Louisiana Successions & Donations

Front 1

Prohibited Substitution

Back 1

Rule prohibits leaving a gift or legacy to two people in full ownership, where the 1st owner is charged to:
1. preserve & deliver property to 2nd donee,
2. upon death of the 1st

If 1st person can use prop & leave what's left to 2nd, OK
If 1st person can transfer prop to 2nd before death, OK

Front 2

Intestacy - Separate Property (SP) - "Most Favored Class"

Back 2

1. descendants,
2. Parents (in usufruct) & siblings (NO) (children of siblings by representation),
3. Surviving spouse not judicially separated,
4. more remote collaterals (by head),
5. escheats to state

Front 3

Intestacy - Community Property (CP) - "Most Favored Class"

Back 3

1. Surviving spouse - has full ownership of her 1/2 share in CP. D's 1/2 share goes to:
2. descendants with 890 usufruct to SS, good until remarriage or death;
3. If no descendants, to spouse;
3. Usufruct to parents & NO to siblings (or descendants of siblings in rep) - if none;
4. more remote ascendants (grandparents);
5. more remote collaterals

Front 4

Unworthiness

Back 4

Successor is convicted of or judicially determined to kill or attempt to kill D.
1. Pardon does not cure unworthiness, but
2. Reconciliation does
3. Action to declare successor unworthy must be brought in succession proceeding, by
4. Person who would succeed in place of or w/ unworthy successor (US), or who claims through US
5. 5 year Rx from death of D
US deprived of right to inherit, even as forced heir

Front 5

Choice of Law - Capacity of T

Back 5

Testator (T) deemed to have capacity if had capacity under laws of either 1) state where domiciled when he made testament, or 2) state where domiciled at death.
If T had capacity under laws of only one state, that state's law on vices of capacity controls.

Front 6

Choice of Law - Validity of Testaments

Back 6

Valid if testament conforms to law of LA, state where T died, or state where testament made.
Immovables governed by law of state where located.

Front 7

Intestacy - SP - Special Rule for Donation from Grandparents

Back 7

Where decedent owned a separate immovable donated to her by her grandparents,GPs have a right of return, UNLESS D had descendants. If so, it passes under normal rules. Art. 897.
If D sold property but had not received proceeds before death, GPs would get them.

Front 8

Conflicts of Law - Capacity of Heir or Legatee

Back 8

Capacity or unworthiness of heir or legatee is determined under law of state where D domiciled at time of death

Front 9

Conflicts of Law - Succession of Property

Back 9

1. Succession to immovables in LA is governed by LA law
2. Succession to movables governed by laws of state where T domiciled at death
3. Succession to immovables in another state, governed by laws of that state.

Front 10

Inheritance Rights of Children Born Outside Marriage

Back 10

An illegitimate child can inherit only if:
(1) formally acknowledged (authentic act or father signs birth certificate)
AND child not filiated to another man
(2) parents subsequently marry and acknowledge;
(3) timely paternity action; or
(4) timely avowal action.

Front 11

Forced Heirship - Definition
Applies to Testate & Intestate

Back 11

1) Child who at D's death had not yet attained the age of 24; or
2) Child of any age who is mentally or physically incapable of taking care of himself or administering his estate at decedent’s death but see, J 09 Q 2(D) where adult child has incapacitating accident after D's death); or
3) child of any age who has an inherited, incurable disease or condition that may render him incapable at some time in the future (must be permanent)

Front 12

Forced Heirship - Rights of Grandchildren

Back 12

1. Grandchild of D is never FH but takes in rep from predeceased parent who would have been > 24 years old at death of D.
2. But grandchild can represent predeceased parent regardless of parent's age at D's death if grandchild is disabled or inherited incurable disease that may render her incapable in the future.

Front 13

Two Types of Valid Wills

Back 13

1. Olographic testament: must be entirely written, dated and signed in handwriting of T.
2. Notarial will:
a) Must be signed by T on each page and at end in
b) presence of notary & 2 competent witnesses and contain attestation clause.
c) Dated
d) Testator must announce it is his testamentary intent?

