Successions

Question 1

Successions Generally

Answer 1

A succession is the “transmission of the estate of a deceased person to his successors. Successors have the right to take possession of the decedent’s estate after complying with relevant laws.” Always governed by the law in place at time of decedent’s death.

Estate = property, rights, and obligations of decedent and charges that accrue after decedent’s death

Question 2

Types of Successors

Answer 2

Universal Successor – represents deceased and succeeds to all of his rights and charges. (Heirs, universal legatees, and general legatees)

Particular Successor – succeeds only to certain rights relating to a thing bequeathed to him, sold, or ceded to him.

Question 3

Intestate and Testate Successions

Answer 3

Intestate = occurs when no will, will invalid in whole or in part, or will does not dispose of all of decedent’s property

Testate = will of decedent, in a testament executed as provided by law

Intestate Successors = heirs.

Testate Successors = legatees.

Question 4

Conflicts of Law

Answer 4

Movables – succession governed by decedent’s domicile at time of death

Immovables:

1. Succession to immovable situated in LA is governed by LA law
2. Succession to immovable outside LA governed by that state’s law

Question 5

Successor inheritance

Answer 5

Successor in his own right,

Successor by representation of successor’s heirs, or

Successor by transmission (heir dies after decedent but before exercising right of acceptance or renunciation)

Question 6

Capacity to Inherit

Answer 6

One must have been in existence at time of decedent’s death. Includes conceived children and children born by artificial insemination post-death.

Question 7

Intestate Successions

Answer 7

Classes of Heirs – For separate property, inherit in order of priority:

i. Descendants, then parents and siblings, then surviving spouse, remote ascendants, remote collaterals
1. When decedent leaves siblings and parents, surviving parents receive usufruct subject to siblings’ naked ownership
ii. Relatives in most favored class take to exclusion of other classes. Nearest relation by degrees in a class takes to exclusion of more distant relations.
1. Persons of the same degree share equally.
iii. Counting Degrees:
1. Each degree is one generation.
2. Direct Line (ascendants and descendants) – as many degrees are there are generations.
3. Collateral Line (not direct descent) – count up to nearest common ancestor, then count to decedent. Lowest number of steps is the closest relative.

Question 8

Inheritance of Separate Property by Intestacy

Answer 8

Descendants, then…

i. Children or representatives (descendants) take to exclusion of other heirs.
ii. Includes adopted children and illegitimate children who are formally acknowledged or timely establish filiation.
1. Does not include foster children.

To Parents and Siblings, then…

i. If no descendants, then parents and siblings succeed.
ii. Parents have joint and successive usufruct, and siblings have naked ownership. If one parent dies, usufruct accrues to survivor, and siblings still only have naked ownership interest.
iii. Exception – ascendants inherit to exclusion of all others when they donate an immovable to a descendant and descendant dies without posterity.
1. Ascendant will take subject to mortgages.

To Sibling if No Surviving Parents, then…

i. In absence of descendants and surviving parents, entire estate goes to siblings of decedent to exclusion of all others.
1. Half-blood siblings – property divides between paternal and maternal lines. Those with both parents take in both lines, half-bloods take only from that one line.
ii. If no siblings, but parent survives, parent takes entirety in full ownership.

To Surviving Spouse, then…

i. If decedent has no surviving descendants, parents, or siblings, then surviving spouse (if not judicially separated) inherits to exclusion of other ascendants or collaterals

To More Remote Ascendants, then…

i. If no descendants, siblings, parents, or surviving spouse, and grandparent(s) survive, they divide estate.
1. If one ascendant is nearer in degree than others, they take all.
2. If ascendants in same degree survive, they divide estate by roots, with one half going to maternal side and one half going to paternal.
ii. There is no representation in the ascending line!

To More Remote Collaterals, then…

i. If no descendants, parents, siblings, or ascendants, then the nearest collaterals take, by counting to nearest degree. No representation, only equal division by heads.

To The State – if no heirs, estate escheats to the state.

Question 9

Inheritance of Community Property by Intestacy

Answer 9

Surviving Spouse has Full Ownership of Her Half (not by inheritance)

Decedent’s Half of Community Property:

i. If Children or Other Descendants – decedent’s ½ interest in community property goes to them subject to 890 usufruct in favor of surviving spouse
1. If child renounces, child’s descendants inherit (not surv. spouse)
ii. If No Children/Descendants – decedent’s ½ interest in community property goes to surviving spouse
iii. Community Property of Putative Marriage:
1. Decedent Spouse in Good Faith – the share goes to his successors. Legal and putative spouses share other half pro rata.
2. Decedent Spouse in Bad Faith – entire community divided equally between putative spouse and legal spouse
iv. Article 890 Usufruct of Surviving Spouse
1. Grants legal usufruct to surviving spouse over decedent’s share of community property and naked ownership of decedent’s share to children. Only applies to intestate succession.
a. Even applies if inheriting children not children of marriage.
b. Usufruct lasts until surviving spouse dies or remarries.

Question 10

Inheritance Rights of Adopted Children

Answer 10

Adopted persons are generally entitled to full inheritance as if they were born of decedent’s marriage.

Adopted persons can adopt from adoptive parents AND natural parents/relatives.

Reverse not true – natural parents/relatives cannot adopt from child legally adopted by another.

