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