Front 14

Pre-printed (Canned) Wills

Back 14

Strongly disfavored in LA; pre-printed portions will be disregarded.
But will can be upheld as an olographic will if portions solely in T's handwriting are sufficient to show testamentary intent and satisfy "essential formalities"

Front 15

Standard Notarial Will

Back 15

Self Proving
1. Testator must be able to read and write and sign his name
2. Writing (printed, written or typed)
3. Execution before notary & 2 competent witnesses
4. Testator must declare document is his will
5. T's signature on each page and at the end of the testament
6. Date – anywhere on will –
7. Attestation clause - declaration by notary and Ws at end of will that all formalities met

Front 16

Wills - Witnesses

Back 16

1. Must be age 16 or older;
2. When a legatee or L’s spouse is a witness, the legacy to the W or spouse is invalid, but will is not.
3. But if W or spouse would be an heir in intestacy, W may receive the lesser of his intestate share or the legacy.
4. L may not serve as notary – loses legacy and intestate share - but spouse doesn't.

Front 17

Effects of Vices of Capacity - Fraud, Duress, Undue Influence

Back 17

Donation is null.
Definition of Undue Influence: Donee impaired volition of donor so as to substitute her own.
Severability: Only provision attained by such means is null.
BOP:
1) person challenging capacity must prove by clear and convincing evidence (C & C).
2) BUT if relationship of confidence existed between T & donee & not related), use PoE. This includes MDs & nurses.
3) If donee related by blood or marriage then prove by C & C.

Front 18

Donative Capacity (mortis causa or inter vivos):

Back 18

Person must be able to:
1) comprehend generally
2) the nature and consequences of the
3) disposition she is making.

BOP for challenge: C & C (but see, fraud, duress, undue influence)

Front 19

Testaments - Effects of Vices of Form

Back 19

If formalities prescribed for execution of testament are not observed, the will is absolutely null. BOP: PoE.

Front 20

Classification of Legacies -
Needed for accretion rules

Back 20

1. Universal: T gives the "whole of property, or "balance" or "residue" that remains after particular legacies.
2. General:
a) legacy of a fraction/portion of estate or balance after particular legacies discharged;
b) legacy of fraction/portion of property in one of these categories: SP, CP, movable or imm, corp or incorp.
c) for accretion, when general legacy is phrased as residue or balance of estate w/o specifying that the residue is remaining fraction of estate, after other general legacies, it is treated as universal.
3. Particular: Neither general nor universal bequest. Usually of specific asset.

Front 21

Lapsed Bequest - Causes

Back 21

7 Grounds for Lapse:
1. legatee predeceases testator
2. legatee incapable of receiving at testators death
3. suspensive condition can no longer be fulfilled or legatee dies before fulfillment
4. legatee declared unworthy
5. legacy renounced, to extent of renunciation
6. legacy invalid
7. legacy declared null

Front 22

Testamentary Accretion

Back 22

Occurs when legacy lapses - Effects:
1. lapse of particular or general legacy: as if never made, but
2. Where legatee is child or sibling of the testator lapsed legacy could accrete in favor of legatee's descendants
3. If legacy renounced: accretes as if renouncing legatee predeceased testator
4. residuary general legacy (legacy is phrased as a “residue” or “balance” of the estate) is treated as universal for accretion
5. any portion of the estate not disposed of escheats to state

Front 23

Revocation of Legacy - Effect

Back 23

Feb 11 Bar Exam Q: There are 2 views:
1. Revocation is treated as lapsed.
2. Revocation is treated as never having been made.

Per exam Q, T left a car to his brother, then revoked the legacy. Did brother's children take the car? Yes, if treated as lapsed the car accretes to children, but, no if treated as if legacy never made.

Front 24

Ways to Revoke Legacy

Back 24

1. declaration in olographic or notarial form ????
2. subsequent incompatible testamentary disposition
3. subsequent inter vivos disposition of the object
4. clearly revoking the legacy by a signed writing on the testament itself; (doesn’t have to be dated)
**Authentic act WILL NOT suffice to revoke a legacy (but can revoke entire testament)
5. A divorce after execution of testament revokes all dispositions to a surviving spouse

Front 25

Tacit Revocation of Legacy

Back 25

1. Acts inconsistent w/ will
2. Subsequent mortis causa donation inconsistent with prior will
3. T makes inter vivos donation or sale of thing w/o reacquiring it

Front 26

Inter Vivos Donation of Corporeal Movable

Back 26

T makes delivery of thing to donee - no formalities required.
Donee's possession of thing constitutes acceptance