Question 11

Inheritance of Children Born Outside of Marriage (Illegitimate Children)

Answer 11

Children born outside of marriage inherit as if born in the marriage if:

i. Child is formally acknowledged, or
ii. Parents subsequently marry and acknowledge, or
iii. Child timely files a paternity action, or
iv. Father timely files an avowal action

Formal acknowledgement – declaration of father executed before 2 witnesses and notary public or father signs birth certificate. Requires mother to concur.

i. For father to have inheritance rights from child born outside of marriage, he must file an avowal action.

Paternity action – burden is on child to prove by preponderance if father alive, clear and convincing if dead. Child has 1 year, peremptive, from death of alleged father. Age of the child doesn’t matter.

Avowal action – Father can file even if child presumed to be child of another. Must prove by a preponderance of the evidence.

i. If child presumed to be child of another, must file

1 year from birth (if mother deceived in bad faith, 1 year from knew or should have known), but can’t ever be filed any later than 1 year after child’s death.

ii. If child not presumed child of another, can file anytime up to 1 year after the child’s death

Question 12

Representation

Answer 12

Representation impacts degree-counting. Descendants or siblings who would take but predeceased decedent take by representation (those relatives’ descendants step into their shoes)

i. Usually only a dead person can be represented, but quasi-representation allowed if renunciation, unworthiness, or lapse of joint legacy

Representation only occurs in descending and collateral lines, NOT in ascending.

i. Representation in descending line takes place ad finitum
1. But descendants inherit per stirpes – multiple descendants in same degree split pro rata share of their predeceased ancestor
ii. Representation in collateral line is limited – only brothers and sisters of deceased can inherit by representation

Question 13

Renunciation

Answer 13

One who has renounced to succeed from another person may still represent that other person (son renounces father’s succession, but if grandfather dies after father, can still represent father in grandfather’s succession)

Question 14

Forced Heirs

Answer 14

Representation limited to grandchildren whose parent predeceased decedent and did not attain age 24 by time of decedent’s death or permanently disabled grandchildren who parent predeceased decedent.

Question 15

Presumptions of Survivorship for Persons Who Die in Common Disaster

Answer 15

If no facts to show who died first, each person who perished presumed to survive the other. Burden of proof to establish survivorship is on person claiming through alleged survivor.

Short-Term Survivorship – in testate successions, testator can include short-term survivorship clause in will and require that legatee survive him for time not to exceed six monhs

Question 16

Seizin (“Le Mort Saisit Le Vif”)

Answer 16

Succession occurs at death of decedent. Successor acquires ownership (“is seized”) of decedent’s property immediately at time of death

i. Universal successor acquires ownership “of the estate”
ii. Particular successor acquires ownership of the thing(s) bequeathed him
iii. Heir transmits succession to his own heirs, can institute all actions decedent could institute, and can prosecute those commenced.

Possession is also transferred to successor. (Particular successor can commence a new possession for purposes of acquisitive prescription)

Succession Representative – if appointed, alienation, lease, or encumbrance by a successor is subordinate to power of the representative

Question 17

Unworthiness

Answer 17

When heir/legatee judicially declared “unworthy”, he is deprived of right to inherit. It is not automatic and requires action filed in the succession proceeding

Unworthiness action may only be brought by person who would succeed in place of or in concurrence with unworthy successor

i. If person who would succeed is a minor/interdict, court can appoint attorney to investigate on motion of any family member or on its own

Grounds for Declaration:

i. Potential heir/legatee convicted of crime involving intentional unjustified killing or attempted killing of decedent
ii. If not convicted, he is judicially determined to have participated in killing or attempted killing of decedent
iii. A pardon does not cure this unworthiness

Prescriptive period of five years. In intestate succession, starts on date of death, and in testate it starts on probate/filing of testament.

Effects of Unworthiness:

i. Devolves right of unworthy successor as if he predeceased the decedent.
ii. If unworthy heir’s minor descendant would take, neither parent has a usufruct over the property the minor inherits
iii. Unworthy heir also loses right to claim as forced heir or right to serve in any fiduciary capacity in succession (executor, trustee, etc.)
iv. Unworthy heir must return or account for any property.
v. Reconciliation or forgiveness will cure unworthiness.

Question 18

Acceptance and Renunciation Rules

Answer 18

When a decedent dies, successor may (1) accept succession, (2) renounce succession, or (3) accept in part and renounce in part.

Successors are presumed to accept. Minors deemed to accept, but a representative can renounce when authorized by court.

Rules:

i. No acceptance or renunciation until the succession is opened. Can’t happen before death of decedent, and successor must know of death.
ii. Only valid if person knows of death and knows he has rights as successor.
iii. Can accept inheritance but renounce accretion that arises from someone else (or the reverse)
iv. Subsequent Probated or Annulled Testament:
1. Renunciation or acceptance of right to succeed by intestacy is null if a testament is subsequently probated.
2. Acceptance or renunciation of right to succeed in testate succession is null if testament is annulled or rights altered by subsequent testament or codicil.
v. Legacy subject to a suspensive condition may be accepted or renounced before or after fulfillment of condition.
vi. No formal prescriptive period (used to be 30 years), now only a rule requiring good cause to compel acceptance or renunciation
vii. Creditor of a successor can prohibit renunciation to the extent of the debt, but renunciation remains in effect for the heir himself.

Question 19

Acceptance

Answer 19

Formal acceptance – express and in writing or in judicial proceeding

Informal acceptance – act that implies intent to accept

1. Act without knowledge that property belongs to estate of decedent is not acceptance.
2. Act of ownership required. Custodial act/conservatory insufficient
3. Acceptance manifested by act of heir, can include alienation, lease, or encumbrance.

