Donations Wallace Spring 2012 *update outline cases for stuff did today, print out, read over

r entire thing look at Barbri donations outline look at Treatise

Chapter 9: Overview of the Law of Donations Book III Modes of Acquiring Ownership Heir Intestate. Legatee Testate. Chapter 10: Methods of Disposition La. C.C. 1467-1469, 1541-1551 1467. Property can neither be acquired nor disposed of gratuitously except by donations inter vivos or mortis causa, made in one of the forms hereafter established. 1468. A donations inter vivos is a K by which a person, called the donor, gratuitously divests himself, at present and irrevocably, of the thing given in favor of another, called the donee, who accepts it. Owner divests himself of the property: 1) at present, 2) irrevocably, 3) accepted by donee. * can be subject to a suspensive or resolutory condition as long as doesnt depend on the will of the donor. 1469. A donation mortis causa is an act to take effect at the death of the donor by which he disposes of the whole or a part of his property. A donation mortis causa is revocable during the lifetime of the donor. Takes effect after death and: 1) revocable during life, 2) in written testament, 3) divests of totality or portion of property (FORM + SUBSTANCE) Is there intent to gratuitously and does it meet the elements? 1541. A donation inter vivos shall be made by authentic act under the penalty of absolute nullity, unless otherwise expressly permitted by law. 1542. The act of donation shall identify the donor and the donee and describe the thing donated. These requirements are satisfied if the identities and description are contained in the act of donations or are reasonably ascertainable from information contained in it, as clarified by extrinsic evidence, if necessary. 1543. The donation inter vivos of a corporeal movable may also be made by delivery of the thing to the donee without any other formality. 1

1544. A donation inter vivos is without effect until it is accepted by the donee. The acceptance shall be made during the lifetime of the donor. Par.2. The acceptance of a donation may be made in the act of donation or subsequently in writing. Par. 3. When the donee is put into corporeal possession of a movable by the donor, possession by the donee also constitutes acceptance of the donation. (acceptance) 1545. The donee may accept a donation personally or by a mandatary having power to accept a donation for him. (acceptance) 1546. The acceptance shall be made during the lifetime of the donee. If the donee dies without have accepted the donation, his successors may not accept for him. (acceptance) 1547. If the donee refused or neglects to accept the donation, his creditors may not accept for him. (acceptance) 1548. A donation made to an unemancipated minor may be accepted by a parent or other ascendant of the minor or by his tutor, even if the person who accepts is also the donor. (acceptance) 1549. The donee acquires the thing donated subject to all of its charges, even those that the donor has imposed between the time of the donation and the time of the acceptance. (acceptance) 1550. The donation or the acceptance of a donation of an incorporeal movable of the kind that is evidenced by a certificate, document, instrument, or other writing, and that is transferable by endorsement or delivery, may be made by an authentic act or by compliance with the requirements otherwise applicable to the transfer of that particular kind of incorporeal movable. Par 2. In addition, an incorporeal movable that is investment property, may also be donated by a writing signed by the donor that evidences donative intent and directs the transfer of the property to the donee or his account or for his benefit. Completion of the transfer to the donee or his account or for his benefit shall constitute acceptance of the donation. 1551. A donation is effective upon acceptance. When the donation is effective, the ownership or other real right in the thing given is transferred to the donee. 1570. Donations mortis causa. Written testament in olographic or notarial form. FORM + SUBSTANCE Donations inter vivos: Immovables: notary + 2 witnesses Incorporeal movables: notary + 2 witnesses Corporeal movables not delivered: notary + 2 witnesses Corporeal movables delivered: no form (rem: okay if cant accept because can just do it through authentic act)

Donations mortis causa: 2

- Written testament in olographic or notarial form I. Introduction i. Succession of Sinnott v. Hibernia National Bank, 10-1 1. Langtry claims dec, Sinnott, gave her 12 shares of stock in Hibernia to keep in her possession and said they were to be Langtrys upon Sinnotts death. Gave her bedroom set and silver. Executed a will. Langtry did not collect on dividends. 2. Stock certificates are not corporeal movables and are not subject to manual gifts. Need authentic act. 3. testamentary executrix handles the will of a succession 4. when no will administrator 5. residual legatee gets whatever is leftover once pay the regular legatee 6. May sometimes call things a remunerative donation to get around form. 7. Furniture and silver intent check. Delivery is valid form so she can keep the movables. 8. What Sinnott should have done: Olographic codicil an addendum to a will. OR can donate the NO to someone and retain the usufruct. Then when you die they get full ownership and this is revocable at any time. 9. A will can show intent. but then make sure have form. Other Methods of Donation Sanctioned by Law a. Life Insurance

II.

Owner can change the beneficiary. Right to borrow. Beneficiary Receives the proceeds. Proceeds are the donation. Insured usually the owner of the policy but not always. i. Sizeler v. Sizeler, 10-6 1. Rules for donations dont apply to life ins proceeds. Flow solely from K. Not considered part of the estate and FHs cannot gain more than their forced portion from life ins policy. Will end in the estate if the beneficiary is listed in the estate. ii. La. R.S. 22:915, Donations inter vivos of life insurance policies; Laws respecting form inapplicable. 1. A. Donations inter vivos of life insurance policies, and the naming of beneficiaries therein, whether revocably or irrevocably, are not governed by the provisions of the Revised Civil Code of 1870, or any other laws of this state relative to the form of donations inter vivos. 2. B. This section is remedial and retrospective. All donations inter vivos of life insurance policies made on or before July 31, 1968 are valid and effective, whether or not such donations 3

were made in the form prescribed by the Civil Code or by any other laws of this state. iii. La. R.S. 22:912, Exemption of proceeds; life, endowment, annuity. 1. The lawful beneficiary, assignee, or payee, including the insureds estate, of a life insurance policy or endowment policy heretofore or hereafter effected shall be entitled to the proceeds and avails of the policy against the creditors and representatives of the insured and of the person effecting the policy or the estate of either, and against the heirs and legatees of either such person, and such proceeds and avails shall also be exempt from all liability for any debt of such beneficiary, payee, or assignee or estate, existing at the time the proceeds or avails are made available for his own use. For purposes of this Subsection, the proceeds and avails of the policy include the cash surrender value of the policy . . . iv. La. C.C. 1505(c), Calculation of disposable portion on mass of succession. 1. Neither the premiums paid for insurance on the life of the donor nor the proceeds paid pursuant to such coverage shall be included in the above calculation. Moreover, the value of such proceeds at the donors death payable to a forced heir, or for his benefit, shall be deemed applied and credited in satisfaction of his forced share. v. The beneficiary does not need to be named in an authentic act. The creditors of the insured cannot seek payment from the proceeds of a life ins policy, even when the beneficiary is the insureds estate. Forced heirs cannot seek payment from life ins proceeds paid to a beneficiary. Creditors of the beneficiary cannot seek payment from proceeds. Premiums or ins proceeds are not calculated in the mass estate. FHs cannot collect life ins proceeds and the full forced portion. vi. Problems b. Annuities i. La. R.S. 22:912 1. (B) The lawful beneficiary . . . saving the rights of forced heirs, and such proceeds . . . ii. Fixed payment over a period of time. Usually put in a lump sum and receive payments of the interest/dividends from the account. iii. Allows forced heirs to get a portion of the annuity from the lawful beneficiary. Included in the active mass of the estate. iv. Actual collation only applies to DIVs. not to mortis causa. Can only use reduction to get forced portion not actual collation. c. Pensions i. T.L. James & Co. Inc. v. Montgomery, 10-12 1. Father died during second marriage and named his son from his first marriage as the beneficiary to his pension.

2. Theres an obligation to account to any complaining FH or spouse in community if it gets in the way. 3. Pensions are not to be included in the active mass but is credited towards a FHs portion. 4. This result unlikely now because ERISA preempts state law. ii. La. C.C. 1505(D) 1. Employer and employee contributions under any plan of deferred compensation adopted by any public or governmental employer or any plan qualified under Sect 401 or 408 of the Internal Revenue Code, and any benefits payable by reason of death, disability, retirement or termination of employment under any such plans, shall not be included in the above calculation, nor shall any of such contributions or benefits be subject to the claims of forced heirs. However, the value of such benefits paid or payable to a forced heir, or for the benefit of a forced heir, shall be deemed applied and credited in satisfaction of his forced share. iii. Succession of Durabb, 10-15 1. A qualified IRA falls under the exclusion of 1505(d) so not calculated in an estates active mass. TC was correct in excluding the IRA amount from the mass of the succession. But no double dipping with IRA. Acts as a credit toward her forced portion. iv. La. R.S. 9:2499, Individual retirement accounts; payments of benefits. 1. A. Any benefits payable by reason of death from an individual retirement account established in accordance with the provisions of 26 U.S.C. 408, as amended, shall be paid as provided in the individual retirement account agreement to the designated beneficiary of the account. Such payment shall be a valid and sufficient release and discharge of the account holder for the payment or delivery so made and shall relieve the trustee, custodian, insurance company or other account fiduciary from all adverse claims thereto by a person claiming as a surviving or former spouse of a successor to such a spouse. 2. B. No account holder paying a beneficiary in accordance with this Section shall be liable to the estate or any heir of the decedent nor shall the account holder be liable for any estate, inheritance, or succession taxes which may be due the state. 3. C. The provisions of this Sect shall apply notwithstanding the fact the decedent designates a beneficiary by last will and testament. v. Boggs v. Boggs 1. d. United States Savings Bonds i. 3 ways to have an interest in a US Savings Bond: 1. sole owner 5

ii. iii. iv. v. Chapter 11: Capacity La. C.C. 1470-1483

2. beneficiary of the bond (payable on death bonds) 3. interest as co-owner (on death payable to co-owner or bonds) Winsberg v. Winsberg Succession of Guerre Osterland v. Gates Succession of Weis

