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entire thing look at Barbri donations outline look at Treatise
Chapter 9: Overview of the Law of Donations Book III Modes of Acquiring Ownership Heir – Intestate. Legatee – Testate. Chapter 10: Methods of Disposition La. C.C. 1467-1469, 1541-1551 1467. Property can neither be acquired nor disposed of gratuitously except by donations inter vivos or mortis causa, made in one of the forms hereafter established. 1468. A donations inter vivos is a K by which a person, called the donor, gratuitously divests himself, at present and irrevocably, of the thing given in favor of another, called the donee, who accepts it. Owner divests himself of the property: 1) at present, 2) irrevocably, 3) accepted by donee. * can be subject to a suspensive or resolutory condition as long as doesn’t depend on the will of the donor. 1469. A donation mortis causa is an act to take effect at the death of the donor by which he disposes of the whole or a part of his property. A donation mortis causa is revocable during the lifetime of the donor. Takes effect after death and: 1) revocable during life, 2) in written testament, 3) divests of totality or portion of property (FORM + SUBSTANCE) Is there intent to gratuitously and does it meet the elements? 1541. A donation inter vivos shall be made by authentic act under the penalty of absolute nullity, unless otherwise expressly permitted by law. 1542. The act of donation shall identify the donor and the donee and describe the thing donated. These requirements are satisfied if the identities and description are contained in the act of donations or are reasonably ascertainable from information contained in it, as clarified by extrinsic evidence, if necessary. 1543. The donation inter vivos of a corporeal movable may also be made by delivery of the thing to the donee without any other formality. 1
1544. A donation inter vivos is without effect until it is accepted by the donee. The acceptance shall be made during the lifetime of the donor. Par.2. The acceptance of a donation may be made in the act of donation or subsequently in writing. Par. 3. When the donee is put into corporeal possession of a movable by the donor, possession by the donee also constitutes acceptance of the donation. (acceptance) 1545. The donee may accept a donation personally or by a mandatary having power to accept a donation for him. (acceptance) 1546. The acceptance shall be made during the lifetime of the donee. If the donee dies without have accepted the donation, his successors may not accept for him. (acceptance) 1547. If the donee refused or neglects to accept the donation, his creditors may not accept for him. (acceptance) 1548. A donation made to an unemancipated minor may be accepted by a parent or other ascendant of the minor or by his tutor, even if the person who accepts is also the donor. (acceptance) 1549. The donee acquires the thing donated subject to all of its charges, even those that the donor has imposed between the time of the donation and the time of the acceptance. (acceptance) 1550. The donation or the acceptance of a donation of an incorporeal movable of the kind that is evidenced by a certificate, document, instrument, or other writing, and that is transferable by endorsement or delivery, may be made by an authentic act or by compliance with the requirements otherwise applicable to the transfer of that particular kind of incorporeal movable. Par 2. In addition, an incorporeal movable that is investment property, may also be donated by a writing signed by the donor that evidences donative intent and directs the transfer of the property to the donee or his account or for his benefit. Completion of the transfer to the donee or his account or for his benefit shall constitute acceptance of the donation. 1551. A donation is effective upon acceptance. When the donation is effective, the ownership or other real right in the thing given is transferred to the donee. 1570. Donations mortis causa. Written testament in olographic or notarial form. FORM + SUBSTANCE Donations inter vivos: Immovables: notary + 2 witnesses Incorporeal movables: notary + 2 witnesses Corporeal movables not delivered: notary + 2 witnesses Corporeal movables delivered: no form (rem: okay if can’t accept because can just do it through authentic act)
Donations mortis causa: 2
- Written testament in olographic or notarial form I. Introduction i. Succession of Sinnott v. Hibernia National Bank, 10-1 1. Langtry claims dec, Sinnott, gave her 12 shares of stock in Hibernia to keep in her possession and said they were to be Langtry’s upon Sinnott’s death. Gave her bedroom set and silver. Executed a will. Langtry did not collect on dividends. 2. Stock certificates are not corporeal movables and are not subject to manual gifts. Need authentic act. 3. testamentary executrix handles the will of a succession 4. when no will – administrator 5. residual legatee – gets whatever is leftover once pay the regular legatee 6. May sometimes call things a remunerative donation to get around form. 7. Furniture and silver intent – check. Delivery is valid form so she can keep the movables. 8. What Sinnott should have done: Olographic codicil – an addendum to a will. OR can donate the NO to someone and retain the usufruct. Then when you die they get full ownership and this is revocable at any time. 9. A will can show intent. but then make sure have form. Other Methods of Donation Sanctioned by Law a. Life Insurance
Owner – can change the beneficiary. Right to borrow. Beneficiary – Receives the proceeds. Proceeds are the donation. Insured – usually the owner of the policy but not always. i. Sizeler v. Sizeler, 10-6 1. Rules for donations don’t apply to life ins proceeds. Flow solely from K. Not considered part of the estate and FHs cannot gain more than their forced portion from life ins policy. Will end in the estate if the beneficiary is listed in the estate. ii. La. R.S. 22:915, Donations inter vivos of life insurance policies; Laws respecting form inapplicable. 1. A. Donations inter vivos of life insurance policies, and the naming of beneficiaries therein, whether revocably or irrevocably, are not governed by the provisions of the Revised Civil Code of 1870, or any other laws of this state relative to the form of donations inter vivos. 2. B. This section is remedial and retrospective. All donations inter vivos of life insurance policies made on or before July 31, 1968 are valid and effective, whether or not such donations 3
were made in the form prescribed by the Civil Code or by any other laws of this state. iii. La. R.S. 22:912, Exemption of proceeds; life, endowment, annuity. 1. The lawful beneficiary, assignee, or payee, including the insured’s estate, of a life insurance policy or endowment policy heretofore or hereafter effected shall be entitled to the proceeds and avails of the policy against the creditors and representatives of the insured and of the person effecting the policy or the estate of either, and against the heirs and legatees of either such person, and such proceeds and avails shall also be exempt from all liability for any debt of such beneficiary, payee, or assignee or estate, existing at the time the proceeds or avails are made available for his own use. For purposes of this Subsection, the proceeds and avails of the policy include the cash surrender value of the policy . . . iv. La. C.C. 1505(c), Calculation of disposable portion on mass of succession. 1. Neither the premiums paid for insurance on the life of the donor nor the proceeds paid pursuant to such coverage shall be included in the above calculation. Moreover, the value of such proceeds at the donor’s death payable to a forced heir, or for his benefit, shall be deemed applied and credited in satisfaction of his forced share. v. The beneficiary does not need to be named in an authentic act. The creditors of the insured cannot seek payment from the proceeds of a life ins policy, even when the beneficiary is the insured’s estate. Forced heirs cannot seek payment from life ins proceeds paid to a beneficiary. Creditors of the beneficiary cannot seek payment from proceeds. Premiums or ins proceeds are not calculated in the mass estate. FHs cannot collect life ins proceeds and the full forced portion. vi. Problems b. Annuities i. La. R.S. 22:912 1. (B) The lawful beneficiary . . . saving the rights of forced heirs, and such proceeds . . . ii. Fixed payment over a period of time. Usually put in a lump sum and receive payments of the interest/dividends from the account. iii. Allows forced heirs to get a portion of the annuity from the lawful beneficiary. Included in the active mass of the estate. iv. Actual collation only applies to DIVs. not to mortis causa. Can only use reduction to get forced portion not actual collation. c. Pensions i. T.L. James & Co. Inc. v. Montgomery, 10-12 1. Father died during second marriage and named his son from his first marriage as the beneficiary to his pension.
There’s an obligation to account to any complaining FH or spouse in community if it gets in the way. C. nor shall any of such contributions or benefits be subject to the claims of forced heirs. sole owner 5 . But no double dipping with IRA.C. 1505(D) 1. La. Individual retirement accounts. Such payment shall be a valid and sufficient release and discharge of the account holder for the payment or delivery so made and shall relieve the trustee. Employer and employee contributions under any plan of deferred compensation adopted by any public or governmental employer or any plan qualified under Sect 401 or 408 of the Internal Revenue Code. 3. TC was correct in excluding the IRA amount from the mass of the succession. Boggs 1. 1. Any benefits payable by reason of death from an individual retirement account established in accordance with the provisions of 26 U. 9:2499. 3. Boggs v. shall be paid as provided in the individual retirement account agreement to the designated beneficiary of the account. United States Savings Bonds i. 10-15 1. or for the benefit of a forced heir. B. A. insurance company or other account fiduciary from all adverse claims thereto by a person claiming as a surviving or former spouse of a successor to such a spouse. Pensions are not to be included in the active mass but is credited towards a FH’s portion. inheritance. retirement or termination of employment under any such plans. shall be deemed applied and credited in satisfaction of his forced share. No account holder paying a beneficiary in accordance with this Section shall be liable to the estate or any heir of the decedent nor shall the account holder be liable for any estate. 4. C. iv. This result unlikely now because ERISA preempts state law. Acts as a credit toward her forced portion. v. Succession of Durabb. d.S.C. disability. custodian. payments of benefits. La. shall not be included in the above calculation. the value of such benefits paid or payable to a forced heir. ii. R. However. or succession taxes which may be due the state.S. and any benefits payable by reason of death. 2. A qualified IRA falls under the exclusion of 1505(d) so not calculated in an estate’s active mass. The provisions of this Sect shall apply notwithstanding the fact the decedent designates a beneficiary by last will and testament. 408. iii.2. as amended. 3 ways to have an interest in a US Savings Bond: 1.
as the child would have if the child had been in 6 . except as expressly provided by law. To be capable of receiving by donation inter vivos.1: Any child conceived after the death of the dec. Capacity to receive a donation inter vivos must exist at the time the donee accepts the donation. . incorporation or birth 1473. an unborn child must be in utero at the time the donation is made. 9:391. Winsberg Succession of Guerre Osterland v. who specifically authorized in writing his S/S to use his gametes. . interest as co-owner (on death payable to co-owner – “or” bonds) Winsberg v. La.e. the donee must have capacity to receive at the time the condition is fulfilled. In either case. i.S. Gates Succession of Weis 1470. an unborn child must be in utero at the time of the death of the testator. Mortis causa when executes the testament Acceptance must be made during the life of the donor. Make donation age. C. Chapter 11: Capacity La. Capacity to receive a donation mortis causa must exist at the time of death of the testator. mental ability . you can accept. Capacity to donate inter vivos must exist at the time the donor makes the donation. If born alive. natural personality is retroactive to the time of conception. 1470-1483 2. the donation has effect only if the child is born alive. All persons have capacity to make and receive donations inter vivos and mortis causa. including capacity to inherit from the dec. 1474. iii. 1472. 1475. But if she dies then can’t. beneficiary of the bond (payable on death bonds) 3. A donation in favor of a person who is incapable of receiving is null.C. shall be deemed the child of such dec with all rights. Capacity to donate mortis causa must exist at the time the testator executes the testament. R. v.ii. GIVE: Inter vivos exist at time when donor makes the donation. Receive: only existence is required 1471. To be capable of receiving by donation mortis causa. When a donation depends on fulfillment of a suspensive condition. iv. If Wallace is in a coma.
