Fall 2004 by leader6


									                                       Fall 2004
                                 Prof. Katherine Spaht

I.   Intestate Succession
     a. General Rules
              i. Book III, Title I Successions- Articles 871-902
                    1. Succession:
                            a. (871) Transmission of the estate of the deceased to his
                                 successors. At the very moment of death, ownership is
                                 transmitted. No legal proceeding is required in LA for the
                                 estate to be transmitted.
                            b. CCP-Opening a succession means something else. This is
                                 a legal entity. Spaht says it clearly is NOT.
                            c. 872: refers to the opening of a succession as the estate of
                                 the deceased. The estate can have more obligations than
                                 rights or property or vice versa.
                    2. Intestate Succession
                            a. Default rules that apply in the absence of a valid
                                 testamentary disposition. (880) Devolve in favor of
                                 descendents, ascendants, collaterals whether by blood or
                                 adoption. Also a surviving spouse, not judicially separated.
                                 This is what the legislature thinks would typically be the
                                 intention of the deceased.
                            b. the testator is free to execute a will (1469) and his intent
                                 prevails (1611). These successors are called legatees. (874)
                            c. However, if there is no testamentary disposition, it is
                                 partial, or invalid, the law establishes rules concerning how
                                 the estate of the deceased should devolve. Dispositions are
                                 severable if some are null and void. They devolve in favor
                                 of certain persons and they are called intestate successors
                                 or heirs. They are also universal successors.
                            d. Universal and Particular successors are different.
                            e. Retour Successoral: If parents donate immovable property
                                 to their children, if the child dies before the parents, the
                                 parents have the right to reclaim this property if it is in the
                                 succession. If the price has not been paid or if there is a
                                 right of redemption, the ascendants has rights to this. The
                                 ascendants must prove that it was donated.
                                      i. Succession of Christensen: it is not found in the
                                          succession if the decedent child disposed of it by
                                          last will and testament. At the moment of death,
                                          ownership transfers. Grandparent donated
                                          immovable property to the grandchild, but the
           grandchild disposed of it by last will to the
           grandchild’s father.
       ii. If the ascendant donates property to both spouses,
           we do not know whether the ascendant may
           exercise the right of return.
      iii. Under 891, a parent may informally acknowledge a
           child as his own and who has not refused support of
           the child. So, a parent can prove that his is a parent
           for succession purposes where a child cannot do this
           in the same matter.
f. Classes (899-901)
        i. Favored Class-Descendants-Children, grandchildren
           and great grandchildren-the direct descending line.
           [Children under 3506 also include descendents of
           children in the direct line. Comprises children born
           of marriage, adopted children and whose filiation
           has been established in the manner provided by law-
           presumption, legitimated by subsequent marriage,
           notarial act, acknowledgment-signing birth
           certificate or baptismal certificate, can also institute
           an action to establish paternity-the child or the
           father can do this.]
       ii. Surviving Spouse: If there are no descendants,
           there are rules regarding whether the property is
           community or separate. The share of community
           property is half in LA. In the absence of heirs, the
           surviving spouse, not judicially separated, is the
           favored heir for the deceased persons share of the
           community property.
      iii. Collaterals: If the property is separate it is usually
           inherited or donated from the individual’s family.
           The preferred class of here is collaterals which
           include brothers and sisters plus their descendants-
           representation-and parents-the ascendants.
                1. Brothers and Sisters of the deceased can be
                   represented by their children
                2. There is no representation in the ascending
      iv. If there are no decedents, the list of those who
           inherit are different. For example, the surviving
           spouse should succeed to the all of the community
           property if there are no descendants. The notion is
           that the decedent would have intended that his share
           of community property would have devolved to the
           surviving spouse.
                                     1. Draper: the judgment of divorce was not
                                        definitive because the notice was not
                                        provided to the other spouse. The wife was
                                        technically married to the decedent at the
                                        time of his death. She seeks his share of the
                                        community property so she can evict the
                                        woman who the decedent thought he was
                                        married to. Everyone was in good faith
                                        here. The decedent got ½ and the two
                                        surviving spouses divided the other one half.
                                        If he would have had no decedents, the two
                                        wives would have shared everything.
                                     2. LaRocco
                                     3. Relatively null marriages and putative
                                        marriages. Civil effects run in relatively
                                        null marriages, but absolutely null marriages
                                        have civil effects for the party who was in
                                        good faith.
                              v. Half blood brothers and sisters: property is divided
                                 into maternal and paternal lines.
                             vi. Other collaterals-aunts and uncles and cousins.
                                     1. Succession of Dubos-the uncle is a half
                                        uncle. The decedent has no descendants or
                                        parents surviving him. There are also first
      ii. 214 Adoption
     iii. 1980 Amendments-distinction between illegitimate and legitimate
          eliminated and surviving spouse as successor received preference over
          other more remote relations.
b. Representation (881-886)
       i. this is a legal fiction in the direct descending line. The representative
          stands in the place of the person represented. The purpose is to protect
          heirs of the decedent. Descendents are preferred above all others.
               1. Descendants are defined as children-persons born of marriage,
                   adopted or filiated.
               2. You can only represent one who predeceases the decedent. There
                   is one exception.
      ii. A grandchild can be in the place, degree and rights of the person
          represented. Can have greater rights than the person represented.
     iii. Succession of Morgan-grandparents had a grandchild whose parents died
     iv. This serves to prevent unjust disinheritance. This is the only class of
          intestate successors where representation is permitted ad infinitium in all
      v. A degree is a generation. Grandparent to their children is one degree.
          From grandparent to grandchildren, it is two degrees.
             vi. In our example, if grandparents have 3 children who predecease them and
                  those children leave children, those children represent their predeceased
                  parent and receive the share of their parent. (882)
            vii. Closest in degree
           viii. Representation in its fullest application applies to descendants. There is
                  another category of heirs who can represent. Brothers and sisters and their
                  descendants can also represent.
      c. Anomalous Succession
II.   Child Born Outside of Marriage
      a. Illegitimate Children
               i. Now called child born outside of marriage. The use of the word is
                  changed effective 2004 (SB 65). There can be no discrimination between
                  legitimate and illegitimate children under the equal protection clause of
                  the US Constitution
              ii. Succession of Brown retroactive to the date of the effectiveness of Article
                  1 Sec 5 of the LA Constitution, Jan. 1, 1975.
             iii. Art 870 Testate and Intestate succession rights are governed by the law in
                  EFFECT at the time of the decedent’s death.
             iv. Prescription is 30 years to assert a claim in an intestate succession. In one
                  more year, the point will be moot if parent died before Jan. 1, 1975. This
                  is not true for testate successions.
              v. Forced Heirs-Jan. 1, 1996. Prior to this time, all descendents regardless of
                  age or condition were forced heirs. Now, there are two categories of
                  forced heirs.
             vi. July 1, 1999, changes in the law of testate succession. (Chapter 8)
            vii. Hypothetical Client: 38 year old whose “father” died in 1977. He learned
                  that the man was his father two months prior on his mother’s deathbed.
                      1. Prescription begins to run from the day of the opening of the
                           succession. Here succession is defined as the process of
                           transmitting ownership which occurs at death.
                      2. Filiation: There was no informal acknowledgement of the 38 year
                           old son. He never knew and so there is likely no informal
                           acknowledgment. Further, the son has to prove that the deceased
                           man was his father by clear and convincing evidence because the
                           parent is deceased.
                      3. filiation proceeding has to be brought within one year of the death
                           of the alleged parent or within 19 years of the child’s birth.
                      4. Succession of Brown: decided in 1980. The decision is retroactive
                           and illegitimate and legitimate children are to be treated the same.
                      5. Trimble v. Gordon:
                      6. The man in our hypothetical may inherit.
                      7. Reed v. Campbell: US Supreme Court decision, as long as the
                           estate had not been distributed. Jan 1, 2005 this case will no
                           longer be relevant.
                      8. Clivins: decision under the LA Constitution
           viii. 209(c) : peremption or prescription
                a. Peremption cannot be interrupted or suspended and it
                   extinguishes the cause of action. Policy reasons would
                   make a statute peremptive.
                        i. Ex. Disavowal action is peremptive
                       ii. Contra non valentum: lack of knowledge has a
                           bearing on whether or not he can bring an action. If
                           peremptive, no contra non valemtum
                      iii. There is one exception for wrongful death because
                           the intent is to punish the wrongdoer. This
                           outweighs the generally peremptive period.
                      iv. The statute says, this time limit SHALL run against
                           all persons. All of this suggests that this statute is
                b. Prescription can be interrupted or suspended. You have a
                   natural obligation remaining if something prescribes.
ix. Filiation
        1. Authentic Acts
                a. for legitimation, you can go before a notary and 2 witnesses
                    for the purposes of legitimation.
                b. for acknowledgement, however, it can be any authentic act
                    that refers to the child as the persons son.
                         i. could be a donation of immovable property
                        ii. could also be a will that is under a notarial act. This
                             would be effective even if the will was later
                             revoked. See Succession of Robinson.
        2. Acknowledgement can also be made in registering a birth or
            baptismal certificate of a child.
        3. Subsequent Marriage: illegitimate children are legitimated by
            subsequent marriage of the father and mother, whether they have
            formally or informally acknowledged them as their children either
            before or after the marriage.
        4. Other ways to prove filiation
                a. DNA, blood tests,
                b. you can test siblings or collaterals if both parents are dead
                c. testimony
 x. Compare to establishing collaterals
        1. if a half sibling died, he cannot establish filation after a certain
        2. however, under 891, the collaterals can establish their relation
        3. this is not fair and an oversight. The article is not co-extensive with
            the legal definition of a filiated child. It is complicated when there
            are half brothers and sisters. They may be able to prove their
            relationship as a brother or sister under 891 when the child born
            outside of marriage cannot. This stems from the definition of
            parent in 891. In the case of collateral relations you have to
            establish your relationship to the common ancestor. In the case of
                  brothers and sisters, this is the parent. The child born outside of
                  marriage cannot establish filiation to the common ancestor and
                  cannot establish the relationship to half brother and sister.
     xi. What if there was a judgment of possession?
              1. Assume that the judgment was in 1980 and our client has a notarial
                  act where the father acknowledged him.
              2. In La, our client should be able to assert his interest against the
                  people who were sent into possession. You can always amend a
                  judgment of possession-the prescriptive period runs from the last
                  amendment. When you amend the prescriptive period starts over.
                  See Smith v. Jones.
              3. Unknown heirs and heirs who have been left out of a succession.
                  Two year time period to assert an interest in an immovables where
                  an unknown heir may assert a claim for a percentage or part of an
                  immovable. The heir can still recover the value of his asserted
                  interest from the other heirs after that time. He just can’t get it
                  back from 3rd persons.
              4. 3502 is important because it allows an action for the recognition
                  for a right of inheritance and recovery of whole or part of a
                  succession. There is a 30 year liberative prescriptive period and
                  commences from the day the succession is opened.
b. Surviving Spouse
       i. not judicially separated
      ii. decedents take in preference to all others
     iii. when no descendants survive the decedents, the surviving spouse can get
          the decedents ½ of community property. Art 890 gives the surviving
          spouse a usufruct over the deceased share of the community property to
          the extent not disposed of by testament. The usufruct terminates when the
          surviving spouse dies or remarries. The usufructurary has the right to the
          fruits of the property.
              1. this means the decedent can make a will and dispose of part of his
                  entire share of community property.
              2. Security for a usufruct is not required under 573 when it is a legal
                       a. there are two exceptions when the usufructurary is a step
                           parent (step-chilren and children born outside of wedlock)
                           or if the naked owner is a forced heir of the decedent to the
                           extent of the legitime.
                       b. It can also be waived by the naked owners.
                       c. In reality, the naked owner is not really protected even
                           though an accounting is required at termination.
     iv. Extent of the change in the law because of the 2004 amendment to art.
          573. (Effective Aug. 15, 2004).
              1. The comment refers the reader to art. 1514
               a.   a forced heir can get security IF he is not a child of the
                   surviving spouse. This is narrower than 573 which only
                   requires that the naked owner be a forced heir.
               b. 1493 and following concerns forced heirship. This right of
                   a forced heir can only be asserted ordinarily in a TESTATE
                   succession. 890 deals with INTESTATE succession.
                         i. 1499 is a testamentary usufruct which is for life and
                            can be over community and separate property and
                            the usufructurary can be granted the power to
                            dispose of the property. It does not impinge on the
                            legitime. Further, under 1514, security is only
                            required when the naked owner is a forced heir who
                            is not a child of the usufructurary or if the usufruct
                            affects separate property.
                        ii. 890 is a legal usufruct which terminates on death or
                            remarriage and is only over community property.
                            These are not always forced heirs.
                       iii. These articles or different in terms of security,
                            termination and the type of property a usufruct is
                       iv. As of July 1, there is no longer state inheritance tax
                            which only applied to testamentary usufructs.
               c. There was a big debate about confirmation of the legal
                   ususfruct and whether the testator was doing that or
                   providing for something in addition to what would be
                   legally granted to an intestate successor.
               d. Security can be in any form provided for by the court.
      2. CCP 3154.1 applies to security that may be requested from the
          surviving spouse from naked owners that are descendants, but not
          children of the surviving spouse or when the usufruct involves
          separate property. Yippie argues that this article could not be
          relied upon because it deals with security to be furnished by a
          testamentary executor. It wasn’t intended to apply to executors. It
          was intended for art. 890.
      3. 573 now changes the law in all of the conflicting articles. It is due.
          It is not limited for requests for security. The categories are also
          extensively expanded.
      4. Succession of Richaud affords descendents who were not children
          of the surviving spouse the right to request security. The law did
          not change the law that much from this case. Now security is due
          rather than can be requested.
      5. Does it apply to existing usufructs? The law in effect at the time of
          death determines which law applies. So, no it does not affect
          existing usufructs.
v. Usufruct over Pensions and retirement plans
                      1. this usufruct shall exists despite any provision to the contrary
                          contained in a testament of the deceased spouse. So it applies both
                          in testate and in intestate successions.
                      2. the surviving spouse is recognized as a forced heir in this narrow
                          instance where the pension or retirement plan is fully matured and
                          the payments were community property. The spouse gets a
                          usufruct of the pension plan. This recognition is extraordinary
                          because it is a significant expansion of the rights of surviving
                              a. the plan can be part community and part separate
                              b. it has to be the survivor’s pension or retirement plan
                                   because otherwise, it would cease to be paid on. Common
                      3. ERISA plans are exempt from the application of community
                          property principles by virtue of the Boggs decision. La courts can
                          avoid application of Boggs.
III.   Absent Persons
       a. Presumption of Death-CC 30-a person who has disappeared under circumstances
          where death seems certain, his death is considered to have been established even
          though his body has not been found.
       b. One claiming a right that has accrued to another person is bound to prove that
          such person existed at the time when the right accrued.
       c. Succession occurs at the death of a person (CC 934)
               i. Medical doctor certifies a death typically in a death certificate
              ii. An affidavit of two people familiar with the circumstances of the death. If
                  they saw that the decedent died, it is sufficient evidence
             iii. there are instances where there is neither a death certificate of the affidavit
                  of two witnesses
                      1. Russian planes went down and the remains cannot be recovered.
                          This is also the case of 9/11.
                      2. In La, Hale Boggs’ plane went down around Alaska and the body
                          was never recovered. The airplane and the Boggs plane crash are
                      3. However, Bennet presents a different situation from the airline
                          crashes. This is not sufficient to show that death seems certain.
                          This is like beyond a reasonable doubt. In Bennett, the man had
                          tuberculosis. He left the house one day and never came back. He
                          was very sick, but death was not the only explanation-there might
                          have been others.
                      4. Mary Ann Fowler falls somewhere in between. She disappeared
                          and her son is seeking a declaration of death. He has circumstantial
                          evidence such that death is almost the only explanation. There are
                          security tapes at a convenience store where she was attacked and
                          abducted on Christmas eve. There were signs of a struggle and her
                          car was left with everything in it. She was on her way to see her
                          husband in prison. Her family has had no contact with them and
   she was in constant contact with her family. There was a serial
   rapist murderer on the loose at the same time. There were cell
   phone records and a truck the same color as his. The pattern of
   attack doesn’t necessarily fit. But the weaknesses are in who was
   the abductor, not that she was just abducted. The judge declares
   MaryAnn Fowler dead.
       a. According to art. 54, an absent person has to be gone for 5
            years for a person to be declared dead.
       b. However, art. 30 allows a person to be declared dead when
            death seems certain.
       c. The most the son could have done as curator if he had not
            gotten a judgment of death, he could have only been
            curator over her separate property. He would have only
            had authority to manage and dispose of her property with
            the approval of the court. This diminishes his power
            greatly because he needs court approval. (See 13:3438)
5. In another case, a man, Mr. Gerald went sailing and disappeared
   and was never heard from again. There was no accident that was
   established. Gerald set sail from Ft. Lauderdale to the Bahamas in
   a 21 ft. boat. He was a retired free lance photographer. He did not
   call his wife on her birthday several days later. So there was no
   contact and this was unlike him. A friend did a day long aerial
   search for him. There was also a two week communication search
   for him in Miami.
       a. You cannot use art. 30 because death did not seem certain.
            As such, the presumption of death does not go into effect
            until 5 years after he disappeared.
       b. Mrs. Gerald has other options. She does not have to have
            him declared dead. She can administer his separate
            property and administrate all their community property.
            She can get this in a summary proceeding through a rule to
            show cause or a motion. This procedure is a whole lot
            easier for her than for Mary Ann Fowler’s son. Further,
            she is preferred as a spouse in community.
       c. If Mr. Gerald has property in his name, you need to know
            whether it is community or separate.
                 i. CC 2355 -Judicial authorization to act without the
                    consent of the other spouse.
                        1. this applies when concurrence is required.
                            For example, if the family home is
                            community property, but it was in his name
                            only, she would need judicial authorization.
                        2. If movables of a community enterprise were
                            in his name only, she would need
                            concurrence. This way she can access
                            community property if it is his name alone.
                                      ii. 2355.1 -Judicial authorization to manage the
                                              1. this is blanket authority. Attorney’s fees and
                                                  court costs would be unmanageable if you
                                                  were required to get authority for each
                                              2. she would have to prove that it was in the
                                                  best interest of the family. They have two
                                              3. She could then manage, alienate, encumber
                                                  or lease.