Act of renunciation is an acceptance if it is made for a price or made in favor of anyone to whom inheritance would not accrue otherwise

Successor is liable for debts of estate, but only to value of property the heir actually receives, valued at time of receipt

Question 20

Renunciation

Answer 20

Must be express and in writing, but doesn’t have to be by authentic act.

Intestate succession – accretion flows as if renouncing heir predeceased decedent. (If renouncer is child or sibling and has children, his share will go to his own children instead of to co-heir of same degree.)

Testate succession – accretion flows as if renouncing heir predeceased decedent, but if a ‘governing testamentary disposition’, the testament governs accretion

Can renounce accretion independent of acceptance or renunciation of other inheritance rights.

Renouncing relative can still represent person whose succession they renounced in the succession of another.

Capacity – must have capacity to alienate, for a minor a tutor can renounce with court authoritzation

Seizin – considered seized of inheritance from date of death of decedent until renunciation established, at which point it relates back

Attempted Renunciation – attempt to renounce in favor of someone outside order of succession is not a true renunciation, it’s an acceptance and donation to the intended designee (must be an authentic act)

Question 21

Payment of Estate Debts

Answer 21

Estate debts = debts of descendant and administration expenses.

i. Debts of decedent are those incurred by decedent (mortgage, credit, etc.) and those arising from death (funeral costs, etc.)
ii. Administration expenses = incurred by management of the estate

Liability of Successors to Creditors

i. Universal successors are jointly liable for estate debts to extent of property received by them.
ii. A successor who is a creditor of the estate is paid in same order of preference as other creditors.
iii. After distribution of estate to successors and payment made to creditors, if a new creditor asserts rights, satisfy claims (1) from assets remaining unde administration of estate, (2) from successors who already received distribution, and (3) from unsecured creditors who received payments

Order of Payment:

i. If creditor of estate is secured, then creditor paid in accordance with preference and priority of his security right.
ii. Unsecured creditors share pro rata with other unsecured credtiors.

Apportionment of Debts Among Successors:

i. Testator in will can make provisions for allocation of debts, and successors can also agree to allocate payment of debts. However, rights of creditors cannot be impaired either way.
ii. Estate debts attributable to identifiable property are chargeable to that property and its fruits.
iii. Debts of decedent are charged ratably to property that is object of legacies and property that passes by intestacy, valued at death. If property is insufficient, debts are charged:
1. First, ratably to fruits and products of property that is object of general legacies and property devolving by intestacy, then
2. Second, ratably to fruits and products of property that is object of particular legacies, and then ratably to such property itself
iv. Administration expenses charged ratably to fruits and products of property subject to general legacies and property passing by intestacy, then property itself, then fruits of particular legacies, then property itself
v. Receipts and expenditures allocated to all successors in equity & fairness.
1. Succession representative and attorney’s fees allocated between debts of decedent and administration expenses in this way.

2. Successors and succession representative can report and deduct expenditures for tax purposes.
   vi. None of this supersedes rights and obligations of usufructuary with respect to payment of estate debts.

Question 22

Donations Generally

Answer 22

Two kinds of donations – donations inter vivos and mortis causa.

Property can only be disposed/acquired gratuitously in one of these two ways.

i. Donation Inter Vivos – donation between living persons, by which donor divests himself immediately and irrevocably of a thing
ii. Donation Mortis Causa – donation that takes effect at death of donor, where he divests himself of all or part of property, and is revocable during donor’s lifetime.

Question 23

Requirements for a valid Donation

Answer 23

Capacity – of donor to make donation and capacity of donee to receive donation

Formalities – different forms govern inter vivos and mortis causa:

1. Inter Vivos – form is contingent on the object of the donation
2. Mortis Causa – must be made by testament, and all formalities must be observed or testament is null

Substantive Limits – donations are invalid if substantive limits (reprobated dispositions and prohibition on donations omnium bonoroum) violated

Question 24

Capacity for Donation

Answer 24

Everyone is presumed to have capacity to make and receive donations.

Question 25

Capacity of Donor

Answer 25

Timing – must exist when donor makes donation inter vivos or when donor executes testament for donation mortis causa.

Age – minor under 16 cannot make either kind of donation, except to spouse or children. Minor between 16 and 18 can execute a will, but cannot make inter vivos gifts except to spouse or children

Mental Condition of Donor:

1. Must be able to comprehend nature and consequences of donation.
2. Challenging capacity must prove by clear and convincing that donor lacked capacity at time donation made/will executed.
3. Interdicts – full interdicts do not have capacity, limited interdicts lack capacity to make acts related to anything under authority of their curator

Vices of Capacity – Fraud, Duress, and Undue Influence

1. A donation that is the product of fraud or duress is null.
2. Also null if donation is product of influence by the done or another person that impaired volition of donor that substitutes donee’s will.
3. Just because donation is product of a vice doesn’t make it all null. If any part not a product of vice, it is given effect absent a reason.
4. Challenging a donation on basis of fraud requires clear and convincing. But if a relation of confidence existed and donor/done are related by affinity, consanguinity, or adoption, then only requires preponderance.
5. Fiduciary appointments – one who uses vice to induce donation cannot exercise fiduciary duties related to donation or testament.

Conflict and Capacity – person has capacity if at time of testament, he possessed capacity under the law of the state he was domiciled in at time of testament or where domiciled at time of death.