Any person who. Fiduciary appointment will fall too (executrix).existence at the time of the death of deceased parent. using the gametes of the dec. commits fraud or exercises duress or unduly influences a donor within the meaning of the preceding Arts. A. in utero v. or undue influence. A full interdict licks capacity to make or revoke a donation inter vivos or disposition mortis causa. A donation inter vivos or mortis causa shall be declared null upon proof that it is the product of fraud or duress. If any provision contained in it is not the product of such means. or other fiduciary pursuant to a designation as such in the act of donation or the testament or any amendments or codicils thereto. except in favor of his spouse or children. 1477. B. shall not be permitted to serve or continue to serve as an executor. To have capacity to make a donation inter vivos or mortis causa. However. attorney. if. within 3 years of the death of the dec. unless it is otherwise invalid. or whose appointment is procured by such means. When a donation inter vivos or mortis causa is declared null because of undue influence or because of fraud or duress. a relationship of confidence existed between the donor and the wrongdoer and the wrongdoer was not then related to the donor by affinity. 1479. 1481. in vitro argument – don’t know if will extend to in vitro Look at 9:133 and 9:1803. A minor who has attained the age of sixteen years has capacity to make a donation. a person must also be able to comprehend generally the nature and consequences of the disposition that he is making. at the time the donation was made or the testament executed. He may make a donation inter vivos in favor of his spouse or children. whether alone or with others. must prove it by clear and convincing evidence. Full Interdict – No Donations Limited Interdict – No DIV 1483. provided the child was born to the S/S. A person who challenges a donation because of fraud. A person who challenges the capacity of a donor must by clear and convincing evidence that the donor lacked capacity at the time the donor made the donation inter vivos or executed the testament. 1480. it is not necessary that the entire act of donation or testament be nullified. 1478. but only mortis causa. 7 . trustee. that provision shall be given effect. 1482. 1476. A minor under the age of sixteen years does not have capacity to make a donation either inter vivos or mortis causa. A donation inter vivos or mortis causa shall be declared null upon proof that it is the product of influence by the donee or another person that so impaired the volition of the donor as to substitute the volition of the donee or other person for the volition of the donor. duress.
at 16 can make a will b. capacity. If someone lacks capacity. Succession of Cole 1. c. or other purposes the achievement of which is beneficial to society. Sound mind is similar to “comprehend generally” iii. Hart 1. §2271. III. the nature that this is a gratuitous transfer of ownership and the consequences that they will lose ownership and get nothing in return. they are probably more easily influenced. Under 16 = no capacity ii. Duress. or undue influence by a preponderance of evidence. The trust instrument may be specific or general in the statement of its purposes and may include any conditions that are not contrary to law or morals. 2. pursuant to terms of the trust instrument. the promotion of health. A charitable trust is created when a person makes a DIV or MC in trust for the relief of poverty. ii. mental condition. II. Milne also had executors release the will. iv. vii. The ability to understand rather than accurate understanding. $$$ Capacity to Give – age. Carr v. Would now fall under a charitable trust.consanguinity or adoption. duress. There was a fund but it wasn’t in existence at the date of the death. Mental Condition (1477) i. I. Fraud. There is a presumption of capacity unless expressly stated by law. fraud or duress a. 2. Different from car in that no asylum existed but she intended to create it after death. the advancement of education or religion. 1480. Subjective and objective components v. Ex: For a donation. . Milne’s Heirs v. Restrictions Based on Age (1476) i. Consider w/ fraud and duress. Introduction Previous Incapacities Capacity to Receive a. 2. influence. and Undue Influence (1478. undue influence. 1481) i. the person who challenges the donation need only prove the fraud. 4. Read Comments. Milne’s Executors 1. argue 1. 8 IV. 3. Drafted the will itself. vi. 1479. If not in favor or an institutional beneficiary. governmental or municipal purposes. “comprehend generally the nature and consequences of the disposition that he is making” ii. When someone is declared judicially uncompetent. i. the beneficiaries of the trust shall be selected by the trustee or other person.
because of mental incapacity or physical infirmity. is permanently incapable of taking care of his or her person or administering his estate at the time of the dec’s death. 4. iii. are permanently incapable of taing care of their persons or administering their estates at the time of the death of the decedent. Succession of Deshotels Succession of Culotta Succession of Reeves Undue influence – “impaired the volition of the donor as to substitute the volution of the donee or other person” – less intrusive than fraud or duress Chapter 12: The Disposable Portion. However. 2. 2 or more FH. at his death. and Reduction La. The portion reserved for the FHs is called the forced portion and the remainder is called the disposable portion. an inherited. representation takes place in favor of any child of the desc of the first degree. have. rep takes place for purposes of FH only if the desc of the first degree would have been 23 years of age or younger at the time of the dec’s death. E. A forced heir may not be deprived of the portion of the dec’s estate reserved to him by law. Said he did lack capacity. Determine capacity when they sign the will.. because of mental incapacity or physical infirmity. 2. 1493-1514 1493. 3. C.ii. Kindness and persuasion in not undue influence. a person is 23 years of age or younger until he attains the age of 24 years. when a desc of the 1 degree predeceases the dec. vi. D. unless the dec has just cause to disinherit him. at his death. if the fraction that would otherwise be used to 9 . 3. The Legitime. 1494. at the time of death of the dec. Forced heirs are descendants of the first degree. who. 3. called the legitime. according to medical documentation. 2. “permanently incapable of taking care of their persons or administering their estates at the time of the death of the dec” shall include desc who. DIV and mortis causa may not exceed three-fourths of the prop of the donor if he leaves. the donation was several years later. A. incurable disease or condition that may render them incapable of caring for their persons or administering their estates in the future. are 23 years of age or younger or descendants of the first degree of any age who. 2nd par. Testimony of witnesses and medical evidence are weighed heavily. Even if interdicted. at the time of the death of the decedent. v. 1495. iv. and one half if he leaves. *videotaping the person Robertson v. For this Art. C. When a descendant of the first degree predeceases the dec. Wrote his will in the hospital and died 4 months later. 1 FH. Greenlaw: Nevertheless. Succession of Horrell 1. Cubine 1. The person donated too matters. vii. B. Left property to son in his will and donated the same property. regardless of the age of the desc of the first degree at the time of the dec’s death. For this Art.C.
DIV and mortis causa may be made to the whole amount of the property of the donor. If he does not do so. or burdens may be imposed on the legitime except those expressly authorized by law. The legitime of each remaining forced heir is not affected. A usufruct over the legitime in favor of the S/S is a permissible burden that does not impinge upon the legitime. 10 . whether or not the forced heir is a desc of the S/S. he must reserve to himself enough for subsistence. In such a case. however. that interest shall be deemed a full ownership interest for purposes of satisfying the legitime if the trust conforms to the provisions of the La Trust Code governing the legitime in trust. a donation of a movable is null for the whole. the donation is null for the whole and the donor may claim the immovable in the hands of the donee. Nevertheless. whether it is for life or a shorter period. but the property remains subject to the real right that has been created. 1498. including the forced portion. is declared unworthy.calculate the legitime is greater than the fraction of the dec’s estate to which the FH would succeed by intestacy. Par 2. that impinges upon the legitime of a forced heir is not null but is merely reducible to the extent necessary to eliminate the impingement. and shall not require security except as expressly declared by the dec or as permitted when the legitime is affected. conditions. and a donation of an immovable is null for the whole unless the donee has alienated the immovable by onerous title. 1503. When a forced heir is both income and principal beneficiary of the same interest in trust. 1499. No charges. When a forced heir renounces his legitime. 1497. the legitime may not be satisfied in whole or in part by a usufruct or an income interest in trust. If the donee has created a real right by onerous title in the immovable given to him. A donation. but the donee is bound to return the value that the immovable had at the time that the donee received it. 1502. the donee and his successors by gratuitous title are accountable for the resulting diminution of the value of the property. in which case the donation of such immovable shall not be declared on the ground that the donor did not reserve to himself enough for subsistence. such as a usufruct in favor of a surviving spouse or the placing of the legitime in a trust. 1496. whether it affects community property or separate property. The DIV shall in no case divest the donor of all his property. The dec may grant a usufruct to the s/s over all or part of his property. and may grant the usufructuary the power to dispose of nonconsumables as provided in the law of usufruct. IV or MC. saving the reservation made hereafter. then the legitime shall be calculated by using the fraction of an intestate successor. 1500. or such right has been created by operation of law since the donee received the immovable. and whether or not the usufructuary has the power to dispose of nonconsumables. or is disinherited. his legitime becomes disposable and the forced portion is reduced accordingly. The usufruct shall be for life unless expressly designated for a shorter period. If there is no forced heir.