                                              4. this applies when the absent spouse has
                                                  exclusive right to manage the property
                                              5. compare to the curator who gets blanket
                                    iii. If he has separate assets, she can be appointed
                                          curator of her absent husband’s property. The
                                          requirements are that she is an interested person and
                                          he is absent. If there is a spouse in community,
                                          curatorship can only extend to separate property.
                                     iv. She cannot get the life insurance policy nor can she
                                          get the retirement benefits
                              d. An absent person is a person whose whereabouts are
                                 unknown and they cannot be ascertained by diligent effort.
                     6. The Fowler case presents stronger evidence that her death seems
                         certain. She has been missing for a year and a half. The son was
                         not the son of Mr. Fowler.
      d. Curatorship: (Title 13)
              i. has to be necessity
             ii. if more than one qualified person seeking to be appointed as curator, the
                 spouse not judicially separated is to be preferred
                     1. this refers to separate property because the spouse would otherwise
                         have remedies under 2355 and 2355.1
                     2. Mr. Fowler would have preference even if he was incarcerated.
                         The son in the Fowler case needed the judgment of death
                         principally of relieving himself of the premiums and to be able to
                         pay the debts of his mother. He may have been denied the ability
                         to deal with her separate property. The interim relief is not as great
                         as it would be for Mrs. Gerald.
                     3. However, Mrs. Gerald also can’t get the life insurance because she
                         doesn’t get a declaration of death. You have to ascertain his date
                         of death. Look at the search to determine not the last contact. It
                         would have been approximately two weeks after the last contact,
                         after the diligent search.
IV.   Capacity of Absent Person
     a. CC 49 says that an absent person has capacity to make juridical acts even though
        there is a curatorship. However, the acts are not effective towards third persons.
     b. the absent person is presumed alive. Article 31 says something different
     c. Hypo: Suppose Mr. Gerald wires his broker from the Banhamas. This does not
        affect her ability to manage the community. However, if she or anyone else was
        appointed as curator, the curatorship terminates if his whereabouts become
             i. Once the curator knows that the absent person is no longer missing, the
                curator is obligated to file a notice in the curatorship proceedings. Even is
                she doesn’t and continues to curate, third parties are protected. However,
                she has to account for the curatorship at least before the curatorship
     d. The code does not require that the curator is the person who actually has to have
        knowledge of his whereabouts.
     e. At the end of 5 years, she MAY petition the court for a judgment of death. She is
        not obligated to do this. She may not want to do this if he has separate property
        because she would not inherit this. It would not be subject to a usufruct unless
        there was testamentary authority to do this. Further, she might have to post
        security for the community property because the kids are forced heirs.
             i. Two things might prompt her to seek the judgment: if she wants to
                remarry OR if she wants the life insurance, like there is in this case.
            ii. The succession is opened as of the date fixed in the judgment. This is very
                important because everything a curator does in the intervening period is
                important especially if it affects the legitime.
     f. Existence of the person at the time of accrual of a right
             i. There are also rights that could have accrued to the decedent while he was
            ii. Suppose Mr. Gerald’s father died intestate while Mr. Gerald was missing.
                Mr. Gerald has a brother. The sons want their father’s share of the
                inheritance. They want ½ of the grandfather’s estate. (1/4 each).
                    1. Under art 51, a person who is presumed dead or declared dead at a
                         time a succession would have been opened in his favor, the estate
                         devolves as if that absent person were dead at the time of the
                         opening of the succession.
                    2. The boys would want to argue that he was dead at the time the
                         grandfather’s succession was opened and they could get ½ by
                         representation. However, they do not have to argue at all because
                         the code provides that as long as it has been 5 years, he is
                         presumed dead even if there is no judgment.
                    3. if it has been less than 5 years, the wife gets control because he
                         still has legal capacity even though he is absent.
                    4. Reappearance of absent person provides for in 57 and 58.
                    5. You could also get a separation of property but it is not always
V.   Opening of Successions
     a. Commencement of Successions
 i. Art 934: Succession occurs at the death of the person.
        1. This is a critical provision which goes hand in hand with 870(b).
        2. La is the only state where the procedural opening of a succession is
           NOT required.
                a. It is prima facie evidence of relation to the decedent.
                b. There may be an opening of a succession even though it is
                   not required. There can be a simple judgment of
                   possession WITHOUT administration. This closes the
                   succession and sends the heirs into possession.
                c. If there is such a judicial proceeding and a succession
                   representative is appointed, with the qualification of the
                   representative, that administrator now has the right to
                   institute actions and have them enforced against him. Prior
                   to this time, only the universal successor may represent the
                   decedent (935).
        3. the patrimony devolves at death in indivision. If there is more than
           one intestate successor, they have an equal undivided ownership as
           long as there is no representation. They are co-owners at the
           moment of death. They may seek a partition.
        4. The civil code articles dealing with property are applied to
           partitioning successions. (Check on this, successions might have
           articles now.)
        5. CCP 426-Action to enforce an obligation
                a. action to enforce an obligation is transmitted with his estate
                   to his heirs, universal legates or legatees under universal
                   title (now called general legatees).
                b. Now it is consistent with 938
                c. The second paragraph is consistent with relation to
                   particular titles because it deals with a right of ownership.
                   An action to enforce an obligation is transmitted to an
                   obligee’s legatee under a particular title only when it relates
                   to the property disposed of under the particular title. He
                   can ONLY institute an action that deals with the thing
        6. Under CCP 427, an action to enforce an obligation may be brought
           against the heirs and universal legatees who have accepted the
ii. Art. 935 et seq. deal with Seizen
        1. Amendments became effective July 1, 1999. All the cases are
           before the amendments.
        2. Immediately at the death of the decedent, universal successors
           acquire ownership of the estate and the particular successors
           acquire ownership of the things bequeathed to them.
                a. no judicial proceeding is contemplated by this article.
                b. Universal successors get the estate-property, rights and
      c. Particular successors get only things, not the whole estate.
          The get ownership which is the object of the legacy. Rights
          of ownership can be asserted by any successor.
3. Seizen v. Ownership
      a. Seizen used to mean something different from ownership.
               i. Baten v. Taylor was before the change in the law.
                  The husband made a suspensive condition in his
                  will that if she survivied him by 30 days she would
                  get everything, but if not then it would go to his
                  nephews. This was a double suspensive conditional
                  legacy. (Survivorship clause for purpose of federal
                  estate tax.) This is also a vulgar (common)
                  substitution. It can last up to 6 months.
              ii. The holding of this case was made part of our
                  legislation in art. 1521.
             iii. The argument in this case was that no one had
                  seizen because of the survivorship clause. from the
                  wife’s standpoint, ownership would transmit. If the
                  condition happens, its retroactive. If not, then the
                  nephews succeed at the moment of death. It would
                  be like the wife never got anything if the condition
                  was not fulfilled.
      b. Louisiana is unique in a good way. There need be no
          judicial proceeding for this to have occurred unlike the
          other 49 states which require a judicial proceeding. You
          may “open” a succession here.
               i. Tucker v. Kelly: there were various heirs and
                  successions were never opened. The court held that
                  it was not necessary from them to open successions
                  of all those people. All you had to do was establish
                  the relationships. The heirs can be sent into
                  possession without administration.
              ii. In 2001, the legislature adopted a provision which
                  allows an independent administrator. He is
                  designated in a testament and is independent
                  because he is not subject to court supervision. This
                  should make successions easier and quicker.
                  However, there is no supervision so it could cause
                  problems. There is still a judgment of possession at
                  the end of the process.
             iii. There is a way to protect third parties under CCP
                  5091. In a situation where the creditors are not sure
                  who are the heirs, but they want to enforce an
                  obligation of the decedent. The article permits a
                  party to seek the appointment of an attorney at law
                  to represent the deceased with no succession
           representative as long as he has property in the
           state. The improper designation contained in a
           judgment rendered against the deceased, the
           judgment will be valid. So if they call it the
           “unopened succession” or “estate of the deceased.”
           They get a judgment without knowing who are
           specifically the heirs.
c. Practical reasons for getting a judgment of possession
        i. Two year liberative prescription under 9:5630. This
           deals with immovable property sold to a third party
           purchaser. It begins to run from the date of the
           judgment of possession, not from the date of death.
           (The judgment can be amended and can be amended
           again. It is only after 30 years is there ultimate
       ii. Insurance: insurance companies will not pay out on
           a policy prior to a judgment of possession. If there
           is a named beneficiary, there is no problem.
           However, the beneficiary can be the estate for the
           reason pf paying the debts of the decedent or his
           taxes. The ins. co is justified in refusing to pay.
           This is to avoid double payment.
      iii. State Inheritance Taxes: We no longer have this as
           of July 1, 2004. However, the jurisprudence so
           interpreted the code and the revenue tax provisions
           in such a fashion that it was no required. This was
           an attempt by state revenue concerns that the
           judgment of possession be mad ea tax collection
           device, but it was ineffective because a judgment of
           possession was not necessary.
      iv. Banks, Homesteads and Corporations are protected
           when they pay the surviving spouse and hiers
           recognized in a judgment of possession. Bank
           accounts or other property like a CD in the name of
           the decedent. This may be the liquid assets that the
           heirs are going to use to support themselves or to
           pay off the debts of the estate.
       v. Unworthy Successor: an action to declare a
           successor unworthy, it must be brought in a
           succession proceeding of the decedent. This is
                1. Under art. 941: an heir is unworthy if he
                   was involved in the intentional killing or
                   attempted killing of the decedent or is
                   judicially determined to have done so.
d. Now these are the effects of the new law.
                i. Ownership is transmitted at the moment of death to
                   all successors.
               ii. Under art. 936, the possession of the decedent is
                   continued in the successor for purposes of
                   acquisitive prescription.
                        1. A particular successor may commence a
                           new possession at the option of the
                           particular successor.
                        2. A universal successor does not have a
                           choice. They step into the shoes of the
              iii. Ownership and rights of the successor are likewise
                   transmitted to their own successors even if they
                   have not yet accepted the succession.
                        1. If the successor should die before accepting
                           the succession, his rights are transmitted.
              iv. All successors may exercise rights of ownership as
                   to the property (938(a)) even if there has been a
                   qualification of the succession representative. The
                   succession rep has seizen, but the hiers have
                        1. Succession of Cutrer: one of the successors
                           was a general legatee who sold his interest
                           in the succession to a third party. He did
                           this after the succ. rep. qualified. The sale
                           was not null, it was just subject to the
                           administration of the succession. The buyer
                           gets the residue.
                        2. The purpose of an administration is to pay
                           off the creditors of the decedent.
4. Definition of Successor (3506)
      a. a successor is a person who takes the place of another. The
           universal successor is an intestate heir and also the
           universal legatee and the general legatee. They all get
           ownership, but as the definition suggests, only the universal
           successor represent the person of the deceased.
                i. the universal successor succeeds to all rights and
                   charges and represents the person of the deceased.
                   (See 3506(38))
                        1. this deals with something other than
                        2. inherits with respect to the heritable rights of
                           the decedent. May institute actions, assert
                           rights and have obligations asserted against
                         ii. the particular successor succeeds only to the rights
                              appertaining to the thing which is sold or
                              bequeathed. He does not succeed to the person.
                 b. It can also refer to a buyer, a transferee, who steps into the
                     shoes of the seller, the transferor.
iii. 938 Exercise of Succession Rights
         1. a successor may exercise rights of ownership with respect to his
             interest in a thing of the estate as well as his interest in the estate as
             a whole.
         2. After a succession representative is appointed, if a successor
             exercises his rights of ownership, the effect is subordinate to the
             administration of the estate.
                 a. it is not null
iv. In 1999, the presumptions of death were eliminated. These are called
         1. This deals with situations like a young married couple with no
             children. They principally have community property and die in a
             car accident intestate. If it is impossible to establish which of the
             two died first from the testimony of witnesses or scientific or
             medical evidence, it is considered a case of simultaneous death.
             This means that ½ belongs to each and their respective halves are
             treated as separate property and devolve to their descendents
         2. Before the change, there were certain presumptions of death made
             on age and if they were born in the same year, then the male was
             presumed to survive. As such, the wife’s ½ interest in community
             would go to the husband and in effect it would devolve on HIS
             heirs. This is no longer the case. The elimination of the
             presumption allows the wife’s heirs to inherit.
         3. Insurance is sui generis.
                 a. Ex.-H dies and W is beneficiary. H’s mother is also a
                     beneficiary. The insured husband is presumed to survive
                     the beneficiary so the ins. proceeds would devolve to the
                     alternate beneficiary. (This is only relating to intestate
 v. Case law(these cases are prior to a change in the law) If the plaintiff is
     asserting a right of ownership, it doesn’t matter whether it is a universal or
     a particular successor.
         1. Knighten v. Taylor: the plaintiff granddaughter is asserting a right
             of ownership in real estate. She is a testate successor. The son got
             possession and mortgaged the property. She is seeking a partition,
             a right of a co-owner
         2. Robinette v. Myers: still have to prove, death, heir ship and
             freedom from death and the property to be partitioned constitutes
             the entire estate.
         3. Jones v. McDonald’s Corp.: the plaintiff claimed ownership of the
             property and brought an action for property damage against
                        McDonald’s. Construction created ingress and egress to her
                        property. She alleges the property was hers because of an
                        unrecorded counter letter. In the alternative, she asserts the right to
                        bring the action as a forced heir. (She would not be a forced heir
                        today.) If she is exercising her ownership right as a successor to
                        the property or if she is the universal successor she still has the
                        right to bring the action.
                    4. Promissory note as an example. This brings up the question of
                        succession to the person or succession to property. Spaht thinks it
                        is prob. succession to the person because you are stepping into the
                        personal rights and obligations of the decedent.
VI.   Loss of Succession Rights
      a. Sometimes a person never has succession rights. So the title is not accurate. We
         deal with one who was a successor and loses his rights and one who was never a
         successor. There is a distinction between lacking capacity and never succeeding
         and one who is unworthy.
                    1. Capacity: You have to have capacity to succeed.
                            a. 936-946 are the pertinent code articles
                            b. 24-26 Natural and Juridical persons. Legal personality
                                begins at conception subject to the condition of being born
                                alive. The state is a juridical person. This is the only
                                example of a person who is a juridical person who succeeds
                            c. There are independent rules for intestate succession
                                dealing with capacity.
                            d. The only test for capacity is that the successor be in
                                      i. The natural person must be born alive.
                                     ii. However, the child can be conceived after the death
                                         of a parent and be considered a successor. You can
                                         be conceived and still a natural person with capacity
                                         as long as the baby is born alive. 939-the successor
                                         has to be in existence at the moment of death of the
                                         decedent. Conception makes you in existence.
                                    iii. You can pinpoint conception if born within 300
                                         days of termination of the marriage (death). This is
                                         liberal because we are not elephants.
                                    iv. there is a real problem with assisted conception like
                                         in vitro fertilization. 9:121. The in vitro fertilized
                                         ovum does not get inheritance rights if the ovum is
                                         donated to another couple. When it reached the
                                         stage of 8 cell division, it becomes a fertilized
                            e. Problems that complicate the capacity analysis
                                      i. LSA RS 9:133 deals with assisted reproduction.
                                         Inheritance rights of in vitro fertilized ovum. The
         ovum does not inherit until born. A natural person
         must be born alive and the statute includes this, but
         it fails to determine when conception occurs in the
         case of in vitro. This is important because legal
         capacity attaches at capacity.
              1. Art. 26 comment b-is titled to unborn child.
                   It was changed from “Children in the
                   Mother’s Womb.” This implicitly suggests
                   that conception occurs before implantation.
                   However, it might not be appropriate
                   because the ovum has not been implanted.
              2. Compare to the articles on testate
                   succession. A natural person has legal
                   personality to receive or accept a donation
                   mortis causa or inter vivos under CC 1474
                   the child must be in utero at the time the
                   donation is made. This only has inferences
                   for intestate succession. The legislature was
                   very specific in this case. Other articles are
                   more open ended.
              3. The moment that the fertlilized egg becomes
                   a fertilized ovum is defined in 9:133. The
                   ovum can be a juridical person long before it
                   has legal capacity. The embryo has legal
                   personality within 36 hours as long as it
                   continues to develop. But the child born
                   alive can acquire rights over a long period of
                   time. There are problems with frozen
                   embryos that are donated to parents who do
                   not have the embryos genetic material.
              4. Way back in 1988, a Tulane law student
                   drafted the law on in vitro fertilization in
                   order to protect doctors from liability.
f. LSA RS 9:391.1 Child conceived after death of a parent
      i. This is a narrow exception but provides another
         alternative to art 939. This child is conceived after
         death and is clearly not in existence, not conceived
         at the time of the death of the decedent, the moment
         succession occurs.
     ii. It is narrow in the sense that first, the child must be
         born to a surviving spouse, the child of a married
         couple. Conception occurs after the death of the
         husband if his gametes are used in accordance with
         his authority in writing and the child is born within
         3 years of the father’s death.
             iii. This came from a particular case, the Heart case,
                  involving his social security benefits. The statute
                  was made retroactive. She was considered his child
                  and in existence at the moment of his death.
     g. Gestational Surrogate
               i. The other complication in assisted reproduction is
                  for a child born to a gestational surrogate. LSA RS
                  40: 32(1). The embryo would be implanted in a
                  relative. According to this law, if the gestational
                  surrogate is a relative AND the intended father and
                  mother are the genetic parents and the service does
                  not involve a payment, the genetic parents are to be
                  listed on the birth certificate as father and mother.
              ii. Surrogacy is different when it is paid genetic
                  surrogacy. Such a contract itself is unenforceable.
                  The person who gives birth to the child is to be
                  considered the mother. This is the inference of Title
                  40 and this is consistent with the understanding of
             iii. 9:2713 does not deal with gratuitous surrogacy.
2. Unworthiness
     a. the code provides a means to disinherit in intestate
         succession. testate succession can do this by a mere
         holographic will. It applies in both testate and intestate
     b. In the case of intestate, there must be a judgement declaring
         the successor unworthy. It does not happen automatically.
         This distinguishes us from the French whereby the act
         itself, the person becomes unworthy.
     c. Under 941, the circumstances that give rise to unworthiness
         are fairly serious.
               i. They include a conviction for the killing or the
                  attempted killing of the decedent. This can be
                  conspiracy. This only includes intentional killing.
