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Bar Exam > Successions and Donations > Flashcards

Successions and Donations Flashcards

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1
Q

Testate succession?

A

With a valid testament.

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2
Q

Intestate succession?

A

No will, invalid will, or will doesn’t dispose of all of his property.

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3
Q

What are the three ways for a successor to inherit?

A

Own right; representation; or transmission

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4
Q

When does on have capacity to inherit?

A

One must be in existence at decedent’s death.

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5
Q

When can an unborn child inherit?

A

Conceived and later born alive.

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6
Q

What are the requirements for a posthumously conceived child to inherit from the father?

A
  1. Mother and father were married
  2. Decedent authorised the use of his gametes
  3. authorization was made in writing to use his gametes (but doesn’t have to be authentic act)
  4. Child born within 3 years of decedent’s death.
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7
Q

What is the hierarchy of classes for succession of separate property?

A
  1. Descendants
  2. Parents+Siblings
  3. Surviving Spouse
  4. Other Ascendants
  5. Other Collaterals
    *6. State of LA gets property if none of these exist
    Highest class knocks out lower classes. Closer in degree exclude those farther in degree.
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8
Q

Direct line?

A

People who are immediately above or below you. Ascendants. Descendants.

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9
Q

How do parents and siblings inherit if decedent has both parents and siblings.

A

There must be no descendants–they have priority.

If both parents and siblings: parents get usufruct over separate property; siblings get naked ownership.

If one or the other, full ownership.

Half siblings: estate divided into maternal and paternal halves.

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10
Q

What is the exception to the general rules of the hierarchy for separate property?

A

Ascendant can get his immovable property back when:
If an ascendant donates immovable property
To his immediate descendant-decedent who dies with no decedents of his own; and
Descendant has no disposed of the immovable

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11
Q

Inheritance of community property by intestacy?

A

Surviving spouse has full ownership of his 1/2 interest as owner.
Decedent’s half of the community property is inherited by decedent’s descendants,
subject to a usufruct in favor of the surviving spouse,
which lasts until death or remarriage.

If no descendants, then to the surviving spouse in full ownership.

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12
Q

Who can adopted children inherit from?

A

Adopted family and biological family.

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13
Q

Who can parents of adopted children inherit from?

A

From the adopted child ONLY.

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14
Q

How can a child born outside of marriage inherit?

A

The child must be filiated to his parent. The child can be filiated by:

  1. Parents marry after child’s birth + father acknowledges child via AA or signing the birth certificate + mother concurs + no presumed father. Reciprocal paternity.
  2. Father acknowledges the child via AA or by signing birth certificate + child has no presumed father. Child can inherit from father but father can’t inherit from child.
  3. Avowal action
  4. Paternity action
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15
Q

Who brings an avowal action?

A

The biological father. An avowal action is available to the biological father even if the child has a presumed father.

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16
Q

What must the father prove in order to have a successful avowal action?

A

Paternity by a preponderance of the evidence.

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17
Q

What are the time limits on an avowal action?

A

If the child has a presumed father 1 year from teh childs birth. UNESS the mother in bad faith deceived the father–>then the earlier of 1 year from the time the father knew or should have known of the father or 10 years from the birth of the child.

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18
Q

What action can a child, or someone on behalf of the child, to show filiation to his father?

A

Paternity action.

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19
Q

What must the child prove in a paternity action?

A

Child must sho paternity by a preponderance of the evidence if the father is alive; by clear and convincing evidence if the father is dead.

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20
Q

What is the time limit on a paternity actionN?

A

For succession purposes, 1 year peremptive period from father’s death.

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21
Q

What is the effect of declaring an heir unworthy?

A

Treat unworthy heri as having predeceased the decedent.

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22
Q

On what grounds can someone being an unworthiness action against an heir?

A

Convicted of a crime involving intentional killing or attempted killing of decedent;
judicially determined to have participated in the intentional unjustified killing or attempted killing of the decedent;

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23
Q

Who can bring an unworthiness action?

A

A person would would succeed in place or in concurrence with the unworthy successor

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24
Q

How may a potentially unworthy successor defend himself against a declaration of unworthiness?

A

Proving reconciliation or forgiveness. Can be express or implied.

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25
Q

What are the prerequisites for accepting or renouncing?

A

Decedent dead at the time of the acceptance or renunciation; and

Decedent knew of the death of the decedent and that he has rights as a successor.

A premature acceptance or renunciation is absolutely null.

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26
Q

What is the effect of a premature acceptance or renunciation?

A

Absolutely null

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27
Q

What are the formal requirements for renunciation?

A

Express and

In writing

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28
Q

What is the effect of renunciation?

A

successor treated as if he/she predeceased the decedent.

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29
Q

When must capacity exist in order to make a donation?

A

DIV: at the time the donor makes the donation
DMC: at the time the testator executed his will (writes).

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30
Q

In what ways may a donor lack capacity?