1470. All persons have capacity to make and receive donations inter vivos and mortis causa, except as expressly provided by law. Make donation age, mental ability . . . Receive: only existence is required 1471. Capacity to donate inter vivos must exist at the time the donor makes the donation. Capacity to donate mortis causa must exist at the time the testator executes the testament. GIVE: Inter vivos exist at time when donor makes the donation. Mortis causa when executes the testament Acceptance must be made during the life of the donor. i.e. If Wallace is in a coma, you can accept. But if she dies then cant. 1472. Capacity to receive a donation inter vivos must exist at the time the donee accepts the donation. Capacity to receive a donation mortis causa must exist at the time of death of the testator. incorporation or birth 1473. When a donation depends on fulfillment of a suspensive condition, the donee must have capacity to receive at the time the condition is fulfilled. 1474. To be capable of receiving by donation inter vivos, an unborn child must be in utero at the time the donation is made. To be capable of receiving by donation mortis causa, an unborn child must be in utero at the time of the death of the testator. In either case, the donation has effect only if the child is born alive. If born alive, natural personality is retroactive to the time of conception. 1475. A donation in favor of a person who is incapable of receiving is null. La. R.S. 9:391.1: Any child conceived after the death of the dec, who specifically authorized in writing his S/S to use his gametes, shall be deemed the child of such dec with all rights, including capacity to inherit from the dec, as the child would have if the child had been in

existence at the time of the death of deceased parent, provided the child was born to the S/S, using the gametes of the dec, within 3 years of the death of the dec. in utero v. in vitro argument dont know if will extend to in vitro Look at 9:133 and 9:1803. 1476. A minor under the age of sixteen years does not have capacity to make a donation either inter vivos or mortis causa, except in favor of his spouse or children. A minor who has attained the age of sixteen years has capacity to make a donation, but only mortis causa. He may make a donation inter vivos in favor of his spouse or children. 1477. To have capacity to make a donation inter vivos or mortis causa, a person must also be able to comprehend generally the nature and consequences of the disposition that he is making. 1478. A donation inter vivos or mortis causa shall be declared null upon proof that it is the product of fraud or duress. 1479. A donation inter vivos or mortis causa shall be declared null upon proof that it is the product of influence by the donee or another person that so impaired the volition of the donor as to substitute the volition of the donee or other person for the volition of the donor. 1480. When a donation inter vivos or mortis causa is declared null because of undue influence or because of fraud or duress, it is not necessary that the entire act of donation or testament be nullified. If any provision contained in it is not the product of such means, that provision shall be given effect, unless it is otherwise invalid. Fiduciary appointment will fall too (executrix). 1481. Any person who, whether alone or with others, commits fraud or exercises duress or unduly influences a donor within the meaning of the preceding Arts, or whose appointment is procured by such means, shall not be permitted to serve or continue to serve as an executor, trustee, attorney, or other fiduciary pursuant to a designation as such in the act of donation or the testament or any amendments or codicils thereto. 1482. A. A person who challenges the capacity of a donor must by clear and convincing evidence that the donor lacked capacity at the time the donor made the donation inter vivos or executed the testament. B. A full interdict licks capacity to make or revoke a donation inter vivos or disposition mortis causa. Full Interdict No Donations Limited Interdict No DIV 1483. A person who challenges a donation because of fraud, duress, or undue influence, must prove it by clear and convincing evidence. However, if, at the time the donation was made or the testament executed, a relationship of confidence existed between the donor and the wrongdoer and the wrongdoer was not then related to the donor by affinity,

consanguinity or adoption, the person who challenges the donation need only prove the fraud, duress, or undue influence by a preponderance of evidence. I. II. III. Introduction Previous Incapacities Capacity to Receive a. There is a presumption of capacity unless expressly stated by law. i. Carr v. Hart 1. There was a fund but it wasnt in existence at the date of the death. 2. Drafted the will itself. 3. Would now fall under a charitable trust. 4. 2271. A charitable trust is created when a person makes a DIV or MC in trust for the relief of poverty, the advancement of education or religion, the promotion of health, governmental or municipal purposes, or other purposes the achievement of which is beneficial to society. The trust instrument may be specific or general in the statement of its purposes and may include any conditions that are not contrary to law or morals. If not in favor or an institutional beneficiary, the beneficiaries of the trust shall be selected by the trustee or other person, pursuant to terms of the trust instrument. ii. Milnes Heirs v. Milnes Executors 1. Different from car in that no asylum existed but she intended to create it after death. 2. Milne also had executors release the will. $$$ Capacity to Give age, mental condition, undue influence, fraud or duress a. Restrictions Based on Age (1476) i. Under 16 = no capacity ii. at 16 can make a will b. Mental Condition (1477) i. comprehend generally the nature and consequences of the disposition that he is making ii. Sound mind is similar to comprehend generally iii. The ability to understand rather than accurate understanding. iv. Subjective and objective components v. Ex: For a donation, the nature that this is a gratuitous transfer of ownership and the consequences that they will lose ownership and get nothing in return. vi. Consider w/ fraud and duress. vii. Read Comments. c. Fraud, Duress, and Undue Influence (1478, 1479, 1480, 1481) i. Succession of Cole 1. When someone is declared judicially uncompetent, argue 1. capacity, 2. influence. If someone lacks capacity, they are probably more easily influenced. 8

IV.

ii.

iii.

iv. v. vi. vii.

2. Kindness and persuasion in not undue influence. 3. Testimony of witnesses and medical evidence are weighed heavily. 4. *videotaping the person Robertson v. Cubine 1. Determine capacity when they sign the will. 2. The person donated too matters. 3. Even if interdicted, the donation was several years later. Succession of Horrell 1. Wrote his will in the hospital and died 4 months later. 2. Left property to son in his will and donated the same property. 3. Said he did lack capacity. Succession of Deshotels Succession of Culotta Succession of Reeves Undue influence impaired the volition of the donor as to substitute the volution of the donee or other person less intrusive than fraud or duress

Chapter 12: The Disposable Portion, The Legitime, and Reduction La. C.C. 1493-1514 1493. A. Forced heirs are descendants of the first degree, who, at the time of the death of the decedent, are 23 years of age or younger or descendants of the first degree of any age who, because of mental incapacity or physical infirmity, are permanently incapable of taing care of their persons or administering their estates at the time of the death of the decedent. B. When a descendant of the first degree predeceases the dec, rep takes place for purposes of FH only if the desc of the first degree would have been 23 years of age or younger at the time of the decs death. C. However, when a desc of the 1 degree predeceases the dec, representation takes place in favor of any child of the desc of the first degree, because of mental incapacity or physical infirmity, is permanently incapable of taking care of his or her person or administering his estate at the time of the decs death, regardless of the age of the desc of the first degree at the time of the decs death. D. For this Art, a person is 23 years of age or younger until he attains the age of 24 years. E. For this Art., permanently incapable of taking care of their persons or administering their estates at the time of the death of the dec shall include desc who, at the time of death of the dec, have, according to medical documentation, an inherited, incurable disease or condition that may render them incapable of caring for their persons or administering their estates in the future. 1494. A forced heir may not be deprived of the portion of the decs estate reserved to him by law, called the legitime, unless the dec has just cause to disinherit him. 1495. DIV and mortis causa may not exceed three-fourths of the prop of the donor if he leaves, at his death, 1 FH, and one half if he leaves, at his death, 2 or more FH. The portion reserved for the FHs is called the forced portion and the remainder is called the disposable portion. 2nd par. Greenlaw: Nevertheless, if the fraction that would otherwise be used to 9

calculate the legitime is greater than the fraction of the decs estate to which the FH would succeed by intestacy, then the legitime shall be calculated by using the fraction of an intestate successor. 1496. No charges, conditions, or burdens may be imposed on the legitime except those expressly authorized by law, such as a usufruct in favor of a surviving spouse or the placing of the legitime in a trust. 1497. If there is no forced heir, DIV and mortis causa may be made to the whole amount of the property of the donor, saving the reservation made hereafter. 1498. The DIV shall in no case divest the donor of all his property; he must reserve to himself enough for subsistence. If he does not do so, a donation of a movable is null for the whole, and a donation of an immovable is null for the whole unless the donee has alienated the immovable by onerous title, in which case the donation of such immovable shall not be declared on the ground that the donor did not reserve to himself enough for subsistence, but the donee is bound to return the value that the immovable had at the time that the donee received it. If the donee has created a real right by onerous title in the immovable given to him, or such right has been created by operation of law since the donee received the immovable, the donation is null for the whole and the donor may claim the immovable in the hands of the donee, but the property remains subject to the real right that has been created. In such a case, the donee and his successors by gratuitous title are accountable for the resulting diminution of the value of the property. 1499. The dec may grant a usufruct to the s/s over all or part of his property, including the forced portion, and may grant the usufructuary the power to dispose of nonconsumables as provided in the law of usufruct. The usufruct shall be for life unless expressly designated for a shorter period, and shall not require security except as expressly declared by the dec or as permitted when the legitime is affected. Par 2. A usufruct over the legitime in favor of the S/S is a permissible burden that does not impinge upon the legitime, whether it affects community property or separate property, whether it is for life or a shorter period, whether or not the forced heir is a desc of the S/S, and whether or not the usufructuary has the power to dispose of nonconsumables. 1500. When a forced heir renounces his legitime, is declared unworthy, or is disinherited, his legitime becomes disposable and the forced portion is reduced accordingly. The legitime of each remaining forced heir is not affected. 1502. Nevertheless, the legitime may not be satisfied in whole or in part by a usufruct or an income interest in trust. When a forced heir is both income and principal beneficiary of the same interest in trust, however, that interest shall be deemed a full ownership interest for purposes of satisfying the legitime if the trust conforms to the provisions of the La Trust Code governing the legitime in trust. 1503. A donation, IV or MC, that impinges upon the legitime of a forced heir is not null but is merely reducible to the extent necessary to eliminate the impingement.