                  The predecessor to 941 was amended so that it
                  would be specific to intentional killing.
              ii. A 5th circuit 1987 case, Provencal, deals with a son
                  who was engaged in an altercation with his mother.
                  He admits striking her because she was drunk and
                  he was trying to sober her up. She hit her head and
                  died. He was charged with 2nd degree murder but
                  pleaded guilty to manslaughter, which does not
                  involve intent. The court found that he was
                  unworthy even though there was no intent.
             iii. The legislature then amended the law to require
           1. Perrier v. Bistes: the plaintiffs were siblings
               of the deceased. The husband and the his
               siblings took the deceased off of life
               support. ¶ wanted them to be declared
               unworthy for the intentional killing of the
               decedent. The court held that the intent of
               the legislature was not to include decisions
               at the end of life in enacting the new civil
               code article. They are concerned with the
               people who have to make an agonizing
               decision and then are faced with the
               possibility of litigation for murder. Judge
               Plotkin dissents and said the intentional
               breach of a duty to provide medical care
               when that failure causes the patient’s death
               for their own financial gain should be
iv.    The result might not be different. A conviction is
       not required. There is an alternative. There can be
       a judicial determination like a civil suit where a the
       petitioner can prove that the successor participated
       in the intentional, unjustified killing of the
       decedent. We are permitted the full range of
       inquiry and the burden is only the preponderance of
       the evidence. (This could have been sufficient in
       Provencal.) It is sufficient where the DA takes a
       plea bargain to a lesser count because he could not
       meet the burden of proof at trial. The legislature
       saw fit to create a situation where the DA’s decision
       would prevent the successor from being deemed
 v.    A pardon does not effect the unworthy status of the
vi.    Under 942, a person who would stand to inherit
       instead of the unworthy heir is the only person who
       can bring an action for unworthiness. It can be the
       person who concurs with the successor of one who
       would inherit in the place of the unworthy.
       Representation is allowed in this situation even
       though living persons usually cannot be
vii.   943: Reconciliation or forgiveness: a successor
       shall not be declared unworthy if he proves
       reconciliation with or forgiveness by the decedent.
           1. This occurs in attempted murder.
                                              2. Presumably, reconciliation might not be
                                                  overt forgiveness. Either would be enough.
                                                  There is jurisprudence which defines what
                                                  reconciliation is.
                                  viii.   There is a prescriptive period of 5 years from the
                                          death of the decedent to bring an action for
                                          unworthiness in an intestate succession. It has to be
                                          in a succession proceeding.
                                   ix.    The share of the unworthy successor devolves as if
                                          he had predeceased the decedent under art. 946.
                                          His share would be split among the other siblings.
                                          But where the unworthy is an only child who has
                                          children of his own, representation occurs. Article
                                          946 would depart from the basic representation
                                          article which says you cannot represent a person
                                          who is alive. So this is an exception. It does so for
                                          the same reasons that representation exists. Some
                                          act of their parent should not deny them the
                                          opportunity to inherit from ancestors.
                                    x.    The effect of this judgment under 945, the successor
                                          who at one time succeeded is deprived of his
                                          succession rights. He lost his right to the
                                          succession, but also lost the right to serve as
                                          executor, trustee, attorney or other fiduciary.
                                              1. An example of a fiduciary is a testamentary
                                                  tutor. You can designate a tutor for a child
                                                  if you are the parent dying last. You can do
                                                  this by a testament or a codicil.
                                              2. The unworthy heir could not serve as
                                                  administrator of the intestate succession.
                                   xi.    The unworthy heir who was to inherit had seizen.
                                          He has to restore the fruits and preserve and account
                                          for a diminution in value or the impairment in
                                              1. If he no longer has a possession by a transfer
                                              2. Alienate, encumber or leased suggests that
                                                  he still has possession. He has to account
                                                  for those encumbrances which diminish the
                                                  value. Third parties by onerous title are
                                                  protected, but gratuitous transferees are not.
                                                  It could be a loss of possession due to his
                                                  fault also. He does not have to account for
                                                  those losses that are not his fault.
VII.   Acceptance and Renunciation
       a. 947: A successor is not compelled to accept rights to succeed. A successor may
          accept some and renounce others. This is less of a problem with express or formal
acceptances than it is with tacit or informal acceptance. There were a number of
changes made on July 1 and the rules were liberalized.
    i. Under the old law, only the person who had the power to accept the entire
       succession could accept or renounce parts. This was because the person
       who was entitled to the whole thing was responsible for all the debts even
       if you renounced part. This goes beyond the old code article.
   ii. Acceptance can be formal or informal. Renunciation can only be express.
           1. Under 957, the words have been changed from express and tacit.
               These are terms used throughout the civil code. Spaht doesn’t like
               the new terms she said they are made up and create problems. It
               doesn’t flow with the civil code and you cant interpret by analogy
               the new terms.
           2. Formal acceptance is when the successor expressly accepts in
               writing or assumes the quality of successor in a judicial proceeding
                   a. Succession of Menendez: there were four acts which
                       constituted an acceptance. Unlike prior law, assuming the
                       quality of heir in a judicial proceeding was a tacit
                       acceptance. Under the new code article, this is formal
                       acceptance. However, there was unlimited liability before
                       the revision. So the consequences of a tacit acceptance
                       were serious and significant.
                            i. A motion to search for a will
                           ii. Inventory
                          iii. acting counter to or opposing the accounting of the
                               testamentary executrix as to property and final
                   b. Succession of Hart: the mere reference to children as heirs
                       that may be made in a petition asking for relief is NOT an
                       unconditional acceptance. They do not say tacit
                       acceptance. This is because they did not want an allegation
                       to move forward the judicial proceedings to be a formal
                       acceptance which would give them unlimited exposure.
                   c. This exposure does not exist today and they cannot be sued
                       until they get the property.
                   d. Succession of Menendez might be decided different today.
                       The court was looking for an act that implied acceptance of
                       the unconditional exposure. So would Succession of Hart.
           3. Informal acceptance (958-960)
                   a. informal acceptance-general principle. It has to be some
                       act that clearly implies an intention to accept. It has to be
                       an act that can ONLY be done by a successor is informal
                            i. Duplessis v. White: This case was a private sale of
                               property. We are trying to determine if the seller
                               was acting as an heir. She describes herself in the
                               act of sale as executrix and sole heir. The court
           thought this was an act of ownership that implies
           acceptance. Had she only referred to herself as
           executrix, she could have been performing an
           administrative act and it would not have been an act
           that implies acceptance. We need to determine if the
           same result would follow today? This could be a
           partial acceptance or possibly a total acceptance. It
           is unclear today because of the terms used in the
           code. Because it is informal, we do not know how
           to tell is she was accepting the whole or part of the
           estate. She could possibly only be proportionately
           liable for this part.
b. 959-what is NOT informal acceptance. An act that is
   merely administrative, custodial or preservative does not
   imply acceptance
c. 960-an act that would look like a renunciation but is in fact
   an acceptance.
        i. Aurienne v. Mt. Olivet: One of 4 siblings died
           intestate. She had no children and no living parents.
           The two brothers renounced the succession in the
           same authentic act so that the sister could inherit the
           entire succession. They renounced in favor of
           another person such that it permits the devolution of
           property in a different way than otherwise provided
           by law, it constitutes an acceptance. It is an act of
           ownership that aleintates part of your patrimony
           without getting anything in exchange. The issue
           was whether in the absence of the designation how
           the property would devolve. How would the
           property accrete. It would go to the heir of the same
           degree. Had they done it separately, it wouldn’t
           have devolved as the law provided. In this case,
           one of the brothers children challenged this as an
           excessive donation. The court said it was not a
           donation because they did what the law provided for
       ii. How would this case be different under the new
           law? According to art. 964, the rights of an
           intestate successor who renounces accrete to those
           persons who would have succeeded to them if the
           successor had predeceased the decedent. Had the
           brothers renounced in the same writing (not a
           notarial act) in favor of the sister today who would
           not otherwise receive the accretion today, this is an
           acceptance but not a donation because it is not in
           authentic form.
                          iii. Spaht says if the donation is null, how is this an act
                               of ownership, it is still a part of the brother’s
                               patrimony. This cannot be and does not make any
                   d. 966 says a person to whom succession rights accrete may
                       accept or renounce all or part of the accretion. The
                       acceptance or renunciation need not be consistent with his
                       acceptance or renunciation of other succession rights.
                            i. You can make a gift to your kids without gift tax
                               liability. This was written for wealthy people.
                           ii. So in the case of our hypo, one brother can
                               renounce and have his part go to his kids. Then
                               another sibling can also renounce, but the brother
                               who renounced can still get the accretion from the
                               2nd brother’s renunciation.
                          iii. You would have to renounce the succession and any
iii.   Now this partial acceptance or renunciation is different. The person who
       picks and chooses is liable personally and is only liable up to the cap. You
       have to know what is accepted and what is renounced. There is an
       accretion problem.
iv.    Renunciation must be express. It requires at least a writing. CC 963.
       This is a change in the law. It just to be in writing and in authentic form.
       This is the equivalent of a donation. This creates huge problems in art 960
       which is donative renunciation deemed acceptance.
 v.    Renunciation can be conditional now. You can accept or renounce
       conditionally. This is different as well.
           1. Moore v. Smith: the daughters renounced subject to the condition
               that the decedent’s husband would leave the property to them at his
               death. He reneged and changed his will. They found out several
               years later to have the renunciation declared null. The contract
               was also absolutely null because it had an illegal object-a future
               succession. The court decided to provide relief in the interest of
               justice. The daughters could get damages and restoration because
               they were not aware that the contract was illegal.
           2. Before death, one cannot accept or renounce. This is a nullity and
               consistent with 1976. A future succession cannot be the legal
               object of a contract. This was interpreted in Moore where the
               object of the contract was the stepfather’s future succession.
           3. A legacy subject to a suspensive condition may be accepted or
               renounced before the condition is fulfilled. Prior law did not
               permit one to accept before fulfillment of the condition.
vi.    Effects retroactive: once a successor accepts or renounces, it is retroactive
       to the date of death of the decedent.
b. For good cause, the successor may be compelled to accept or renounce. This
   would occur when the succession has been opened and the admin wants to
   distribute the property, but the successors have failed to accept or renounce.
c. Minor deemed to accept. CC 948. This is a conclusive presumption. It used to
   be with benefit of inventory which now applies to all successors. However, for
   the first time here, the legal representative of the minor may renounce on behalf
   of the minor when expressly authorized by the court. It’s hard to come up with a
   case where the child should renounce because there is limited liability. This
   presents ethical dilemmas and conflicts.
d. There is a presumption of acceptance.
e. A successor inherits at the moment of death. Universal successors are liable
   personally for the estate debts in proportion to the part which each has in the
         i. Estate debts are debts of the decedent and the administration expenses.
            Includes funeral expenses and costs of preservation and management of
            the estate.
        ii. Each is ONLY liable to the extent of the value of the property received.
            (It is valued at the time of receipt.) So there is personal liability for estate
            debts, but there is a cap based on the value of the property received.
            However, the personal liability is NOT limited to the exact property that
            the successor received. It’s about the value of the property rather than
            what you actually receive.
                 1. A creditor has no action for payment of an estate debt against a
                     universal successor who has not received property of the estate.
                         a. Solidary or Joint: proportionate suggests joint obligors. If
                             it were solidary it would be the full sum. Further the
                             comments support this.
                 2. 1416 does not requires a sworn detailed descriptive list.
                 3. 1416 was amended to exclude the fruits and products of the thing
                     received. This was removed and now it is limited to the value of
                     the property received.
                 4. In Hebert, the court interpreted it as personal liability with a cap.
      iii. 961: prior to creating the presumption it directs you to 1416 (B). This
            intended to extend limited liability to all heirs without the requirement of
            1421 of either an inventory or a sworn detailed descriptive list. Personally
            liability for a proportional part. There is a cap on liability which is limited
            to the value of the property received at the time it is received. Despite
            427, you can sue to enforce only once the universal successor has received
            the property because you do not know what the liability is until the
            property is received.
       iv. Under art. 962, acceptance is presumed despite what we know about
            seizen. The presumption of acceptance is new. This is because of the
            limited liability that successors incur. Before July 1, 1999, one accepted
            unconditionally. There was acceptance with benefit of inventory with a
            sworn detailed descriptive list. The benefit of inventory allowed limited
       v. 956 Confusion. A successor is a creditor may assert his rights. A
           successor who accepts is permitted to assert his claims against the
           succession. This suggests the succession is an entity separate and apart
           from the successors. The right is united in the same person and the
           obligation is extinguished by confusion. 1416 has a corresponding right to
           file a claim as a creditor. The people who drafted the code see the
           succession under administration. Spaht does not like this.
f. Prescription
        i. 962, the presumption of acceptance changes Sun Oil v. Tarver:
                1. an heir has 30 years to accept a succession. Prescription begins to
                    run from the date of death. One person suggests that it should start
                    from the moment the heir takes possession.
g. Creditors of Successors
        i. If a creditor is a successor he may assert a claim whether he accepts or
           renounces succession rights. CC 956. This violates the principal of
       ii. even though an heir may simply renounce, if the heir who renounces has
           creditors, under 967, a creditor may seek to revoke the renunciation and
           accept. He can revoke the renunciation only to the extent of the debt
           owed. It requires judicial authorization.
      iii. This is a revecatory action under 2036. A creditor may act to revoke an act
           that creates or increases the debtor’s insolvency. It only extends to the
           amount of the debt owed. It is a unilateral act by the successor. The
           creditor is seeking to enforce the rights of the debtor which the
           debtor/successor has failed to exercise.
                1. oblique action: 2044
                2. revocatory action under CC 2036-this does not require proof of bad
                    faith as of 1985.
                3. However, Under 967, it has to be to the prejudice of his creditor’s
                    rights. This means that one has to prove that the renunciation was
                    in bad faith in that it intended to injure the creditor. Succession of
                    Newhauser. So, present injury by the creditor and bad faith both
                    required. As such, it is a higher standard than the normal
                    revecatory action.
                4. Policy reasons: renunciation can be motivated by something other
                    than injury to creditors. It has to be a renunciation to the prejudice
                    of the creditor’s rights. In intestate succession you deal with close
                    family members like in Aurienne where the renunciation was to
                    benefit another family member not to injure a creditor.
h. Responsibility of Successors among themselves
        i. 1420 and seq. (Section 3): regulation of payment of debts by testament or
           by agreement among successors. However, you can’t impair the rights of
           creditors of the estate.
       ii. Different types of debts are charged to different types of property. This
           section is probably mistitled. This section contemplates administration by
           the executor about paying creditors. This tells the administrator what
                    property to charge with what debts and allocate receipts and pay other fees
                    and debts. This responsibility is joint and supplemented by a special
                    subrogation right limited recovery to the extend of the value of the
                    property received.
               iii. Debts of the decedent are charged to the property itself. Fruits and
                    products go towards the costs of administering the succession.
               iv. 1425: a successor is not liable for contribution or reimbursement who has
                    not received property of the estate or its fruits and products. The
                    legislature forgot to amend this. This is a negative inference-you are
                    liable if you do receive property.
                         1. Contribution: legal term of art. It is used anytime there is a
                             situation where there is a solidary obligation. It is determined
                             under CC 1804/2324. There is also an obligation for
                             indemnification where one is responsible for the whole even
                             though he can be indemnified by the other.
                         2. Joint obligors-this is different-However, if a joint obligation is
                             indivisible, then one obligor can be liable for the whole. Under
                             1829, the legislature added 1829, the law does not rely on the
                             solidariness of an obligation to allow subrogation. If a successor
                             voluntarily pays the estate debts, entire thing out of the property,
                             with his own funds, subrogation arises by operation of law.
                v. Now, the successor is not liable to the creditor until he receives property.
VIII.   Collation
        a. Successions calculation problem
        b. Collation generally
                 i. Hainkel decided to retain the law on collation. The collation of goods is
                    the supposed or real return to the mass of the succession which an heir
                    makes of property he received in advance of his share or otherwise in
                    order that such property may be divided together with the other effects of
                    the succession.
                         1. taking less against your share that you are to receive from the
                         2. real return: occurs when you surrender the property given to you
                             in advance so it can be divided with the other effects of the
                                 a. This happens with immovable property. You can collate or
                                     do so in kind. This has implications for later.
                ii. Some people will be asked to return what they received from the decedent
                    prior to the decedent’s death.
               iii. 1227 et seq. We are dealing with actual collation even though how you do
                    it can be supposed or real. This also involves forced heirs to some extent.
                    Their right to demand collation is confined to heirs of the first degree who
                    qualify as forced heirs.
                         1. Fackier deals with the difference between real and fictitious
               2. Fictitious collation: at death we take the value of the property of
                   the decedent and subtract from that the debts owed by the decedent
                   and arrive at the “net estate” to which we add back to the net estate
                   donations made within 3 years of death. We are reconstituting the
                   estate as it would have looked had the decedent not donated his
                   property. We do this for forced heirs to ensure they receive their
                   forced portion. This is entirely different, but related.
               3. CC 1505 is fictitious collation. We use this for determining the
                   forced portion when there are forced heirs. A forced heir is
                   entitled to his legitime. If there is more than one, the forced
                   portion. We want to be sure that the forced heir receives the
                   property the law reserves for them. The collation is fictitous in
                   that after we look at the assets minus the debt you get the net
                   estate. According to 1505, we add back fictitously the donations
                   inter vivos within 3 years of the decedents death. Then you get the
                   active mass of a succession. We calculate the forced portion and
                   its complement, the disposal portion. (1/4 if one heir, ½ if more.
                   The legitime is each forced heirs share).
                        a. Actual collation has a bearing on whether the forced heir
                           has already received the forced portion.
                        b. See the example of the decedent with 5 forced heirs. The
                           forced portion would be ½ of the estate. The legitime of
                           each would be 1/10 of the estate.
      iv. CC 1493: there is limited representation for grandchildren whose parents
           predeceased the decedent and whose parent would have been under the
           age of 23. The other category is children of the heir in the first degree
           with permanent mental or physical incapacity when the heir in the first
           degree predeceases the decedent.
c. Purpose of Collation
        i. Equality between the heirs-under natural law that you treat children
d. Persons entitled to demand collation
        i. descedents of the first degree who qualify as forced heirs and only for gifts
           made within 3 years of the decedents death. So they must be at least one
           forced heir to demand it.
