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Fall 2004 Successions 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 line. 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 cousins. 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 first. iv. This serves to prevent unjust disinheritance. This is the only class of intestate successors where representation is permitted ad infinitium in all cases 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 peremptive. 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 time 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 usufruct 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 over. 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 spouse. 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 sense. 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 certain. 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 community. 1. this is blanket authority. Attorney’s fees and court costs would be unmanageable if you were required to get authority for each transaction. 2. she would have to prove that it was in the best interest of the family. They have two children. 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 authority. 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 known. 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 terminates. 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 missing. 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 advantageous. 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 bequeathed. 6. Under CCP 427, an action to enforce an obligation may be brought against the heirs and universal legatees who have accepted the succession. 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 obligations. 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 protection.) 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 mandatory. 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 decedent. 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 possession. 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 ownership. 2. inherits with respect to the heritable rights of the decedent. May institute actions, assert rights and have obligations asserted against them. 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 commorientes. 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 succession.) 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 intestate. c. There are independent rules for intestate succession dealing with capacity. d. The only test for capacity is that the successor be in existence. 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 ovum. 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 maternity. 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 successions. 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 intent. 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 included. 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 unworthy. v. A pardon does not effect the unworthy status of the heir. 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 represented. 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 value. 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 accounting. 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 acceptance 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 anyway. 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 sense. 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 accretion. 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 succession. 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 liability. 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 confusion. 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 succession 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 succession. 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 collation. 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 equally. 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 degree. 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 dated. ii. 1232: you can express it in an act of donation 1. do this for immovables and incorporeals which requires a notarial act 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 gift. 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 property. 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 exempted. 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 collatable 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 source. 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 advantage. 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 article 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 estate. 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 existence. 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 result. 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 1770 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 California. 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 bonds. 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 dish. 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 partnerships. 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 interests 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 capacity. 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 nullity. 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 disfavored. 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 adoption 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 prove 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 convincing. 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 donor. 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 decision. 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 exists. 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 testament. 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 infirmity. 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 taxpayers. 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 ALCOHOLISM. 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 Williams. 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 child. 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 reduced. 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 handed.) i. It doesn’t apply to donations declared to be extra portions. 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 calculation. 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 paid. 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 reduction. 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 subsistence. 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 himself. 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 himself. b. It deprives him of the power of testation. c. Thirdly, it retires large amounts of property from commerce. 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 father’s. 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 intestate. 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 condition. 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 donations. 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 enforceable. 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 donor. 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 transferred. 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 debts 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 doctor. d. The court concluded that this was not a donation and not subject to the rules of donation. it was valid as a disposition. 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 aberration. 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 retroactive. 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 argument. c. Further, each page should be signed so no pages are substituted. 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 sign 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 for 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 testator. 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 terms. 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 incapable 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 also. 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 proportionately. 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 legacy. 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 jurisprudence. ii. This makes you have to go to a lawyer for a notarial testament. 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 form. 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 probated. 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 handwriting. i. this is the form of an olographic testament but no date. 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 Sarce. 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 revocation. 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 death. 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 need 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 parent 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 death 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 communicate 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 exclusive 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 occurrences. 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 need. 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 behavior 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 excused. 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 testator. 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 grandparent. 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 ascertained. 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 interpretation. 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 prevails. 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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