1. Must be free of vice in the state where he had capacity.

Question 26

Capacity of Donee to Receive Donation

Answer 26

To receive, done must be in existence at time of acceptance of gift for donations inter vivos or at time of testator’s death for mortis causa.

1. Unborn child must be in utero when donation made for inter vivos or in utero when donor dies for mortis causa. Post-dying father’s artificial insemination requires birth within 3 years of his death.
2. Organization can receive if organization in effect when donation takes effect.

If donation hinges on fulfillment of a suspensive condition, done must have capacity to receive at time condition is fulfilled.

Question 27

III. Reprobated Disposition

Answer 27

Conditions made in donation that are impossible, immoral, are contrary to law are ‘reprobated’ – regarded as never made and therefor void.

Cannot prohibit remarriage or deny a civil or basic right.

Prohibited Substitutions

Vulgar Substitutions

Question 28

Prohibited Substitutions

Answer 28

Disposition not in trust to a first donee (called an institute) who is charged to preserve a thing and deliver it at his death to a second done (called the substitute) is null for both.

a. A charge to preserve property but no charge to deliver at institute’s death (it can happen before) is not a substitution and is therefore valid.
i. Mini-trust to preserve property until child’s majority is OK.
b. If no charge to preserve property but just to deliver any remainder to a second donee (a substitution de eo quod supererit), it’s also valid.

If the gift is prohibited, it lapses, but the rest of testament is valid.

Reservation of lifetime usufruct in one and naked ownership in another is permissible if it is express.

Question 29

Vulgar Substitutions

Answer 29

Vulgar substitution = If gift is in full ownership merely providing that in the event a first donee cannot take, a second donee does, then it is valid.

a. Testator can require survivorship of trustee from testator of not more than 6 months. If condition is not fulfilled as to first donee’s survivorship, second will take.
b. If first donee survives, he succeeds from moment of decedent’s death. If he doesn’t, he is considered to never have received disposition and 2nd donee determined he succeeded from moment of decedent’s death.

Question 30

Wills (Dispositions Mortis Causa) Generally

Answer 30

A disposition mortis causa is valid only when made in a testament with proper form as authorized by law. All formalities prescribed must be followed or nullity.

i. No testaments by others or with others (including by an agent or mandatary), and only one person can execute in a single instrument.
ii. Testamentary dispositions given to choice of a third person are generally null (exceptions for executors)
iii. Testament has no effect unless probated as set by Code of Civil Procedure

Question 31

Forms of Testaments

Answer 31

Only two forms of testaments – olographic and notarial. If not in one of these two forms, it’s absolutely null. No oral wills.

1. In addition to form, animus testandi (intent) is needed.
2. Conflict of laws: testament valid if in writing and made in conformity with law of LA, law of state of making at time of making, law of state of domicile at making or death, or, with regard to immovables, law of state of immovable

Life insurance policy and savings bonds are outside form rules.

1. Annuity is not the same as life insurance.

Question 32

Olographic Testament

Answer 32

Written, dated, and signed entirely in handwriting of testator. Has no requirements other than these and animus testandi.

i. Handwritten – this applies to changes as well. To probate, two witnesses must identify testator’s handwriting.
ii. Signature – should be at end, but things written by testator after signature aren’t invalid
iii. Date – if date is ‘reasonably ascertainable’ and can be clarified by extrinsic evidence, will is still valid
iv. Animus Testandi – must intend for writing itself to dispose of property

Question 33

Notarial Testaments

Answer 33

Self-proving if formalities are followed. There are 5 types.

i. Standard Notarial Testament
1. Testator must be able to read and write and sign his name.
2. Must be executed before notary and two competent witnesses, and testator must declare in their presence that the document is his will.
3. Must be in writing in a language testator can read and understand. Testator must sign on each page and at end of will.
4. Date can be anywhere, and doesn’t have to be made in presence of notary or witnesses.
5. Attestation Clause – declaration by notary and witnesses that all formalities have been met, must be signed in presence of testator and each other.
ii. Literate Person Physically Unable to Sign
1. Ordinary requirements apply, except:
2. If testator knows how to sign but can’t because of physical infirmity, can make his mark. If unable to mark, can direct other person (notary or witness) to make mark. Must be on every page and at the end.
3. Attestation clause must include description of infirmity and that he is marking rather than signing.
iii. Sight-Impaired or Illiterate
1. Must be executed in front of notary and two literate witnesses. Testator must declare that he heard will’s reading and signs or marks every page (or state reason for inability to sign/mark).
2. Must be dated and read aloud to the testator.
3. Attestation clause must state will was read aloud, and everyone must follow along on copies.
4. This form is valid for any person even if they’d qualify for standard notarial testament.
iv. Braille
1. Two witnesses are required, but no need to read aloud.
2. Testator must know how to and be able to read Braille.
3. Attestation clause must be in writing, not in braille.
v. Deaf Person or Deaf and Blind Person
1. Intended only for those declared physically deaf (or dead and blind) and who is able to sign, read braille, or visual English.
2. If testator knows how to sign but can’t, must declare or signify that document is his will, that he is unable to sign, and then mark.
3. Notary and two witnesses, in presence of each other and testator, must attest affirming testator’s inability to sign and that testator declared such by sign.
4. At least one of two witnesses must be certified interpreter for deaf.
5. Testator must be given choice of accommodations (large print, braille, etc.)

Question 34

Competency of Witnesses to Testaments

Answer 34

A person cannot be a witness if he is insane, blind, unable to sign, or is a minor.

i. A deaf person may witness regular notarial, but not ones for sight-impaired or those unable to read.
ii. An illiterate person may witness regular notarial, but not ones for sight-impaired or those unable to read.