               1. descendents of the first degree under the age of 24
               2. persons permanently incapable of caring for themselves
       ii. However, under 1228, children or grandchildren, coming to the succession
           must collate what they have received by donation inter vivos directly or
           indirectly and they cannot claim the legacies made to them by such
           ascendants unless the donations or legacies have been made to they
           expressly as an advantage over their co-heirs and besides their portion.
      iii. This is an obligation to DO something-to collate-1235, is a right to
           demand. The forced heir does NOT have to exercise this right.
      iv. An obligation is different from a right to demand. This means that other
           descendents may owe the obligation of collation as long as there is a
          forced heir. Donations inter vivos and advantages must be collated. In
          fictitous collation all gifts made must be collated. In actual collation, there
          are conditions for collation-forced heir in the first degree.
      v. There may be no way to provide for the forced heirs forced portion.
     vi. Representation takes place and can make them descendents in the first
    vii. Creditors may NOT seek collation or reduction.
e. How can a decedent rebut the presumption of collation?
       i. 1231: you can formally express it in a will
               1. Notarial will
               2. Olographic will: entirely handwritten in the testator’s hand and
      ii. 1232: you can express it in an act of donation
               1. do this for immovables and incorporeals which requires a notarial
               2. this excludes manual delivery of corporeal movables because it
                  does not require an act. However, you can do a notarial act
                  afterwards that indicates the gift is an extra portion or advantage
               3. Every gift you give after is exempt from collation if you state in
                  the will no collation.
     iii. 1233: the declaration that the gift is intended as an advantage or an extra
          portion, may be made in equivalent terms, provided they indicate in
          equivalent terms that that is the will of the donor.
     iv. If you execute a last will and testament where you refer to exempting gifts
          from collation, they will be exempt before and after the will was drafted.
      v. 1467: Donations inter vivos and mortis causa-legacies are the two ways of
          making gratuitous dispositions. The code suggests that both should be
          subject to collation.
               1. Jordan v. Fillmore is frequently cited for the proposition that
                  legacies are not collatable. This case does not stand for the
                  proposition for which it is frequently cited.
               2. Succession of Fakier cites this as well. All of the jurisprudence is
                  to the effect that only donations inter vivos are subject to collation.
                  A mother wanted to equalize her succession because her son got
                  more after her husband died and the daughters did not get as much.
                  The wife stipulated in the will this intent. According to the court
                  in this case, the annuity policy is not subject to actual collation.
                  They do not decide whether the annuity policy should be collated
                  fictitiously for calculating the active mass of the succession.
                  However, the ring was a donation inter vivos. There was no
                  reference to the ring in the will. There was no authentic act
                  because it is a corporeal movable. There is no act after the
                  donation either. We must focus on the will. The court suggests
                  that statements made around the time of the gift would not be
                  sufficient to exempt it from collation.
                      a. Manual gifts to one child are not subject to collation when
                          the gifts are for his pleasure or other use. The court
                          examines this language.
                      b. The case cites Succession of Gomez-the whole theory is
                          developed about the meaning. They say it is a usual and
                          customary gift given by a parent to a child.
                      c. Succession of Odum: the decedent bequeathed everything
                          to his 4 children, but he had another child who was from a
                          prior marriage. He donated his property into an inter
                          vivos trust. That child wants more than her forced portion,
                          she wants 1/5. The court says no collation because the will
                          showed that he did not intend the forced heir to share in the
                          disposable portion.
                      d. Succesion of Hausey: the new law applies in this case.
                          The decedent has an olographic last will and testament.
                          He wanted collation for gifts beyond 3 years prior to his
                          death. He wanted collation to make sure his 8 kids were
                          treated equally. No forced heirs so no one could demand
                          collation. He could stipulate it and he did.
              3. By making some a universal or residual legatee, this was enough of
                  an intent of showing that that child was favored.
f. To whom collation is due and what things are subject to it
       i. 1242: collation is made only to the succession of the donor
              1. Community property? Collation is due by halves. if all the gifts
                  were community property, the donor only owned half. Donation
                  requires concurrence of the spouses if made to a third party except
                  for usual and customary gifts made in accordance with the
                  economic position of the spouses. The other spouse can ratify a
      ii. We will learn what is exempt from collation by law and those things
          would not appear to be a gift but is considered an advantage given to a
          child or grandchild
              1. Examples of advantages include paying debts. See Succession of
                  Hawsey which involves advantages. The advantage does not have
                  to be direct. For instance, suppose a person pays the debt of
                  someone else. This is a gratuitous donation.
              2. Procuring an establishment: this is doing something to set up a
                  child in a business like purchasing inventory and giving the use of
                  a building.
              3. See Darby v. Darby where the parent pays debts of some children
                  and it bankrupts the family. Some children received advantages,
                  but the mother tried to equalize it with a donation of immovable
     iii. 1244 and its relation to 1245
1. 1243-corporeal movables given by parent to child for his own use
   and pleasure-customary or usual presents given to a child. No
   accounting to the other brother and sisters
2. 1245-ids what is NOT subject to collation
3. 1244 exempts marriage presents from collation. There is an
   exception here for making a future succession the object of a
   contract. We used to have articles on dowry. That’s why this is
4. Board, support, education, apprenticeship are subject to collation.
      a. Succession of Gomez: it is a legal obligation for parents to
          provide support to children under 18 unless there is a
          special extension unless you are still in high school and
          under the age of 19. There is a special section for disables
          children who parents have an obligation to support longer-
          until 22? As long as there is this legal obligation, it is not
      b. Art. 229-Children owe parents or grandparents until their
          death to support them with basic necessities including
          healthcare assuming that they cannot get it from another
5. 1246-48-It is as if the redactors thought there needed to be special
   guidance through fixed rules.
      a. 1246-Profits made from a contract with an ascendant are
          not collatable unless the descendent got some indirect
               i. Succession of Pierson: Parent gave two sons
                  periodically free rent in a garage apartment and also
                  allowed one to live in the house. The issue was
                  whether this free rent was a profit that gave an
                  advantage to the two sons over the other children.
                  The gift was an incorporeal right. The court
                  concluded that the son who lived in the garage
                  apartment and cared for her did NOT have to
                  collate. He took the place of a 24 hour caretaker.
      b. 1247-Partnership-it assures that as long as it is proved by
          an authentic act. Collatable??? See code article. Authentic
          act suggests that this is a gift. There are no cases under this
      c. 1248-indirect advantage: A father who sells a thing to his
          son at a very low price or has paid the price for him or has
          spent money to improve his estate is subject to collation
               i. Very low price-look at 2444 and 2026. So the price
                  would me more than a quarter of the value at the
                  time of the sale but still a really low price. Between
                  half which would be lesion and ¼ the value.
                                ii. This sale is not a donation as specified in the article.
                                    Sale of immovable property from a parent to a child
                                    can be attacked as a donation in disguise if no
                                    price was paid or if the price was LESS than ¼ the
                                    value of the immovable at the time of the same.
                                    This is a relative simulation.
                               iii. A sale could also be an absolute simulation where
                                    the parties do not intend for the contract to have any
                                    effects. Here no price was paid as well. 2480 when
                                    the seller remains in possession, the sale is
                                    presumed to be an absolute simulation. This is
                                    treated as an absolute nullity and it is still in the
                               iv. Lesion beyond moiety: “injury beyond half”-less
                                    than half the price
                       d. If the father makes this sale at a very low price as a
                           disguised donation rather than a very low price, more is
                           needed to exempt it from collation. Montogomery v.
                           Chaney: the intention to exempt from collation must be
                           expressed in unequivocal terms and the form that the gift is
                           made is immaterial.
               6. Representation by Grandchildren of Children
                       a. If the gift is given while the parent is alive is not collatable.
                           However, a gift given to the grandchild after the parent is
                           dead, is subject to collation. It is given in advance of what
                           he may one day receive.
                       b. However, gifts to the parents are collatable.
                       c. Grandchildren who inherit in their own right. Father has
                           one child, Y. Y predeceases his father. Y has 3 children.
                           If a gift given to Y, the 3 children inherit in their own right.
                           They are not obligated to collate the gift to the father. This
                           is important for the collation problem.
g. Prescription
        i. 1242 says Collation is made only to the succession of the donor. Collation
           is made by halves for community property. It is a personal action.
       ii. There is a 10 year prescriptive period. It begins to run from the date of
           death of the decedent. However, under the jurisprudence, once a
           Succession is “closed,” an heir cannot claim collation whether or not
           collation has run. Succession of Doll.
               1. Spaht does not like this because a succession is not an entity
               2. However, if the judgment of possession is null for fraud or ill
                   practices, then as long as it is within the 10 year period, the heir
                   can make a claim for collation because the “thing” is back in
      iii. 1251-1285-how collations are made
                     1. 1235-you can collate in kind or you can take less. These are a
                         mess. Any provisions to the contrary are hereby repealed. This
                         would make the following repealed. The donee can manipulate the
                             a. movable property depreciates typically so you have to use
                                 at the time of the gift
                             b. immovables appreciate-so you can use the value at the time
                                 of death
IX.   Donations Inter Vivos and Mortis Causa
      a. 1467-Direct Gratuitous Donations
              i. Property can neither be acquired nor disposed of gratuitously unless by
                 donations inter vivos or mortis causa. This refers to direct ways of
                 disposing of property gratuitously.
             ii. 1523-1535 General Dispositions
            iii. 1536-Forms of Donations
            iv. 1519-1522 Donations against public policy
                     1. 1769-There are other specific provisions under general obligations.
                             a. Suspensive conditions-prevents the creation of a perfect
                                 obligation. A suspensive condition that is impossible is
                                 null because it is not an obligation. If it is against good
                                 morals, it encourages the person to violate the law. A
                                 resolutory condition does not have the same effect.
                             b. Recognizes that 1519 is an exception. The results are
                                 decidedly different in the case of a donation. It punishes
                                 the donor.
             v. 1529-Donation conditional on will of donor
                     1. Another example of the dichotomy. This is a purely potestative
                         condition. A donation inter vivos made on a condition which
                         depends on the sole will of the donor is NULL. Compare to CC
                             a. If something is based on the whim of the donor, he does not
                                 bound himself. The donor has not restricted his legal
                                 freedom. This is comparable to an impossible condition.
                             b. In the case of a resolutory condition, the obligation is
                                 perfect immediately. This does not depend entirely on the
                                 whim of the donor. The obligation is valid but it is
                                 dependent on his will and must be performed in good faith.
                                 The results are different from a conditional obligation.
                                      i. I promise to sell you this boat unless I move to
      b. Gratuitous Donations
              i. other onerous contracts do not fall under this rule. Many are exempted
                 from the calculation of the disposable portion. The effect of taking out
                 these proceeds reduce the amount of the actual mass.
                     1. Life Insurance contract
      a. is an onerous contract between the insurance company and
         an insured. There is usually a third party beneficiary.
         However, insurance contracts are sui generis. The insured
         can change the beneficiary so it is not treated as an ordinary
         third party beneficiary contract.
      b. This contract goes into effect at the death of the insured.
         This makes it like a donation mortis causa. A donation
         mortis causa would come out of the assets of the estates.
      c. 22:647 Exemption of proceeds: life, endowment, annuity.
         This exempts these amounts from claims of creditors.
      d. the proceeds of a life insurance or an endowment policy are
         exempt from all liability. It goes directly to the beneficiary.
      e. 1505(c): Calculation of disposable portion on mass of
         succession. This deals with LIFE insurance only.
              i. Neither the premiums nor the proceeds paid
                 pursuant to such coverage shall be included in the
                 calculation of the disposable portion. They do not
                 want premiums to be included as donations inter
                 vivos. It is NOT a part of the 1505 calculation for
                 determining the legitme and disposable portion of
                 the decedents estate
             ii. The value of life insurance proceeds payable to a
                 forced heir beneficiary shall be deemed applied and
                 credited in satisfaction of his forced share. It is
                 applied as a matter of law.
                     1. If the forced portion is actually smaller, the
                         forced heir does not have to account for
                         these amounts to the other heirs.
                     2. However, if the amount is not payable to a
                         forced heir, then they owe actual collation if
                         it is demanded but there is no credit??? They
                         get it free and clear of any claim that might
                         be made against them by other heirs to
                         equalize with they have received.
2. Annuity Policy
      a. For an annuity policy, the rights of forced heirs are saved-
         collation and reduction. It is exempt from claims of
         creditors of the decedent. In the collation calculation, it is
         put at the same place as Donations Inter Vivos. Forced
         heirs have rights that may be asserted against the
         beneficiary. Those rights are calculation and reduction.
3. Employer and employee contributions-1505(d):
      a. not included in the calculation of disposable portion on
         mass of succession. This is an onerous contract so not
         required to be in the form of a donation mortis cause. It is
         analogous to a life insurance contract. The proceeds are
          treated just like life insurance. Payments made into the
          fund are treated just like premiums. The proceeds are NOT
          to be part of the calculation.
      b. This means another big chunk is out of the calculation. The
          forced portion is getting smaller and smaller. The effect of
          all of this is that injustice may occur.
4. Savings Bonds
      a. Federal law preempts LA state law on this matter. This
          was a means of government borrowing. The feds needed to
          be able to pay the designated beneficiary or the co-owner
          without probate proceedings.
      b. This is an onerous contract between the purchaser and the
          government. There can be alternative co-owners rather
          than a beneficiary. They come in to forms
          owner/beneficiary binds or co-owner bonds where the bond
          is paid to either designated co-owner upon surrender. The
          latter is often used to make a gift to the other co-owner.
      c. The jurisprudence is superimposed on Louisiana law and
          other states. There can be no interference. The feds just
          pay the face amount of the bond.
               i. Free v. Bland: community property where the
                   owner designates a person other than a spouse as
                   beneficiary or co-owner. The state claim may be
                   asserted against the beneficiary to account after
                   payment. The state wanted to ensure that its
                   community property law would not be subverted.
              ii. Yiatchos: community property case that came later
                   and concluded that after payment by the US
                   government there could be a claim asserted under
                   state law against the beneficiary or the surrendering
                   co-owner IF there was FRAUD or breach of trust
                   tantamount to fraud by the purchaser.
                       1. (Is there a federal definition of fraud like
                            there is for domicile. Spaht says not usually.
                            All states recognize certain features of fraud,
                            but Louisiana varies the most.)
                       2. Breach of trust-there must be some
                            relationship of trust. The definition in
                            Yiatchos suggests that the purchaser of the
                            bind could have disposed of the property
                            under state law other than by US savings
                            bonds. Ex. community property, once can
                            say the purchaser of a bond using
                            community property and naming a 3P
                            beneficiary other than the spouse could not
                            dispose of the other spouse’s half interest at
                                                 death. So without the necessity of proving
                                                 fraud, you can prove breach of trust
                                                 tantamount to fraud. Spouses are not
                                                 fiduciaries of each other during the existence
                                                 of the community property regime.
                                    iii. Succession of Guerre: 1967 Court of Appeal case
                                         where writs were refused. The court held that
                                         forced heirs have a right to proceed according to
                                         law in an action for reduction of excessive donation
                                         against the surviving co-owner. There is
                                         constitutional protection given to forced heirs and
                                         what was done in this case circumvented state law.
                                    iv. Osterland v. Gates (1981): Do US Savings Bond
                                         go into the 1408 calculation? This is a LA Supreme
                                         Court case from 1981. They distinguished from
                                         Guerre and said that collation was not allowed in
                                         this case. The sisters in this case were not forced
                                         heirs. Moreover, under LA the decendent could
                                         have disposed of this property gratuitously and done
                                         so freeing it from collation. They were not
                                         circumventing a policy of Louisiana law.
                                     v. Ridgeway: there was a divorce with 3 children.
                                         There was a judgment where the husband was
                                         supposed to keep life insurance with his children as
                                         beneficiaries. He changed the new wife to the
                                         beneficiary. There was no fraud or breach of trust
                                         tantamount to fraud so the children could not make
                                         a claim against the beneficiary to receive what was
                                         paid to her.
                            d. What about reduction? You can exempt property from
                                reduction under LA law by putting it in a retirement plan or
                                something like that. Therefore, it would not be a breach of
                                trust. So there is no claim for reduction for US Savings
                            e. Boggs: US Supreme Court case in 1997. This is most
                                important for community property. This case deals with
                                ERISA and federal preemption. These plans are exempt
                                from state community property claims. An ERISA
                                regulated private pension was treated like annuities and
                                U.S. Savings bonds. After Boggs, we no longer do this.
X.   Capacity to Give and Receive
     a. Persons must have capacity to give and receive.
             i. Person has a legal meaning. There are natural and juridical persons.
            ii. The state is treated as a person, the equivalent of a juridical person, by
                nature of its existence.
      iii. The capacity to receive an inter vivos donation-the person must exist at the
           time of the donation. For donations mortis causa, the recipient must exist
           at the death of the decedent.
                1. Unborn children must be in utero when the donation is made. The
                   child must be born alive.
                       a. 1474 is different from the general rule in art. 25. Nothing is
                            said about whether the child must be in utero.
                       b. This gives us the possibility of in vitro-conception in a petri
                       c. 9:391: Nothwithstanding the provisions of ANY law to the
                            contrary, a child conceived after the death of a decedent
                            using his gametes shall be deemed the child of such
                            decedent, with all rights including the CAPACITY to
                            inherit from the decedent, as if the child were in existence
                            at the time of the death of the deceased parent (if the child
                            is born within 3 years of the decendents death).
                                 i. This is limited to a married couple, whose spouse
                                     dies and gives permission in writing.
b. Incapacity to Receive
        i. Juridical Persons-
                1. in testate successions, private juridical persons-corporations and
                2. the personality of a juridical person is distinct and distinguishable
                   from that of its members. The patrimony of a juridical person is
                   distinct from that of the patrimony of its members
                3. An unincorporated association may possess legal personality for
                   certain purposes.
                4. However, unauthorized corporations may acquire and possess
                   estates. However, this does not give the corporation the capacity
                   to give and receive donations.
       ii. Jurisprudence
                1. Fisk: the decedent gave his brother a $100,000 donation. Some of
                   the children were in existence at that moment and some were born
                   later. The disposition can only be valid if it took effect at the
                   moment of death of the testator. According to the court, this
                   disposition was a usufruct to the legatee brother, naked ownership
                   to the children of the other brother. Usufruct is a disposition over
                   corporeal movable. You have to use it to enjoy it which means
                   you expend it. Any interest is a fruit, but you have an obligation at
                   termination to give an accounting to the naked owners. The
                   decedent dispensed with security. Three children did not have
                   capacity. Only two were in existence at the time of the death of
                   the dedcendent.