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1504. An action to reduce excessive donations may be brought only after the death of the donor, and then only by a forced heir; the heirs or legatees of a FH; or an assignee of any of them who has an express conventional assignment, made after the death of the dec, of the right to bring the action. 1505. A. To determine the reduction to which donations, either IV or MC, are subject, an aggregate is formed of all property belonging to the donor or testator at the time of his death; to that is fictitiously added the property disposed of by donation IV within 3 years of the date of the donors death, according to its value at the time of the donation. B. The sums due by the estate are deducted from this aggregate amount, and the disposable quantum is calculated on the balance, taking into consideration the number of FH. C. Neither the premiums paid for insurance on the life of the donor nor the proceeds paid pursuant to such coverage shall be included in the above calculation. Moreover, the value of such proceeds at the donors death payable to a forced heir, or for his benefit, shall be deemed applied and credited in satisfaction of his forced share. D. Employer and employee contributions under any plan of deferred compensation adopted by any public or governmental employer or any plan qualified under Sect 401 or 408 of the Internal Revenue Code, and any benefits payable by reason of death, disability, retirement, or termination of employment under any such contributions or benefits be subject to the claims of FHs. However, the value of such benefits paid or payable to a FH, or for the benefit of a FH, shall be deemed applied and credited in satisfaction of his forced share. 1507. DIV may not be reduced until the value of all the property comprised in the DMC is exhausted. The testator may expressly declare in the testament that a legacy shall be paid in preference to others, in which case the preferred legacy shall not be reduced until the other legacies are exhausted. 1508. When the property of the estate is not sufficient to satisfy the forced portion, a FH may recover the amount needed to satisfy his legitime from the donees of inter vivos donations made within 3 years of the date of the decs death, beginning with the most recent donation and proceeding successively to the most remote. 1509. When a donee from whom recovery is due is insolvent, the FH may claim his legitime from the donee of the next preceding donation and so on to the donee of the most remote donation. A donee who pays the share of an insolvent donee is subrogated to the rights of the FH against the insolvent donee. 1510. The value of a remunerative donation is not included in the calculation of the forced portion, and the donation may not be reduced, unless the value of the remunerated services is less than 2/3 of the value of the property donated at the time of the donation, in which event the gratuitous portion is included in the calculation and is subject to reduction. 1511. The value of an onerous donation is not included in the calculation of the forced portion, and the donation may not be reduced, unless the value of the charges is less than

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2/3 the value of the property donated at the time of the donation, in which event the gratuitous portion is included in the calculation and is subject to reduction. 1512. The fruits and products of property donated inter vivos belong to the donee except for those that accrue after written demand for reduction is made to him. 1513. The action for reduction of excessive donations may be brought only against the donee or his successors by gratuitous title in accordance with the order of their donations, beginning with the most recent donation. When the donated property is still owned by the donee or the successors, reduction takes place in kind or by contribution to the payment of the legitime, at the election of the donee or the successors, who are accountable for any dimunition in the value of the property attributable to their fault or neglect and for any charger or encumbrances imposed upon the property after the donation. When the property given is no longer owned by the donee or his successors by gratuitous title, the donee and the successors must contribute to the payment of the legitime. A donee or his successor who contributes to payment of the legitime is required to do so only to the extent of the value of the donated property at the time the donee received it. 1514. A FH may request security when a usufruct in favor of a S/S affects his legitime and he is not a child of the S/S. A FH may also request security to the extent that a S/Ss usufruct over the legitime affects separate property. The court may order the execution of notes, mortgages, or other documents as it deems necessary, or may impose a mortgage or lien on either separate or community property, movable or immovable, as security. I. II. Introduction Who are Forced Heirs a. Age La. CC. 1494, La. Const. Art. XII, Sec. 5 i. Analysis: 1. Applies to first descendants who have not yet reached the age of 24 or grandchildren through representation *check exact wording 2. Under 24? 3. Infirmity? a. Mental? b. Physical? c. AND permanently incapable of caring for their persons or administering their estates in the future. 4. Less intrusive way than interdicting someone is to get power of attorney. ii. Physical OR mental infirmity AND permanently incapable of taking care of his person or estate. iii. Problems 1. 25 year old quadriplegic, in law school with a 4.0 GPA qualify as a FH? a. Over 24 b. No mental infirmity 12

c. Physical infirmity? probably AND permanently incapable 2. 25 year old paraplegic with an IQ of 80 who was able to work at Good Will 40 fours per week sorting donated clothes. a. Over 24 b. Mental incapacity but working 40 hours c. Could get power of attorney 3. Testators grandson was born deaf. His mother, testators daughter died when she was 32. At testators death, his grandson was 2 years old. Grandson a FH? a. Not forced by age because the mother was over 23 when she died b. Deaf rendered incapable of taking care of estate c. In the gray area because hes only 2 could get hearing back possibly 4. Grandson in 3 was 25, learned to read lips, and worked as a data entry? a. Age? no, b/c 25 b. Representation? Mother is 33. *even if has disability still mention cant come in through age representation c. Then, move to disable. d. No, because can read lips and works. b. Mental Incapacity or Physical Infirmity-La. C.C. 1493 i. Succession of Martinez ii. Succession of Ardoin c. The Transition- La. R.S. 9:2501 i. *January 1, 1996 ii. General rule: The right to claim as a FH is governed by the law in effect at the time of the decs death. iii. If the decs testament used a term such as forced portion or legitime, the legal effect which has changed after the testator has executed his will, then the ct may consider the law in effect at the time the testament was executed to ascertain the testators intent in the interpretation of the legacy. iv. See problems on p. 12-38 d. Conflict of Laws- La. C.C. 3532-3534 i. Movables- applies where person is domiciled. ii. Open the estate where the person dies and could open ancillary proceedings in Miss. iii. Immovables in La: FH will NOT apply if: 1) deceased was domiciled outside of La. AND 2) he left no FH domiciled in LA at the time of his death. 1. FH are designed to protect domiciliaries of La at the time of death.

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iv. Immovables outside of La: FH will apply if: 1) decedent died while domiciled in La AND 2) if the decedent left at least 1 FH who, at the time of the decedents death, was domiciled in this state. 1. Interest is limited for purposes only of satisfying the legitime. 3532. Except as otherwise provided in this Title, testate and intestate succession to movables is governed by the law of the state in which the deceased was domiciled at the time of death. 3533. Except as otherwise provided in this Title, testate and intestate succession to immovables situated in this state is governed by the law of this state. The FH laws of this state does not apply if the deceased was domiciled outside this state at the time of death and he left no forced heirs domiciled in this state at the time of his death. 3534. Except as otherwise provided in this Title, testate and intestate succession to immovable situated in another state is governed by the law that would be applied by the courts of that state. If the deceased died domiciled in this state and left at least one FH who at the time was domiciled in this state, the value of those immovables shall be included in calculating the disposable portion and in satisfying the legitime. v. Jarel v. Moons Succession 1. Dec gave daughter $1000. Daughter wants the La. prop. Not entitled because didnt live in La. vi. Problem p. 12-41 Protecting the Forced Portion

III.

1521 vulgar substitutions for FH? Survivorship clause. Shall not exceed 6 months. Can do this but FH must die without descendants OR FH and descendants die in this time period. I leave all my property to my minor children but if they dont take it then leave it to Larry. a. Unlawful Impediments- La. C.C. 1496 i. Succession of Turnell 1. Leaves to Hutchinson and remainder to Blakely. This is permitted because qualified as a trust. Problem then because no trusts existed. ii. Succession of Williams 1. James complaining hes not getting full ownership, argues that the usufruct was more valuable. Cant put a value on a usufruct. If not in patrimony, then cant leave it to anyone. This was not a permissible burden. 2. You are permitted to have right of habitation over part. 3. Could have also grant forced portion in full ownership and a usufruct over the disposables.

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b. Spousal Usufruct and Security-La. C.C. 890, 573(B), 1499, 1514 (note: there can only be a surviving spouse usufruct, if want to leave something for your sister you put it in a trust) i. Yianny believes that usufruct over forced portion disposes at remarriage and that can only grant disposition of non-consumables expressly ii. If you have a usufruct over a consumable, you basically have ownership. 890. If the deceased spouse is survived by descendants, the s/s shall have a usufruct over the decedents share of the community property to the extent that the decedent has not disposed of it by testament. This usufruct terminates when the S/S dies or remarries, whichever occurs first. 573(B). A seller or donor of property under reservation of usufruct is not required to give security. 1499.The decedent may grant a usufruct to the S/S over all or part of his property, including the forced portion, and may grant the usufructuary the power to dispose of nonconsumables as provided in the law of the usufruct. The usufruct shall be for life unless expressly designated for a shorter period, and shall not require security except as expressly declared by the decedent or as permitted when the legitime is affected. A usufruct over the legitime in favor of the surviving spouse is a permissible burden that does not impinge upon the legitime, whether it affects community property or separate property, whether it is for life or a shorter period, whether or not the forced heir is a descendant of the S/S, and whether or not the usufructuary has the power to dispose of nonconsumables. - over all property, can grant to dispose of nonconsumables, for life unless otherwise designated 1514. A forced heir may request security when a usufruct in favor of a S/S affects his legitime and he is a not a child of the S/S. A forced heir may also request security to the extent that a S/Ss usufruct over the legitime affects separate property. The court may order the execution of notes, mortgages, or other documents as it deems necessary, or may impose a mortgage or lien on either community or separate property, movable, or immovable, as security. Intestate: -Security when: 1) stepchild OR 2) child, FH, can get it over the legitime who is the parent FH: 1) affects legitime AND Stepchild; 2) S/S affects separate property if affects legitime (if you are a child) Analysis: Is the FH a child? No Security to extent of the legitime.