the value of such proceeds at the donor’s death payable to a forced heir. and then only by a forced heir. unless the value of the remunerated services is less than 2/3 of the value of the property donated at the time of the donation. unless the value of the charges is less than 11 . made after the death of the dec. D. A. 1509. beginning with the most recent donation and proceeding successively to the most remote.1504. a FH may recover the amount needed to satisfy his legitime from the donees of inter vivos donations made within 3 years of the date of the dec’s death. shall be deemed applied and credited in satisfaction of his forced share. and the donation may not be reduced. However. The testator may expressly declare in the testament that a legacy shall be paid in preference to others. the heirs or legatees of a FH. disability. according to its value at the time of the donation. or an assignee of any of them who has an express conventional assignment. either IV or MC. B. an aggregate is formed of all property belonging to the donor or testator at the time of his death. and the disposable quantum is calculated on the balance. and the donation may not be reduced. to that is fictitiously added the property disposed of by donation IV within 3 years of the date of the donor’s death. the value of such benefits paid or payable to a FH. To determine the reduction to which donations. or for his benefit. Employer and employee contributions under any plan of deferred compensation adopted by any public or governmental employer or any plan qualified under Sect 401 or 408 of the Internal Revenue Code. When the property of the estate is not sufficient to satisfy the forced portion. 1508. C. Neither the premiums paid for insurance on the life of the donor nor the proceeds paid pursuant to such coverage shall be included in the above calculation. are subject. 1505. The value of an onerous donation is not included in the calculation of the forced portion. 1511. in which case the preferred legacy shall not be reduced until the other legacies are exhausted. A donee who pays the share of an insolvent donee is subrogated to the rights of the FH against the insolvent donee. Moreover. and any benefits payable by reason of death. in which event the gratuitous portion is included in the calculation and is subject to reduction. of the right to bring the action. An action to reduce excessive donations may be brought only after the death of the donor. When a donee from whom recovery is due is insolvent. shall be deemed applied and credited in satisfaction of his forced share. retirement. or termination of employment under any such contributions or benefits be subject to the claims of FHs. or for the benefit of a FH. taking into consideration the number of FH. 1510. The sums due by the estate are deducted from this aggregate amount. the FH may claim his legitime from the donee of the next preceding donation and so on to the donee of the most remote donation. DIV may not be reduced until the value of all the property comprised in the DMC is exhausted. 1507. The value of a remunerative donation is not included in the calculation of the forced portion.
0 GPA qualify as a FH? a. Analysis: 1. A donee or his successor who contributes to payment of the legitime is required to do so only to the extent of the value of the donated property at the time the donee received it. or other documents as it deems necessary. Applies to first descendants who have not yet reached the age of 24 or grandchildren through representation *check exact wording 2. mortgages. Under 24? 3. The action for reduction of excessive donations may be brought only against the donee or his successors by gratuitous title in accordance with the order of their donations. Less intrusive way than interdicting someone is to get power of attorney. as security. who are accountable for any dimunition in the value of the property attributable to their fault or neglect and for any charger or encumbrances imposed upon the property after the donation. Art. No mental infirmity 12 . CC. Mental? b. Const. iii. Physical OR mental infirmity AND permanently incapable of taking care of his person or estate. Problems 1. A FH may request security when a usufruct in favor of a S/S affects his legitime and he is not a child of the S/S. 4. 5 i. The court may order the execution of notes.2/3 the value of the property donated at the time of the donation. A FH may also request security to the extent that a S/S’s usufruct over the legitime affects separate property. The fruits and products of property donated inter vivos belong to the donee except for those that accrue after written demand for reduction is made to him. reduction takes place in kind or by contribution to the payment of the legitime. in which event the gratuitous portion is included in the calculation and is subject to reduction. II. in law school with a 4. movable or immovable. 1513. 1494. 1514. or may impose a mortgage or lien on either separate or community property. La. beginning with the most recent donation. I. Sec. Introduction Who are Forced Heirs a. When the donated property is still owned by the donee or the successors. Age – La. XII. 1512. When the property given is no longer owned by the donee or his successors by gratuitous title. Over 24 b. ii. Infirmity? a. the donee and the successors must contribute to the payment of the legitime. 25 year old quadriplegic. Physical? c. at the election of the donee or the successors. AND permanently incapable of caring for their persons or administering their estates in the future.
d. *January 1. See problems on p. At testator’s death. Conflict of Laws. b. Succession of Martinez ii. C. His mother. Testator’s grandson was born deaf. iv. Then. Open the estate where the person dies – and could open ancillary proceedings in Miss. a.C. General rule: The right to claim as a FH is governed by the law in effect at the time of the dec’s death. Could get power of attorney 3. FH are designed to protect domiciliaries of La at the time of death. 9:2501 i. then the ct may consider the law in effect at the time the testament was executed to ascertain the testator’s intent in the interpretation of the legacy. 12-38 d. Over 24 b.applies where person is domiciled. The Transition.” the legal effect which has changed after the testator has executed his will. b/c 25 b. R. 1. Deaf – rendered incapable of taking care of estate c. iii. testator’s daughter died when she was 32. 3532-3534 i.C. 25 year old paraplegic with an IQ of 80 who was able to work at Good Will 40 fours per week sorting donated clothes. and worked as a data entry? a. Mental Incapacity or Physical Infirmity-La. In the gray area because he’s only 2 – could get hearing back possibly 4. No. Immovables in La: FH will NOT apply if: 1) deceased was domiciled outside of La. ii.La.c. Physical infirmity? probably AND permanently incapable 2.S. Succession of Ardoin c. If the dec’s testament used a term such as “forced portion” or “legitime. AND 2) he left no FH domiciled in LA at the time of his death. Not forced by age because the mother was over 23 when she died b. move to disable. learned to read lips. his grandson was 2 years old. Age? no. C. 1996 ii. Grandson a FH? a. Movables. because can read lips and works. iii. Mental incapacity but working 40 hours c. Representation? Mother is 33. 1493 i.La. *even if has disability still mention can’t come in through age representation c. 13 . Grandson in 3 was 25.
C. 3532. testate and intestate succession to immovable situated in another state is governed by the law that would be applied by the courts of that state. Except as otherwise provided in this Title. Leaves ¼ to Hutchinson and remainder to Blakely. Immovables outside of La: FH will apply if: 1) decedent died while domiciled in La AND 2) if the decedent left at least 1 FH who. Interest is limited for purposes only of satisfying the legitime. You are permitted to have right of habitation over part. was domiciled in this state. 1496 i. vi. Daughter wants the La. 12-41 Protecting the Forced Portion III. Unlawful Impediments. 1521 – vulgar substitutions for FH? Survivorship clause. the value of those immovables shall be included in calculating the disposable portion and in satisfying the legitime. Dec gave daughter $1000. v. Succession of Turnell 1. then can’t leave it to anyone. Can do this but FH must die without descendants OR FH and descendants die in this time period. 3533. This is permitted because qualified as a trust. Could have also grant forced portion in full ownership and a usufruct over the disposables. at the time of the decedent’s death. Except as otherwise provided in this Title. Moon’s Succession 1. C. Succession of Williams 1. Shall not exceed 6 months. If not in patrimony. Can’t put a value on a usufruct.iv. 1. Except as otherwise provided in this Title. Problem p. testate and intestate succession to immovables situated in this state is governed by the law of this state. prop. 3534. If the deceased died domiciled in this state and left at least one FH who at the time was domiciled in this state. ii. Jarel v. 2. 14 . Problem then because no trusts existed. 3. The FH laws of this state does not apply if the deceased was domiciled outside this state at the time of death and he left no forced heirs domiciled in this state at the time of his death. Not entitled because didn’t live in La. argues that the usufruct was more valuable. “ I leave all my property to my minor children but if they don’t take it then leave it to Larry. James complaining he’s not getting full ownership. This was not a permissible burden.La. testate and intestate succession to movables is governed by the law of the state in which the deceased was domiciled at the time of death.” a.
A seller or donor of property under reservation of usufruct is not required to give security.b. 1499. the s/s shall have a usufruct over the decedent’s share of the community property to the extent that the decedent has not disposed of it by testament. you basically have ownership. 573(B). 890. as security. 1499. whether it affects community property or separate property. whether or not the forced heir is a descendant of the S/S. or immovable. can get it over the legitime who is the parent FH: 1) affects legitime AND Stepchild. and shall not require security except as expressly declared by the decedent or as permitted when the legitime is affected.C. or other documents as it deems necessary. and whether or not the usufructuary has the power to dispose of nonconsumables. The court may order the execution of notes. including the forced portion. movable. Intestate: -Security when: 1) stepchild OR 2) child. 15 . The usufruct shall be for life unless expressly designated for a shorter period. 1514 (note: there can only be a surviving spouse usufruct. whichever occurs first. or may impose a mortgage or lien on either community or separate property. .over all property. A forced heir may request security when a usufruct in favor of a S/S affects his legitime and he is a not a child of the S/S. can grant to dispose of nonconsumables.The decedent may grant a usufruct to the S/S over all or part of his property. 573(B). 2) S/S affects separate property if affects legitime (if you are a child) Analysis: Is the FH a child? No – Security to extent of the legitime. mortgages. Spousal Usufruct and Security-La. C. If the deceased spouse is survived by descendants. and may grant the usufructuary the power to dispose of nonconsumables as provided in the law of the usufruct. whether it is for life or a shorter period. for life unless otherwise designated 1514. This usufruct terminates when the S/S dies or remarries. 890. if want to leave something for your sister you put it in a trust) i. A forced heir may also request security to the extent that a S/S’s usufruct over the legitime affects separate property. Yianny believes that usufruct over forced portion disposes at remarriage and that can only grant disposition of non-consumables “expressly” ii. If you have a usufruct over a consumable. A usufruct over the legitime in favor of the surviving spouse is a permissible burden that does not impinge upon the legitime. FH.