Front 27

Donations Generally - Form

Back 27

1. By authentic act if immovable; by delivery if movable
2. Must have donative intent
3. must be irrevocable,
4. only present property (no future property)

Front 28

Form of Donations

Back 28

1. Corporeal Movable: Can be made by manual delivery or authentic act.
2. Negotiable instrument: governed by commercial code - Checks must be paid; delivery of certified check complete upon receipt.
3. Donations of Incorporeals or Immovables - By authentic act (rents, credits, rights or actions)
4. Bank accounts: Opening an account in the name of another is not a gift if the donor retains the right to withdraw.

Front 29

Acceptance of Donation

Back 29

1. Must occur or donation is not completed.
2. A donation is effective (ownership transferred) from the date of its acceptance.
3. May accept in the act of donation (or) subsequent authentic act (but I think the law requiring auth act change, see, Feb 11 Exam: donee accepts farm by recorded writing, not authenticated, and takes possession - OK)
4. Only donee can accept (not heirs or creditors)
5. Must accept before donor or donee’s death.

Front 30

Individual Retirement Account (IRA)

Back 30

Under state & federal law, the IRA benefits must be paid to designated beneficiary regardless of any contrary testamentary disposition

Front 31

Renunciation & Accretion

Back 31

1. Must be express and in writing
2. If renounced, share passes by accretion
3. Can't renounce in favor of person outside designated order of accretion. (not renunciation but a donation)
4. Renunciation before succession open is null b/c premature
5. Heir must know D is dead & that heir has rights

Front 32

Renunciation in Favor of Another

Back 32

Feb 11 Exam Q 3(C): If heir renounces share in favor of another, it is treated as an acceptance.
Donative part of renunciation must be by authentic act.
Acceptance must be made in act of donation or later in writing.

Front 33

Conditional Donation

Back 33

Feb 11 Exam Q 3(D):
1. Donor may impose conditions or charges upon donee, if not illegal or immoral.
2. Donation made on condition that donee has power to perform can be dissolved by agreement of parties or judicial decree.
3. Rx 5 years from failure to fulfill condition.
4. Donee must return property free of alienations, encumbrances, etc.
5. If cannot, liable for diminution in value of prop.

Front 34

Forced Heirship - Calculation of Active Mass

Back 34

1. Value of all donor’s property
2. Plus value of inter vivos donations given in last 3 yrs (collation)
3. Subtract debts of the succession
4. Results=active mass

Front 35

Forced Heirship - Exclusions from Active Mass

Back 35

1. donations made < 3 yrs before death
2. retirement, pension plans, life insurance or premiums (but benefits paid to FH are credited towards payment of legitime)
3. value of remunerative or onerous donation, unless value of services is less than 2/3rd value of property donated
4. immovables outside LA

Front 36

Forced Heirship - Forced Portion

Back 36

Forced portion: % of active mass reserved for all FHs:
¼ if one FH
½ if < one FH
Disposable portion: remainder of estate that T may dispose of freely
When FH renounces, is declared unworthy or is disinherited, his legitime becomes disposable and the forced portion is reduced accordingly

Front 37

Legacies - Specific v. Collection of Items

Back 37

Feb 11 Exam Q 3(G): legacy of earrings to X, jewel box & contents to Y. Earrings found in jewel box.
Rule: if testament contains legacy of collection or group of objects & also legacy of some or all of same objects, more specific legacy (some or all) prevails.

Front 38

Collation

Back 38

Presumption that D means to treat all children equally & what he did for them before death was merely an advance;
1. heir obliged to return donation to estate.
2. Can be waived by D – D must state that donation intended to be an extra portion
3. Dispensation language must be unequivocal
4. BUT cannot deprive FHs of legitime

Front 39

Collation - Succession of Fakier

Back 39

Leaving disposable portion to an heir from whom collation is demanded does not evidence dispensation from collation

Front 40

Collation - Who Can Enforce?

Back 40

Right to demand collation generally limited to
1. descendants of 1st degree who qualify as forced heirs.
2. only applies to inter vivos donations within 3 years of D's death.
3. Rx: 10 years from D's death

Front 41

Collation - Donee's Choices

Back 41

Donee has choice of:
1. Collation in kind: give thing back to succession.
2. Taking less: Donee can diminish inheritance in proportion to value of object.
3. Keep donation by renouncing succession, BUT must reduce if impinges on legitime.