15

Yes extent of legitime only for separate property. c. The Legitime in Trust i. Must be income and principal beneficiary deemed Full ownership for purposes of satisfying the legitime. ii. Title 9, Sect. 1841 mentioned in notes? iii. Sachnowitz v. Nelson 1. An income interest in trust cannot satisfy the forced portion. 2. It needs to be in the persons patrimony. 3. Therefore, cant just be an income interest of a usufruct. Cannot give that to someone else Calculating and Satisfying the Forced Portion, The Mass Estate and Reduction

IV.

La. C.C. 1495, 1500, 1503-1513, La. R.S. 9:2347 1495. DIV and mortis causa may not exceed three-fourths of the prop of the donor if he leaves, at his death, 1 FH, and one half if he leaves, at his death, 2 or more FH. The portion reserved for the FHs is called the forced portion and the remainder is called the disposable portion. 2nd par. Greenlaw: Nevertheless, if the fraction that would otherwise be used to calculate the legitime is greater than the fraction of the decs estate to which the FH would succeed by intestacy, then the legitime shall be calculated by using the fraction of an intestate successor. A. The Mass Estate and the Forced Portion a. Calculation: i. All property owned at death (conflict rules) ii. Minus the debts of the estate iii. = property in the estate iv. +DIVS given within 3 years (value at time of the donation) v. active mass THEN apply or fraction vi. Leave out: 1. life ins premiums 2. pension plans 3. donations made to other spouses 4. onerous and remunerative donations unless violate 1510 and 1511 (can only give something a little bit more expensive than what you gave) *see slide because if does violate, you dont include the value of the entire thing B. Reduction La. C.C. 1503-1515 1503. A donation, inter vivos or mortis causa, that impinges upon the legitime of a forced heir is not not null but is merely reducible to the extent necessary to eliminate the impingement. 1504. An action to reduce excessive donations may be brought only after the death of the donor, and then only by a forced heir, the heirs or legatees of a forced heir, or an assignee

16

of any of them who has an express conventional assignment, made after the death of the decedent, of the right to bring the action. 1505. 1506. 1507. DIV may not be reduced until the value of all the property comprised in donations mortis causa is exhausted. The testator may expressly declare in the testament that a legacy shall be paid in preference to others, in which case the preferred legacy shall not be reduced until the other legacies are exhausted. 1508. When the property of the estate is not sufficient to satisfy the forced portion, a forced heir may recover the amount needed to satisfy his legitime from the donees of inter vivos donations made within 3 years of the date of the decedents date, beginning with the most recent donation and proceeding successively to the most remote. 1509. When a donee from whom recovery is due is insolvent, the FH may claim is legitime from the donee of the next proceeding donation and so on to the donee of the most remote donation. A donee who pays the share of an insolvent donee is subrogated to the rights of the FH against the insolvent donee. 1510. The value of a remunerative donation is not included in the calculation of the forced portion, and the donation may not be reduced, unless the value of the remunerated services is less than 2/3 of the value of the property donated at the time of the donation, in which event the gratuitous portion is included in the calculation and is subject to reduction. 1511. The value of an onerous donation is not included in the calculation of the forced portion, and the donation may not be reduced, unless the value of the charges is less than 2/3 the value of the property donated at the time of the donation, in which event the gratuitous portion is included in the calculation and is subject to reduction. 1512. The fruits and products of property donated inter vivos belong to the donee except for those that accrue after written demand for reduction is made on him. 1513. The action for reduction of excessive donations may be brought only against the donee or his successors by gratuitous title in accordance with the order of their donations, beginning with the most recent donation. When the donated property is still owned by the donee or the successors, reduction takes place in kind or by contribution to the payment of the legitime, at the election of the donee or the successors, who are accountable for any dimunition in the value of property attributable to their fault or neglect and for any charges or encumbrances imposed upon the property after the donation. When the property given is no longer owned by the donee or his successors by gratuitous title, the donee and the successors must contribute to the payment of the legitime. A donee or his successor who contributes to payment of thelegitime is required to do so only to the extent of the value of the donated property at the time the donee has received it.

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1514. A FH may request security when a usufruct in favor of a surviving spouse affects his legitime and he is not a child of the surviving spouse. A FH may also request security to the extent that a S/Ss usufruct over the legitime affects separate property. The court may order the execution of notes, mortgages, or other documents as it deems necessary, or may impose a mortgage or lien on either separate or community property, movable or immovable, as security. 1515. a. Succession of Willis i. Forced portion = 278 K. Each kid received = 46 k was their legitime. Elizabeth was going to get way more so she renounces. Life ins policy would reduce her legitime and because she would get more through that. May still be subject to a reduction action. ii. Today, entitled only to 1/6 because intestate fraction is lower. iii. *always check the intestate fraction iv. Policy reason: Dont want one kid to take that much when theres so many other kids. Notes: You can determine who you want to get paid out first. If have 3 DIVs that collecting from and cannot determine which one to take one? Take Pro Rate. Always pay out particular legatees first then you pay out universal. 1600. C. Mechanics of Reducing Excessive Donations La. C.C. 1503, 1507-1513 a. The Right of Reduction i. Succession of Henican 1. Absent an express conventional assignment cannot bring a reduction action if not a forced heir. 2. 5 year prescriptive period for a reduction action. D. Disinhersion 1617. A FH shall be deprived of his legitime if he is disinherited by the testator, for just cause, in the manner prescribed in the following articles. 1618. A disinhersion must be made in one of the forms prescribed for testaments. 1619. The disinhersion must be made expressly and for a just cause; otherwise, it is null. The person who is disinherited must be either identified by name or otherwise identifiable from the instrument that disinherits him. 1624. The testator shall express in the instrument the reason, facts, or circumstances that constitute the cause for the disinhersion; otherwise, the disinhersion is null. The reason, facts, or circumstances expressed in the instrument shall be presumed to be true. The presumption may be rebutted by a preponderance of the evidence, but the unsupported testimony of the disinherited heir shall not be sufficient to overcome the presumption.

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1623. A person may be disinherited even though he was a presumptive forced heir at the time of the occurrence of the act or the facts or circumstances alleged to constitute just cause for this disinhersion. Notes: Disinhersion only applies with forced heirs. If not a FH, then dont put them in will to disinherit them. However, still want to put disinhersion language in the will even if the child is 35 years old because FH is determined at death the child could become disabled before death of the parent. a. Succession of Vincent i. Change in law since Vincent. Now, presumption that must be rebutted. This was a credibility call because he was a he said she said scenario. b. Succession of Bertaut i. Aberration. Very difficult to overcome disinhersion. Sons didnt communicate with their father. Sons argued it was with just cause because he never wanted to communicate with them. A person should not be required by law to perform a vain and useless act. c. Succession of Gray i. Same as in Bertaut where dad didnt want to communicate but those heirs werent successful. If a relationship existed at some point, then not just cause to not communicate. To preserve communication: Send card through certified mail, sender received. Parent does not have to respond. Chapter 13: Donations Omnium Bonorum and Dispositions Reprobated by Law La. C.C. 1498, 1519-1522, 1527, 1769 1498. The DIV shall in no case divest the donor of all his property; he must reserve to himself enough for subsistence. If he does not do so, a donation of a movable is null for the whole, and a donation of an immovable is null for the whole unless the donee has alienated the immovable by onerous title, in which case the donation of such immovable shall not be declared on the ground that the donor did not reserve to himself enough for subsistence, but the donee is bound to return the value that the immovable had at the time that the donee received it. If the donee has created a real right by onerous title in the immovable given to him, or such right has been created by operation of law since the donee received the immovable, the donation is null for the whole and the donor may claim the immovable in the hands of the donee, but the property remains subject to the real right that has been created. In such a case, the donee and his successors by gratuitous title are accountable for the resulting diminution of the value of the property. Donation of movable: null for the whole Donation of an immovable: null for the whole UNLESS donee has alienated the immovable by onerous title, donee is bound to return the value that the immovable had at the time that the donee received it.

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If donee has created a real right by onerous title in the immovable given to him, or such right has been created by operation of law since the donee received the immovable, the donation is null for the whole and the donor may claim the immovable in the hands of the donee, but the property remains subject to the real right that has been created. In such a case . . . Policy reason so that donor will never become a ward of the state. Need an authentic act and delivery. Donee will believe that thing is his. Donee must return the value (usually the purchase price). Donee creates real rights? Immovable goes back to the donor but subject to the real rights dimunition in value. 1519. In all DIV and mortis causa impossible conditions, those which are contrary to the laws or to morals, are as reputed not written. Donation stands but the condition comes out 1520. A disposition that is not in trust by which a thing is donated in full ownership to a first donee, called the institute, with a charge to preserve the thing and deliver it to a second donee, called the substitute, at the death of the institute, is null with regard to both the institute and the substitute. I leave all my property to my husband and when he dies give it to my sister. prohibited substitution, not in trust, donated in full ownership, neither 1st or 2nd donee gets it Prohibited Substitution: 1. Full ownership (need duty to preserve AND render for full ownership) 2. Charge on donee to preserve a thing 3. Deliver to 3rd person at donees death This entire donation will be null regardless of the testators wishes because the donor is giving less than full ownership and ties up property. 1521. The disposition by which a third person is called to take a gift or legacy in case the donee or legatee does not take is not a prohibited substitution. A testator may impose as a valid suspensive condition that the legatee or a trust beneficiary must survive the testator for a stipulated period, which period shall not exceed 6 months after the testators death, in default of which a third person is called to take the legacy. In such a case, the right of the legatee or trust beneficiary is in suspense until the survivorship as required is determined. If the legatee or trust beneficiary survives as required, he is considered as having succeeded to the deceased from the moment of his death. If he does not survive as required, he is considered as never having received it, and the third person who is called to take the bequest in default of his survival is considered as having succeeded to the deceased from the moment of his death. A survivorship condition as to the legitime of a forced heir shall