C. inter vivos or mortis causa. La. Leave out: 1. DIV and mortis causa may not exceed three-fourths of the prop of the donor if he leaves. The Legitime in Trust i. Cannot give that to someone else Calculating and Satisfying the Forced Portion. Sect. 1503-1515 1503. the heirs or legatees of a forced heir. Reduction – La. 2. pension plans 3. if the fraction that would otherwise be used to calculate the legitime is greater than the fraction of the dec’s estate to which the FH would succeed by intestacy.Yes – extent of legitime only for separate property. 1841 mentioned in notes? iii. 1504. Calculation: i. and one half if he leaves. A. or an assignee 16 . at his death. An income interest in trust cannot satisfy the forced portion. can’t just be an income interest of a usufruct. 9:2347 1495. It needs to be in the person’s patrimony. Nelson 1. C. Sachnowitz v. An action to reduce excessive donations may be brought only after the death of the donor. 1495. A donation. ii. 3. Greenlaw: Nevertheless. The Mass Estate and the Forced Portion a. All property owned at death (conflict rules) ii. Therefore. = property in the estate iv. 2nd par. +DIVS given within 3 years (value at time of the donation) v. The portion reserved for the FHs is called the forced portion and the remainder is called the disposable portion.C. C. R. donations made to other spouses 4. Title 9. that impinges upon the legitime of a forced heir is not not null but is merely reducible to the extent necessary to eliminate the impingement.S. life ins premiums 2. 1 FH. at his death. Minus the debts of the estate iii. 1500. The Mass Estate and Reduction IV. and then only by a forced heir. La. active mass THEN apply ½ or ¼ fraction vi. 1503-1513. 2 or more FH. then the legitime shall be calculated by using the fraction of an intestate successor. Must be income and principal beneficiary – deemed Full ownership for purposes of satisfying the legitime. you don’t include the value of the entire thing B. c. onerous and remunerative donations unless violate 1510 and 1511 (can only give something a little bit more expensive than what you gave) *see slide because if does violate.
of any of them who has an express conventional assignment. 1509. at the election of the donee or the successors. 1505. The value of an onerous donation is not included in the calculation of the forced portion. beginning with the most recent donation. The value of a remunerative donation is not included in the calculation of the forced portion. beginning with the most recent donation and proceeding successively to the most remote. who are accountable for any dimunition in the value of property attributable to their fault or neglect and for any charges or encumbrances imposed upon the property after the donation. in which event the gratuitous portion is included in the calculation and is subject to reduction. of the right to bring the action. in which case the preferred legacy shall not be reduced until the other legacies are exhausted. 1510. 1512. When the property given is no longer owned by the donee or his successors by gratuitous title. A donee or his successor who contributes to payment of thelegitime is required to do so only to the extent of the value of the donated property at the time the donee has received it. The testator may expressly declare in the testament that a legacy shall be paid in preference to others. When the property of the estate is not sufficient to satisfy the forced portion. The fruits and products of property donated inter vivos belong to the donee except for those that accrue after written demand for reduction is made on him. a forced heir may recover the amount needed to satisfy his legitime from the donees of inter vivos donations made within 3 years of the date of the decedent’s date. The action for reduction of excessive donations may be brought only against the donee or his successors by gratuitous title in accordance with the order of their donations. 1513. When the donated property is still owned by the donee or the successors. When a donee from whom recovery is due is insolvent. 1506. the FH may claim is legitime from the donee of the next proceeding donation and so on to the donee of the most remote donation. unless the value of the remunerated services is less than 2/3 of the value of the property donated at the time of the donation. unless the value of the charges is less than 2/3 the value of the property donated at the time of the donation. 1507. and the donation may not be reduced. the donee and the successors must contribute to the payment of the legitime. A donee who pays the share of an insolvent donee is subrogated to the rights of the FH against the insolvent donee. 1511. and the donation may not be reduced. DIV may not be reduced until the value of all the property comprised in donations mortis causa is exhausted. made after the death of the decedent. 17 . 1508. in which event the gratuitous portion is included in the calculation and is subject to reduction. reduction takes place in kind or by contribution to the payment of the legitime.
iii. Today. 1503. 1624. in the manner prescribed in the following articles. D. The testator shall express in the instrument the reason. 2. facts. 1618. mortgages. Mechanics of Reducing Excessive Donations – La. 1600. 1619. but the unsupported testimony of the disinherited heir shall not be sufficient to overcome the presumption. Policy reason: Don’t want one kid to take that much when there’s so many other kids. A FH may also request security to the extent that a S/S’s usufruct over the legitime affects separate property. entitled only to 1/6 because intestate fraction is lower. Succession of Henican 1. The person who is disinherited must be either identified by name or otherwise identifiable from the instrument that disinherits him. facts. Succession of Willis i. 18 . The Right of Reduction i. or may impose a mortgage or lien on either separate or community property. a. the disinhersion is null. The presumption may be rebutted by a preponderance of the evidence. for just cause. ii.1514. as security. Disinhersion 1617. Elizabeth was going to get way more so she renounces. If have 3 DIVs that collecting from and cannot determine which one to take one? Take Pro Rate. A FH shall be deprived of his legitime if he is disinherited by the testator. movable or immovable. Forced portion = 278 K. Notes: You can determine who you want to get paid out first. *always check the intestate fraction iv. otherwise. 5 year prescriptive period for a reduction action. Each kid received = 46 k was their legitime. or circumstances that constitute the cause for the disinhersion. A disinhersion must be made in one of the forms prescribed for testaments. The reason. The court may order the execution of notes. C. Life ins policy would reduce her legitime and because she would get more through that. Always pay out particular legatees first then you pay out universal. The disinhersion must be made expressly and for a just cause. Absent an express conventional assignment cannot bring a reduction action if not a forced heir. May still be subject to a reduction action. C. A FH may request security when a usufruct in favor of a surviving spouse affects his legitime and he is not a child of the surviving spouse.C. or circumstances expressed in the instrument shall be presumed to be true. it is null. or other documents as it deems necessary. 1507-1513 a. 1515. otherwise.
1519-1522. 1498.” c. but the property remains subject to the real right that has been created. the donee and his successors by gratuitous title are accountable for the resulting diminution of the value of the property. Sons didn’t communicate with their father.C. If the donee has created a real right by onerous title in the immovable given to him. The DIV shall in no case divest the donor of all his property. 1527. If he does not do so. In such a case. Sons argued it was with just cause because he never wanted to communicate with them. Now. a. in which case the donation of such immovable shall not be declared on the ground that the donor did not reserve to himself enough for subsistence. Very difficult to overcome disinhersion. A person may be disinherited even though he was a presumptive forced heir at the time of the occurrence of the act or the facts or circumstances alleged to constitute just cause for this disinhersion. a donation of a movable is null for the whole. still want to put disinhersion language in the will even if the child is 35 years old because FH is determined at death – the child could become disabled before death of the parent. To “preserve communication:” Send card through certified mail. or such right has been created by operation of law since the donee received the immovable. Same as in Bertaut where dad didn’t want to communicate but those heirs weren’t successful. If not a FH. 19 . Donation of movable: null for the whole Donation of an immovable: null for the whole UNLESS – donee has alienated the immovable by onerous title. C. However. b. Chapter 13: Donations Omnium Bonorum and Dispositions Reprobated by Law La. Aberration. Change in law since Vincent. This was a credibility call because he was a he said she said scenario. Succession of Bertaut i. then not just cause to not communicate. Parent does not have to respond. the donation is null for the whole and the donor may claim the immovable in the hands of the donee. then don’t put them in will to disinherit them. and a donation of an immovable is null for the whole unless the donee has alienated the immovable by onerous title. presumption that must be rebutted. sender received.1623. Succession of Vincent i. If a relationship existed at some point. he must reserve to himself enough for subsistence. donee is bound to return the value that the immovable had at the time that the donee received it. Notes: Disinhersion only applies with forced heirs. 1769 1498. but the donee is bound to return the value that the immovable had at the time that the donee received it. “A person should not be required by law to perform a vain and useless act. Succession of Gray i.
or such right has been created by operation of law since the donee received the immovable. A testator may impose as a valid suspensive condition that the legatee or a trust beneficiary must survive the testator for a stipulated period. . . Full ownership (need duty to preserve AND render for full ownership) 2. 1521. and the third person who is called to take the bequest in default of his survival is considered as having succeeded to the deceased from the moment of his death. donated in full ownership. Need an authentic act and delivery. Policy reason so that donor will never become a ward of the state. which period shall not exceed 6 months after the testator’s death. the right of the legatee or trust beneficiary is in suspense until the survivorship as required is determined. the donation is null for the whole and the donor may claim the immovable in the hands of the donee.” prohibited substitution. Donee creates real rights? Immovable goes back to the donor but subject to the real rights dimunition in value. In such a case . If he does not survive as required. 1519. he is considered as having succeeded to the deceased from the moment of his death. he is considered as never having received it. is null with regard to both the institute and the substitute. in default of which a third person is called to take the legacy. A disposition that is not in trust by which a thing is donated in full ownership to a first donee. In all DIV and mortis causa impossible conditions. In such a case. Donation stands but the condition comes out 1520. If the legatee or trust beneficiary survives as required. called the institute. those which are contrary to the laws or to morals. “I leave all my property to my husband and when he dies give it to my sister. Donee must return the value (usually the purchase price). Charge on donee to preserve a thing 3. A survivorship condition as to the legitime of a forced heir shall 20 . but the property remains subject to the real right that has been created. with a charge to preserve the thing and deliver it to a second donee. not in trust. at the death of the institute. called the substitute. The disposition by which a third person is called to take a gift or legacy in case the donee or legatee does not take is not a prohibited substitution. Donee will believe that thing is his. are as reputed not written. neither 1st or 2nd donee gets it Prohibited Substitution: 1. Deliver to 3rd person at donee’s death This entire donation will be null regardless of the testator’s wishes because the donor is giving less than full ownership and ties up property.If donee has created a real right by onerous title in the immovable given to him.