                2. Carr v. Hart: capacity to receive. The issue was whether a fund
                   that was not in existence at the time of the death of the decedent
                   could accept/had capacity to receive a donation mortis causa. In
                    this case, a cemetery fund was the donee. The fund is not a person
                    under 1470. The person was not in existence at the moment of
                    death. As such, it did not have capacity to receive the gift. The
                    legacy in this case was absolutely null.
               3. Ermert v. Hartford Insurance: A duck hunting club was an
                    unincorporated non-profit association. The issue in this case was
                    whether or not the club has legally personality for vicariously
                    liability. With vicarious liability you would want to be MORE
                    cautious than you would be in considering capacity to receive a
                    donation. According to the court, the hallmark is an intent to form
                    a separate juridical entity separate and distinct from the
                    individuals. The individuals in this case never thought of the club
                    as a separate entity. They had no formal written instruments like
                    by-laws. There were no officers. In this case, this was just a group
                    of 6 guys who got together. In other situations, there can be a
                    mental intent that they wanted it to be a separate entity.
               4. Lord v. District VIII Baptist Convention-this was an
                    unincorporated non-profit association.
      iii. Legislation
               1. 9:2271: a person can make a donation inter vivos or mortis causa
                    to a trust or the benefit of educational, charitable, or literary
                    institutions that exist at the time of the donation or which will
                    thereafter be founded.
               2. 9:1051:
                        a. unauthorized corporations
                                  i. enjoy no public character
                                 ii. may acquire and possess estates and have common
                        b. unincorporated non-profit associations
                                  i. may have authority to be considered a person for
                                     certain purposes-they can alienate or encumber title
                                     to immovable property to any person. Alienation is
                                     a far greater power than the capacity to receive.
                                     You can argue that the greater includes the lesser.
                                 ii. Distinguishing features and hallmarks are
                                     considered in the Ermert case.
c. Incapacity to Give
        i. All persons have capacity to receive or to GIVE. To have capacity and
           must also be able to comprehend generally the nature and consequences of
           the disposition he is making. According to Spaht, it is EASIER to dispose
           of all of your property during your lifetime than it is to enter into a simple
           onerous contract like a sale. She says this is NOT logical. Look up 1482
           because it was amended in 2003. Compare to old version.
       ii. Policy Question-Should the standard for capacity to make a Donation Inter
           Vivos be the same was a donation mortis causa.
iii. What happens to the donation if the donation is made by someone who
     lacks capacity? The code articles do not tell us like they do in 1475 when
     a person is incapable of receiving a donation.
         1. Under 1475, the donation is NULL-an absolute nullity.
         2. In 1478, a contract can be declared null due to fraud or duress. The
             general burden for fraud is preponderance of the
         3. 1477 does not say. Is it governed by the general principals of the
             law of contract? 1482 does not say anything about it either. It
             concerns the burden of proof or persuasion for proving lack of
                 a. generally, no capacity to contract is a relative nullity
                 b. the test for incapacity is very high-it is a common law test
                     which admittedly lacks precision. A person who lacks
                     capacity is one who is not able to (ability not actual
                     understanding) to comprehend generally the nature and
                     consequences of the disposition. This is fact intensive.
                     When you understand from the general test is that as a
                     general proposition it takes less capacity to make a
                     donation inter vivos then to make an onerous contract.
                 c. It is easier to give away property when you can understand
                     the nature and consequences than it is to make an onerous
                     contract where you sell your property. Estate planners are
                     focused on donations mortis causa-they are not thinking of
                     donations inter vivos. Spaht does not think this is good
                     public policy.
         4. You have to analogize under undue influence to determine when
             the prescriptive period begins to run.
iv. Incapacity under 1918
         1. persons deprived of reason
                 a. includes people under the influence of alcohol or drugs
                 b. Unemancipated minors
                          i. 1476 does not discuss emancipation. Is it based
                             soley on age? Does it rely on the law of
                             emancipation? 1476 is later legislation and was not
                             carefully considered. I have no idea what the result
                             is. Also the code does not tell us whether the
                             incapacity here produces an absolute or relative
                                  1. minors UNDER the age of 16 do not have
                                      capacity to make a donation (IV and MC)
                                      except in favor of a spouse and children
                                  2. Minors 16 or OVER
                                         a. has capacity to MAKE a donation
                                              Mortis Causa,
                                         b. but can ONLY make donations inter
                                              vivos in favor of spouse and children
                        ii. Different kinds of emancipation-you can be fully
                            emancipated under marriage and judicially. Art 374
                            says that an emancipated minor has no right to
                            dispose of his movables or immovables by donation
                            inter vivos unless it be by marriage contract in
                            favor of the person to whom he is to be married.
                                 1. By Marriage
                                 2. Judicially
                                 3. By Act
                c. Interdicts
                         i. For both Physical and Mental
                        ii. there is full and limited interdiction
                                 1. limited-the judgment provides that there is
                                    no capacity to contract for certain things
 v. Burden of Proof in proving Incapacity under 1482 (see 2003 Amendment)
        1. there is a presumption of capacity-it is not stated explicitly, but we
            see the equivalent because the burden is clear and convincing
            evidence. You would have to prove that it is highly probable that
            the person lacked capacity. You do this when you are deeply
            concerned about the fact or when this type of litigation is
        2. Explicit statements of who lacks capacity
                a. full interdict-lacks capacity to make or revoke a disposition
                    mortis causa or inter vivos. This refers to severe problems
                    that affect a person’s mental capacity to reason. Those who
                    have partial disabilities where their mental capacity is intact
                    would probably not be fully interdicted.
                b. limited interdict-with respect to property under the curator
                    lacks capacity to make or revoke a donation inter vivos and
                    is presumed to lack capacity to make or revoke a
                    disposition mortis causa. With respect to other property, the
                    limited interdict is presumed to have capacity to make or
                    revoke a donation inter vivos or a disposition mortis causa.
                    The presumptions may be rebutted by a
                    PREPONDERANCE of the evidence.
                c. 1918 interdicts and persons deprived of reason lack
                    capacity-there is no distinction for mental capacity and
                    physical infirmity.
                d. Under the old version of 1482, if a person was interdicted
                    for mental infirmity-only rather than any interdiction-the
                    proponent of the donation has to prove capacity by clear
                    and convincing evidence. The burdens change under the
                    amendment. It makes it now harder to contest capacity and
                    easier in some cases with easier and limited interdiction.
vi. Jurisprudence
         1. Chandler v. Barrett-this was a Civil War era case where the issue
            was the testamentary capacity of the testator. There was a very
            strong presumption of capacity at this time. They failed to
            pinpoint her crazy episodes to the time of the testament. It is
            critically important to have evidence about the date or immediately
            around the date of the execution of the testament.
         2. Succession of Duboin: 1994 case-the law was procedural so it was
            retroactive. At the time 1482, was clearly procedural. Under the
            2003 changes there were some substantive changes. In this case the
            will was declared invalid because the proponents of the will failed
            to prove by clear and convincing evidence that the testator had
            capacity. They had the burden because the testator was interdicted
            at the time she made the will. In this case, she made the will after
            the petition was filed but before the judgment. Interdiction is
            retroactive to the date of filing of the petition for interdiction. Full
            interdiction is a complete lack of capacity.
         3. Succession of Cooper: this was a similar case in that plaintiffs
            sought to annul the will on the grounds of lack of testamentary
            capacity and undue influence. There was NO interdiction in this
            case. The opponents of the will have to prove by clear and
            convincing evidence that their father was unable to comprehend
            generally the nature and consequences of his act. Will litigation
            occurs very often in the case of a second spouse and children of a
            former marriage. The first wife died. The testator left the
            surviving spouse (the second wife) the entire estate. He made a
            grandson executor but only because he was married to the daughter
            of the surviving spouse. The surviving spouse lived with the
            testator and got married right before the testator died. The
            executed the will right about the same time. This was almost a
            deathbed execution.
                 a. This puts children in the position of having to interdict a
                     parent as a means of protecting their parent or their
                     inheritance. Spaht this suggests that this is bad policy.
vii. Incapacity due to fraud duress
         1. more specific than 1478. may displace more general rules
         2. the burden of proof is clear and convincing evidence which is a
            higher burden than if he sold the property which is preponderance.
            Spaht says this is not sensible.
         3. If a relationship of confidence exists-the burden is preponderance
            when the 3p wrongdoer is NOT RELATED by blood, affinity or
                 a. affinity can mean relations by marriage that are more
                     remote than a person’s spouse. It can also be in-laws.
                 b. this has a parallel to fraud in 1954 where fraud is easier to
                 c. in 1483 it covers fraud and duress
                 d. if the parties are related, then the burden is NOT lowered.
         4. In ordinary contracts, there is a high burden to prove fraud. Fraud
            is a false assertion or suppression of truth intended to create an
            advantage for one or a loss to another in relation to the contract.
            There is no fraud if special skill or inconvenience is required to
            determine the truth. You have to investigate.
         5. It is even harder to prove in DIV because the burden is clear and
         6. Error was purposely left out of 1478-error as to the person is
            insufficient to annul the contract
         7. Poole v. Ward
         8. Dunham
viii. Undue influence
         1. 1479 is new and added in 1991. The wrongdoer substitutes their
            will for the donor’s will. This is treated the same as a vice of
            consent. It takes into account the vulnerability or weakness of the
         2. Does not rise to the level of fraud but influence. It may not be
            duress, but the person forces their will on a weak vulnerable donor
            by substituting their will for the donor’s will.
         3. Requires clear and convincing evidence to prove undue influence.
         4. Relationship of confidence exists more often here. The exceptions
            loom large. If there is no relationship-the burden is preponderance.
            if they are related, it is clear and convincing.
         5. Zerega v. Percival
         6. Hammiter
         7. Succession of Reeves: one child of the decedent challenged the
            will on the grounds of incapacity and/or undue influence.
            Capacity is separate and distinct from undue influence today under
            1479. It used to be used to prove incapacity.
                 a. The decedent left ½ to his surviving second wife with a
                     lifetime usufruct and the other half to 9 of his 10 children.
                     Bob was left out. He wants his forced portion if he can’t
                     annul the will. She was as young as the children so they
                     were never likely to get the property.
                 b. The judge says, granting or withholding of love and
                     intimacy are reserved to the members of the marriage unit.
                     This is ignorant because the law requires duty of fidelity.
                     One must submit to the reasonable sexual desires of the
                     other spouse unless there is grave fault or sickness. If you
                     withhold, it is cruel treatment. This now impacts only
                     spousal support.
                 c. The court reverses the trial court’s decision to annul the
                     will. The court reasoned that marital status is the primary
                     reason to annul
        d. In this case, the La. Supreme Court granted writs, which is
            rare, but the case settled before it went before the court.
            One should be cautioned that this opinion will not
            withstand scrutiny.
8. Common Law Elements of Undue Influence
        a. It does not have to be criminal behavior or duress. More
            subtle influence in reality. A male with a second spouse is
            susceptible to the wife’s influence usually exercised to the
            detriment of the children from the first marriage. In
            recognition of that reality, common law jurisdictions lower
            the burden if the spouse is a second spouse and the children
            are children of the first marriage.
9. Succession of Cooper: the trial court in upholding the will
    erroneously relied on Succession of Reeves and the parties marital
    status for failing to find undue influence. The court said, there
    wasn’t sufficient proof in this case. They didn’t have the quality of
    medical testimony in this case that they had in Reeves. There was
    less medical evidence in this case. The burden is high-it’s clear
    and convincing. The children testified to her subtle influences.
    They said she convinced the father that the children were stealing
    the money. He had not paid his bills and they were concerned
    about him. They found out the father got married from the banker.
    That was sketchy.
10. Succession of Lounsberry: the trial court annulled the will and the
    court of appeal affirmed. The testator had dementia which was
    exacerbated by clinical depression which produced delusions.
    There was evidence that he was delusional. The testator thought
    his son was stealing money from him even though this wasn’t true.
    He told the son and third parties. There was significant medical
    testimony. The two other sons wanted him to undergo a
    neurological exam. Micheal convinced him that they were trying
    to put him in a nursing home. He was facilitating the obvious
    delusions of the father. He could have been trying to avoid the
    wrath, but he didn’t do anything to help him. He ended up with the
    entire estate and his children were set up in a trust.
        a. If a will is annulled due to undue influence, other fiduciary
            responsibilities are annulled as well. Michael was
            appointed to administer the trust and executor of the estate.
        b. You can look at each disposition of the will. it is like
            severability of a statute.
11. Succession of Linder: the accountant got the mineral royalties in
    the will which was the most valuable part of the estate. The
    daughter was excluded. She was disinherited, but it failed. It had
    been five years since she had seen her mother. She was call and
    speak to the sitter and the mother would only grunt because she
    had aphasia on account of a stroke. She is alleging lack of capacity
                        and undue influence. The burden was preponderance. However,
                        there was testimony that she communicated with the sitter up until
                        the day she died and she communicated with her accountant. The
                        medical evidence is exceedingly weak. The trial court denied the
                        plaintiff’s petition to annul the will and the coa upheld the
                    12. Succession of Tanner: a lawyer received a large gift of ½ of the
                        estate. He was not the lawyer who executed the will. This avoids
                        the problem with the Rules of Professional Conduct. The donee
                        lawyer’s friend executed the testament. The plaintiff’s had to
                        prove undue influence by a preponderance. In this case, the
                        plaintiff’s did not prevail. The La. Supreme Court granted writs
                        and reversed and remanded because genuine issues of material fact
XI.   Forced Heirship
      a. History and General Concepts
              i. The Reserve
                    1. a right of succession intestato-what the child would have received
                        as an intestate successor.
                    2. The French retained forced heirship in order to avoid the
                        concentration of wealth in the aristocracy.
                    3. Louisiana has a long history of forced heirship. It is intended to
                        reduce family litigation. There is still a remnant, but for the most
                        part it has been abolished due to the policy favoring freedom of
                    4. In Succession of Lauga-the law nearly abolishing forced heirship
                        was declared unconstitutional. There was a constitutional
                        amendment afterwards. However, there was a time problem. The
                        amendment became effective in 1995. There was an act passed to
                        implement the amendment.
                            a. When one passes a constitutional amendment in response to
                                 a declaration of unconstituinality-it revives the
                                 unconstitutional statute that was passed in 1989.
                            b. Max argued the effective date, Nov. 3, 1995 was when it
                                 became effective even though the law implementing in was
                                 not effective until later. This argument did not prevail.
                    5. Succession of Boyter: concluded that the change in forced heirship
                        took effect on Jan. 1, 1996.
             ii. Who are Forced Heirs (1493)
                    1. Descendents of the First Degree who have not reached the age of
                        24 (23 and younger)
                    2. Descendants of the First degree who are permanently incapable of
                        taking care of their persons or administering their estates at the
                        time of death of the decedent because of mental or physical
        3. The constitutional article says shall for forced heirs under 24, but it
            uses the word may and is permissive for infirm forced heirs.
        4. We are making provisions for need. It serves a public purpose.
            These people in need will not be dependent on the state or the
        5. Permanently incapable:
                a. the condition cannot be temporary. It can be someone who
                    is paralyzed.
                b. It was borrowed from the worker’s comp act. It is also
                    borrowed from interdiction principles. The test is relaxed.
                    We interpret this liberally.
                c. The word permanently does NOT appear in the
                    constitutional article, but it is in the civil code article.
                d. This was passed in July 2003 and becomes affective in
                    Aug. 2003. This amendment shall be retroactive because it
                    is procedural or remedial. This was an amendment from
                    conference committee. In paragraph E of 1493 defines
                    “permanently incapable.” Inherited, incurable disease or
                    condition that MAY render them incapable of caring for
                    their person or administering their estate.
                          i. Things like Parkinson’s, Sickle Cell and
                         ii. Can you create a category which on the date of
                             death of the decedent, the person might not be a
                             forced heir. This could be like in vitro fertilization
                             after the date of the death of the decedent. This is
                             an exception which involves children under the age
                             of 24.
                        iii. Succession of Martinez: The mother executes a
                             testament making her husband the universal legatee.
                             They divorce and she dies without changing the
                             will. They had a 33 year old son who was mildly
                             mentally retarded. We have to decide whether he is
                             permanently incapable of administering his estate.
                             He has to have a babysitter-the brother who works
                             offshore is shouldering the responsibility after the
                             mother dies. The retarded son can’t work, handle
                             money or grocery shop. The issue is whether he is
                             permanently handicapped. They court says
                             “permanently” means “severely handicapped.”
                        iv. In 1998, the legislature passed a resolution to
                             instruct West to change the comment to art. 1493
                             because permanently refers to duration of incapacity
                             NOT to whether the person is severely disabled or
                             seriously handicapped.
iii. Representation
       1. The descendents are put in the first degree through representation.
           Otherwise it would be unconstitutional.
       2. The law is generous for grandchildren who are incapable. They
           can be cared for considering they have lost a parent.
iv. Legitime (1495)
       1. It is a term of art. It is the individual portion of the forced heir. If
           there is more than one, the cumulative fraction is the FORCED
           PORTION or RESERVE.
       2. One child- ¼
       3. Two or more- ½
       4. If the fraction that would otherwise be used to calculate the
           legitime is GREATER than the fraction of the decedent’s estate to
           which the forced heir would by intestatcy, then the legitime shall
           be calculated by using the fraction of an intestate successor.
       5. Example: 5 children, 1 is a forced heir and under the age of 24.
           His legitime fraction is ¼. His intestate fraction is 1/5.
       6. This makes the forced portion smaller-just because forced heirship
           is not popular.
 v. Permissible Burdens on the Legitime (1496)
       1. No charges, conditions or burdens can be placed on the legitime
           except for those expressly provided by law.
       2. Permissible burdens
               a. Usufruct of the surviving spouse is a permissible burden
               b. Placing the legitime in trust-the constitutional article
                    provides for this.
       3. 1502 makes clear that one cannot satisfy the legitime by a usufruct
           or by an income interest in trust. It must be in PROPERTY. It
           also has to be property in FULL ownership. See Succession of
               a. You can value a usufruct, so this is not the reason for
                    preventing the legitime to be satisfied from a usufruct. The
                    essence of the reserve is ownership.