20

only be valid if the forced heir dies without descendants, or if he dies with descendants and neither the forced heir nor the descendants surivive the stipulated period. I leave it to Jane but if Jane doesnt take it give it to Joe. Applies to DIV or mortis causa survivorship clause ok but no more than 6 months 1522. The same shall be observed as to the disposition inter vivos or mortis causa, by which the usufruct is given to one, and the naked ownership to another. Ill give you the car if you take me to work every morning. 1527. The rules peculiar to DIV do not apply to a donation that is made to recompense for services rendered that are susceptible of being measured in money unless at the time of the donation the value of the services is less than 2/3 of the value of the thing donated. 1769. A suspensive condition that is unlawful or impossible makes the obligation null. I. II. Introductions Donations Omnium Bonorum

During life Only donor can challenge After death only FH can challenge *look at circumstances at time of the donation *claims of acquisitive prescription have defeated the DOB Rules a. Trahan v. Bertrand i. Ira and Bertrand made intervivos donations of immovable property to Alfred in September 1992. ii. Daughter wants to declare mom and dads donations null for immovables. 8 years later. Ok though because she was a forced heir to one of the parents so could bring a reduction action towards her. And it was unprescribed because DOB is null. iii. Instead of just reduction for the forced portion, she could have gotten more by bringing the whole thing back to the estate. iv. FIRST: Challenge the entire donation, then bring a reduction action. v. *allowing Virgie to bring action after her death, but then its not possible for her to become a ward of the estate. But dont want to take care of her forced heirs. vi. *This is exception to the FH rules because FH can get DOB more than 3 years after the date of the donation. vii. Absolute nullity as if didnt exist during the donors life only he can challenge it after death

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III.

IV.

Immoral, Illegal, and Impossible Conditions Remove UNLESS it is the primary moving cause of the donation. If so, the entire donation is null. but for test but for this condition the donation would not have been made. Determine: Impossible condition first, then whether it is the primary or moving cause. a. Succession of Thompson i. Impossible condition because daughters were not widows, Protestants, or orphans. ii. Look to the will of the testator. iii. What was the primary moving cause? To protect his daughters. But maybe not because they he would have given it to them, iv. Would he have wanted the Fink asylum to get the money if he knew daughters wouldnt get any? Probably not. v. There is a desire to carry out the testators wishes to a certain extent. b. Labarre v. Hopkins i. I leave all of my property to my heirs, burdened with a usufruct in favor of my husband as long as he never remarries. ii. Condition was no usufruct is remarries. c. Succession of Ruxton i. provided however, that she still be unmarried at the time of my death. If she is not unmarried, the $10,000 should go to the residue of my estate. -- ok. Cant prohibit marriage but can condition the status. ii. This condition is not to never marry just a status determination. if youre not married then Ill give you some $ to help you out. d. Succession of Augustus i. If your bitch comes in my house then the lifetime usufruct ends. thats ok ii. What about? usufruct of my property for life as long as never get married. there is a difference between first marriage and remarriage. Harder time validating condition on first marriage then on remarriage. e. Succession of Feitel Immoral condition then the condition is taken out. i. The Real Estate shall not be sold or mortgaged for period of 10 years after the death ii. illegal condition = contrary to law iii. tying up the property for a long period of time can be illegal tie it up in a trust then thats ok iv. Pecatory suggectionI leave my $ to my sister for her kids for college. I would really like . . . Cannot force people to use donation for kids college. f. Notes on 13-16 g. 2628 Right of first refusals are ok. Not an illegal condition. Prohibited Substitutions and Fidei Commissa

Fidei commissa not in the Code anymore. It was a type of donation with a condition that would now be seemed as illegal. duty to render Give to Joe and whatevers left give to Sally. NO. Joe should get to decide but going to give it Joe anyway. 22

I leave my estate to Amy and at her death give whatever is left over to Barry. Fidei commissa. BUT I leave my estate to Amy to use it and at her death Barry should get it. NO to Barry and usufruct to Amy. I leave my estate to Amy and at her death give it to Barry. = PS a. Succession of Johnson i. I, Thomas Johnson do make this my Will and do here by leave everything to my wife Sue W. Johnson as long as she live and then she is to leave her step son Robert Thomas Johnson just of the share of what is left and Martha Jane my only Daughter the rest, at my death Sue W. Johnson shall be the administer of this will in my own writing at 3 P.M. Nov. 2 ii. Leaving Robert and Martha the rest. Taking away the moms ability to render. iii. Fidei commissa iv. Double disposition because she does whatever she wants then give it to someone else v. Need both a duty to preserve & render vi. Cts push not to call things prohibited substitutions b. Succession of Morgan i. Johnny gets the home land at brother and wifes death ii. Prohibited substitution iii. Double disposition because gave to Evelyn and then give to Randy iv. No duty to render v. Ct said there was a double disposition because she had a duty to keep it and she cant sell it. Only Johnny can sell it. vi. The duty to preserve can be inferred because she couldnt sell it. c. Baten v. Taylor i. Seizin case possession of the property which does not result in full ownership ii. Seized heir is usually the succession representative iii. Wife doesnt get the property if she doesnt survive him by 30 days, if doesnt go to nephew iv. Suspensive condition is NOT a double disposition in full ownership d. Succession of Walters i. What is the effect of a prohibited substitution on the remainder of the provisions of a will? ii. Prohibited substitutions do not affect the remainder of the provisions of the will (unless the ps is the entire will). iii. Can sue for the accretion of the rights (universal legatee) Disposition of Usufruct and Naked Ownership: La. C.C. 1522

V.

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1522. Separate donations of usufruct and naked ownership. The same shall be observed as the disposition inter vivos or mortis causa, by which the usufruct is given to one, and the naked ownership to another. a. Succession of Thilborger i. To my husband I give devise and bequeath the use of the lodge and harbor, and cottages at the plantation as long as he lives and at his death to be given to the charity hospital to be used as a convalescent home to bring in the sick for fresh air and regain their strength ii. Cts havent always been consistent about determining ps and usufruct/no iii. If you want to keep the will, you will argue no and usufruct and another arg no duty to preserve and render iv. Found that this was not ps b. Succession of Fournet i. Successive usufructs are NOT double dispositions ii. What about 2 naked ownerships? Nos heirs would get the NO but it would never enter his patrimony. iii. alienability of the naked ownership right iv. 546 permits successive usufructs. Nothing really on naked ownership. v. Could argue illegal condition rather than ps and would just declare condition null rather than nullifying the entire condition c. Succession of Goode i. All oil and gas royalty interest payments owned by me shall be paid to Pauline Egbert Parker for as long as she might live. After her death the amount of any payments shall be equally divided between my nieces and nephews and Linda Cosby Paine. ii. If mineral rights exist, get interest in the proceeds. iii. Get portion of royalties for whatever portion of land you own. iv. Mineral royalty is naked ownership and payments are the subject of the usufructuary. v. Not worried about payments. vi. Successive usufruct re-affirmed in Goode. Vulgar Substitutions: La. C.C. 1521

VI.

1521. The disposition by which a third person is called to take a gift or legacy in case the donee or legatee does not take is not a prohibited substitution. A testator may impose as a valid suspensive condition that the legatee or a trust beneficiary must survive the testator for a stipulated period, which period shall not exceed 6 months after the testators death, in default of which a third person is called to take the legacy. In such a case, the right of the legatee or trust beneficiary is in suspense until the survivorship as required is determined. If the legatee or trust beneficiary survives as required, he is considered as having succeeded to the deceased from the moment of his death. If he does not survive as required, he is considered as never having received it, and the third person who is called to take the bequest in default of his survival is considered as having succeeded to the deceased from the moment of his death. A survivorship condition as to the legitime of a forced heir shall

24

only be valid if the forced heir dies without descendants, or if he dies with descendants and neither the forced heir nor the descendants survive the stipulated period. If legatee survives, he succeeds as if having it from the magic moment of death. Can put survivorship clause on FH if dies without descendants or dies with descendants and both dont survive the stipulated time period. a. Swart v. Lane i. in case of my childs death as well as my own ii. Brother want it because if the will is invalidated and the succession goes intestate they will take. iii. Husband will only get if the child dies iv. If child doesnt take THEN he gets it b. Problems c. Hypothetical Chapter 14: Donations Inter Vivos La. C.C. 1526-1535 1526. The rules peculiar to donations inter vivos do not apply to donation that is burdened with an obligation imposed on the donee that results in a material advantage to the donor, unless at the time of the donation the cost of performing the obligation is less than 2/3 of the value of the thing donated. 1527. The rules peculiar to DIVs do not apply to a donation that is made to recompense for services rendered that are susceptible of being measured in money unless at the time of the donation the value of the services is less than 2/3s of the value of the thing donated. 1528. The donor may impose on the donee any charges or conditions he pleases, provided they contain nothing contrary to law or good morals. 1529. A DIVs can have as its object only present property of the donor. If it includes future property, it shall be null with regard to that property. 1530. A DIVs is null when it is made on a condition that fulfillment of which depends solely on the will of the donor. 1531. A donation is also null if it is burdened with an obligation imposed on the donee to pay debts and charges other than those that exist at the time of the donation, unless the debts and charges are expressed in the act of donation. 1532. The donor may stipulate the right of return of the thing given, either in the case of his surviving the donee only, or in the case of his surviving the donee and the descendants of the donee. The right may be stipulated only for the advantage of the donor.