The same shall be observed as to the disposition inter vivos or mortis causa. But don’t want to take care of her forced heirs. A suspensive condition that is unlawful or impossible makes the obligation null.” 1527. Ok though because she was a forced heir to one of the parents so could bring a reduction action towards her. Instead of just reduction for the forced portion. *allowing Virgie to bring action after her death. “I’ll give you the car if you take me to work every morning. I. Trahan v. iii. “I leave it to Jane but if Jane doesn’t take it give it to Joe. Daughter wants to declare mom and dad’s donations null for immovables. Ira and Bertrand made intervivos donations of immovable property to Alfred in September 1992. Absolute nullity as if didn’t exist during the donor’s life – only he can challenge it after death 21 . *This is exception to the FH rules because FH can get DOB more than 3 years after the date of the donation. by which the usufruct is given to one. II. iv. v. vii.” Applies to DIV or mortis causa survivorship clause ok but no more than 6 months 1522. FIRST: Challenge the entire donation. or if he dies with descendants and neither the forced heir nor the descendants surivive the stipulated period. she could have gotten more by bringing the whole thing back to the estate. The rules peculiar to DIV do not apply to a donation that is made to recompense for services rendered that are susceptible of being measured in money unless at the time of the donation the value of the services is less than 2/3 of the value of the thing donated. 8 years later. ii. Bertrand i. vi. 1769. And it was unprescribed because DOB is null.only be valid if the forced heir dies without descendants. but then it’s not possible for her to become a ward of the estate. then bring a reduction action. and the naked ownership to another. Introductions Donations Omnium Bonorum During life Only donor can challenge After death only FH can challenge *look at circumstances at time of the donation *claims of acquisitive prescription have defeated the DOB Rules a.
IV. “but for” test “but for” this condition the donation would not have been made. 2628 – Right of first refusals are ok. burdened with a usufruct in favor of my husband as long as he never remarries. Condition was no usufruct is remarries. Would he have wanted the Fink asylum to get the money if he knew daughters wouldn’t get any? Probably not. ii. If so. e.” -. “duty to render” Give to Joe and whatever’s left give to Sally. iv. Can’t prohibit marriage but can condition the status. d. Protestants. the entire donation is null. Harder time validating condition on first marriage then on remarriage. Notes on 13-16 g. the $10. i.ok. NO. and Impossible Conditions Remove UNLESS it is the primary moving cause of the donation. . Labarre v. “The Real Estate shall not be sold or mortgaged for period of 10 years after the death” ii. “If your bitch comes in my house then the lifetime usufruct ends. “provided however. Illegal. Pecatory suggection—“I leave my $ to my sister for her kids for college. What was the primary moving cause? To protect his daughters. Not an illegal condition. Immoral.” “I would really like .III. This condition is not to never marry – just a status determination. ii. c. . f.” – that’s ok ii. What about? “usufruct of my property for life as long as never get married.” Cannot force people to use donation for kids college. illegal condition = contrary to law iii. Succession of Augustus i. If she is not unmarried. Succession of Feitel – Immoral condition then the condition is taken out. Succession of Ruxton i. tying up the property for a long period of time can be illegal – tie it up in a trust then that’s ok iv. that she still be unmarried at the time of my death. It was a type of donation with a condition that would now be seemed as illegal. v. or orphans. b. 22 . “I leave all of my property to my heirs.” – there is a difference between first marriage and remarriage. But maybe not because they he would have given it to them. a. Impossible condition because daughters were not widows. Succession of Thompson i. then whether it is the primary or moving cause. There is a desire to carry out the testator’s wishes to a certain extent. – if you’re not married then I’ll give you some $ to help you out. Prohibited Substitutions and Fidei Commissa Fidei commissa – not in the Code anymore. Look to the will of the testator. Determine: Impossible condition first. Joe should get to decide but going to give it Joe anyway.” ii. iii. Hopkins i.000 should go to the residue of my estate.
23 . Nov. vi.” – Fidei commissa. Johnson as long as she live and then she is to leave her step son Robert Thomas Johnson just ¼ of the share of what is left – and Martha Jane my only Daughter the rest. Prohibited substitutions do not affect the remainder of the provisions of the will (unless the ps is the entire will). Thomas Johnson do make this my Will and do here by leave everything to my wife Sue W. if doesn’t go to nephew iv. What is the effect of a prohibited substitution on the remainder of the provisions of a will? ii. Leaving Robert ¼ and Martha the rest. 1522 V. Seized heir is usually the succession representative iii.” – NO to Barry and usufruct to Amy.C. Cts push not to call things prohibited substitutions b. “I leave my estate to Amy and at her death give it to Barry. iii. Double disposition because gave to Evelyn and then give to Randy iv. Baten v.” = PS a. Can sue for the accretion of the rights (universal legatee) Disposition of Usufruct and Naked Ownership: La. at my death Sue W. 2” ii. Taylor i. Johnny gets the home land at brother and wife’s death ii. Wife doesn’t get the property if she doesn’t survive him by 30 days. c. Prohibited substitution iii.M. iii. Succession of Johnson i. C. BUT “I leave my estate to Amy to use it and at her death Barry should get it. Johnson shall be the administer of this will in my own writing at 3 P. Succession of Morgan i. Ct said there was a double disposition because she had a duty to keep it and she can’t sell it. Double disposition because she does whatever she wants then give it to someone else v. Fidei commissa iv. No duty to render v. The duty to preserve can be inferred because she couldn’t sell it. Only Johnny can sell it. Taking away the mom’s ability to render.“I leave my estate to Amy and at her death give whatever is left over to Barry. Succession of Walters i. “I. Seizin case – possession of the property which does not result in full ownership ii. Need both a duty to preserve & render vi. Suspensive condition is NOT a double disposition in full ownership d.
Not worried about payments. The same shall be observed as the disposition inter vivos or mortis causa. “To my husband I give devise and bequeath the use of the lodge and harbor. Succession of Thilborger i. and cottages at the plantation as long as he lives and at his death to be given to the charity hospital to be used as a convalescent home to bring in the sick for fresh air and regain their strength” ii. In such a case. Cts haven’t always been consistent about determining ps and usufruct/no iii.” ii. If the legatee or trust beneficiary survives as required. Nothing really on naked ownership. get interest in the proceeds. by which the usufruct is given to one. A testator may impose as a valid suspensive condition that the legatee or a trust beneficiary must survive the testator for a stipulated period. 1521. in default of which a third person is called to take the legacy. Found that this was not ps b. C. Vulgar Substitutions: La. the right of the legatee or trust beneficiary is in suspense until the survivorship as required is determined. If he does not survive as required.C. v. Successive usufructs are NOT double dispositions ii. Successive usufruct re-affirmed in Goode. iv. The disposition by which a third person is called to take a gift or legacy in case the donee or legatee does not take is not a prohibited substitution. 1521 VI.1522. What about 2 naked ownerships? No’s heirs would get the NO but it would never enter his patrimony. If you want to keep the will. which period shall not exceed 6 months after the testator’s death. he is considered as never having received it. you will argue no and usufruct and another arg – no duty to preserve and render iv. he is considered as having succeeded to the deceased from the moment of his death. After her death the amount of any payments shall be equally divided between my nieces and nephews and Linda Cosby Paine. Get portion of royalties for whatever portion of land you own. iii. and the third person who is called to take the bequest in default of his survival is considered as having succeeded to the deceased from the moment of his death. Separate donations of usufruct and naked ownership. “All oil and gas royalty interest payments owned by me shall be paid to Pauline Egbert Parker for as long as she might live. If mineral rights exist. and the naked ownership to another. 546 permits successive usufructs. “alienability” of the naked ownership right iv. Could argue illegal condition rather than ps and would just declare condition null rather than nullifying the entire condition c. Succession of Fournet i. vi. Succession of Goode i. a. iii. v. Mineral royalty is naked ownership and payments are the subject of the usufructuary. A survivorship condition as to the legitime of a forced heir shall 24 .
either in the case of his surviving the donee only. Husband will only get if the child dies iv. Hypothetical Chapter 14: Donations Inter Vivos La. provided they contain nothing contrary to law or good morals. Problems c. unless at the time of the donation the cost of performing the obligation is less than 2/3 of the value of the thing donated. The rules peculiar to DIVs do not apply to a donation that is made to recompense for services rendered that are susceptible of being measured in money unless at the time of the donation the value of the services is less than 2/3s of the value of the thing donated.C. it shall be null with regard to that property. If child doesn’t take THEN he gets it b. 1532. The rules peculiar to donations inter vivos do not apply to donation that is burdened with an obligation imposed on the donee that results in a material advantage to the donor. he succeeds as if having it from the magic moment of death. Lane i. 1527. 1531. If legatee survives. Brother want it because if the will is invalidated and the succession goes intestate they will take. 1528. Swart v. or in the case of his surviving the donee and the descendants of the donee. A DIVs is null when it is made on a condition that fulfillment of which depends solely on the will of the donor.only be valid if the forced heir dies without descendants. “in case of my child’s death as well as my own” ii. 1529. The donor may stipulate the right of return of the thing given. A donation is also null if it is burdened with an obligation imposed on the donee to pay debts and charges other than those that exist at the time of the donation. a. Can put survivorship clause on FH if dies without descendants or dies with descendants and both don’t survive the stipulated time period. If it includes future property. iii. The right may be stipulated only for the advantage of the donor. C. or if he dies with descendants and neither the forced heir nor the descendants survive the stipulated period. A DIVs can have as its object only present property of the donor. The donor may impose on the donee any charges or conditions he pleases. 1530. 1526-1535 1526. 25 . unless the debts and charges are expressed in the act of donation.