       4. Succession of Turnell: permissible burdens-the testator is
           permitted to regulate by a testament the partition of property left at
           his death. He can order that the property left at his death not be
           portioned until a particular time or the happening of a particular
           event. In this case, it could not be partitioned for 5 years after
           death then it had to be converted into bonds and held in trust until
           the legatees were each 21. In this case, the court annulled these
           provisions because the legatees were forced heirs. He can do this
           for the disposable portion. He could not do this for the forced
           portion because it was an impermissible burden or charges.
               a. Under 1302, the amendment of this article granted the
                    testator the authority to designate the property to be given
                    in satisfaction of the forced portion. He can also delegate
                    this to the executor. This is now a permissible burden.
               b. 9:1841: the testator has flexibility-the legitime may be
                   placed in trust if 4 conditions are met:
                        i. the trustee is to take into account all the other
                           income and support received by the forced heir
                           during the year. He has to distribute enough for the
                           health, education and maintenance of the forced
                           heir. This takes into account public assistance.
                       ii. Even in trust the testator cannot place conditions
                           that are not authorized by the trust code. The term
                           of the trust cannot exceed the life of the forced heir.
                           This allows the forced heir to actually own
                           something and dispose of it.
       5. Surviving Spouse Usufruct
               a. Succession of Chauvin: to the extent a donation impinges
                   on the legitime, it is not NULL, it is merely reducible. This
                   case dealt with a lifetime usufruct.
               b. This is testate successions where the surviving spouse is
                   granted a usufruct under 1499. Security in 1514 explicitly
                   applies here. The decedent may grant the usufruct over all
                   or part of his property including the forced portion.
               c. The ususfructuary can dispose of non-consumables. This is
                   a significant charge or burden on the legitime. The
                   consumable can be dissipated and all the heir would have
                   was a claim against the decedent’s estate. The heirs of the
                   usufructuary would have limited liability.
               d. The usufruct is for life unless expressly designated for a
                   shorter period. In a case like Succession of Chauvin,
                   where the testator does not specify a shorter time, the
                   usufruct will last for life and shall not require security
                   except as declared by the decendent or permitted when the
                   legitime is effected.
               e. Who may request security under 1514?
                        i. Only a forced heir may request security. Otherwise
                           it is dispensed with.
                       ii. Further, it must be a forced heir who is not a child
                           of the usufructuary.
                                1. this could be a step child or an illegitimate
vi. Reduction (1504)
       1. Reduction is a special action reserved to forced heirs. It cannot be
           brought until after the donor is dead. It is more limited than an
           action for actual collation.
               a. If the testator has two forced heirs and leaves the entire
                   estate to the surviving spouse, the donation must be
2. However, heirs or legatees of a forced heir can bring the action as
   well or an assignee of any of them who has an express
   conventional assignment of the right to bring the action.
       a. This assignment provision is expansive.
3. Under 1497, only if there is NO forced heir, donations inter vivos
   and mortis causa may be made to the whole amount of the property
   of the donor.
4. There is a five year prescriptive period for an action to reduce. It
   begins to run from the date the will is filed for probate. Kilpatrick.
       a. The forced heir is put on notice that he must exercise his
            right to reduce excessive donations.
       b. No probate is necessary. In the event there is no probate,
            another date must be established.
       c. This case distinguishes the 30 year prescriptive period to be
            recognized as an heir and the 5 year prescriptive period for
            an action to reduce excessive donations.
                 i. The action for nullity only applies to intestate
                    succession. The heir has 30 years to assert his right
                    to inherit.
                ii. When there is a will and the descendent is left out
                    or receives less than his legitime, the right he is
                    asserting is an action in reduction.
5. When a forced heir asserts his rights to reduce excessive donations,
   the value of all donations made at any time shall be credited to him
   in satisfaction of the legitime. (This article has been repealed.)
       a. This is EVERY gift made at any time from birth.
       b. There are some exceptions. (Like actual collation. They
            could have used that law, but they wanted to be more heavy
                 i. It doesn’t apply to donations declared to be extra
                ii. It also does not apply to usual or customary gifts.
               iii. Expenses of board, support, education up to the age
                    of 24.
               iv. Legacies even if renounced.
6. 1505 Calculation: Assets at Death minus debts=net estate. Add
   the donations inter vivos within 3 years of the decedents death to
   get the active mass.
7. This calculation looks a bit different from the literal language of
   1505 (A) and (B). This is fictitous collation. It adds back to the
   net estate ALL DIV to anyone for any purpose made within 3 years
   of death. This is distinguished from actual collation. You arrive at
   a figure called the active mass. It is upon the active mass that you
   determine the disposable portion and the forced portion.
       a. Succession of Gomez: actual collation versus fictitous
            collation. It works like insurance proceeds, but there is a
                         difference. In this case, the forced heirs were claiming
                         their forced portion. They wanted reduction. Yet, another
                         descendent or a third party defensive collation can argue
                         that they have already received their legitime through DIV.
                         They had to credit what they received during the 3 years
                         prior to the death of the decedent. There must be a forced
                         heir for either reduction or collation.
                     b. The general rules of donations impact what we add into the
                               i. Three types of donations inter vivos.
                                      1. Gratuitous
                                      2. Onerous: a gift is made subject to a charge
                                           of a condition. The donor is not proceeding
                                           entirely from a spirit of liberality.
                                      3. Remunerative: recompense for services
                                           rendered in the past for which no price was
                              ii. There is a formula for remunerative donations: the
                                  value of the thing given exceeds by one half the
                                  value of the services rendered
                            iii. It is a little different for onerous donations. You
                                  have to look at the donor’s intent/motives. It’s
                                  either to bestow a liberality or you are intending to
                                  impose a condition. You compare the value of the
                                  two promises. An onerous DIV is to bestow a
                                  liberality, then you are form requirements and it is
                                  subtracted from the net estate.
                             iv. 1510: the remunerative donation can be reduced
                                  and included in the calculation is the value of the
                                  remunerative services is less than 2/3 of the value of
                                  the property donated at the time of the donation.
                              v. 1511: the onerous donation may not be reduced or
                                  included in the calculation unless the value of the
                                  charges is less than 2/3 the value of the property
                                  donated at the time of the donation. If so, it is
                                  included in the calculation and is subject to
             8. Third parties can raise collation as a defense to reduction.
b. Donation Omnium Bonorum (1498)
      i. Definition
             1. The donor makes a donation inter vivos which diverst himself of
                 his entire patrimony without reserving enough for his subsistence.
             2. If the donor does not reserve enough for his subsistence, it is an
                 absolute nullity. This is so because it is against public policy. The
                 law wants to prevent the donor from becoming a ward of the state.
         3. Subsistence includes: at least the minimum of food, clothing and
             shelter. The law probably intended more than this.
 ii. Types of property donated
         1. Movable
         2. Immovable
                 a. null for the whole if he still owns it
                 b. alienated by onerous title then it is not declared null on the
                      ground that the donor did not reserve himself enough for
                      his subsistence.
                           i. However, if the donee has alienated the property,
                              the donee is bound to return the value of the
                              immovable at the date of the donation.
                          ii. If the donee still has possession, but has
                              encumbered the property, the donation is null but
                              the donee is responsible for the dimunition in the
                              value of the property.
                         iii. This protects third party onerous transferees.
                 c. gratuitous donation
iii. Jurisprudence
         1. LaGrange v. Labarre: there is a 1498 donation. This is an action
             to have the donation declared NULL. The donor himself instituted
             the action. This donation disposed of all of the property of the
             donor. The donee had a charge upon him to support the donor. It
             was an onerous donation. According to the opinion, the lawmaker
             never intended that on a simple stipulation of alimony, a man can
             divest himself of all his property by a donation inter vivos.
         2. At the time the law prohibited the donor from reserving the
             usufruct to himself. If this was not enough for his subsistence,
             then certainly the alimony provision is not sufficient. Today, a
             donor CAN reserve the usufruct. However, 1533 was a provision
             for ownership. It was not about subsistence. Other cases
             undermine the rationale also.
         3. Pardue v. Turnage: a creditor of the debtor brought this action.
             The donation was an absolute nullity. The donees allege that it
             was donated to them. He donated all of his property including the
             bear. The court said that the donor retained his ability to work, so
             it was not a donation omnium bororum. Ability to work is extra-
             patrimonial. The code says “he must reserve himself enough for
             subsistence.” It does NOT say property as of 1996. It should be
             an inference because the prior clause uses the word property. To
             the extent that this case suggests that the ability to work is enough,
             this is a huge change.
         4. LeBourgois v. Yeutter: this is the most recent case interpreting the
             code. The donor is seeking revocation for ingratitude and an
             alternative theory that the donor divested herself of all of her
             property without reserving herself of enough for subsistence. In
                           actuality, she reserved a usufruct over the property, bonds, rental
                           income from some of the property and social security and a bank
                           account. Her revenue stream declined from the mineral rights. So
                           this amount did not give her enough to pay all the property taxes.
                           The court concluded that she DID reserve enough for her
                       5. Bernard v. Noel: the action was instituted by the collateral heirs of
                           the wife after her death. She had no descendants or ascendants.
                           There is an inference that she died intestate. She donated all of her
                           property to her husband without reserving enough for her
                           subsistence. The law imposed an obligation on the husband to
                           support the wife. Under art. 2030, anyone has a right to bring an
                           action for nullity. The court concluded that this action for absolute
                           nullity was intended for the donor. They say this is a personal
                           action and when she died the right to revoke the act died also.
                           (Spaht DOES NOT like this.)
                       6. Succession of Turgeau: the court said in this case, the action for
                           nullity was personal in character and that only forced heirs can
                           urge the grounds because it impinged on its legitime
                       7. The public policy is not relevant if the donor is dead. There is no
                           need to allow someone to bring the action after they are dead. they
                           do not need anything for their subsistence.
              iv. There is a more recent liberal public policy that we should not be
                   legislating to impose restrictions on donors and protecting the donor from
XII.   Dispositions Reprobated by Law
       a. Illegal, Immoral, Impossible Conditions (1519)
                i. Impossible conditions are reputed as not written in all dispositions inter
                   vivos and mortis causa.
                       1. This is an exception.
                       2. In other code articles, these conditions would make the disposition
                           or obligation absolutely null.
                       3. Instead under this article, the conditions are reputed as not written.
                           It is striken. The disposition takes immediate effect.
                       4. It is a punishment of the donor. It is entirely opposite of that
                           which the donor sought to achieve.
               ii. Succession of Thompson: this is the only aberration case in the
                   jurisprudence. This was an impossible condition. The donor may a gift to
                   an asylum subject to the condition that they provide room and board to his
                   daughters should they never need it. However, this institution did not
                   admit females unless orphans or widows. The court concludes that the
                   donation was null since the condition is impossible. This is the only case
                   that does not apply 1519 literally.
              iii. Legislative history. Aubry and Rau said this article was traceable to the
                   Code Napoleon and the French Revolution. They wanted to confine the
                   prejudices and despotism of the citizens. Intolerant aristocrats and
          enemies of the constitution would continue to rule from the grave if they
          didn’t have this code article.
      iv. Succession of Feitel: this case expresses the same reasons for the article.
          The donor did not want the donee to sell or mortgage the property for 10
          years. The question was whether this condition is against public policy
          because it would take the property out of commerce. We have a strong
          policy to keep property in commerce. The court found that it was against
          public policy. The law will not carry into effect the wishes and conceits of
          the dead concerning the property they leave to another in full ownership.
               1. There are certain restraints on the property that are allowed:
                      a. The donor can regulate the partition of property to co-
                          owner heirs. He can only do this for up to 5 years.
                      b. He can allocate property to pay legacies
                      c. He can regulate property given to minors.
                      d. 1702: look at the for Wednesday
       v. Labarre v. Hopkins: the donor gives her husband the usufruct of her
          property. However, if he remarries, the usufruct should terminate. The
          husband argues that the condition is against public policy because a
          restraint on marriage would encourage concubinage. The husband indeed
          remarried and the heirs are seeking full ownership. The court says this
          condition is in restraint of SECOND marriages and that is not against
          public policy in La.
               1. Look to the civil code where there is a provision that the usufruct
                  terminates on remarriage. Even today, this condition would not be
                  against public policy.
      vi. Succession of Ruxton: the donor willed the heir $10,000 on the condition
          that she not be married at the time of his death. This was a restraint of
          first marriage. This was a 1955 case. The court said that this was not
          against public policy because she did not know of the will or the condition
          because it could not operate as a restraint of marriage. It wasn’t a
          condition that said she would have to give up the money if she ever got
          married. If it had, then this would be against public policy.
     vii. Succession of Gardiner: a will was executed out of state, Connecticut, but
          the property was in Louisiana. CT residents are typically very wealthy
          and this testator probably had estate planners. There was a penalty clause
          that gave $1 to anyone who challenged the will. The part that would have
          gone to the heir who challenged would go to various charities.
               1. There are certain things that are against public order. These things
                  can be challenged and not be subject to the penalty clause. The
                  clause should be stricken if this is the challenge.
               2. This court did not have to determine whether the challenge was for
                  private or pecuniary interest because there was a stipulation for the
                  disposition of the property.
b. Prohibited Substitutions-
       i. Fifei Commissa
              1. A disposition that is not in trust by which a thing is donated in full
                  ownership to a first donee with a charge to preserve and deliver it
                  to a second donee at the death of the first donee is NULL with
                  regard to both the first and second donee.
                      a. The first donor is called the institute
                      b. The second donor is called the subsitutute.
              2. Three elements of a prohibited substitution
                      a. double disposition in full ownership one after the other
                      b. Charge to preserve and to render
                      c. Successive order (at death)
                               i. this results in the transmission of the things given
                                  from the succession of the first beneficiary into the
                                  patrimony of the second.
                              ii. if the disposition is subject to a specific term, it is
                                  not a prohibited substitution, but it is a condition
                                  and it may end up being against public policy.
              3. Reasons to prohibit
                      a. This establishes an order of succession other than that
                          provided by law. The institute cannot dispose of it of
                      b. It deprives him of the power of testation.
                      c. Thirdly, it retires large amounts of property from
                      d. Fourthly, it tends to the decay of the property because the
                          institute has no reason to preserve.
                      e. It tricks creditors.
                      f. It causes family strife.
              4. Succession of Fisk: this case was NOT a prohibited substitution.
                  The will gave $100,000 to the testator’s brother and at his death it
                  went to the children of his other brother at the first brother’s death.
                  The court concluded that this was a usufruct to the brother and
                  naked ownership to his nieces and nephews. The testator
                  dispensed with security and it was for his “sole use and benefit.”
                  This was the general rule for usufruct. So this was not a prohibited
                  substitution. $100,000 is consumable. It is as if he is the owner.
                  He is bound to account to the naked owner for it when he dies.
              5. The court has to interpret the will of the testator. Where the
                  testator executes an olographic will under 1588, the court is more
                  lenient in finding no prohibited substitution. If it can be anything
                  else, the court will interpret it that way.
              6. Even if a disposition is not a prohibited substitution, it will be a
                  donation subject to a condition and it will have to be evaluated that
                  way. You might have to strike the condition.
c. Vulgar Substitutions (1521)
      i. Other states call this a survivorship clause. This is to avoid double
          taxaxtion of a donee who dies almost immediately after the donor.
      ii. the testator imposes a valid suspensive condition that the beneficiary must
          survive the testator for a stipulated period, not to exceed 6 months. If the
          condition is not fulfilled, the gift goes to that other person that is stipulated
          in the will.
              1. In a prohibited substitution, it is not one in lieu of the other, like in
                   a vulgar substitution.
              2. Baten v. Taylor: this was a vulgar substitution. It was not
                   prohibited. There is a discussion of the charge to preserve or
                   render. No one was charged to preserve the property in the 30 day
                   period. It was not explicit, but the court said it may be implicit if
                   the time period is long enough.
              3. Swart v. Lane: the testator was an expectant mother who was
                   concerned about dying in childbirth and the possibility of the child
                   dying as well. The court took these circumstances into account
                   and the fact that she was not a lawyer and this was an olographic
                   will. This was a vulgar substitution. The first paragraph disposes
                   of her property to her child. If the child died, it would go to her
                   husband. It wasn’t a situation where it would go to the child and
                   then at the child’s death it would go from his patrimony to his
d. Separate Donation of Usufruct and Naked Ownership
       i. Fisk: this case is an example and it was not a prohibited substitution.
      ii. In Re Courtin: the testator converted his entire estate to cash and directed
          the executor to invest it so that it will produce interest. The interest would
          be the fruits and she would own this in full ownership. However, he gave
          his sister a ususfruct over the interest and if it wasn’t enough she was
          allowed $40 a month from the principal. It looks like a usufruct with a
          limited power to dispose of non-consumables.
              1. If she dies before the funds are exhausted, the balance goes to the
                   niece. The sister only has to give the balance-this is the residium.
                   This is not a usufruct because the sister is not responsible to the
                   naked owner. There is NO charge to preserve or render so this is
                   not a prohibited substitution.
              2. This is a legacy subject to a condition.
                       a. The sister has to deliver the balance to the niece. There is
                           nothing impossible about this condition.
                       b. Violative of public policy? Yes, the testator is preventing
                           the sister from disposing of her property at her death. She
                           doesn’t have this power because he stipulated who it should
                           go to in his will. This is a strong public policy and you can
                           point to forced heirship-it is my property, you should be
                           able to do with it what you want. The balance to neice
                           would be struck and the naked ownership would devolve
     iii. Launey v. Barousse: the testator disposes of the ususfruct to two people.
          He does this for two different parcels and the furniture. If one should
                   survive the other, the survivor gets ownership of the property. The naked
                   ownership is subject to a suspensive condition-“if either one survives”
                       1. There is a problem with seizen. The conditions are retroactive
                          simultaneously. The naked ownership devolved first to the
                          survivor of A and B. But that is a suspensive condition. Also, the
                          naked ownership devolved intestate subject to a resolutory
                       2. This is not a prohibited substitution because it is not a double
                          disposition in full ownership. It does not go from one person’s
                          patrimony to the next.