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1533. The effect of the right of return is that the thing donated returns to the donor free of any alienation,, lease, or encumbrance made by the donee or his successors after the donation. The right of return shall not apply, however, to a good faith transferee for value of the thing donated. In such a case, the donee and his successors by gratuitous title are, nevertheless, accountable for the loss sustained by the donor. (1532&1533 note rights of good faith trasnferees for value) 1535. Blank. 1541. A DIV shall be made by authentic act under the penalty of absolute nullity, unless otherwise expressly permitted by law. 1542. The act of donation shall identify the donor and the donee and describe the thing donated. These requirements are satisfied if the identities and description are contained in the act of donation or are reasonably ascertainable from information contained in it, as clarified by extrinsic evidence, if necessary. 1543. The DIVs of a corporeal movable may also be made by delivery of the thing to the donee without any other formality. 1544. A DIVs is without effect until it is accepted by the donee. The acceptance shall be made during the lifetime of the donor. The acceptance of a donation may be made in the act of donation or subsequently in writing. When the donee is put into corporeal possession of a movable by the donor, possession by the donee also constitutes acceptance of the donation. 1545. The donee may accept a donation personally or by a mandatory having power to accept a donation for him. 1546. The acceptance shall be made during the lifetime of the donee. If the donee dies without having accepted the donation, his successors may not accept for him. 1547. If the donee refuses or neglects to accept the donation, his creditors may not accept for him. 1548. A donation made to an unemancipated minor may be accepted by a parent or other ascendant of the minor or by his tutor, even if the person who accepts it is also the donor. 1549. The donee acquires the thing donated subject to all of its charges, even those that the donor has imposed between the time of the donation and the time of the acceptance. 1550. The donation or the acceptance of a donation of an incorporeal movable of the kind that is evidenced by a certificate, document, instrument, or other writing, and that is transferable by endorsement or delivery, may be made by authentic act or by compliance with the requirements otherwise applicable to the transfer of that particular kind of incorporeal movable.

26

In addition, an incorporeal movable that is investment property may also be donated by a writing signed by the donor that evidences donative intent and directs the transfer of the property to the donee or his account or for his benefit. Completion of the transfer to the donee or his account or for his benefit shall constitute an acceptance of the donation. 1551. A donation is effective upon acceptance. When the donation is effective, the ownership or other real right in the thing given is transferred to the donee. 1556. A DIV may be revoked because of ingratitude of the donee or dissolved for the nonfulfillment of a suspensive condition or the occurrence of a resolutory condition. A donation may also be dissolved for the nonperformance of other conditions or charges. 1557. Revocation on account of ingratitude may take place only in the following cases: 1) if the donee has attempted to take the life of the donor; or 2) if he has been guilty towards him of cruel treatments, crimes, or grievous injuries. *read comments* 1558. An action of revocation for ingratitude shall be brought within one year from the day the donor knew or should have known of the act of ingratitude. If the donor dies before the expiration of that time, the action for revocation may be brought by the successors of the donor, but only within the time remaining, or if the donor died without knowing or having reason to know of the act, then within on year of the death of the donor. If the action has already been brought by the donor, his successors may pursue it. If the donee is deceased, the action for revocation may be brought against his successors. 1559. Revocation for ingratitude does not affect an alienation, lease, or encumbrance made by the donee prior to the filing of the action to revoke. When an alienation, lease, or encumbrance is made after the filing of the action and the thing given is movable, the alienation, lease, or encumbrance is effective against the donor only when it is an onerous transaction made in good faith by the transferee, leasee, or creditor. When an alientation, lease, or encumbrance is made after the filing of the action and the thing given is immovable, the effect of the action to revoke is governed by the law of registry. 1560. In case of revocation for ingratitude, the donee shall return the thing given. If he is not able to return the thing itself, then the donee shall restore the value of the thing donated, measured as of the time the action to revoke is filed.

I.

Introduction

3 types of DIVs: 1. Gratuitous (without conditions) 2. Onerous (burdened with charges) (art. 1526) 3. Remunerative (in recompense for services rendered) (art. 1527)

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Only apply rules for donations IF: (REM: for donations, specific rules for form, collation and reduction, undue influence, and capacity, age) Value of the services or Cost to Perform < 2/3 * value of the donation Hypo: If ask someone to board your dog and its 800, you give them 900. Donation rules do not apply. If only $500 to board the dog, and give them 900, now gift far exceeds the value of the services so would apply donations rule. If including something in the estate, only include the gratuitous portion. That would be $400 thats added back into the mass estate. A. Succession of Henry i. Want to recompense for services for taking care of her ii. If you are a FH, argue: Not a remunerative donation OR no services were rendered or this was a natural obligation. iii. For natural obligation, more than 1 child this doesnt work because why should one do all the work. iv. His services were much greater so that was valid. B. Succession of Formby i. 6 kids and leaves all to one son ii. this being an onerous donation, he having provided for me during my lifetime iii. Sis argued there were no charged placed on the donee iv. This was a remunerative donation. It has no effect that she called it an onerous donation. v. Dissent: If remunerative then when will was written but what about after it was written? Does it become onerous. C. Succession of Danos i. Value of gift: $26, 091.97 ii. Value of services: $12,110.00 iii. Do donation rules apply? 12,111 < 2/3*26,091.97 = 17 K iv. So donation rules do apply. v. DIV was invalid as to form. Must return to the estate. vi. Value of the gift exceeded the value of the services so rules apply. vii. Form: Need authentic act with 2 witnesses viii. If child caring for child = can call it gratuitous. ix. The Donee has the burden of proving transfer was gratuitous by establishing the value of property exceeds fraction. D. Problems, 14-12 The Substance and Form of Inter Vivos Donations A. Remember, need INTENT (substance) and FORM B. General rule for Form: i. DIVs must be confected by authentic act (arts. 1541) ii. Exception: 1. Corporeal movable may be donated by real delivery (1543) 2. Stocks and negotiable instruments 3. life insurance

II.

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4. annuities 5. pensions Undue influence is a vice of consent for donations but not for Ks. Emancipated minors can make donations but minors under 16 cannot. Fhs argue: donation was gratuitous, if lose then argue less than 2/3 so can get the gratuitous portion III. Shares of Stock A. Primeaux v. Liberstat i. wife claims she got during the community property regime. husband this was a present from his father. ii. Ct said stocks are incorporeal movables so they were never properly transferred iii. S. Ct. reversed because there existed a legislative exception iv. ? check this out B. La. R.S. 10:8-301 Delivery i. Delivery of certificated security is enough to transfer. C. La. R.S. 10:8-302 Rights of Purchaser Checks and Other Negotiable Instruments

IV.

Check = incorporeal, movable property If collected check before the donors death? Need authentic act. Not completed until you cash it. Then its a manual gift or a money. Cash = corporeal movable. Until they cash it, not a completed donation. Uncashed at donors death = not completed donation If check is a third party check, indorsed by donor to donee and uncashed at donors death? orig 3rd party wasnt gratuitous. Original donor has claim against the estate. A. B. C. D. La. R.S. 10:3-104 Negotiable Instrument. La. R.S. 10:3-201 Negotiation La. R.S. 10:3-203 Transfer of instrument; rights acquired by transfer Succession of Jones i. Wanda said that money was a gift. Nephew wants the $ back and argued not a gift and that was she in charge of the paying the medical bills. Pt argued it was a negotiable instrument and that it was a payment on the condition of future debts. ii. Ct said this didnt matter whether this was an onerous remunerative donation because it was a valid donation. iii. *look at both commercial law as to form and donation law for the substantive law. iv. Just because form law doesnt apply does not mean that donations law doesnt apply.

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V.

E. Succession of Tebo i. Instructions to niece to give grandniece and great grandnephew. completed donation because cashed before death and accepted. ii. had intent, proper form. iii. But wasnt completed because required manual delivery. iv. The ct could not let the niece go into the bank box. v. Suggest delivery if this situation happened on exam. Bank Accounts and Homestead Shares 2 important aspects: control and irrevocability. A. Menard v. Muhs i. In writing on back of shares. Transferred with different number and name. Acceptable form of donation because manual gift. B. Burkes v. Barbour i. Name was on the account. But the ct said this was not valid. Take your name off and release total control of the account in order for proper DIV. ii. OR can put it in your will for mortis causa donation. C. Basco v. Central Bank & Trust Co. i. Gives savings account book to nephew day before he died. ii. This is NOT a manual gift because an account is an incorporeal movable. iii. Should have written codicil or a handwritten, formal note, or authentic act. iv. Hypo: Authentic act but name is still on the account? Have intent, form, but the NAME is the problem. You are not presently and irrevocably divesting yourself of the property. D. Graffeo v. Graffeo i. In husband or daughters name ii. 1 month after the marriage take the daughters name off and put the wife on iii. 5 months later, withdrew 20k and transferred to a new account (he knew their relationship was poor) with just his name iv. He argued that this was his separate property even though there was a community property regime. It originally was separate property but did it become community property? v. YES! vi. This was an onerous donation because she had given up her job to rely on this money. vii. 2343.1 changing separate property to community property requires an authentic act. viii. Putting her name on it was sufficient for the writing requirement. E. Succession of Lawrence i. Julius puts 2 certificate of deposits payable to Julius or nephew ii. Julius dies then heirs want to take iii. Nephew argues that it has my name on it

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iv. Not proper form lacked the requirements of formalities because incorporeal immovable so need authentic act v. Mortis causa donation? No, because need authentic act for that too vi. Ct said didnt need the form. Helped his uncle out for years. Turn to value of the services rendered. Because if not less than 2/3 then dont apply donation rules. vii. Once determine onerous or remunerative donation, must know the value to know whether donation rules apply. viii. Did not apply here. *putting your name on the account in addition to theirs is NOT enough. VI. Acceptance

1544. A donation inter vivos is without effect until it is accepted by the donee. The acceptance shall be made during the lifetime of the donor. The acceptance of a donation may be made in the act of donation or subsequently in writing. When the donee is put into corporeal possession of a movable by the donor, possession by the donee also constitutes acceptance of the donation. General mandate has power to accept. Specific mandatemay not have power depends on what the mandate says. 1548- emancipated minor art. parent & childs name on account. cts will rule that it is owned by the child. 1550 read comments A. Wiedemann v. Wiedemann i. conflicting testimony about who was there during signing of the act ii. look to the 4 corners of the document- no extrinsic evidence we have a fully executed instrument. iii. Acceptance can be made after the donation and dont need authentic act anymore. A subsequent writing is okay. Revocation 1556

VII.