A DIVs is without effect until it is accepted by the donee. possession by the donee also constitutes acceptance of the donation. In such a case. lease. 1544. however. even those that the donor has imposed between the time of the donation and the time of the acceptance. if necessary.. 1542. as clarified by extrinsic evidence. 1549. The donee acquires the thing donated subject to all of its charges. unless otherwise expressly permitted by law. or other writing. 1547. (1532&1533 – note rights of good faith trasnferees for value) 1535. 1543. 1541. may be made by authentic act or by compliance with the requirements otherwise applicable to the transfer of that particular kind of incorporeal movable. A DIV shall be made by authentic act under the penalty of absolute nullity. 1550. nevertheless. his creditors may not accept for him. A donation made to an unemancipated minor may be accepted by a parent or other ascendant of the minor or by his tutor. The act of donation shall identify the donor and the donee and describe the thing donated. The acceptance of a donation may be made in the act of donation or subsequently in writing. or encumbrance made by the donee or his successors after the donation. instrument. even if the person who accepts it is also the donor. 1546. If the donee dies without having accepted the donation. The donee may accept a donation personally or by a mandatory having power to accept a donation for him. The acceptance shall be made during the lifetime of the donor. These requirements are satisfied if the identities and description are contained in the act of donation or are reasonably ascertainable from information contained in it. If the donee refuses or neglects to accept the donation. The donation or the acceptance of a donation of an incorporeal movable of the kind that is evidenced by a certificate. to a good faith transferee for value of the thing donated. 26 . The effect of the right of return is that the thing donated returns to the donor free of any alienation. and that is transferable by endorsement or delivery. The acceptance shall be made during the lifetime of the donee. The DIVs of a corporeal movable may also be made by delivery of the thing to the donee without any other formality.1533. 1548. the donee and his successors by gratuitous title are. The right of return shall not apply. Blank. 1545. his successors may not accept for him. accountable for the loss sustained by the donor. document. When the donee is put into corporeal possession of a movable by the donor.
When the donation is effective. measured as of the time the action to revoke is filed. but only within the time remaining. 1559. or grievous injuries. 1551. then within on year of the death of the donor. 1557. A donation is effective upon acceptance. the action for revocation may be brought by the successors of the donor. or encumbrance made by the donee prior to the filing of the action to revoke. 1560. A DIV may be revoked because of ingratitude of the donee or dissolved for the nonfulfillment of a suspensive condition or the occurrence of a resolutory condition. lease. lease. lease. or encumbrance is effective against the donor only when it is an onerous transaction made in good faith by the transferee. 1526) 3.In addition. If the donee is deceased. crimes. Revocation on account of ingratitude may take place only in the following cases: 1) if the donee has attempted to take the life of the donor. or encumbrance is made after the filing of the action and the thing given is immovable. the effect of the action to revoke is governed by the law of registry. Completion of the transfer to the donee or his account or for his benefit shall constitute an acceptance of the donation. the donee shall return the thing given. the action for revocation may be brought against his successors. 1527) 27 . Remunerative (in recompense for services rendered) (art. In case of revocation for ingratitude. If the donor dies before the expiration of that time. leasee. 1556. or creditor. I. his successors may pursue it. If the action has already been brought by the donor. Introduction 3 types of DIVs: 1. the alienation. Gratuitous (without conditions) 2. When an alientation. or 2) if he has been guilty towards him of cruel treatments. then the donee shall restore the value of the thing donated. Onerous (burdened with charges) (art. When an alienation. Revocation for ingratitude does not affect an alienation. an incorporeal movable that is investment property may also be donated by a writing signed by the donor that evidences donative intent and directs the transfer of the property to the donee or his account or for his benefit. *read comments* 1558. lease. or encumbrance is made after the filing of the action and the thing given is movable. the ownership or other real right in the thing given is transferred to the donee. or if the donor died without knowing or having reason to know of the act. If he is not able to return the thing itself. An action of revocation for ingratitude shall be brought within one year from the day the donor knew or should have known of the act of ingratitude. A donation may also be dissolved for the nonperformance of other conditions or charges.
110. So donation rules do apply. you give them 900. 14-12 The Substance and Form of Inter Vivos Donations A. Donation rules do not apply. Dissent: If remunerative then when will was written – but what about after it was written? Does it become onerous. and capacity. Stocks and negotiable instruments 3. Succession of Henry i. If including something in the estate. iii.97 = 17 K iv. That would be $400 that’s added back into the mass estate. and give them 900. 6 kids and leaves all to one son ii. vii.091. C. Problems.00 iii. undue influence. 091. iv. Exception: 1. more than 1 child this doesn’t work because why should one do all the work. B. he having provided for me during my lifetime” iii. If only $500 to board the dog. This was a remunerative donation. ix. Form: Need authentic act with 2 witnesses viii. now gift far exceeds the value of the services so would apply donations rule. specific rules for form. Value of services: $12. life insurance II. need INTENT (substance) and FORM B. If child caring for child = can call it gratuitous. Succession of Danos i. only include the gratuitous portion. Do donation rules apply? 12. General rule for Form: i. 1541) ii. Want to recompense for services for taking care of her ii. argue: Not a remunerative donation OR no services were rendered or this was a natural obligation. His services were much greater so that was valid. For natural obligation. Value of the gift exceeded the value of the services so rules apply. Value of gift: $26. Remember. D. age) Value of the services or Cost to Perform < 2/3 * value of the donation Hypo: If ask someone to board your dog and it’s 800.97 ii. If you are a FH. Must return to the estate. v. The Donee has the burden of proving transfer was gratuitous by establishing the value of property exceeds fraction. Succession of Formby i. DIVs must be confected by authentic act (arts. A. Sis argued there were no charged placed on the donee iv.111 < 2/3*26. It has no effect that she called it an onerous donation. vi. “this being an onerous donation. DIV was invalid as to form. collation and reduction.Only apply rules for donations IF: (REM: for donations. v. Corporeal movable may be donated by real delivery (1543) 2. 28 .
C. La. B. Until they cash it. R. Ct. Emancipated minors can make donations but minors under 16 cannot. A.4. La. Ct said this didn’t matter whether this was an onerous remunerative donation because it was a valid donation. 10:3-203 Transfer of instrument. ii. ? check this out B. 10:3-201 Negotiation La. iii. indorsed by donor to donee and uncashed at donor’s death? orig 3rd party wasn’t gratuitous. Original donor has claim against the estate. Check = incorporeal. Not completed until you cash it.S. Then it’s a manual gift or a money. Liberstat i.S. not a completed donation. Primeaux v. C. La. if lose then argue less than 2/3 so can get the gratuitous portion III. Cash = corporeal movable. Delivery of certificated security is enough to transfer. Ct said stocks are incorporeal movables so they were never properly transferred iii. Pt argued it was a negotiable instrument and that it was a payment on the condition of future debts. R. iv. 10:8-302 Rights of Purchaser Checks and Other Negotiable Instruments IV. 29 . D. R. movable property If collected check before the donor’s death? Need authentic act.S. rights acquired by transfer Succession of Jones i. Just because form law doesn’t apply does not mean that donations law doesn’t apply. pensions Undue influence is a vice of consent for donations but not for Ks. Shares of Stock A.S. Fhs argue: donation was gratuitous. R. annuities 5. R. husband this was a present from his father. 10:8-301 Delivery i. reversed because there existed a legislative exception iv. Wanda said that money was a gift. 10:3-104 Negotiable Instrument. Uncashed at donor’s death = not completed donation If check is a third party check. ii. *look at both commercial law as to form and donation law for the substantive law.S. S. La. wife claims she got during the community property regime. Nephew wants the $ back and argued not a gift and that was she in charge of the paying the medical bills.
vii. E. Bank Accounts and Homestead Shares 2 important aspects: control and irrevocability. This is NOT a manual gift because an account is an incorporeal movable. D. Acceptable form of donation because manual gift. v. Menard v. 1 month after the marriage take the daughter’s name off and put the wife on iii. ii. completed donation because cashed before death and accepted. Take your name off and release total control of the account in order for proper DIV. But wasn’t completed because required manual delivery. You are not presently and irrevocably divesting yourself of the property. Suggest delivery if this situation happened on exam. viii. It originally was separate property but did it become community property? v. Graffeo v. Barbour i. B. ii. Instructions to niece to give grandniece and great grandnephew. formal note. 5 months later. Succession of Tebo i.V. Name was on the account. The ct could not let the niece go into the bank box. withdrew 20k and transferred to a new account (he knew their relationship was poor) with just his name iv. YES! vi. E.1 – changing separate property to community property requires an authentic act. A. Burkes v. iv. iii. 2343. In writing on back of shares. form. proper form. Graffeo i. OR can put it in your will for mortis causa donation. Basco v. Nephew argues that it has my name on it 30 . Putting her name on it was sufficient for the writing requirement. iv. Central Bank & Trust Co. In husband or daughter’s name ii. Gives savings account book to nephew day before he died. iii. Muhs i. i. Transferred with different number and name. ii. Succession of Lawrence i. Julius puts 2 certificate of deposits payable to Julius or nephew ii. Hypo: Authentic act but name is still on the account? Have intent. But the ct said this was not valid. or authentic act. This was an onerous donation because she had given up her job to rely on this money. but the NAME is the problem. Should have written codicil or a handwritten. Julius dies then heirs want to take iii. He argued that this was his separate property even though there was a community property regime. had intent. C.