                       3. However, it is a donation subject to a condition. It is not
                          impossible. It is against public policy. The resolutory condition
                          takes the property out of commerce. During the life of the
                          usufructuraries lives, there can be no disposition of the property by
                          the person who has seizen. The property has been in this condition
                          in the last 7 years. It could be for many years more. It takes the
                          property out of commerce and there is no incentive to take care of
                          the property.
        e. Hypos:
                i. Oil and Gas interest payment to Pauline and at her death, the payments go
                   to three other people. This is a successive usufruct. Art 546 explicitly
                   permits this.
               ii. It is my wish-the language was possibly precatory. He wanted the estate to
                   be used for his sister in law’s care and support. This was
              iii. Request-this is clearly precatory. The legatee is not bound to dispose of
                   the property as the testator requested.
              iv. This was a prohibited substitution. The court should have looked at the
                   testator’s intent. The house left like it is and the land and timber for
                   Edward. At his death it will come back to brother and sister’s children.
               v. Hazel gets the residue of the property. In the event of his sister’s death
                   after his,
        f. Note on trusts
                i. It is not a prohibited substitution. The disposition to the trust is not a
                   double disposition in full ownership
               ii. the trust is a common law mechanism that divides ownership in a way not
                   recognized in the state of LA.
                        1. there is a division between the equitable owner the trustee and the
                            legal owner, the principal beneficiaries.
                        2. the trustee unlike any other fiduciary in LA is given authority to
                            deal with the assets in trust as if he is owner without any court
                            approval. He has the highest standard of care.
                        3. the property is ultimately destined for the principal beneficiaries.
              iii. An exception was added in LA for trusts because they could have been
                   construed as a prohibited substitution.
              iv. Look for shifting principal beneficiaries for prohibited substitutions.
XIII.     Donations Inter Vivos
a. Definition
       i. an act where the donor divests himself presently and irrevocably in favor
           of the donor who accepts it
               1. this is a contract because there is offer and acceptance. There is
                   more than one kind of donations inter vivos.
b. Form
       i. CC 1536: Authentic Act for the donation of immovables or incorporeals.
               1. Conventional obligations: if form is required nothing may be
                   substituted. So if authentic form required an act under private
                   signature is not sufficient.
      ii. The form and the act is imposed on the donation to encourage
           deliberation. The donor is depleting his patrimony without anything in
           exchange. So we require the authentic form
     iii. Exceptions
               1. corporeal movables. These only need to be delivered.
                       a. CC471 and CC 473
               2. incorporeal movables
                       a. Negotiable instruments
                                 i. checks
                               ii. promissory notes
                       b. Non-negotiable instruments require an authentic act
                                 i. bearer bonds still require an authentic act
                               ii. however there is a proposal before the law institute
                                    to do away with this requirement. Now that it is
                                    harder to prove fraud, duress and undue influence, it
                                    might be bad public policy to avoid formalities.
                              iii. If a person gives away their property, the donor
                                    becomes a ward of the state.
                       c. Uniform Stock Transfer act
c. Recordation
       i. donations of immovables shall be recorded in the conveyance records in
           the parish were the immovable is situated. This concerns the effect on
           third parties.
d. Three types (1468)
       i. Gratuitous
               1. no condition
               2. proceeds from a spirit of liberality
      ii. Onerous
               1. contrast with onerous contracts. it makes a difference whether it is
                   an onerous contract or an onerous donation. The rules as to form
                   only apply when the value of the object given exceeds by ½ that of
                   the charges of the services. Otherwise it is an onerous contract.
                   See, if not, the donor is getting a gift that is worth so much more
                   than what he gave.
               2. Averette v. Jordan: the court concluded that it was an onerous
                   donation rather than an onerous contract. They had to actually
   place a value on the services rendered on the child, the donor, and
   the value of the naked ownership. They had a meeting in which
   the donor parents called a meeting of all the 5 children to discuss
   who was going to care for them. The father was in poor health and
   they were in their late 80’s. The donor and his wife were the only
   ones willing to care for their parents. It is similar to Thielman.
   However, when they drafted the agreement they labeled it an
   onerous donation with a right of return. This was a conventional
   right of return.
       a. It was necessary to weight the value of the charges imposed
           to that of the value of the naked ownership of the property.
           The value of the thing given exceeds by more than ½ the
           value of the charges imposed.
                 i. value the property as of the date of the gift. The
                    court valued the property at
                ii. the charges involved personal care for both spouses
                    and then the remainder of the time for just the
                    mother. You value the charges at the time the
                    contract was made. This was you can determine the
                    donor’s intent.
               iii. The court concluded that the son’s services far
                    exceeded the value of the naked ownership of the
                    property. It was not subject to the rules of
       b. The mother is seeking a right of return on the property from
           the child who predeceased her. The father died before the
           child. The court held that the right of return was not
3. Thielman v. Gallman: the nephew promises to maintain and care
   for the uncle and bury him when he was dead. This was a contract
   in writing which was sufficient. Had it been an onerous donation,
   you would have to ascertain the value of the charges and compare
   them to the thing given. It would have to be compared to the value
   of the charges imposed.
4. Thompson v. Society of Catholic Education: the court concluded
   that you do not have to actually stipulate a charge that will directly
   or indirectly benefit the donor. In this case, there was a donation
   to a college for education purposes. This could have been an
   onerous donation even though it would not indirectly benefit the
5. Loyola v. Deutsch: Loyola argued that any charitable donation is
   necessarily an onerous donation. The court said no. This was a
   gratuitous donation that should be added back into the succession.
   The charity was a tax exempt organization that was bound to use
   the money for charitable purposes. The donor imposed a charge or
   condition on the gift.
                a. Defensive collation: in response to a suit of a foced heir
                    who is claiming reduction. Loyola could do this.
iii. Renumerative
        1. 1525 and 1526: look for the primary motive of the donor to
           compensate the donee for services rendered in the past. Look to
           see if there was a feeling of obligation. This is like a natural
           obligation, a particular moral duty. A promise to pay a natural
           obligation is enforceable as an onerous contract. The value of the
           services are not weighed against the value of the property
                a. The types of obligations in the code have a common thread
                    in 1762:
                          i. past relationship between the donor and the donee
                         ii. particular moral duty
                        iii. appreciable in money
                                 1. a debt that has prescribed
        2. In a remunerative donation, the services are appreciable in money.
        3. It is not a real donation if the value of the services are little inferior
           to that of the gift
        4. Succession of Jones: the court acknowledged that the category of
           natural obligations subsumed remunerative obligations. The court
           should not have done so because it found that the transaction in
           question was onerous and remunerative. The transfer in this case
           was a check for $5,000. The drawer of the check, a negotiable
           instrument, directing the bank to pay Poche. The negotiable
           instruments law relieved the requirements of authentic form. The
           court mentions this.
                a. 10:3-201(4): a donor can donate by negotiating the check.
                b. The donee argued that the provision exempted it from all
                    the rules of DIV. However, the court correctly found that it
                    exempts the donation only from the rules concerning
                    FORM. Everything else applies. In this case, it was
                    whether the donor could impose the condition of future
                c. 1530: if it is a donation, the donor could not impose the
                    obligation to pay future debts. The donee was to pay
                    medicare and to pay any balance. The rest was to pay for
                    past services rendered. Part of it was 18 years of seriously
                    reduced rent. The donee also went to the grocery store,
                    took her shopping and took off work to take her to the
                d. The court concluded that this was not a donation and not
                    subject to the rules of donation. it was valid as a
                e. Remunerative donations continue to exists because the
                    code as of 1996 recognized such a category. 1510 was
                          enacted in 1996. This is later legislation from 1760-62.
                          This was 10 years after the revisions where the argument
                          was made that natural obligations subsumed remunerative
                          donations. So, we continue to weight the value of the
                          charges or services rendered to the value of the thing given.
                      f. The donation must be present property. If it was future
                          property it would be an attempt to make a will.
e. Acceptance of Donations
       i. The donation is a contract so it requires acceptance.
      ii. 1540-Acceptance must be in precise terms.
             1. It can be in the act of donation. However, it can be also be in a
                  posterior and authentic act. This is the equal dignities rule.
     iii. Exception
             1. Corporeal Possession in lieu of acceptance.
             2. The donation has effect. It is am implied acceptance. The form is
                  not required.
             3. This means the form is not required for the acceptance AND
                  perhaps not for the DONATION itself. This too is equal dignity.
                      a. Works v. Nobles: this can be made by delivery alone.
                      b. Cotton v. Washburn: the donation was made by authentic
                          act but there was no acceptance. It was just corporeal
                          possession. However, that was enough for the court even
                          though it was NOT accepted in express terms.
                      c. Sisters of Charity v. Emery
     iv. RS 9:2371C:
             1. subsequent alienation or encumbrance that is recorded in the public
                  records constitutes acceptance.
             2. this assumes these cases are correct. But in those, the donees are
                  actually physically occupying the property. Even if you never step
                  foot on the property these acts constitutes acceptance
f. Exceptions to the Rule of Irrevocability of Donations Inter Vivos
       i. Ordinarily a Donation Inter Vivos is NOT revocable
      ii. However there are some situations which justify revocation
             1. Ingratitude
                      a. attempt to take the life of the donor
                      b. cruel treatment, crimes or grievous injuries
                               i. Filing Suit against your parents
                                      1. Perry v. Perry: the parents donate stock to
                                          the son and later buy it back and they sign
                                          promissory notes for the repayment. The
                                          company goes bankrupt. He sues them and
                                          gets a writ of fifa and the sheriff goes out to
                                          seize the property. The mother faints and
                                          the husband is called to tend to the wife.
                                          The father enjoins the seizure on the
                                          grounds of judicial compensation. The court
                                                looks to Aubry and Rau for a common
                                                understanding of grevious injuries.
                                            2. Spruel v. Ludwig: the daughter files a
                                                derivative action and the mother sues to
                                                revoke and then the daughter files suit for a
                                                RICO violation.
                                    ii. Conversion
                                   iii. Compare to Divorce law: Refusal to wash clothes,
                                        nagging, proselytizing
                           c. refused food when in distress
                   2. failure to communicate for two years
                   3. non-fulfillment of a condition which suspend consummation
                           a. this is the example of a ship that sinks
                   4. Retour successoral/legal return
                           a. this is also collation in kind in Succession of Doll. The
                               court treated it as a legal return. Spaht says this is an
                           b. Conventional return:
                                     i. Averitt v. Jordan: this was meant to be
                                        remunerative. It if wasn’t remunerative, the donor
                                        could get it back even if it was alienated or
                                        mortgaged or encumbrered.
                                    ii. Now protection of third parties for the public
                                        records is paramount. This article is a remnant of
                                        the old law.
XIV. Donations Mortis Causa
     a. How Testaments are Made
            i. New legislation: there are several forms that have been repealed. As long
               as they complied with the law in effect at the time, the instrument was still
               valid after July 1, 1999.
                   1. Succession of Martinez: the wife’s will listed the husband as the
                       legatee. However, they divorced. The property still went to him.
                       Today, a legacy is revoked by divorce.
                   2. Succession of Gonzales: a former wife was litigating whether the
                       will of her deceased husband should be interpreted in light of the
                       law in effect when he executed it or should the new law apply. If it
                       would have been the law when he executed it, she would get
                       everything. Under the new law, the provision would have been
                       revoked. (Read this case.)
                   3. New category of forced heirs is impacted. The law was
           ii. today there is the:
                   1. olographic (1575)
                           a. must be proven by two witnesses who are familiar with the
                               testator’s handwriting. Can be done by affidavit or if it is
                               in controversy-live testimony.
               b. entirely written dated and signed
               c. the testator must sign at the end. If there is anything written
                   after the signature, it can be considered by the court. It
                   does not invalidate the testament.
               d. the date can be anywhere.
               e. The date is sufficiently indicated if the day, month and year
                   are reasonably ascertainable from the information in the
                   testament, as clarified by extrinsic evidence.
        2. Notarial Will (former statutory will)
               a. self proving
               b. attestation clause: the witnesses sign this. It is smarter to
                   use the attestation clause exactly like it appears in the code.
                   You do not want to get into a substantial compliance
               c. Further, each page should be signed so no pages are
               d. 5 types
                        i. Normal: notary and two witnesses, testator signs
                           himself and declares that it is his will
                       ii. Testator literate and sighted but physically unable to
                      iii. Testator unable to read/illiterate. The testament
                           MUST be read aloud. The witnesses and notary
                           will know the contents. The witnesses must know
                           how to read. The testator hears it read and two
                           witnesses read along to make sure that the contents
                           are in fact what the notary is reading.
                      iv. Notarial testament in Braille Form
                       v. Deaf and Deaf or Blind Notarial Testament
                                1. at least one of the witnesses must be a
                                   certified interpreter for the deaf
iii. Animus Testandi
        1. Did the person intend for this document, entirely written dated and
           signed in the hand of the testator, to be a last will and testament.
        2. The codal revision does not indicate that there needs to be animus
           testandi. Yet, presumably, there was no intention to change the
           law in this regard.
        3. Hendry v. Succession of Helms: the decedent gave a handwritten
           document to her attorney with instructions to change her will. She
           wrote the instructions to her attorney. She died before the attorney
           had the opportunity to make the changes. The court held that this
           was not intended by her to be her last will and testament. The
           court references art. 1570 which clearly requires that the document
           must reflect an animus testandi.
        4. Problems:
                      a. The decendent was required to write a document, a will, as
                           a condition for initiation into a fraternal association. This
                           could not be admitted to probate bc no animus testandi.
                      b. Mrs. John Doe is my heir. This is a universal legacy.         It
                           was dated and signed. This was admitted for probate. The
                           date is not ambiguous.
              5. “All to my sister” It was dated and signed as well. This was not
                  admitted for probate because there was NO verb.
      iv. Persons prohibiting from witnessing; effect
              1. a legatee should not be a witness
              2. also the testator should not bring the spouse of a legatee as a
                  witness. The same effect here as if the witness were a legatee.
b. Prescription
        i. Probating
              1. 5 years from the date of opening the succession for an olographic
                  bc it is the only one that must be probated.
              2. you would think it would be 5 years from the date of death, but it is
                  from the date of JUDICIAL opening of the succession which
                  occurs later than the date of death.
              3. notarial is self-proving and self executing??
       ii. Challenging a will for lack of formalities
              1. Olographic-if the will is challenged, the burden is on the
                  proponents of the will within the first 3 months after probate
              2. After 3 months, the burden is on the person attacking the will.
                  This encourages the challenger to do so as soon as possible.
c. Testamentary Dispositions
        i. Universal
              1. All of the Estate
              2. The Balance or what remains after particular legacies
                      a. the testator does not have to user these words
                      b. it is the legacy of the residium
                                i. see prohibited substitutions-no charge to preserve
                                   and render
              3. Planiol suggests
                      a. “I give to my wife ¾ of my estate and to Tulane Medical
                           School the balance”
                                i. The jurisprudence in France would have considered
                                   the balance a universal legacy.
                               ii. 1585 rejects this. If a general legacy precedes the
                                   residium, it cannot be a universal legacy.
                      b. The following are universal
                                i. Mrs. John Doe is my heir
                               ii. All movables and immovables
                              iii. All of my property to my intestate successors except
                              iv. Eventual Vocation of the Entirety of the Estate
                               1. Naked ownership of all property. At
                                  termination of the usufruct, it will all go to
                                  the naked owner
                               2. Disposable portion of all property-we have
                                  truncated forced heirship. The entire estate
                                  may be disposable at the death of the
 ii. General
         1. New term substitutes for a legacy under universal title
         2. a general legacy is
                 a. a fraction or proportion of certain property
                 b. fraction or proportion of the balance
                 c. it can also be all or a fraction or a certain proportion of
                     ONE category of property- the categories are:
                          i. separate or community
                         ii. movable or immovable
                        iii. corporeal or incorporeal
                 d. these categories are exclusive according to the code. This
                     places a testator who drafts an olographic will at a
                     disadvantage. They wouldn’t necessarily know to use these
iii. Particular legatees
         1. Not a universal successor. This is a residual category. Anyone
             who is not universal or general is a particular legatee.
         2. Particular legatees do not represent the person
         3. They may start a new prescription
         4. nor do they have proportionate responsibility for estate debts.
         5. Particular legatees are paid in preference to all others
         6. there is an order to pay particular legatees
                 a. particular things
                 b. groups of things
                 c. cash
iv. Accretion (Lapsed Legacies) (1591 et seq)
         1. When does it lapse? (1589)
                 a. legatee predeceases the testator
                          i. this is the most common reasons for a lapsed legacy
                 b. incapable of receiving at the death of the testator
                 c. legacy is subject to a suspensive condition and the
                     condition can no longer be fulfilled or the legatee dies
                     before fulfillment of condition.
                 d. legatee declared unworthy
                 e. legacy is renounced
                 f. legacy is declared invalid
                          i. this intends to cover an instance where the legacy is
                             absolutely null for example if the testator is
            ii. also prohibited substitution falls into this category
                 as well or donation omnium bonorum.
     g. legacy is declared null as for example, for fraud, duress or
         undue influence
2. Where does the property go?
     a. Lapse of a Particular and General Legacy (1591)
             i. accretion takes place in favor of a successor who
                 under the testament would have received if the
                 legacy had not been made.
                     1. So this would typically go to the universal
                         legatee. You would think but see the old
                         law. It was intended to restrict it to this type
                         of situation.
                     2. The old law under 1704, this applied to
                         particular that was charged with another
                         particular legacy.
                              a. All of the wine in my cellar to A
                                  except for the Chateau Lafitte to C.
                                  If C died, the Chateau Lafitte goes to
                                  A as well as the rest of the wine in
                                  the cellar/
                              b. All of my movable property to A in
                                  the libray except my desk to B.
                                  Intended for the situation where B
                                  predeceased, A would get the desk
     b. Exception to the rule of Testamentary Accretion-1593
             i. This applies to all kinds of legacies. You should
                 start with this article first. It is the most important.
            ii. Is the legatee a descendent of the testator or a
                 sibling or a descendent of the sibling? If so, under
                 the law today, if the legatee predeceases the testator,
                 the legacy goes to the descendents by roots who
                 were in existence at the time of the testator’s death.
                     1. Hobson v. Ratcliffe: one particular legacy
                         followed by the rest of her property to the
                         same sister and 3 nieces. The particular
                         legacy lapsed because the legatee
                         predeceased the testator. This legacy, would
                         today under the new law, would go to the
                         legatees descendants because the legatee
                         was the testator’s sister. They are siblings.