1556. A DIV may be revoked because of ingratitude of the donee or dissolved for the nonfulfillment of a suspensive condition or the occurrence of a resolutory condition. A donation may also be dissolved for the nonperformance of other conditions or charges. Revocation for Ingratitude Reasons: 1557 Revocation for Ingratitude Principles. 1557- 1560. 1557. Revocation on account of ingratitude may take place only in the following cases: 1. If the donee has attempted to take the life of the donor; or 2. If he has been guilty towards him of cruel treatment, crimes, or grievous injuries.

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1558. An action for revocation for ingratitude shall be brought within 1 year from the day the donor knew or should have known of the act of ingratitude. If the donor died before the expiration of that time, the action for revocation may be brought by the successors of the donor, but only within the time remaining, or if the donor died without knowing or having reason to know of the act, then within one year of the death of the donor. If the action has already been brought by the donor, his successors may pursue it. If the donee is deceased, the action for revocation may be brought against his successors. 1559. Revocation for ingratitude does not affect an alienation, lease, or encumbrance . . . see above Dissolution for non-fulfillment of conditions. 1562. If a donation is subject to a suspensive condition, the donation is dissolved of right when the condition can no longer be fulfilled. If a donation is subject to a resolutory condition, the occurrence of the condition does not of right operate a dissolution of the donation. It may be dissolved only be consent of the parties or by judicial decree. 1563. If a donation is made on a condition that the donee has the power to perform or prevent, or depends on the nonperformance of a charge by the donee, the nonfulfillment of the condition or the nonperformance of the charge does not, of right, operate a dissolution of the donation. It may be dissolved only by consent of the parties or by judicial decree. 1564. An action to dissolve a donation for failure to fulfill the conditions or perform the charges imposed on the donee prescribes in five years, commencing the day the donee fails to perform the charges or fulfill his obligation or ceases to do so. 1565 &1567 In case of dissolution of a donation of an immovable for the failure of the donee to fulfill conditions or perform charges, the property shall return to the donor free from all alienations, leases, or encumbrances created by the donee or his successors subject to the law of registry. If the thing cannot be returned free from alienations, leases, or encumbrances, the donor may, nevertheless, accept it subject to the alienation, lease, or encumbrance, but the donee shall be accountable for any dimunition in value. Otherwise, the donee shall restore the value of the thing donated, measured as of the time the action to dissolve is filed. In case of dissolution of a donation of a movable for failure to fulfill conditions or perform charges, an alienation, lease, or encumbrance created by the donee or his successors is effective against the donor only when it is an onerous transaction made in good faith by the transferee, lessee, or creditor.

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1566. When a donation is revoked or dissolved, the donee or his successor is bound to restore or to pay the value of the fruits and products of the things given from the date of written demand. If the donation is dissolved for nonperformance of a condition or a charge that the donee had the power to perform, the court may order the donee or his successors to restore the value of the fruits and products received after his failure to perform is due to his fault. Examples: Suspensive: I will give you my hornets tickets next year if they win the championship this year. Impossible so donation is dissolved. Not required to go to court. Resolutory: I will give you my tickets as long as CP plays. A. Whitman v. Whitman i. Adultery = revocation for ingratitude ii. Husband argues it was onerous and he had to pay for daughter and mothers something iii. Note iv. Problem B. Board of Trustees v. Richardson i. Pinkney gives property to church and says this prop will revert back to me if doesnt become a church ii. and says that church must be built within 1 year iii. This is a valid condition. They do not have the authority to sell. iv. They were fulfilling the condition because were still using it as a church they just also had a for sale sign up in front. v. Note 1. 9:2321 10 year time period now for religious institutions

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C. La. R.S. 9:2321 Title quieted and perfected by lapse of time D. La. R.S. 9.2322 Rights in property after perfection of title E. Problem Ch. 15: Dispositions Mortis Causa and the Marital Portion La. C.C. 1570-1616, 2432-2437 I. II. Introduction Intent and Form Substance (INTENT) + FORM 1469. A donation mortis causa (in prospect of death) is an act to take effect, at the death of the donor, by which he disposes of the whole or a part of his property, which is revocable. 1570. A disposition mortis causa may be made only in the form of a testament authorized by law. 1571. A testament may not be executed by a mandatory for the testator. Nor may more than one person execute a testament in the same instrument. 1572. Testamentary dispositions committed to the choice of a third person are null, with the exception that the testator can delegate certain authority to the executor. 1573. The formalities prescribed for the execution of a testament must be observed or the testament is absolutely null. a. Testamentary Intent i. In Re Billis Will 1. That is my will no matter what . . . 2. Called his testament a letter that doesnt matter as long as find animus testandi 3. Must be signed, written, and dated in the testators handwriting ii. Succession of Shows 1. All to my sister 2. no language of disposition 3. intent couldnt tell if wanted to own it iii. Succession of Hammett 1. 75% .To Sam Semurray 2. 25% to James 3. Donald Albert Hammett is no longer my husband and I leave him nothing. 4. Ct found it was valid intent and form because leave 5. Need to look at the will as a whole 6. leave argue its a valid will

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7. Lay people writing the testament then ok to have lay people terms iv. Hendry v. Succession of Helms 1. In the letter 2. Proper form 3. Intent to give at death no animus testandi because she was gong in a week later to make her last will and testament. 4. This was NOT going to be used for her last will and testament. 5. Need to give some credit to what happens in the interim between talking about the will and actually executing the will 6. Need to advise the client that these things are final 7. Wallace thinks the court got it right 8. Expression of intent may be through signature Masking tape + signed with will and clause in the will = valid mortis causa. Just masking tape and sign not valid because problem with animus testandi. v. Succession of Mott b. Will Forms (2: Olographic and Notarial) i. The Olographic Testament 1575. Generally: An olographic testament in one entirely written, dated, and signed in the handwriting of the testator. SIGNATURE: Although the date may appear anywhere in the testament, the testator must sign the testament at the end of the testament. If anything is written by the testator after his signature, the testament shall not be invalid and such writing may be considered by the court, in its discretion, as part of the testament. The olographic testament is subject to no other requirement as to form. DATE: The date is sufficiently indicated if the day, month, and year are reasonably ascertainable from information in the testament, as clarified by extrinsic evidence, if necessary. Read comments. Slash and dash ok. ADDITIONS AND DELETIONS: Additions and deletions on the testament may be given effect only if made by the hand of the testator. Court will not read typewritten provisions. Date can be anywhere. Must sign at the end of the testament. Add something after the signature W/in discretion of the court. Doesnt mean its invalid. Look to the evidence. Typewritten with signature at the end is NOT valid. 1. Hamilton v. Kelley

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a. brother dies, claim intestate, years later the nephew found the will but signature has been cut off, can be probated b. Absent proof of revocation by the testator. Want to ward against fraud. c. Must probate an original will but can probate a copy d. LOST WILLS: Can you probate a will that is lost? i. Made a valid will ii. Contents of the will are known iii. That the will was never revoked e. There is a presumption that it was revoked but overcome with these 3 things. f. Must be proven by testimony of 2 credible witnesses. g. Problem 2. Succession of Burke a. Valid if took out printed portions b. As long as meet requirements then going to probate c. To my sister Delia d. If took this exact language then it doesnt manifest its intention at death but court found it to be ok e. Court focused on the verb to ii. The Notarial Testament Contains 2 parts: 1. Substantive section (disposition of property) 2. Attestation clause (signed by notary and witnesses) Manner of execution depends: 1577. General Notarial Will GENERALLY: prepared in writing and dated. (can type in date and then just sign each page) EXECUTION: if the testator knows how to sign his name and to read and is physically able to do both: (1) FOR TESTATOR: In the presence of a notary and 2 competent witnesses, the testator shall declare or signify to them that the instrument is his testament and shall sign his name at the end of the testament and on each other separate page. (2) FOR NOTARY AND WITNESSES: In the presence of the testator and each other, the notary and the witnesses shall sign the following declaration, or one substantially similar: in our presence the testator has declared or signified that this instrument is his testament and has signed it at the end and on each other separate page, and in the presence of the testator and each other we have hereunto subscribed our names this ____ day of ____, _____.

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-signs his name (not initial) on each separate page -each page sign each page once and at end of the testament on each separate page Witnesses CANNOT BE WITNESSES (1581): -insane, blind, under age of 16 or unable to sign name (competent but deaf or unable to read cannot be a witness under 1579) That a witness or notary is a legatee does not invalidate the will just the legacy, unless the witness would be an heir in intestacy, he receives the lesser of the intestate share or legacy (1582). Note new article 1582.1 spouse of a legatee cannot be a witness Designation of a succession representative, trustee, or attorney for either is not a legacy. (1583) 1. Succession of Hendricks a. Gerald notarial testament. 3 kids from former relationship. one of the pages wasnt signed. but everything was ok but doesnt matter. code is very strict on the form. b. Guezuraga signature on the very last page of the attestation clause. Why invalidate the entire will? Bothersome he left out 3 children? c. Notes d. Problems e. Notes iii. Designation of Executor and Attorney 1. Succession of Wallace a. Cannot make a named lawyer binding on executors of the will b. Can name an attorney in the will but if the heirs dont have to use them iv. Types of Legacies, Lapses Legacies, and Accretion (important for accretion of legacies and payments of estate debts) 1. Introduction Problems 2. Types of Legacies: Universal, General, and Particular a. Universal (1585) i. Universal legacy is a: Disposition of all of the estate (I leave all of my estate to X) OR disposition of the balance of the estate that remains after particulars (I leave my car to Mary and the rest of my estate to X)