If legatee or spouse of legatee is a witness, legacy to witness or spouse is invalid, but rest of testament is still valid.

i. If witness-legatee or spouse would be entitled to inherit as intestate successor had testator died intestate, may inherit lesser version of share
ii. Legatee may not serve as notary, but spouse of legatee can. Notary who is a legatee receives nothing even if intestate succession would allow.

Question 35

Executors and Attorneys of Testaments

Answer 35

Designation of an executor, trustee, or attorney to handle estate is not bequest.

i. Naming an attorney is precatory, and not binding on executor. If executor chooses named attorney, can dismiss for any reason (not just cause)
ii. Similar rule applies to attorneys for trusts and other professionals

Delegation of Authority to Executor – gift can’t be given to executor to dispose of as he sees fit, except:

i. Can permit executor to select assets to satisfy bequests made by value
ii. Can permit executor to allocate legacy among different charities and even to select the charity if explicitly authorized, and to impose conditions
iii. Executor can, by power of attorney, designate another to manage in his stead (and this mandatary can do the same if original executor agrees)

Notary of testament can be executor or trustee as well.

Executor or attorney can be a witness if not also a legatee.

Can’t be executor, trustee, or attorney if vice of capacity (fraud, duress, etc.).

Question 36

Classification of Legacies

Answer 36

Universal Legacy – testator gives whole of property to one or several persons, or ‘balance’ or ‘residue’ of all property after particular legacies

General Legacy:

i. Legacy of fraction or portion of estate, or fraction/portion of balance of estate after particular legacies discharged
ii. Legacy of fraction or portion of separate, community, movable, immovable, corporeal, or incorporeal property. (Can’t be two of these together – ex, ‘separate corporeal property’ doesn’t qualify)

Particular Legacy – all other bequests, usually specific property

Question 37

Joint Bequest

Answer 37

When a thing is left to two or more persons without assignment of parts or shares, so that legatees take equal percentage of the whole

i. If shares assigned by testator, it’s separate legacy. If no assignment of shares, it’s a joint bequest.
ii. If a joint legatee lapses (dies before testator), his share accretes to other legatees on a pro rata basis.
1. If all survive testator then one joint legatee dies, his share goes to descendants.
iii. “Share and share alike” does not create a joint bequest.

Question 38

Testamentary Accretion

Answer 38

Happens when a legacy lapses.

i. Seven grounds for lapse:
(1) Legatee predeceases testator,
(2) legatee incapable of receiving at death of testator,
(3) legacy subject to suspensive condition which can no longer be fulfilled or legatee dies before fulfilling,
(4) legatee declared unworthy,
(5) legacy renounced,
(6) legacy declared invalid, or
(7) legacy is declared null.
ii. Law favors devolution of lapsed legacy to another designated legatee in the testament rather than going to intestacy.
1. If particular or general lapses, goes to successor who would have received per testament if legacy had not been made.
2. If no governing testamentary disposition, if renunciation, rights accrete to those who would have succeeded if legatee predeceased.
3. If legatee who lapses is a child or sibling of testator, or a descendant of such, accretion takes place in favor of descendants of that legatee.
4. All lapsed legacies not otherwise disposed of accrete to universal legatees, and if impossible, then by intestacy.

Question 39

Extinction of legacy

Answer 39

Legacy extinct when property that is object of legacy is lost, destroyed or extinguished before testator dies.

i. If part of property is left, legatee gets property and uncollected insurance proceeds, and right of action against any liable for loss.
ii. If legacy was condemned or expropriated, legacy not extinct.

Question 40

Priorities in Disbursing Bequests

Answer 40

Testament Governs – if express declaration, then that applies.

If no priorities expressed, then particular legacies have preference and are paid ahead of all others.

When succession is not sufficient to discharge all bequests, and no preference expressed, (1) bequests of ‘specific things’ first, then (2) legatees of groups and collections of things, then (3) cash legacies on pro rata basis unless cash legacy is remunerative (it comes before others then)

i. While entitled to fruits from moment of death, they are still subject to distribution by administration of testament.

Question 41

Revocation or Modification of Testaments

Answer 41

Testaments are ‘ambulatory’, so a testator can revoke at any time. Can be express or tacit, and can be total or partial. Can’t renounce ability to revoke.

Entire Testament – can be revoked by authentic act, signed writing, or by physical destruction of testament by testator or his instruction

i. Can revoke by including written revocation clause in new will.
ii. Destruction to revoke must be by testator and must be complete and total.
1. If original of a will can’t be found, it’s presumed destroyed. Can rebut by showing copy, that it was valid, and that it wasn’t revoked
2. Destruction of one of multiple originals = presumed revoked.
3. Lost wills – if can show by clear and convincing testator didn’t intend to destroy, presumption is overcome.
iii. Revocation by Authentic Act – can only revoke, not modify this way
iv. Result of Revocation – either intestacy or revival of earlier testament

Question 42

Revocation of a Legacy or Testamentary Provision

Answer 42

Can be revoked by declarating in a form prescribed for testaments, by making a subsequent incompatible testamentary disposition, making subsequent inter vivos disposition of a thing and not reacquiring it, making a signed writing on testament itself, or by divorce after execution of testament and divorced at time of death

i. Tacit Revocation of Legacy:
1. Subsequent inconsistent mortis causa disposition
2. Sale or donation of property bequeathed by testator during his life
a. This doesn’t apply to alienations of cash bequests
ii. Revocation and Form of the Will Involved:
1. Olographic – additions or deletions to testament can revoke if done by testator himself
2. Notarial – additions or deletions must be signed by testator, and to add or revise disposition, change must be signed and dated
iii. Any other modification of a legacy or testamentary provision must be in the form of a testament.
iv. If first testament revoked and second turns out to be invalid, first testament is still revoked and doesn’t revive.
v. Birth, adoption, or acknowledgement of subsequent children doesn’t revoke, but those children are forced heirs and may affect disposition.