A

Minority
Mental condition
Interdict
Vices of consent

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31
Q

What must a donor’s mental condition be in order to have capacity to donate?

A

Must conprehend generally the nature and consequences of the disposition.

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32
Q

By what standard does one have to show that the donor’s mental condition renders him incapable of making a donation?

A

Clear and conveincing evidence.

33
Q

When does an interdict lack capacity?

A

Full interdict: lacks capacity on all issues.
Limited interdict: depends on the judgement of limited interdiction, which deprives him of capacity and reserves it for his curator.

34
Q

What are the vices of consent?

A

Fraud, duress, and undue influence.

35
Q

WHy what standard must prove a vice of consent?

A

Clear and convincing evidence. BUT, if there’s a relationship of confidence between the donor and donee, and they are not related by blood, the standard is preponderance of the evidence.

36
Q

When does an unborn child have capacity to receive a donation?

A

In utero at the time of the DIV or DMC and later born alive.

37
Q

What are the elements of a prohibited substitution

A

Property not in trust
Given in full ownership to a first donee
Who must preserve and deliver it as his death
To the second donee upon the first donee’s death.

Note: it would be permissible to have a condition upon which it goes to the second donee, which isn’t the first donee’s death.

38
Q

What is the effect of a prohibited substitution?

A

Null as to both donees.

39
Q

What are the requirements for an olographic testament?

A

Written, dated, and signed in the hand of the testator.

40
Q

What are the requirements for date in an olographic testament?

A

The date must be reasonably ascertainable form the information in the testament, and it can be clarified through extrinsic evidence.

41
Q

What is the effect of a pre printed will form on an olographic testament?

A

These will be valid only if the intent can be ascertained solely from the hand-written portion.

42
Q

What are the formal requirements of a notarial testiment?

A

1) Execution before notary and two witnesses.
2) Declaration by the testator in the presence of the notary and witnesses that the document is his testament.
3) Testator must sign and date every page.
4) Testament must include a date, but the date doesn’t have to be in the presence of the notary + witnesses.
5) attestation clause stating that the formalities have been met.
6) notary and witnesses sign the attestation clause in presence of the testator and each other.

43
Q

Which witnesses are incompetent to be a witness under penalty of nullity?

A

Insane; blind; unable to sign name; under 16

44
Q

What people will have their legacies revoked if they are the witnesses to a testament?

A

A legatee or legatee’s spouse (at the time of execution). But if the legatee-witness would have been an intestate successor, he inherits the lesser of the legacy and the intestate share.

45
Q

Who cannot be a notary to a notarial testament?

A

Legatee. It nullifies the legacy.

46
Q

What is a universal legacy?

A

One where the testator gives the entirety of his property or the balance after particular legacies.

47
Q

What is a general legacy?

A

Where the testator gives a fraction or a certain portion of the estate or a fraction or certain proportion of the balance remaining after particular legacies; or
All or a fraction of the following categories: community/separate property; immovable/movable property; incorporeal/corporeal property.

48
Q

What is a particular legacy?

A

One that isn’t universal or general.

49
Q

What is a separate legacy?

A

A legacy to more than one person where the testator assigns shares.

50
Q

What is a joint legacy?

A

A legay wto more than one person where the testator doesn’t assign shares.

51
Q

What are the steps to determine the accretion of lapsed legacies?

A

(a) First, look to the will to see if it provides for where a lapsed legacy will go
(b) Second, Anti-Lapse Rule: this rule overrides all other lapse rules, but only applies where the original legatee is a child or sibling of the testator, or a descendant of a child or sibling of the testator
(i) If the Anti-Lapse Rule applies, accretion takes place by roots in favor of the legatee’s descendants who were in existence at the time of the decedent’s death
(ii) N.B. Not applicable if legacy declared invalid or declared null for fraud, duress, or undue influence
(c) Third, is the legacy a joint legacy? If so, then the other joint legatees take the portion that lapses
(d) Fourth, is this a little legacy from a bigger legacy? If so, then the legatee of the larger legacy takes the smaller lapsed legacy
(e) Fifth, is there a universal legatee or a general legatee phrased as a residuary legatee? If so, he takes the lapsed legacy.

52
Q

When is a legacy extinguished?

A

When the property that is the subject of the legacy, before the testator’s death, is lost, destroyed, or extinguished. LED.

53
Q

How does a testator revoke an entire testament?

A

Physical destruction of original;
Statement in the new testament that the old one is revoked;
Authentic act;
Signed writing by testator that he wants to revoke

54
Q

How does a testator revoke a legacy?

A

Testament saying he wants to revoke;
Subsequent incompatible testament;
Subsequent inter vivos disposition
Signed writing on will;
Divorcing legatee after writing will, unless testator manifests contrary intent;
any grounds for revoking a donation inter vivos (ingratitude).

55
Q

How cna a forced heir’s legitime be satisfied?

A

Only by:
Full ownership;
Naked ownership with a usufruct in favor of the surviving spouse;
putting the legitime in trust.