Not proper form – lacked the requirements of formalities because incorporeal immovable so need authentic act v.1560. 1550 – read comments A. The acceptance of a donation may be made in the act of donation or subsequently in writing. A subsequent writing is okay. A donation may also be dissolved for the nonperformance of other conditions or charges. Helped his uncle out for years. conflicting testimony about who was there during signing of the act ii. Did not apply here. A donation inter vivos is without effect until it is accepted by the donee.no extrinsic evidence – we have a fully executed instrument. Wiedemann v. 1548. Wiedemann i. Because if not less than 2/3 then don’t apply donation rules. cts will rule that it is owned by the child. because need authentic act for that too vi. *putting your name on the account in addition to theirs is NOT enough.emancipated minor art. 1557. Specific mandate—may not have power depends on what the mandate says. look to the 4 corners of the document. If the donee has attempted to take the life of the donor. A DIV may be revoked because of ingratitude of the donee or dissolved for the nonfulfillment of a suspensive condition or the occurrence of a resolutory condition. possession by the donee also constitutes acceptance of the donation. The acceptance shall be made during the lifetime of the donor. or 2.iv. must know the value to know whether donation rules apply. Once determine onerous or remunerative donation. Turn to value of the services rendered. Acceptance can be made after the donation and don’t need authentic act anymore. 1556. Revocation for Ingratitude Reasons: 1557 Revocation for Ingratitude Principles. Ct said didn’t need the form. viii. General mandate has power to accept. If he has been guilty towards him of cruel treatment. crimes. iii. vii. Acceptance 1544. VI. Mortis causa donation? No. Revocation – 1556 VII. 31 . When the donee is put into corporeal possession of a movable by the donor. parent & child’s name on account. 1557. Revocation on account of ingratitude may take place only in the following cases: 1. or grievous injuries.
operate a dissolution of the donation. 1562. If a donation is subject to a suspensive condition. the nonfulfillment of the condition or the nonperformance of the charge does not. If the thing cannot be returned free from alienations. or creditor. nevertheless. or encumbrances. or if the donor died without knowing or having reason to know of the act. accept it subject to the alienation. It may be dissolved only by consent of the parties or by judicial decree. 32 . or encumbrance. the occurrence of the condition does not of right operate a dissolution of the donation. In case of dissolution of a donation of a movable for failure to fulfill conditions or perform charges. the donation is dissolved of right when the condition can no longer be fulfilled. or encumbrance created by the donee or his successors is effective against the donor only when it is an onerous transaction made in good faith by the transferee. but only within the time remaining. Revocation for ingratitude does not affect an alienation. or encumbrance . then within one year of the death of the donor. the action for revocation may be brought against his successors. 1564. his successors may pursue it. the action for revocation may be brought by the successors of the donor. An action for revocation for ingratitude shall be brought within 1 year from the day the donor knew or should have known of the act of ingratitude. Otherwise. . leases. but the donee shall be accountable for any dimunition in value. the donee shall restore the value of the thing donated.1558. or encumbrances created by the donee or his successors subject to the law of registry. commencing the day the donee fails to perform the charges or fulfill his obligation or ceases to do so. measured as of the time the action to dissolve is filed. see above Dissolution for non-fulfillment of conditions. An action to dissolve a donation for failure to fulfill the conditions or perform the charges imposed on the donee prescribes in five years. the property shall return to the donor free from all alienations. . If a donation is subject to a resolutory condition. If the donor died before the expiration of that time. If the donee is deceased. the donor may. lease. 1559. an alienation. 1563. lessee. lease. If a donation is made on a condition that the donee has the power to perform or prevent. leases. or depends on the nonperformance of a charge by the donee. If the action has already been brought by the donor. It may be dissolved only be consent of the parties or by judicial decree. of right. 1565 &1567 In case of dissolution of a donation of an immovable for the failure of the donee to fulfill conditions or perform charges. lease.
Husband argues it was onerous and he had to pay for daughter and mother’s something iii. Examples: Suspensive: “I will give you my hornets tickets next year if they win the championship this year.” Impossible so donation is dissolved. Not required to go to court. Note iv. Problem B. This is a valid condition. If the donation is dissolved for nonperformance of a condition or a charge that the donee had the power to perform. They do not have the authority to sell. Resolutory: “I will give you my tickets as long as CP plays. iv.1566.” A. Whitman i. Note 1. Board of Trustees v. v. the donee or his successor is bound to restore or to pay the value of the fruits and products of the things given from the date of written demand. When a donation is revoked or dissolved. 9:2321 – 10 year time period now for religious institutions 33 . Adultery = revocation for ingratitude ii. They were fulfilling the condition because were still using it as a church they just also had a for sale sign up in front. Whitman v. Pinkney gives property to church and says this prop will revert back to me if doesn’t become a church ii. the court may order the donee or his successors to restore the value of the fruits and products received after his failure to perform is due to his fault. and says that church must be built within 1 year iii. Richardson i.
II. Testamentary Intent i. .C. . Testamentary dispositions committed to the choice of a third person are null. R. with the exception that the testator can delegate certain authority to the executor.To Sam Semurray” 2. and dated in the testator’s handwriting ii. 9. La. 1571. C. 1572. “leave” argue it’s a valid will 34 . “25% to James” 3.2322 Rights in property after perfection of title E. Must be signed. no language of disposition 3. 15: Dispositions Mortis Causa and the Marital Portion La. R. Need to look at the will as a whole 6.S. “All to my sister” 2. Called his testament a letter – that doesn’t matter as long as find animus testandi 3.” 2. “Donald Albert Hammett is no longer my husband and I leave him nothing. Succession of Hammett 1. by which he disposes of the whole or a part of his property. The formalities prescribed for the execution of a testament must be observed or the testament is absolutely null. Ct found it was valid intent and form because “leave” 5. A testament may not be executed by a mandatory for the testator. 1573. 9:2321 Title quieted and perfected by lapse of time D. intent – couldn’t tell if wanted to own it iii. In Re Billis’ Will 1.S. at the death of the donor.C. “75% …. 2432-2437 I. A disposition mortis causa may be made only in the form of a testament authorized by law. written. La. Succession of Shows 1. Nor may more than one person execute a testament in the same instrument. “That is my will…” “no matter what . which is revocable. Problem Ch. 1570-1616. Introduction Intent and Form Substance (INTENT) + FORM 1469.” 4. A donation mortis causa (in prospect of death) is an act to take effect. 1570. a.
SIGNATURE: Although the date may appear anywhere in the testament. Wallace thinks the court got it right 8. Succession of Mott b. Must sign at the end of the testament. if necessary. Date can be anywhere. If anything is written by the testator after his signature. Succession of Helms 1. Hendry v. Kelley 35 . Lay people writing the testament then ok to have lay people terms iv. Doesn’t mean its invalid. Expression of intent may be through signature Masking tape + signed with will and clause in the will = valid mortis causa. v. Add something after the signature – W/in discretion of the court. and signed in the handwriting of the testator. as clarified by extrinsic evidence. the testator must sign the testament at the end of the testament. In the letter 2. Court will not read typewritten provisions. Need to give some credit to what happens in the interim between talking about the will and actually executing the will 6. The olographic testament is subject to no other requirement as to form. Generally: An olographic testament in one entirely written. Read comments. the testament shall not be invalid and such writing may be considered by the court. Intent to give at death – no animus testandi because she was gong in a week later to make her last will and testament. Hamilton v. in its discretion. Will Forms (2: Olographic and Notarial) i. This was NOT going to be used for her last will and testament. Proper form 3. Look to the evidence. Typewritten with signature at the end is NOT valid.7. DATE: The date is sufficiently indicated if the day. month. Need to advise the client that these things are final 7. 5. 1. ADDITIONS AND DELETIONS: Additions and deletions on the testament may be given effect only if made by the hand of the testator. The Olographic Testament 1575. Just masking tape and sign not valid because problem with animus testandi. and year are reasonably ascertainable from information in the testament. as part of the testament. 4. dated. Slash and dash ok.
can be probated b. _____. f. Court focused on the verb to ii. Contents of the will are known iii. and in the presence of the testator and each other we have hereunto subscribed our names this ____ day of ____. If took this exact language then it doesn’t manifest its intention at death but court found it to be ok e. the testator shall declare or signify to them that the instrument is his testament and shall sign his name at the end of the testament and on each other separate page.a. the notary and the witnesses shall sign the following declaration. “To my sister Delia” d. g. Made a valid will ii. As long as meet requirements then going to probate c. Must probate an original will but can probate a copy d. (can type in date and then just sign each page) EXECUTION: if the testator knows how to sign his name and to read and is physically able to do both: (1) FOR TESTATOR: In the presence of a notary and 2 competent witnesses. LOST WILLS: Can you probate a will that is lost? i. Problem 2. Succession of Burke a. Want to ward against fraud. Valid if took out printed portions b. That the will was never revoked e. Must be proven by testimony of 2 credible witnesses. or one substantially similar: “in our presence the testator has declared or signified that this instrument is his testament and has signed it at the end and on each other separate page. There is a presumption that it was revoked but overcome with these 3 things. (2) FOR NOTARY AND WITNESSES: In the presence of the testator and each other. The Notarial Testament Contains 2 parts: 1. Absent proof of revocation by the testator.” 36 . claim intestate. Substantive section (disposition of property) 2. years later the nephew found the will but signature has been cut off. Attestation clause (signed by notary and witnesses) Manner of execution depends: 1577. General Notarial Will GENERALLY: prepared in writing and dated. c. brother dies.
-signs his name (not initial) on each separate page -“each page” sign each page once and at end of the testament on each separate page Witnesses CANNOT BE WITNESSES (1581): -insane. Notes iii. Guezuraga signature on the very last page of the attestation clause. 3 kids from former relationship. Notes d. Cannot make a named lawyer binding on executors of the will b. trustee. or attorney for either is not a legacy. Types of Legacies. Succession of Hendricks a. Lapses Legacies. and Accretion (important for accretion of legacies and payments of estate debts) 1. Can name an attorney in the will but if the heirs don’t have to use them iv. Universal legacy is a: Disposition of all of the estate (I leave all of my estate to X) OR disposition of the balance of the estate that remains after particulars (I leave my car to Mary and the rest of my estate to X) 37 . Universal (1585) i. unless the witness would be an heir in intestacy. blind. General. b. Succession of Wallace a. Introduction Problems 2. he receives the lesser of the intestate share or legacy (1582).1 – spouse of a legatee cannot be a witness Designation of a succession representative. Types of Legacies: Universal. code is very strict on the form. (1583) 1. Why invalidate the entire will? Bothersome he left out 3 children? c. Gerald – notarial testament. and Particular a. Note new article 1582. under age of 16 or unable to sign name (competent but deaf or unable to read cannot be a witness under 1579) That a witness or notary is a legatee does not invalidate the will – just the legacy. one of the pages wasn’t signed. but everything was ok but doesn’t matter. Problems e. Designation of Executor and Attorney 1.