Question 43

Interpretation of Legacies

Answer 43

When a testament uses a term whose legal effect has changed after date of execution, a court may consider law in effect at time of execution to determine testator’s intent. Intent controls, if unclear, then:

i. A disposition is interpreted so that it can have effect, rather than no effect.
ii. If identification of an object is unclear or erroneous, disposition is effective to extent it can be ascertained what object testator intended.
iii. Testamentary dispositions are interpreted as applying to property owned by the testator at death.
iv. When testament contains contradictory provisions, one written last prevails. (If testament has legacy of a collection and a legacy of some of the objects in the collection, specific legacy prevails)

Question 44

Forced Portion

Answer 44

Portion of estate reserved for all forced heirs collectively. ¼ of estate if one forced heir, ½ if two or more.

Question 45

Legitime

Answer 45

Forced portion of a particular forced heir.

1. Legitime only satisfied by full ownership or naked ownership burdened by usufruct of surviving spouse, or legitime in trust.
2. Usufruct to forced heir or income interest in trust not sufficient.
3. No charges, conditions, or burdens on legitime.
4. Cannot be deprived of legitime absent just cause by decedent to disinherit forced heir. Must be in will form and express.
   a. 8 types of just cause: striking parent, cruelty, attempted murder of parent, accusing parent of capital offense without basis, use of violence to prevent parent from using will, minor child marrying without consent, conviction of felony by child with life or death, or failing to communicate after reaching age of majority for 2 years
   b. Grounds presumed true, can rebut by showing falsity by preponderance or by showing reconciliation by clear and convincing (writing by parent = clear and convincing)
   c. Defenses of heir (preponderance): incapacity to understand impropriety of behavior, lack of intent, or justification
   d. Grandparents can disinherit for act against them or parent.
   e. Disinherision is personal, if child dies first, his children can represent and take.

Question 46

Disposable Portion

Answer 46

Remainder of decedent’s estate after disposal of the forced portion.

Question 47

Forced Heirs

Answer 47

1. First-degree descendants age 23 or younger
2. Disabled first-degree descendants of any age (physical or mental, but impairment must be severe and permanent)
3. Grandchildren, by representation only:
   a. Can represent pre-deceased parent if parent would have been 23 or younger at time of decedent’s death.
   b. If parent predeceased and grandchild disabled, parent’s age is not relevant.

Question 48

Calculation of Legitime of Forced Heir(s)

Answer 48

Divide forced portion by # of descendants who qualify as forced heirs.

1. Forced portion = ¼ if one forced heir, ½ if two or more
2. Greenlaw rule – If result ultimately greater than what forced heir would get under intestacy, intestacy result controls.
   a. Ex; 5 kids, only 1 under 24, intestate would be 20%, forced portion is 25%, so 20% controls

If forced heir renounces his legitime or is disinherited/unworthy, legitime becomes disposable and forced portion is reduced. Doesn’t affect legitimes of other forced heirs.

Rights of Forced Heirs:

1. Action to reduce impingements on legitime by donations exceeding those allowed.
2. Action of collation (common law advancement)

Question 49

Impingement on Legitime

Answer 49

The only permissible ones are usufruct granted to decedent’s surviving spouse and placing of forced portion in trust

i. Surviving Spouse Usufruct
1. Intestacy – 890 Surviving Spouse Usufruct – only arises in intestacy, applies only to community property, and terminates on remarriage
a. Testator can deprive surviving spouse of this in will or by an adverse disposition to children or third party.
b. Might be required to provide security to naked owner(s).
2. Testamentary Usufruct to Surviving Spouse (1499 Usufruct) – can be over separate and community property, for life, and doesn’t necessarily terminate on remarriage
a. Can permit disposal of nonconsumables.
b. Cannot be an impingement on legitime in any way.
c. Not required to provide security to naked owner(s).
ii. Forced Portion in Trust – income to be distributed as necessary for health and maintenance of forced heir considering all other income and support

Question 50

Action to Reduce

Answer 50

Any donation that exceeds amount that person may dispose without the prejudice of forced heirs may be reduced as necessary to prevent this

i. Action can only be brought after death of donor, and isn’t automatic.
ii. Personal action by forced heir, his successors, or express assignee. Cannot be brought or required to be brought by creditors of forced heir.
iii. Calculation of Estate:
1. Active Mass = Value of Aggregate of Estate Property + Value of Inter Vivos Donations in Past 3 Years – Debts
a. Include decedent’s ½ of community property in aggregate.
b. Then determine legitime by applying proper fraction to the active mass.
2. Exclude from Active Mass: life estate proceeds on life of donor, pension and profit-sharing proceeds, remunerative and onerous donations, and inter vivos donations to previous spouses made during that marriage
3. Order of Reduction: Donations mortis causa (as designated or universal first), then inter vivos donations (either return property or donee pays)
a. Forced heir can skip insolvent donees