                         If the three nieces named in the will were
                         the sister’s children, they would inherit the
                         lapsed legacy.
              iii. this looks like representation. The intent was to
                   prevent unjust disinherison now that forced heirship
                   has contracted.
              iv. This provison shall not apply to a legacy that is
                   declared invalid or is declared null for fraud, duress
                   or undue influence.
3. Joint or Separate (1588)
       a. has implications for lapsed legacies. However, you only
           have to worry about this when there is more than one
           legatee of something
       b. a legacy to more than one person may be joint or separate
                i. joint
                       1. no assignment of shares of a legacy
                               a. it would go to the others. They
                                   would divide the lapsed portion
               ii. separate
                       1. assignment of shares
                               a. it would not go to the others named
                                   to receive the thing. It would go to
                                   the universal legatees under 1595.
                                   “All legacies that lapse accrete
                                   ratably to the universal legatees.”
                       2. See Hobson: under the law today
                               a. if she assigns shares of the balance,
                                   she has converted what arguably was
                                   a universal legacy into a general
                               b. She says, “to be divided equally
                                   among them” This sounds like an
                                   assignment of shares.
       c. Did 1588 change the law???
                i. See comment B to art 1588. This article was not
                   intended to overrule the jurisprudence in Succession
                   of Lambert. See Hobson for a review of the
               ii. This makes you have to go to a lawyer for a notarial
              iii. “Share and share alike” by law is an allocation of
                   shares and it is separate. No presumption.
              iv. “To be divided equally” creates a presumption of an
                   assignment of shares so that it would also be a
                   separate legacy. To overrule this, you need clear
                   and convincing evidence.
               v. It makes a universal legacy a general legacy. In the
                   end it will evolve intestate. Spaht does not like this.
                                 It does not fall under the articles. It also does not
                                 fall under the 2nd paragraph of 1595. That article
                                 specifies that in order for a lapsed general legacy to
                                 devolve to the universal successors it must not
                                 specify it is the remaining fraction or a certain
                                 portion. “to be divided equally” is considered a
                                 fraction. So it would devolve intestate.
                            vi. For the effect of the second paragraph of 1595, see
                                 the hypo, “I leave ¾ to my wife and the rest to XYZ
                                 Charity.” If the wife predeceases the testator, the
                                 whole thing will go to Tulane.
                                      1. ¾ is a general legacy and the remainder is
                                          not specified as a fraction, it goes to the
                                          universal. The charity is the universal.
                                      2. This is now a rule of law
                                      3. Under the old jurisprudence you could look
                                          at the intent of the testator. This does not
                                          look like the intent of the testator, especially
                                          if the testator left children. However, now
                                          there is no way around this law.
             4. Change in Form of the Legacy
                     a. Testator leaves A 100 shares of XYZ stock. XYZ merges
                        with ABC and the new stock is ABC stock.
                     b. The legacy would not be extinguished. This is analogous
                        to usufruct. The testator does not do anything to change the
             5. Fruits and Products of a Legacy
                     a. the legatee has a right to these from the moment of death
                              i. this is a different issue from reduction and collation.
                     b. administration expenses and debts of the decedent are paid
                        by different things.
                     c. The right to distribution is subject to administration. This
                        is consistent with those articles.
                     d. The second paragraph deals with legacies of money/cash.
                              i. Cash legacies are the last among particular legacies
                                 to be paid.
                             ii. They are entitled to interest as of one year of the
                                 death of the testator.
                            iii. The administrator can ask the court for an extension
                                 for the time that interest begins to accrue
                            iv. However, if it is a legacy of a usufruct of money to
                                 the surviving spouse, she gets interest from the date
                                 of death.
d. Revocation of Testaments and Testamentary Dispositions (1606-1610)
      i. In General
       1. The way to revoke was formerly express and tacit. Succession of
          Muh said that this was a good thing because it is very difficult to
          list all of the tacit ways to revoke. The categories in 1607 could be
          exclusive or illustrative. If it is exclusive, it is difficult to fit many
          instances into the listed categories. It should have been left to be
          more flexible.
       2. All donations mortis causa are revocable until death.
       3. There can be no revocation of the right to revoke.
ii. Revocation of the Entire Testament
       1. If any of the following occur, it is revoked
               a. Physically destroys the testament or has someone else do it
                    at his direction
                          i. Succession of Muh: the testator struck through all
                             the provisions and the signature on the olographic
                             testament so that they could not be read. This is
                             questionable about whether this fits. This is not the
                             classic example of physical destruction where it is
                             torn up, burned or thrown into a fire.
                         ii. The deletions can only be made by the hand of the
                             testator in an olographic will for them to be
                             effective. It won’t meet the requirements for
                             probate if the signature is struck out.
                       iii. There was confusion and a 3P physically destroys
                             the testament and the testator tapes it back together.
                             Swanson. The court allowed this will to be
                        iv. Crumpled in the wastebasket and he dies before he
                             takes out the trash.
                         v. Multiple originals:
                                 1. In Talbot, the testator physically destroyed
                                     one original copy. There was another at his
                                     home. He did this in the presence of one
                                     witness, his lawyer. In his first will, it went
                                     to his first wife and there was a vulgar
                                     substitution for his friend.
                                 2. This created a presumption that he was
                                     revoking his will.
                                 3. The court held that there was sufficient
                                     proof to show that he intended to revoke.
               b. So declares in one of the forms prescribed for testaments
                    (notarial or olographic) in an authentic act.
                          i. there needs to be a declaration that the testator
                             intends to revoke in one of the forms. “I hereby
                             revoke all prior wills.” It doesn’t say it MUST be a
                             testament, just a form of a testament.
                        ii. Hollingshead v. Sturgis: the testator sent a letter to
                            her mother saying that she didn’t want her son to
                            have a cent. She had previously changed her will to
                            indicate this, but the will was invalid.
               c. Identifies and clearly revokes the testament by a writing
                   that is entirely written and signed by the testator in his own
                         i. this is the form of an olographic testament but no
                        ii. This is problematic for capacity or there might be
                            other wills or revocations of individual legacies and
                            we wouldn’t know the date of one versus the other.
                       iii. This is new and the comments refer to Succession
                            of Melancon and indicates that this article revokes
                            that case.
iii. Revocation of a legacy or other testamentary provision
        1. So declares in one of the forms prescribed for testaments
        2. Makes a subsequent incompatible disposition or provision
               a. Sarce v. Dunoyer’s Executor: two wills were executed and
                   there were different provisions in both. He leaves out
                   particular legacies in money to his nephews and nieces in
                   the latter. The court probated both wills and distributed the
                   property in accordance with both.
               b. Succession of Rollins: the court finds an implied revocation
                   of the first will and does so on the basis that the 2nd will
                   provided for disposition of all the property so the
                   inconsistent ones must be revoked. This would overrule
                         i. However, there is nothing in 1607 which says that
                            this subsequent will would tacitly revoke the earlier
                            will. The result could potentially be different today.
                        ii. There is a need for an underlying principle to show
                            we are looking for the testator’s intent.
               c. Succession of Reeves: 1st Circuit case where there is a
                   codicil added to an existing will. We are dealing with one
                   legacy. The codicil could be a revocation or modification
                   of the will. We have to determine how it is to be treated.
                   This was a modification, not a revocation. It refers to the
                   legacy in the will. She puts it in trust for the same person
                   as the income beneficiary. She does not name the principal
                   beneficiary. The children want to be the principal
                   beneficiary. The issue is whether the codicil revokes the
                   legacy. There was evidence to support the presumption.
                   There was evidence that the testator intended it to go to the
                   income beneficiary in principal as well.
              d. Cash legacies-cumulation under the jurisprudence. The
                  court in Reeves sides with the jurisprudence that presumes
                  cumulation even if the second amount designated in the
                  codicil is smaller. The do not want to consider it a
       3. Clearly revokes the provision or legacy by a signed writing on the
          testament itself.
       4. Makes a subsequent inter vivos disposition of the thing that is the
          object of the legacy and does not reacquire it
              a. sale, donation or exchange
              b. if you revoke it and reacquire it, the legacy is revived
              c. Succession of Huguet: inter vivos disposition. The testator
                  transfers land into a limited partnership, The legatee was
                  the only other partner. She donated part of the partnership
                  over time. The court concluded that the legacy was
                  incapable of being executed because the testatrix didn’t
                  own the property. It belonged to the limited partnership.
              d. Succession of Price: there was an inter vivos transfer of
                  property contained in a legacy in a will already executed by
                  sale. The sale was attacked as an absolute simulation.
                  Could this mean reacquire it. Under the old law, the result
                  was revocation because it was indicative of the testator’s
                  intent to revoke. The result is different now.
       5. Is divorced from the legatee after the testament is executed and at
          the time of death, unless the testator provides to the contrary.
          Testamentary designations or appointments of a spouse are
          revoked under the same circumstances.
              a. Succession of Gonzales: the legislature enacted a change
                  in 2003. This part of the article is new. Before July 1,
                  1999, you have to look at the old law.
iv. Revocation of Juridical Act prior to Testator’s Death
       1. the revocation of a testament, legacy or other testamentary
          provision that is made in any manner other than physical
          destruction, subsequent inter vivos disposition or divorce is NOT
          effective if the revocation itself is revoked prior to the testator’s
 v. Grounds for revocation
       1. 1610.1: the same causes that authorize an action for the revocation
          of a donation inter vivos are sufficient to authorize an action for
          revocation of testamentary dispositions.
              a. ingratitude
              b. cruel treatment
              c. attempt on the life of the donor
              d. refusing to provide food when the donor is in distress or
              2. Grandchamp (1909): the husband shot the wife in the back as she
                 was fleeing and then he slit his throat and shot himself. Her will
                 gave all property to her husband. This is certainly ingratitude. The
                 court said that the law does not visit the sins of the donee on his
                 heirs at law.
                      a. In a DIV, the grounds for ingratitude is a personal action
                          and it can only be instituted against the donee.
              3. After this case, the legislature amended 1691 in all cases a legacy
                 or disposition shall be revoked when the legatee takes the life of
                 the testator.
              4. The legatee can be declared unworthy under 1589(4). The causes
                 for unworthiness are in 941: A successor shall be declared
                 unworthy if he is convicted of a crime involving the intentional
                 killing OR judicially determined to have done so.
                      a. Can we institute an action against the heirs of the legatee?
                          Yes, under the articles on unworthiness to deny the
                          donation mortis causa to the unworthy legatee.
                      b. What about the earlier donation inter vivos of immovable
                          property? The articles on unworthiness remain a personal
                          action and nothing in 1610.1 does not help solve it. The
                          DMC can be ineffective, but the DIV would remain within
                          his patrimony.
e. Disinherison
       i. In General
              1. the donor is disinheriting a child who would otherwise inherit as a
                 forced heir. Otherwise it is irrelevant because the forced heir will
                 succeed by law regard of the intent of the testator.
                      a. 23 years of age or younger OR
                      b. permanently incapable of caring for their persons or
                          administering their estates
              2. A child owes honor and respect.
              3. For a disinherison to be valid, the cause must have occurred
                 PRIOR to the execution of the instrument that disinherits the heir.
                      a. a person may be disinherited even if he wasn’t a
                          presumptive forced heir at the time of the occurrence of the
                          acts or facts of the circumstances
                               i. this covers one that might become incapable later
              4. The cause for revocation of a donation inter vivos are similar to
                 those for disinheritance. See 1560(2) and compare to 1621(2).
              5. 9:2502: time period for inadvertent repeal of disinherison. This
                 section addresses it.
      ii. The Causes
              1. raised his hand to strike a parent or has actually done so, a mere
                 threat is not enough
              2. guilty of cruel treatment, crime or grievous injury towards the
        3. attempt to take the life of the parent
        4. child has accused the parent of committing a crime for which the
           law provides that the punishment could be life imprisonment or
        5. Child has used an act of violence or coercion to hinder a parent
           from making a testament
        6. minor has married without the consent of the parent
        7. the child is convicted of the crime for which the punishment is life
           imprisonment or death
        8. knowing how to contact the parent and fails to communicate for
           two years without just cause
               a. this includes any two year period where there is a failure to
               b. Succession of Bertaut: the father expressly disinherited his
                   two sons for failing to communicate for 6 years. This was
                   one of the first cases to interpret this after it was newly
                   added. The reason is presumed to be true. The focus in
                   this case is that they did not have just cause not to
                   communicate. The court found that these boys did have just
                   cause because the father abandoned them, remarried and
                   then the father didn’t make any attempts either to
                   communicate with them. This is a more liberal
                   interpretation of without just cause.
               c. There was a lot of discussion about what failure to
                   communicate means.
                        i. Communicate respectfully
                       ii. To avoid the problem can send Christmas cards-
                           certified mail, return receipt requested.
               d. Just cause-defined in the jurisprudence as incarceration,
                   drug addiction, and emotional state. Now these forced
                   heirs are children in need. We should be more liberal with
                   just cause.
               e. Succession of Jurisich: 6 able-bodied children and the court
                   finds that the children failed to communicate without just
                   cause even though the second wife refused to permit his
                   husband to communicate with the children.
iii. Form
        1. Express in the instrument
        2. Must identify the person who is disinherited by name
               a. “my only child from my first marriage”
        3. must mention the cause for disinherison and the causes are
        4. The facts named in the instrument are presumed to be true. You
           want to give more than just the cause states in the article. Give the
           actual circumstances. There are usually not witnesses to these
                a. This requires the forced heir to rebut the presumption by a
                   mere preponderance. However, the unsupported testimony
                   of the forced heir is not sufficient.
                b. this is a change in the law as well to make the burden easier
                   on the forced heir. This recognizes that we are dealing with
                   forced heirs who are vulnerable because of age or mental or
                   physical condition. You can argue that disinherision
                   should not exist because forced heirship is a proxy for
iv. Defenses
       1. this article is entirely new. It is a liberalization because it gives a
          defense to the forced heir that was not available before. This
          mainly applies to 1621-1,2,and 8, but can be applied to all.
       2. disinherison is not effective if because of age or mental capacity
          the person who is disinherited shows that:
               a. he was incapable of understanding the impropriety of his
                        i. mental capacity because of age
                                1. what if a toddler struck the parent. The
                                    parent would have a ground for disinherison.
                                    Under this article, 1626, addressed this and
                                    provides a defense.
                       ii. incapable because of lack of mental capacity
                                1. mental retardation
                                2. bipolar
                                3. alcohol or drugs?
                                        a. if it means 1477, the fact that you are
                                           under the influence will not escuse
                                           your bx.
                                        b. if you look at the code articles on
                                           incapable of contracting and lacking
                                           discernment, then the bx should be
               b. he shows the behavior was unintentional
               c. justified under the circumstances
       3. Proof: preponderance
               a. unsupported testimony of the disinherited is not sufficient
                   to establish the defense
 v. Reconciliation
       1. can prove reconciliation by clear and convincing evidence with the
               a. Forgiveness can be shown by celebrating holidays together,
                   lunching together, dancing together at the parent’s 50th
                   wedding anniversary
               b. the evidence can be conduct of acts
                        c. There is a change in that law in that a writing is NOT the
                             exclusive way or proving reconciliation. However, a
                             writing automatically meets clear and convincing evidence.
                2. Succession of Lissa: the child married without the permission of
                    her parents. The mother reconciled, but died and this case
                    concerns the father’s succession. They thought there was a
                    writing, but they could not find the evidence. The sister went to
                    every bank box and removed all the contents. The evidence would
                    probably meet the clear and convincing burden in this case.
      vi. Grandparents can disinherit
                1. Can disinherit on all grounds that a parent can except for the
                    permission to marry.
                2. They can do this when the offense is against the PARENT or
                3. This is very, narrow-more narrow than regular categories of forced
                    heirs. They would be very, very young grandchildren.
f. Interpretation of Legacies (1611-16)
        i. The intent of the testator controls the interpretation of his testament
       ii. If the language is clear, the letter is not to be disregarded under the pretext
           of pursuing the spirit
                1. jurisprudential examples
                2. you can introduce competent evidence to determine if the language
                    is clear
      iii. The rules for interpretation apply only when the testator’s intent cannot be
      iv. The rules changed recently. If the testator uses a legal term of art –the
           effect which has changed, the court may consider the law in effect at the
           time the testament was executed.
       v. A disposition should be interpreted in a sense in which it can have effect,
           rather than in one which it can have none.
                1. This provision is to guide the courts
                2. See prohibited substitutions
                3. This provision appears in the section on trusts as well
      vi. If the identification of the object given is unclear or erroneous, the
           disposition is effective if it can be ascertained what OBJECT the testator
           was intended to give. 1613
                1. This can be read narrowly. What is unclear?
                        a. The testatrix makes a disposition of immovable property,
                             but there is a codicil creating a trust and placing that
                             property in it. No, you know the object
                        b. Legacy of money? Among particular legatees there are
                             certain things that get paid first. This does not include
                             money. So, this does not overrule the cases where there are
                             legacies of money and the presumption of cumulation.
                                  i. Succession of Reeves: did not involve sums of
                                     money, but a legacy in full ownership in the first
                              will and a legacy in trust of only an income interest
                              in the same property
                          ii. Comment C to article 1613
                         iii. The jurisprudence on the issue of cumulation is
                              unsettled. This comes under revocation, not
 vii. Change in the law
         1. under the old law-the tense of the verb had to be considered
         2. now, it is the property the testator has at death
         3. Succession of Gurganus: conditional will: circumstances and
            occasion which motivated the testator OR only the intent if the
            condition was fulfilled. The testator in this case executed an
            olographic testament. The entire will was in the present tense.
            The court concluded that this testament disposed of ONLY the
            property she had at the execution of the testament because she used
            present tense. Under the law today, the result would be different.
         4. In 1608(2)revocation when the testator makes a subsequent
            incompatible disposition,
                 a. this could be in the same will
         5. 1615-this is interpretation. when a testament contains
            contradictory provisions, the one written last prevails.
                 a. Exception: when the legacy contains a legacy of a
                     collection or a group of objects and also a legacy of some
                     or all of the objects, the legacy of some or all of the object
viii. Legacy to the Creditor
         1. a legacy to a creditor is not applied toward satisfaction of a debt
            unless the testator clearly so indicates.
         2. Delaureal v. Roguet’s Succession: debts paid before distribution.
            It is better to be a creditor than a legatee.

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