3. 38 . “I leave my corporeal movables to X” 3. Joint or Separate Legacies (1588) a. Particular legacy is neither general nor universal 1. ¼ of movable property to X and the rest of Y – general legacy to X and general phrased as a residuum to Y v. *cannot have universal and general legacy in same will – must be a general legacy phrased as a residuum iv. Eg. Particular Legacies (1587) i. General 1586 i. A legacy to more than one person is either joint or separate. particular legacies usually lapse in favor of the universal ii. Read all Comments to articles for good examples e. “I leave my car to Mary” 2. “All my personal belongings” didn’t include immovable property. separate or community 2. “I leave ½ of my house to X and ½ to Y” 4. but can also have a particular lapsing in favor of a particular – “all my books to C except my law books I leave to D” think of just crossing it out. f. [Blackacre to A] (particular) and the rest to Y (universal) d. only movable property. c. corporeal or incorporeal a. Can be made jointly (I leave my estate to X. and Z jointly) b. moveable or immovable 3. [All my corp movables] – (particular) to X and [rest of my estate to Y] – universal. Y. Can’t combine these 2 exclusive categories. Succession of Burnside i. disposition bequeathing a fraction or certain portion of the estate (I leave ¼ of my estate to X and ¾ to Y) OR disposition bequeathing a proportion of the balance of the estate that remains after particulars (I leave ¼ of my car to Mary and ¼ of the remainder of my estate to X and ¾ to Y) ii. Eg.ii. Fraction or certain proportion of property must came from the following exclusive categories: 1. “I leave all my movable property to X and the rest of my property to Y” iii. Succession of Cartell i.
b. legacy is invalid 39 . iii. i. “I leave ½ of my house to X and ½ to Y” c. particular legacy left to Kat and rest left among others ii. Need to know if she has kids. i. Katherine’s share of the residuum goes intestate vi. What happens to accretion when Katherine predeceases? iii. Succession of Lambert i. Clear one is left out. “to be shared equally” iii. Separate so goes intestate v. Hopson v. Today. “I leave my house to X and Y” d. legatee renounces 6. legatee is unworthy (convicted or judicially determined) 5. would dissolve to the particulars v. “To be divided equally among them” – Separate iv. ii. Dies w/ 2 siblings. then goes intestate. v. duress. legatee predeceases 2. legatee is incapable of receiving at the testator’s death 3. It is separate when the testator assigns shares. Ratcliff i. and undue influence g. Robert gets his shares and Albert’s lapses and because separate the shares will go intestate. legacy is subject to a suspensive condition and the condition can no longer be fulfilled or the legatee dies before fulfillment 4. e. Accretion vests in Robert since Albert died. Overruled prior cases. Testator can make his or her designation express. 4. A separate universal is really a general. f. Lapses Legacies and Accretion A legacy lapses when: 1. Separate or joint most favored relative exception applies = except for fraud. “share and share alike” = separate iv. It is joint when the testator does not assign shares. Succession of McCarron i. If no kids. What shares does Joseph get? iv. one nephew from predeceased sibling. Joseph can take accretion or the kids ii.
Physically destroys the testament. legacy is declared null (fraud. duress. 1595. For a legatee who is a child or sibling of a testator (or a descendant of a child or sibling of a testator). who. 1589 Comment D b. 3. 1593. Would go to X’s heirs. 1596. (comments but com h doesn’t follow the law) 6. Check to see if most favored relative exception applies. would have received the thing if the legacy had not been made.7. and undue influence) a. If a joint legacy lapses: accretion takes place ratably in favor of the other joint legatees. Succession of Farwell vi. Accretion (1590-1596) 1. “war ends within the time of my death” Challenge as an illegal condition. If not disposed of above: accretion takes place ratably to universal legatees or a general legacy phrased as a residue or balance. e. 10 g to X to be paid on 21st birthday – what if X dies at 19? Legatee died before fulfillment. c. 40 . 5. Not suspending the execution of the legacy. 4. under the testament. (1590) 2. or has it destroyed at his direction. accretion takes place in favor of his descendants by roots who were in existence at the time of the testator’s death (does not apply of the legacy is declared null for fraud. If no universal legatee or general legatee phrased as a residuum: the property devolves by intestacy. trust type provisios. duress. legacy has lapses. or undue influence or is declared invalid). Follow governing testamentary provision if one exists. d. Art. – If not. 1592. Revocation Revocation of a donation mortis causa is divided into 2 categories: -Revocation of an entire testament (1607) 3 ways: 1. Payment of Debts 1. v. Leave $ to Cindy if the war ends 6 months after my death. Leave 10 k at the time of my death – suspensive condition? NO! Status determination. 1591. If a particular or general legacy lapses: accretion takes place in favor of the successor.
Clearly revokes the provision or legacy by a signed writing on the testament itself.Testator has right to revoke at any time and this right cannot be renounced. (1610. Succession of Muh a. Declares revocation in form prescribed for testaments. Divorced from the legatee after the testament is executed and at the time of his death. Makes a subsequent inter vivos disposition of the thing that is the object of the legacy and does not reacquire it. (1610) . 4. unless the testator provides to the contrary. Only revoke a will if you know the last will was valid b. Declares his right to revoke the entire testament in a) one of the forms prescribed for testaments or b) by authentic act. d.2. (1609) . so a scratch out in a will is not revocation because anyone could do it e. Would have rathered go under first but doesn’t matter because La.1) . Identifies and clearly revokes the testament by a writing that is entirely written and signed by the testator in his handwriting. 2. (most common) 3. subsequent inter vivos disposition or divorce. 5. We’re guarding against fraud. THEN: tacit revocation of the entire will c. doesn’t receive old wills 41 . Shaw a.Other modifications of testament must be made in one of the forms for testaments. 1. notes in the margin b. Can argue 1608 because every provision was scratched out 2. 2nd non cupative will – tears up d. Scratched out words all over. TODAY: could argue physical destruction of the testament then go to 1608 to see if legacies have been revoked.Same causes of action for revocation of DIV applicable to DMC.Testator can revoke a revocation except when the revocation is made by physical destruction of a testament. 3.) Other Provisions: . Smith v. -Revocation of a legacy or other testamentary provision (1608) 5 ways: 1. Noncupative – invalid in form e. (Designation or appointments of spouse are also revoked. Makes a subsequent incompatible testamentary disposition or provision. Rips up first olographic one c.
Can you probate unsigned copy of a will? c. Typing and signing isn’t a writing Succession of Rolling a. must probate every will you find d. Take each will and probate as long as consistent f. procedurally. 8. later will determine if the provisions are incompatible so previous will is null and void e. except with physical destruction so that’s the same. Revocation in 2nd will that’s invalid – revoked the first one? c.3. Succession of Bagwell a. if not enough to go around you divide it proportionally d. But she never owned the land d. 1608 DIV e. * can’t prove the will was never revoked e. Succession of Justice a. invalid – still in patrimony and can be doled out by testament f. one was found from 5 years later c. 7. Divisible and can be divided easily f. If DIV is invalid it stays with the donee. Particular legacy of a particular object will be revoked by a subsequent incompatible double disposition Succession of Huguet a. leaves 1200 but only has 7 something b. because you split it in ½ because it’s not a particular object (like a car) e. double disposition so that 2nd person owns it all? c. at time of death – gives him some land in exchange for ownership interest c. 1607 – physically destroys the testament. Pre-printed will b. 6. You can probate a will without signature but need those 3 elemens d. property in West Baton Rouge parish to grandson b. Invalid testament then DIV gets revoked Succession of Dambly 42 . TODAY: i. Can you revoke a revocation? Yes. Need positive proof that the testator ripped it up which is almost impossible. No revocation of an entire testament here Succession of Berdon a. Believe will in safe deposit but not there b. 4. Can probate will that the uncle ripped up g. Presumption that if it’s gone it was revoked f. 5. f. olographic will b.
shall the amount of the marital portion exceed one million dollars. 43 . C. the S/S is entitled to claim the marital portion from the succession of the deceased spouse. Can revoke a revocation in one of these forms – scratching out. 2432-2437 2432. The amount of the allowance is fixed by the court in which the succession proceeding is pending. The marital portion is ¼ of the succession in ownership if the deceased died without children. specific bequests prevail over general bequests 4. When. 2433. In no event. Interpretation of Legacies 1. 2437. 2436. b. 5. 2434. vii. as finally fixed. The Marital Portion: La. during the administration of the succession. is less than the allowance. another writing EXCEPT by physical destruction (can’t tape it back together) Eg. however. on proof that the separation occurred without his fault. the S/S is charged with the deficiency. When a spouse dies rich in comparison with the surviving spouse.a. 1611-1616 2. he has the right to demand and receive a periodic allowance from the succession representative. c. they’ll still get that if you never owned a bunch of corvettes. the same fraction in usufruct for life if he is survived by more than 3 children. Revocation of A is valid but naming of B isn’t in the form required. it appears that the S/S will be entitled to the marital portion.C. This right prescribes three years from the date of the death. The marital portion is incident of any matrimonial regime and a charge on the succession of the deceased spouse. 2435. can you successfully probate 1st olographic will? ceases to exist as will or revocation rip it up = no will to revoke so prior will invalid Wallace thinks same results would occur under 1609. 3. I revoke appointment of A and name B. Bequest to Joe? Universal legatee would get it. A legacy left by the deceased to the surviving spouse and payments due to him as a result of the death are deducted from the marital portion. If the marital portion. The right of the S/S to claim the marital portion is personal and nonheritable.1608 Comnt Subsection 4 overrides Melancon. even if separated from the deceased. Acceptable not to date revocation but will must be signed. It may be claimed by the S/S. Note. Succession of McAuley viii. d. 1616 – owe your sister 100 k and you leave her k you need to say specifically to satisfy the debt or she still has a claim. 1613 – you own 1976 corvette but you put a 1978 in the testament.
1. Even if you renounce a legacy it is credited against your marital portion 5. Not a bright line rule about what is “rich in comparison” 2. Hypothetical 44 . Cannot exceed 1 million 4. 5:1 comparison to assets. 2432 – Com. Notes b. C. some kind of fractional shit 3. Succession of Alvin Lichtentag a.
Trusts Chapter 16: Trusts in Louisiana 45 .Part II.