Front 42

Disinherison

Back 42

Only applies to FHs: 8 factors for just cause:
(1) striking the parent; threats not sufficient;
(2) cruelty/grievous injury;
(3) attempted murder;
(4) accusing parent of capital offense w/out reasonable basis;
(5) using violence against the parent to stop execution of will;
(6) minor marrying w/out consent;
(7) conviction of felony; life/death;
(8) failing to communicate after attaining age of majority w/out just cause, unless child was in military.

Front 43

Collation in Kind
Where Immovable More Valuable than Succession

Back 43

Feb 11 Exam Q 4(C):
Value of succession: $25,000.
Value of of immovable when donated before death: $100,000. Donee/heir can't collate in kind because of relative values of estate and donation. She must return imm. to estate. Dicta in Answer: Heir might not be required to collate if she renounces the succession (makes no sense - see card 38))

Front 44

Inheritance Rights of Half-Blood Siblings

Back 44

**First, make sure there is intestacy, no descendents and only SP.
Divide property in half between maternal and paternal lines. Each half is divided equally between descendants of that parent. Siblings of same parents as D take in both lines, so add their interests in the two sides up.

Front 45

Disavowal Action

Back 45

By husband to challenge paternity
1. Rx: 1 year from actual or constructive knowledge of birth
2. BOP: C & C
3. Evidence allowed- H's testimony must be corroborated by, e.g.: scientific or medical evid, DNA or blood tests, evidence of sterility, evidence of physical impossibility due to location of H at conception, lay testimony

Front 46

Loss of original testament - Effects

Back 46

If original can't be found, presumption that T destroyed to revoke.
But presumption can be rebutted by clear proof of:
1) D made a valid testament;
2) the contents;
3) T did not revoke testament.

Issue: Is document absent under suspicious circs, or circs that indicate intent to revoke - post-Katrina cases where wills destroyed

Front 49

Lack of Residuary Clause

Back 49

Lack of residuary clause of universal legacy: Portion passes as in intestacy.

Front 50

Gifts Not Subject to Collation

Back 50

1. gifts to grandchildren (if parents living at time of gift)
2. gifts to spouses
3. gifts to anyone else other than children
4. payment of child's expenses of board, support, & education

Front 51

Le Mort Saisit Le Vif

Back 51

Rights of successors vest at moment of D's death - successors subsequent death irrelevant, no lapse

Front 52

Difference Between "Most Favored Class" for SP & CP

Back 52

With SP, parents & siblings come ahead of SS if no descendants. With CP, SS comes ahead of other relatives and inherits when there are no descendants.

Front 53

Gifts Not Subject to Collation

Back 53

1. gifts to grandchildren (if parents living at time of gift)
2. gifts to spouses
3. gifts to anyone else other than children
4. payment of child's expenses of board, support, & education

Front 54

Le Mort Saisit Le Vif

Back 54

Rights of successors vest at moment of D's death - successors subsequent death irrelevant, no lapse

Front 55

Difference Between "Most Favored Class" for SP & CP

Back 55

SP goes to descendants, then parents & siblings, before it would go to SS
CP SS gets her own 1/2 and U in D's 1/2, and if no descendants, takes all.

Front 56

Choice of Law - Unworthiness

Back 56

Law of D's domicile at time of death controls

Front 57

Choice of Law - Unworthiness

Back 57

Law of D's domicile at time of death controls

Front 58

Renunciation - Creditor's Rights

Back 58

Creditor may get judicial authorization to set aside a renunciation and accept succession in D's place to extent of debt owed.
RECENT LAW: Must show fraud and attempt to harm creditor

Front 59

Greenlaw Rule - FH

Back 59

Where fraction of intestate portion that descendant would inherit is less than legitime, then descendant will receive intestate portion (even where there is a will).

Front 60

Signature on Will - requirements

Back 60

Sufficient if the signature identifies the T. E.g., first name only, Lucy's grandma, etc.

Front 61

Revocation of a Will

Back 61

A will may be revoked by written revocation that identifies and clearly revokes the testament, provided it is entirely written and signed by T, even if not dated.