56
Q

Who is a forced heir?

A

Descendants in the first degree who are either:
23 or younger; or
Disabled

57
Q

When is a forced heir disabled?

A

Current physical or mental incapacity that renders him permanently incapable of taking care of his person or administering his estate; or

An inherited, incurable disease diagnosed at decedent’s death that may render him permanently incapable of caring for his person or administering his estate (Bipolar qualifies).

58
Q

How does a descendant of a forced heri inherit by representation?

A

Descendant who has a predeceased parent who and either:
Predeceased parent would still be 23 or younger at decedent’s death; or
Grandchild is disabled (age of the grandchild irrelevant).

59
Q

How much is the forced portion?

A

1 forced heir: 1/4
2+ forced heirs: 1/2

Greenlaw exception: forced heir gets lesser of his legitime and what he would get through intestacy.

60
Q

What is disinherison?

A

A method for disinheriting a forced heir.

61
Q

What are the formal requirements for disinherison?

A

1) one of the forms prescribed for a testiment
2) expressly intent
3) ID of forced heir
4) reasons, facts, or circumstances for which the forced heir is disinherited

Descendant must also have JUST CAUSE to disinherit a forced heir.

62
Q

What constitutes just cause to disinherit?

A

(i) Striking a Parent: the child has raised his hand to strike one of his parents, or has actually struck the parent
(ii) Cruel Treatment, Committing a Crime, or Grievous Injury towards a Parent: the child has been guilty of cruel treatment or grievous injury towards a parent
(iii) Tried to Kill the Parent: The child has attempted to murder one of his parents
(iv) Accusing the Parent of a Felony: The child, without any reasonable basis, has accused one of his parents of committing a crime carrying a punishment of life imprisonment or death;
(v) Committing Violence or Coercing a Parent to Keep them from Making a Will;
(vi) Marrying without Consent while a Minor:
(vii) Child Convicted of a Felony: The child has been convicted of a crime carrying a punishment of life imprisonment or death; or
(viii) Failure to Contact the Parent for Two Years, Unless Attempts to do so Would be Futile:

63
Q

By what standard must a testator state the reasons, facts, or circumstances for which the forced heir is disinherited?

A

The grounds for just cause are presumed, BUT the presumption may be rebutted by a preponderance of the evidence.

64
Q

How may a forced heir avoid disinherison?

A

Proves reconciliation after the grounds for disinherison by clear and convincing evidence; or

The forced heir proves by a preponderance that he’s: incapable of understanding the impropriety of his actions; it was unintentional; it was justified.

65
Q

Who can demand collation?

A

A forced heir (descendant in the first degree), but principles of representation may extend it.

66
Q

What property can be collated?

A

Advantages made by the decedent to forced heirs within the last 3 years of his life.

67
Q

What property isn’t forced heirs?

A

Gifts given by decedent’s hands for pleasure or play as long as they are usual customary;

Expenses of board, support, or education;

Marriage gifts; or

Legacies.

68
Q

What are the 3 types of donations inter vivos?

A

Gratuitous: without condition on the donee;

Onerous: donation burdened with charges on the donee that result in a material advantage to the donor.

Remunerative donation: a gift to compensate the donee for services rendered.

69
Q

When do donation rules apply?

A

Gratuitous donations; onerous donations where the donee’s cost of performing the chare are less than 2/3 of the value of the donated thing; remunerative odnations where the donee’s services cost less than 2/3 of the value of the donated thing.

70
Q

What are the general form rules for a DIV?

A

Identify the donor and donee, describe the property donated, authentic act.

71
Q

What are some notable exceptions to the DIV form rules?

A

Corporeal movables may be donated by manual delivery

Negotiable instrument: authentic act or endorsement + delivery

Stock: authentic act or endorsement + delivery

Check: if drawn on donor’s account, must be authentic act; if drawn on another’s account endorsement + delivery.

72
Q

When must a donee accept a DIV?

A

During the life of the donor and the donee?

73
Q

How does a donee accept a DIV?

A

In the donation or in a subsequent writing.

74
Q

What ways besides acceptance in the donation or in a subsequent writing may a donee accept a DIV?

A

Movable property: DIV accepted if the donee has been put into corporeal possession of by the donor.

Immovable property: donee’s subsequent alienation or encumbrance of the DIV property is an acceptance and effective upon recordation in the parish where the immovable is located.

75
Q

How does a donor revoke a DIV?

A

Only ground for revocation of a DIV is ingratitude.

76
Q

What are the grounds for ingratitude?

A

Kill or attempt to kill donor; or

Guilty of cruelty of grievous injury to the donor.

77
Q

Who may bring an ingratitude action?

A

Donor or donor’s successors may bring the action for revocation.

78
Q

What is the prescriptive period for ingratitude?

A

For donor: 1 year from the time the donor knew or should have known of the act of ingratitude.

Donor’s successors: if donor knew or should have known, the remaining time. If donor didn’t know nor should have known, 1 year from the donor’s death.

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