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ii. Can be made jointly (I leave my estate to X, Y, and Z jointly) b. General 1586 i. disposition bequeathing a fraction or certain portion of the estate (I leave of my estate to X and to Y) OR disposition bequeathing a proportion of the balance of the estate that remains after particulars (I leave of my car to Mary and of the remainder of my estate to X and to Y) ii. Fraction or certain proportion of property must came from the following exclusive categories: 1. separate or community 2. moveable or immovable 3. corporeal or incorporeal a. I leave all my movable property to X and the rest of my property to Y iii. *cannot have universal and general legacy in same will must be a general legacy phrased as a residuum iv. Eg. of movable property to X and the rest of Y general legacy to X and general phrased as a residuum to Y v. Eg. [All my corp movables] (particular) to X and [rest of my estate to Y] universal. Cant combine these 2 exclusive categories. c. Particular Legacies (1587) i. Particular legacy is neither general nor universal 1. I leave my car to Mary 2. I leave my corporeal movables to X 3. I leave of my house to X and to Y 4. [Blackacre to A] (particular) and the rest to Y (universal) d. Read all Comments to articles for good examples e. Succession of Burnside i. particular legacies usually lapse in favor of the universal ii. but can also have a particular lapsing in favor of a particular all my books to C except my law books I leave to D think of just crossing it out. f. Succession of Cartell i. All my personal belongings didnt include immovable property, only movable property. 3. Joint or Separate Legacies (1588) a. A legacy to more than one person is either joint or separate. 38

b. It is separate when the testator assigns shares. i. I leave of my house to X and to Y c. It is joint when the testator does not assign shares. i. I leave my house to X and Y d. Testator can make his or her designation express. e. Succession of Lambert i. Overruled prior cases. Dies w/ 2 siblings, one nephew from predeceased sibling. Clear one is left out. ii. Accretion vests in Robert since Albert died. iii. share and share alike = separate iv. Robert gets his shares and Alberts lapses and because separate the shares will go intestate. v. A separate universal is really a general. f. Succession of McCarron i. Joseph can take accretion or the kids ii. to be shared equally iii. What shares does Joseph get? iv. Separate so goes intestate v. Separate or joint most favored relative exception applies = except for fraud, duress, and undue influence g. Hopson v. Ratcliff i. particular legacy left to Kat and rest left among others ii. What happens to accretion when Katherine predeceases? iii. To be divided equally among them Separate iv. Today, would dissolve to the particulars v. Katherines share of the residuum goes intestate vi. Need to know if she has kids. If no kids, then goes intestate. 4. Lapses Legacies and Accretion A legacy lapses when: 1. legatee predeceases 2. legatee is incapable of receiving at the testators death 3. legacy is subject to a suspensive condition and the condition can no longer be fulfilled or the legatee dies before fulfillment 4. legatee is unworthy (convicted or judicially determined) 5. legatee renounces 6. legacy is invalid 39

7. legacy is declared null (fraud, duress, and undue influence) a. Art. 1589 Comment D b. Leave 10 k at the time of my death suspensive condition? NO! Status determination. c. Leave $ to Cindy if the war ends 6 months after my death. If not, legacy has lapses. d. 10 g to X to be paid on 21st birthday what if X dies at 19? Legatee died before fulfillment. trust type provisios. Would go to Xs heirs. Not suspending the execution of the legacy. e. war ends within the time of my death Challenge as an illegal condition. Accretion (1590-1596) 1. Follow governing testamentary provision if one exists. (1590) 2. Check to see if most favored relative exception applies. For a legatee who is a child or sibling of a testator (or a descendant of a child or sibling of a testator), accretion takes place in favor of his descendants by roots who were in existence at the time of the testators death (does not apply of the legacy is declared null for fraud, duress, or undue influence or is declared invalid). 1593. 3. If a particular or general legacy lapses: accretion takes place in favor of the successor, who, under the testament, would have received the thing if the legacy had not been made. 1591. 4. If a joint legacy lapses: accretion takes place ratably in favor of the other joint legatees. 1592. 5. If not disposed of above: accretion takes place ratably to universal legatees or a general legacy phrased as a residue or balance. 1595. (comments but com h doesnt follow the law) 6. If no universal legatee or general legatee phrased as a residuum: the property devolves by intestacy. 1596. v. Payment of Debts 1. Succession of Farwell vi. Revocation Revocation of a donation mortis causa is divided into 2 categories: -Revocation of an entire testament (1607) 3 ways: 1. Physically destroys the testament, or has it destroyed at his direction.

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2. Declares his right to revoke the entire testament in a) one of the forms prescribed for testaments or b) by authentic act. (most common) 3. Identifies and clearly revokes the testament by a writing that is entirely written and signed by the testator in his handwriting. -Revocation of a legacy or other testamentary provision (1608) 5 ways: 1. Declares revocation in form prescribed for testaments. 2. Makes a subsequent incompatible testamentary disposition or provision. 3. Makes a subsequent inter vivos disposition of the thing that is the object of the legacy and does not reacquire it. 4. Clearly revokes the provision or legacy by a signed writing on the testament itself. 5. Divorced from the legatee after the testament is executed and at the time of his death, unless the testator provides to the contrary. (Designation or appointments of spouse are also revoked.) Other Provisions: - Testator can revoke a revocation except when the revocation is made by physical destruction of a testament, subsequent inter vivos disposition or divorce. (1609) - Other modifications of testament must be made in one of the forms for testaments. (1610) - Same causes of action for revocation of DIV applicable to DMC. (1610.1) - Testator has right to revoke at any time and this right cannot be renounced. 1. Succession of Muh a. Scratched out words all over, notes in the margin b. THEN: tacit revocation of the entire will c. TODAY: could argue physical destruction of the testament then go to 1608 to see if legacies have been revoked. d. Were guarding against fraud, so a scratch out in a will is not revocation because anyone could do it e. Can argue 1608 because every provision was scratched out 2. Smith v. Shaw a. Only revoke a will if you know the last will was valid b. Rips up first olographic one c. 2nd non cupative will tears up d. Noncupative invalid in form e. Would have rathered go under first but doesnt matter because La. doesnt receive old wills 41

3.

4.

5.

6.

7.

8.

f. TODAY: i. 1607 physically destroys the testament. Can you revoke a revocation? Yes, except with physical destruction so thats the same. Succession of Bagwell a. Believe will in safe deposit but not there b. Can you probate unsigned copy of a will? c. You can probate a will without signature but need those 3 elemens d. * cant prove the will was never revoked e. Presumption that if its gone it was revoked f. Can probate will that the uncle ripped up g. Need positive proof that the testator ripped it up which is almost impossible. Succession of Justice a. Pre-printed will b. Revocation in 2nd will thats invalid revoked the first one? c. Typing and signing isnt a writing Succession of Rolling a. olographic will b. one was found from 5 years later c. procedurally, must probate every will you find d. later will determine if the provisions are incompatible so previous will is null and void e. Take each will and probate as long as consistent f. No revocation of an entire testament here Succession of Berdon a. leaves 1200 but only has 7 something b. double disposition so that 2nd person owns it all? c. if not enough to go around you divide it proportionally d. because you split it in because its not a particular object (like a car) e. Divisible and can be divided easily f. Particular legacy of a particular object will be revoked by a subsequent incompatible double disposition Succession of Huguet a. property in West Baton Rouge parish to grandson b. at time of death gives him some land in exchange for ownership interest c. But she never owned the land d. 1608 DIV e. If DIV is invalid it stays with the donee, invalid still in patrimony and can be doled out by testament f. Invalid testament then DIV gets revoked Succession of Dambly 42

a. b. c. d.

can you successfully probate 1st olographic will? ceases to exist as will or revocation rip it up = no will to revoke so prior will invalid Wallace thinks same results would occur under 1609.

Note- 1608 Comnt Subsection 4 overrides Melancon. Acceptable not to date revocation but will must be signed. Can revoke a revocation in one of these forms scratching out, another writing EXCEPT by physical destruction (cant tape it back together) Eg. I revoke appointment of A and name B. Revocation of A is valid but naming of B isnt in the form required. Bequest to Joe? Universal legatee would get it. vii. Interpretation of Legacies 1. 1611-1616 2. 1613 you own 1976 corvette but you put a 1978 in the testament. theyll still get that if you never owned a bunch of corvettes. 3. specific bequests prevail over general bequests 4. 1616 owe your sister 100 k and you leave her k you need to say specifically to satisfy the debt or she still has a claim. 5. Succession of McAuley viii. The Marital Portion: La. C.C. 2432-2437 2432. When a spouse dies rich in comparison with the surviving spouse, the S/S is entitled to claim the marital portion from the succession of the deceased spouse. 2433. The marital portion is incident of any matrimonial regime and a charge on the succession of the deceased spouse. It may be claimed by the S/S, even if separated from the deceased, on proof that the separation occurred without his fault. 2434. The marital portion is of the succession in ownership if the deceased died without children, the same fraction in usufruct for life if he is survived by more than 3 children. In no event, however, shall the amount of the marital portion exceed one million dollars. 2435. A legacy left by the deceased to the surviving spouse and payments due to him as a result of the death are deducted from the marital portion. 2436. The right of the S/S to claim the marital portion is personal and nonheritable. This right prescribes three years from the date of the death. 2437. When, during the administration of the succession, it appears that the S/S will be entitled to the marital portion, he has the right to demand and receive a periodic allowance from the succession representative. The amount of the allowance is fixed by the court in which the succession proceeding is pending. If the marital portion, as finally fixed, is less than the allowance, the S/S is charged with the deficiency. 43

1. 2432 Com. C. 5:1 comparison to assets. Not a bright line rule about what is rich in comparison 2. some kind of fractional shit 3. Cannot exceed 1 million 4. Even if you renounce a legacy it is credited against your marital portion 5. Succession of Alvin Lichtentag a. Notes b. Hypothetical

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Part II. Trusts Chapter 16: Trusts in Louisiana

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