Question 51

Collation

Answer 51

The supposed or real return of goods to succession that heir received in advance of his share of the succession. Return is done so that property received by that heir may be divided together with other effects of succession.

i. Collation is presumed unless it has been expressly forbidden or waived.
ii. Collation based on presumption that decedent meant to treat all children equally at time of death, does not require impingement on legitime

Waiver – decedent may stipulate that what he gave was intended as an extra portion and need not be collated. Requires unequivocal language in act of disposition, in subsequent authentic act, or in will

i. Stipulation of waiver can be made in act of disposition itself, subsequent authentic act, or in a will and can dispense collation as to gifts made before and after date of will

Claimant demanding collation must be a descendant of the first degree who qualifies as forced heir at time of decedent’s death

i. If grandchild inherits by representation he might be able to demand collation since he stands in place of parent he represents.
ii. If child has reached age 24 and is not disabled, cannot demand collation.

Collation is due for what has been expended by decedent in order to provide for descendant who would eventually take.

i. Collation only applies to inter vivos gifts made within 3 years of donor’s death, doesn’t apply to legacies or mortis causa.

Exempted Expenditures: ‘Manual’ gifts (birthday/Christmas presents), gifts for use and benefit of donor during his life, education/necessitous expenses, marriage gifts, gifts more than 3 years old

To be required to collate, donee must be a presumptive heir at time gift made.

i. Can avoid duty to collate by renouncing the succession.

Gifts made to a grandchild by his grandparent while child’s parent alive are exempt from collation.

Question 52

Procedure for Collation

Answer 52

Collation is made in kind or by taking less from decedent’s succession.

i. Collation in kind when thing that was given is delivered up by donee to rejoin the ‘mass of the succession’.
ii. Taking less happens when donee diminishes portion he inherits in proportion to value of object donated to him.

Immovables

i. Favored heir either takes less from succession or returns property in kind. If donee sells the property, he loses option to return in kind.
ii. Reimbursement – donee can be reimbursed for necessary expenses, useful expenses that improve value of immovable, but not expenses for mere pleasure that don’t increase value (but donee can take improvements)
iii. Donee liable for damage or deterioration caused by his fault or negligence.
1. If donee collates in kind and immovable property is subsequently destroyed, loss is borne by succession.
2. If immovable destroyed after donee collates by taking less, that loss is borne by the donee.
iv. If immovable returns burdened (with mortgage), donee is accountable.

Movables

i. Donee may not collate in kind, must take less.
ii. Collation of money made by returning to succession a like amount of money or by taking less.

Question 53

Action to Declare Simulation

Answer 53

A contract is a simulation when parties agree that it doesn’t express their true intent. (True intent can be expressed in a “counter letter” – a separate writing)

Absolute Simulation – parties intend that contract produce no effects (ex; purported sale to avoid creditors)

Relative Simulation – parties intend that contract produce an effect different from effect recited in contract (ex; donation disguised as sale)

Effect on Collation:

i. Absolute Simulation – heirs can attack these simulations. Since title not transferred, no need to collate.
ii. Not limited to protecting the legitime. Simulation is an absolute nullity and entire property reverts to the succession.

Proof of Simulation

i. Testimonial or other evidence can’t negate authentic act unless in the interests of justice to prove simulation.
ii. Can’t be attacked by a third party who relied on public records.

Question 54

Prescriptive Periods

Answer 54

Action to Reduce Inter Vivos Gifts – five years from death of donor

Action to Reduce Mortis Causa Gifts – five years from date of probating will

Collation – ten years from date of death unless heir has participated in succession and judgment of possession entered, which bars action for collation

Action to Declare a Simulation – imprescriptible

Question 55

Prohibitions on Donations Omnium Bonorum

Answer 55

Donations Omnium Bonorum = disposing of entirety of one’s property through inter vivos donations

If donor does dispose of all his property, donation is void. Donor must keep at least enough for his subsistence.

Action to nullify can be brought during donor during his lifetime, or by his heirs on his death, and is imprescriptible.

Donation of a movable is null. For immovable:

i. If donee alienated immovable by onerous title, donee must return value it had at time of donation.
ii. If immovable subject to real rights, donee is accountable for diminution.

Question 56

Donations Inter Vivos

Answer 56

Donation inter vivos is contract by which donor gratuitously divests himself at present and irrevocably of a thing given to donee, which donee accepts.

Types of Donations Inter Vivos:

i. Gratuitous – made without condition on the donee
ii. Onerous – burdened with charges imposed on donee that result in a material advantage to the donor in exchange for the “gift”
iii. Remunerative – donation is gift meant to compensate for services rendered

Rules of form governing gratuitous inter vivos donations don’t apply to onerous and remunerative donations.

i. Rules will apply if value of gift is less than 2/3 of value rendered to donor.

Question 57

General (Non-Form) Requirements for Valid Gift (Donation IV):

Answer 57

donative intent, irrevocability, property is donor’s present property

i. ‘Good morals’ conditions are OK if not onerous.
ii. Donation inter vivos conditioned on payment of future debts is null.
iii. Right of return – can stipulate right of return of donated property if he survives donee or if he survives donor’s descendants

Question 58

Form rules for Donation IV

Answer 58

Generally must be by authentic act (some exceptions)

Must identify donor and donee, and describe thing donated.

