old sister. Xavier was previously married to
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Irene, Zelda and Carrie’s mother, but Irene passed away in 2011. Xavier’s parents are deceased and he has no siblings; his only other living relative is Zelda’s son, Marcus. Marcus father is deceased and Marcus has no other living relatives aside from Zelda and Xavier.
Zelda, being successful in her business wanted to make sure Carrie was okay since Carrie struggled in school and could never make ends meet. In the middle of 2013, after a particularly good couple of quarters in her website’s business, Zelda prepared a document she called, “ Act of Renunciation,” in which she wrote the following:
“I have been lucky with my business and have more than enough money for Marcus and me. Since my father never helped me one bit, he will definitely not help Carrie. So, I hereby renounce and reject any potential inheritance from him so that it will go to Carrie.”
She signed and dated the document, 07/01/13, and gave it to her sister, Carrie for safekeeping.
Xavier died on 07/03/13 without a will
- Marcus is tragically killed in a car accident on 07/08/2013. Assume for purposes of this question only that Marcus had a sister, Jolene (who had the same parents as Marcus and also that Xavier survives Marcus (i.e., he does not die on 07/03/13) but all other facts above are true and correct. Who is entitled to Marcus’ estate?
(a) Zelda and Jolene as co-owners in full ownership
(b) Zelda in usufruct with naked ownership to Jolene
(c) Xavier
(d) Zelda
- (b)
Here, Marcus left no descendants and was not married so any property he left would have been his separate property. The classes of heirs that would inherit his separate property in order of priority are: descendants, parents and siblings, any surviving spouse (not judicially separated), more remote ascendants and more remote collaterals. This hierarchy would prevent Carrie (as his aunt) and Xavier (as his grandfather) from recovering as Zelda is Marcus’ ascendant closer in degree than either Carrie or Xavier. So, whether Xavier is still alive or not is irrelevant under the normal rules of intestate succession as to Marcus. Thus, answer choices (A) and (C) are incorrect. The real issue in this question relates to the relative rights of Zelda as Marcus’ parent and Jolene as his sister. If a decedent leaves no descendants, but is survived by a father, mother, or both, and by a brother or sister, or both, the latter succeed to the separate property of the decedent subject to a usufruct in favor of the surviving parents). [La. Civ. Code art. 891] Here, Zelda and Jolene both survive Marcus, making (B) the correct answer choice. (D) is not correct because it does not accommodate the rule in article 891 by not addressing the rights of Jolene to inherit the naked ownership of Marcus’ estate.
Tommy Tomlinson has the following assets and nothing more: his home in Lafayette, a three-acre parcel of farm land in Opelousas, his 2012 Hyundai Sonata, two grazing cattle and $13,500 in a savings account. Tommy executes a valid notarial will on 02/02/12 with the following dispositive legacies:
I leave my home in the city of Lafayette to my sister, Judy.
To my best friend Linus, my farm land that we visited so often.
To my brother Ken, all of my livestock.
To my barber, Ivan, all remaining movables not heretofore bequeathed.
To my twin adult children, Ross and Betsy, the residual of my estate.”
Two days subsequent to the execution of this will, Tommy told Sammy Sneed that he could have his two cattle by just “coming by the farmland to pick it up.” Sammy took manual delivery of only one of the cattle but not the other.
On 04/02/12, Tommy sold his Hyundai Sonata to his friend, Carter for less than half of the market value.
On 05/02/12, Tommy sold his home in the city limits of Lafayette Parish because he wanted to downsize. He bought a very small one-bedroom townhome in Duson, Louisiana on 05/22/12; the home is on the Lafayette Parish side of Duson, a city which borders both Lafayette and Acadia Parishes.
Tommy died on 01/02/13 and his 02/02/12 will is offered for probate.
- Who gets the home in the cit of Duson purchased on 05/22/12?
(a) Judy
(b) Ross and Betsy
(c) Judy in usufruct with naked ownership to Ross and Betsy
(d) Ivan
- (b)
Ross and Betsy, as residual legatees of Tommy’s will, get the house in Duson. Even though Judy was bequeathed a house “in the city of Lafayette” in Tommy’s will, the sale of that home on 05/02/12 effectively revoked that legacy. [See La. Civ. Code art. 1608(3)] Although Judy may argue that the house in Duson is an asset contemplated by the particular legacy to her in Tommy’s will, she would not succeed.
Judy may attempt this because of the fact that the newly-acquired house is located in Lafayette parish and the will referred to a house in Lafayette. However, even though testamentary dispositions are to be interpreted to refer to the property owned by the testator at death, the preface of “in the city of” in the will refutes any argument by Judy that the house in Duson could be one that would have been contemplated by Tommy in the will (simply by virtue of its location in Lafayette parish). [See La. Civ. Code art. 1614]. Thus, (A) is not the correct answer choice. Absent some contrary agreement in proper form, the relative rights of Ross and Betsy and Judy are not subject to division along the lines of usufruct
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and naked ownership; so (C) is incorrect. (D) is not correct because Ivan would be entitled to movables under the will; a house is not a movable thing.
