LA Donations Law Flashcards
Difference between testaments
donation mortis causa and donation inter vivos?
Mortis causa = wills ( gifts after death).
Inter vivos = gifts between the living
Which elements make up an olographic will?
1) Entirely hand written
Dated,
&
Signed in the testator’s handwriting.
2) No witnesses or notarization are required.
3) Date must be reasonably ascertainable, but minor errors in the date may not invalidate the will.
4) Must be signed at the end of the document, but any material written after the signature may be disregarded.
Subject to court verification, which may require handwriting expert testimony.
5) More susceptible to challenges based on authenticity or undue influence.
6)Intent!!
Which elements make up a notarial will?
A formally, typed, or handwritten will that meets strict execution requirements.
1) Must be signed before a notary public and two competent witnesses. (authentic act)
2) Testator must declare in the presence of the notary and witnesses that the document is their will.
3) The will must be signed at the end and on each separate page.
4) The notary and witnesses must sign an attestation clause stating that the formalities were followed. (Offers more protection against challenges, as it is presumed valid if executed properly.)
What is a lapsed legacy?
When a legacy (a gift in a will) fails for any number of reasons.
Common causes of lapse in Louisiana law?
Predeceasing the Testator: If the legatee dies before the testator and there is no substitution or accretion.
Legatee Lacks Capacity: The legatee is incapable of receiving the legacy due to legal incapacity.
Nullity: The legacy is declared null due to fraud, duress, undue influence, or improper form.
Renunciation: The legatee refuses the legacy.
Object of Legacy is Destroyed: If the thing bequeathed is lost, destroyed, or no longer owned by the testator at death.
Prohibited Substitutions: Louisiana law does not allow a legacy where a legatee is required to pass the gift to another (except for permitted trusts).
What usually happens when a legacy lapses?
the legacy “accretes” aka it (goes) to the other co-legatees, the universal legatee, or the intestate heirs in default of other provisions.
testamentary intent controls—if the will specifies what happens upon lapse, that provision governs.
Capacity in donations law.
A person must have the requisite mental and legal capacity at the time of making a donation (inter vivos or mortis causa).
must be 16+
must understand the nature and consequences of the donation.
if someone lacks capacity (due to mental illness, undue influence, etc.), the donation can be challenged
Examples of prohibited donations
Donations made under fraud, duress, or undue influence
Capacity to donate (mortis causa considerations).
Must have capacity at the time of execution of the will.
timing
age
mental condition
Mental capacity is presumed, but can be contested with clear evidence (e.g., dementia, coercion).
interdiction Impact: If a person is formally interdicted (declared legally incompetent), they cannot make a valid will.
undue Influence: A will can be invalidated if made under undue influence, fraud, or duress.
Unworthiness
A person may be declared unworthy to inherit or receive a donation mortis causa (by will) if they have committed certain acts against the decedent.
Crime must involve the killing or attempted killing of the decedent.
If not convicted judicial determination that the successor participated in the killing or attempted killing will suffice.
Unworthiness issues to keep in mind
● Governor or statutory pardon is irrelevant and will have no effect.
● Reconciliation or forgiveness is a defense.
● Third way in which a legacy can lapse.
● Action prescribes in 5 years from the death of the decedent, or 5 years from the probate.
What must a pl. do to have an heir declared unworthy?
An action must be filed and the only person who can bring that taction is one who will inherit concurrently or in place of the unworthy successor.
What are the effects of unworthiness?
If declared unworthy, the person is treated as if they predeceased the decedent, meaning:
they cannot inherit under intestacy.
they cannot receive under a will or donation.
their descendants may still inherit by representation, unless the will states otherwise.
Does unworthiness apply to donations mortis causa or donations inter vivos?
Donations mortis causa
courts may consider similar conduct when evaluating undue influence or revocation of donations
On an exam how would you state that the pl. is seeking an (unworthiness) claim?
Pl is seeking to have the heir “Judicially declared unworthy” .
Capacity
Everyone is presumed to have capacity to make donations except those who the law declares incapable.
Which factors does the ct. evaluate when determining capacity?
Timing - the capacity to donate mortis causa must exist when the testator executes the testament.
Age - a minor under the age of 16 cannot make either an inter vivos or mortis causa donation except his spouse or children.
- a minor between the age of 16 and 18 may execute a will but cannot make inter vivos donations except to his spouse or children
Mental condition of the donor- donor must be able to comprehend generally the nature and consequences of the disposition he is making.
(BURDEN: yhe person chalnneging cpaacity on this basis must prove by clearn and concivncing evidence that the donor did not have capacvtiy at the time the DIV was made/ executed.
What is the legal standard for the capacity to receive a donation?
DIV: at the time the donation is made
DMC: at the time of the testators death
(IN UTERO) must be in utero at the time of the testators death and the child must be later born alive.
What is the effect of fraud, duress, and undue influence on a donee?
Volition of the donor is null
What is the standard of proof in capacity cases?
Clear and convincing evidence.
Exception to clear and convincing evidence standard?
Where there is a relationship of confidence such as between a doctor and patient > the ct. says the challenger need only prove the alleged vice by a preponderance of the evidence. (UNLESS the wrongdoer is related tot he decedent).