1. If form improper, can be confirmed by donor, but confirmation must be in form required by donations and is retroactive to the initial donation

Immovables:

1. The Act of Donation and Act of acceptance must be filed for registry in the conveyance records in the parish in which the immovable is located to affect third parties

Movables

1. Corporeal Movables
   a. A gift of a corporeal movable can be made by manual delivery without any further formality, or it may be made by authentic act (in which case delivery is not necessary)
2. Incorporeal Movables
   a. General Rule: The donation or acceptance of certain incorporeal movables such as those evidenced by a certificate, document, instrument or other writing, and made transferable by endorsement or delivery, may be made by authentic act or in accordance with rules particular to the specific type of incorporeal movable involved
   b. Negotiable and Non Negotiable Instrument
   i. May be donated validly in accordance with the rules of LA’s commercial laws
   c. Stock Certificates
   i. Stock in certificate form
   ii. Donatives Intent is always required
   d. Checks
   i. If the issuer gifts the check, the gift is not completed until the check ahs been cashed since payment can be stopped
   ii. If a person, other than the issuer, transfer the check, it can be complete without cashing
   iii. Certified Check: Delivery is complete upon receipt
   e. Passbooks
   i. A bank account opened in the name of another person is not a completed gift if the dnor retains the right of withdrawal
   f. Bearer Bonds
   i. Donated by Manual Delivery
   g. CDs
   h. US Savings Bonds
3. Investment Property
   a. An incorporeal movable classified as investment property under UCC9 may be donated by a writing signed by the donor that evidenced the donative intent and direct the transfer of the property to the donee or his account or for his benefit.
   b. Completion of the transfer process constitutes acceptance of the donation
   c. Examples: stock, mutual funds, bonds, CDs, annuities

Question 59

Acceptance of Donations IV

Answer 59

A Donation Inter Vivos is without effect until it is accepted by the donee

1. The Acceptance must be made during the lifetime of the donor.
2. The donation must also be accepted during the lifetime of the donee. His successors cannot accept for him

How:

1. In the Act of Donation
2. A subsequent Act in writing (authentic form not required)

Movables, specifically

1. A donation of a movable is also accepted and has full effect if the donee has been put into corporeal possession by the donor (i.e. completion of the manual gift)
2. The 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

By Whom

1. Donee must accept by personally. If the donee dies before accepting the donation, his successors may not accept the donation for him
2. Exceptions:
   a. Acceptance by a mandatary if within scope of the mandate
   b. Acceptance by an unemancipated minor’s parent or other ascendant of the minor, or his tutor, even if the person accepting is also the donor
   c. The donee’s creditors may not accept the donation for him if the donee refuses or neglects to accept the donation

Question 60

Revocation

Answer 60

General Rule

1. A donation inter vivos may be revoked because of ingratitude of the donee
2. A donation may be dissolved for the nonfulfillment of a suspensive condition or the occurrence of a resolutory condition
3. A donation may be dissolved for the nonperformance of other conditions or charges

Based on Ingratitude of the Donee

1. Grounds:
   a. Donee tries to kill or actually does kill the donor
   b. The donee is guilty of cruel treatment, or guilty of crimes or grevious injury to the donor
   c. Grievous injury sufficient to revoke a donation ahs been defined by LA jurisprudence as any act naturally offensive to the donor

Prescription

1. Must be brought within one year from the date the donor knew or should have known of the act of ingratitude

Question 61

Proper Parties for Revocation

Answer 61

General Rule

a. Only the donor
b. If he dies after having already commenced an action to revoke, his successors may continue it

Donor’s Successors as Plaintiffs

a. If the donor dies before the prescriptive period accrues, the action may be brought by his successors, but only within the time remaining in the one year period
b. If the donor died without knowing or having a reason to know of the act of ingratitude, then the successors have one year from the date of death

Donee’s Successors may be defendants

Question 62

Effect of Revocation

Answer 62

1. Before Action is Filed
   a. Revocation for ingratitude does not affect an alienation, lease or encumbrance made by the donee before the action to revoke is filed
2. After Action is Filed
   a. Movables: Alienations, Leases or encumbrances of a movable made after the filing of the action is effective against the donor only when it is an onerous transaction made in good faith by the transferee, lessee, or creditor
   b. Immovables: Subject to the law of registry
3. Restoration
   a. Donee must return the thing donated as well as the fruits and products of it
   b. If the donee is unable to do so, the donee must restore the value of the donated thing, measured at the time the action to revoke is filed

Question 63

Dissolution

Answer 63

Based on nonfulfillment of a suspensive condition or nonoccurrence of a resolutary condition

1. If the donation is subject to a suspensive condition, the donation is dissolved of right when the condition can no longer be fulfilled
2. If the donation is subject to a resolutary condition, the occurrence of the condition does not of right operate as a dissolution; in this instance the donation may be dissolved only by the consent of the parties or by judicial decree

Prescriptive Period

1. Five years from the day the donee fails to perform the charges or fulfill his obligations or ceases to do so

Question 64

Effect of Dissolution

Answer 64

1. Immovables must be returned even if the donee has alienated by onerous title
2. For movables, alienations, leases or encumbrances is effective against the donor only when it is by onerous title in good faith by the transferee, lessee, or creditor
3. Fruits and Products must be restored from the date of written demand (or pay the value of)

If the donee is obligated to return a thing and cannot do so in essentially the same condition it was in at the time of the donation, the donor may choose to receive the thing in its present condition and require its return and in that case hold the donee liable for any diminution in value at the time of delivery

Question 65

Donations Inter Vivos in the Marriage Contract

Answer 65

Note that the donor can donate future property (property to be left at death) if the donation is made in contemplation of someone’s marriage