DONATIONSLORIO

SPRING 2001

Art. 870. Modes of acquiring ownership – The ownership of things or property is acquired by- Succession either

o Testate o Or intestate,

- By the effect of obligations,- And by the operation of law.

Methods of Disposition: - Donations Inter Vivos & Mortis Causa

o The Legislation: Art. 1467. Methods of acquiring or disposing gratuitously – Property can neither be

acquired nor disposed of gratuitously, unless by donation Inter vivos Or mortis causa, Made in the forms hereinafter established. (No comments)

Art. 1468. Donation inter vivos, definition – A donation inter vivos (between living persons) is an act

By which the donor Divests himself,

o At present o And irrevocably,

Of the thing given, In favor of the donee who accepts it. (No comments)

Art. 1469. Donation mortis causa, definition – A donation mortis causa (in prospect of death) is

An act to take effect, When the donor no longer exists, By which he disposes of

o The whole o Or a part of

His property, And which is revocable. (No comments)

Art. 1536. Donation of immovables or incorporeals, form required – An act shall be passed before

A notary public And two witness Of every donation inter vivos

o Of immovable propertyo Or incorporeal things,

Such as rents, credits or actions, Under the penalty of nullity. (No comments)

Art. 1537. Donation of immovables, feigned delivery ineffective – No feigned delivery Of immovables given Shall have effect against third persons. (No comment)

Art. 1538. Donation of movables, form required – A donation inter vivos

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Even of movable effects Will not be valid Unless an act be passed of the same, as is before prescribed

o Such an act ought to contain a detailed estimate of the effects given. (No comments)

Art. 1539. Manual gift – The manual gift, That is, the giving of

o Corporeal o Movable

Effects, Accompanied by real delivery, Is not subject to any formality. (No comments)

Art. 1540. Donations effective from date of acceptance – A donation inter vivos Shall be binding on the donor, and Shall produce effects only from the day of its being accepted in precise terms.

o The acceptance may be made during the lifetime of the donor By a posterior and authentic act,

o But in that case the donation shall have effect, With regard to the donor, Only from the day of his being notified of the act establishing that

acceptance. (No comments)

- The Jurisprudence:o Succession of Sinnott v. Hibernia National Bank (1901)(Illustrative of strict application of

donations either inter vivos or mortis causa and the manual gift exception): Suit arises over stock certificates that residuary legatee claimed belonged to the estate and the alleged donee of an inter vivos donation had in her possession. The decedent handed the certificates to the alleged donee saying, "they are yours. At least, after my death, they are yours." During the time the certificates were in the alleged donee's possession, the decedent collected the dividends and exercised complete control over them.

Alleged donee argues that the disposition parallels the common law disposition known as the "donatio causa mortis (gift during life taking effect after death)."

In essence, the donatio causa mortis is a donation inter vivos with the suspensive condition of death placed upon it.

The court notes that a verbal donation mortis causa are invalid; the court further notes that donations inter vivos are subject to formality of an authentic act except for the manual gift.

The court holds that no manual gift was accomplished because the donor did not divest herself at once and irrevocably of the thing given.

Additionally, shares of stock, although movable, are incorporeals excluding them from the manual gift exception.

o Accord with Mitchell v. Clark

Other Methods of Donations Sanctioned by Law: - Life Insurance

o The Legislation R.S. 22:1521. Donations inter vivos of life insurance policies; Laws Respecting Form

Inapplicable A. Donations inter vivos of life insurance, And the naming of beneficiaries therein, Whether revocably or irrevocably, Are not governed by the provisions of the CC

o Of 1870, o Or any other laws of this state relative to the form of donations inter vivos.

B. This section is remedial and retrospective. All donations inter vivos

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o Of life insurance policies o Made on or before 07-31-68 o Are valid and effective, o Whether or not such donations were made in the form prescribed by

The CC Or by any other laws of this state.

R.S. 22:647. Exemption of proceeds; life, endowment, annuity A. (1) The lawful, beneficiary, assignee, or payee, including the insured's 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

o Creditors and representatives of the insuredo And of the person effecting the policy or the estate of either,o And against the heirs and legatees of either such person,

And such proceeds and availso Shall be exempt from all liability for any debt of such

Beneficiary, payee, or assignee Or estate

o 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.

o The Jurisprudence: Sizeler v. Sizeler (1930)(life insurance sui generis): Decedent married his niece in R.I. under

a statute that allowed Jews to marry within the degrees of affinity allowed by their religion. Decedent and wife were residents of N.O. at the time of marriage and returned after marriage. He died insolvent leaving two life insurance policies naming his wife/niece as the beneficiary. Decedent's sons of 1st marriage seek to enjoin the insurance co. from paying.

The court held that it was not necessary to determine the validity of the marriage because the rules of the CC relating to donations inter vivos or mortis causa have no application to life insurance policies and there is no law of La that prohibits any person from insuring his life in favor of any beneficiary that he may select.

A life insurance policy is a contract sui generis. The proceeds of life insurance policies form no part of the estate of the deceased, and

inure to the beneficiary directly and by the sole terms of the policy itself.o The Treatise:

Under La law, a life insurance policy is a contract sui generis, governed by the rules peculiar to itself.

R.S.22:1521 makes clear that form requirements of donations inter vivos are inapplicable to distributions of life insurance proceeds.

R.S. 22:647 makes clear that beneficiary is entitled to the exclusion of creditors, legatees, and forced heirs.

This is so because the proceeds never form part of his estate because they never belonged to him.

Contrast, the donation of the policy itself is the gift of an incorporeal, requiring a notarial act to effectuate the transfer.

Life insurance payable to a named beneficiary circumvents the inheritance tax.o Forced heir issues:

Art. 1505 Calculation of disposable portion on mass of succession – C. Neither the premiums paid

o For insurance on the life of the donor Nor the proceeds paid

o Pursuant to such coverage Shall be included in the above calculation.

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Moreover, the value of such proceedso At the donor's death payable to

The forced heir, Or for his benefit,

Shall be deemed applied and credited in satisfaction of his forced share. Because the proceeds of the policy do not go into the mass estate they are not calculable for

the purposes of forced heirship; however, if a forced heir receives the proceeds of the policy they are credited that amount.

Example: Estate of decedent worth $300,000. Decedent leaves two forced heirs (A and B). By law, ½ of the decedent's estate (or $150,00) is to go to the forced heirs. Decedent named A the beneficiary of an insurance policy worth $100,000. Decedent, by testate, gave Z everything. A, because he received the proceeds of the insurance in excess of what was his

forced portion, is owed nothing by the residuary legatee. However, Z owes an accounting to B in the amount of $75,000.

o The Problems: 1)(a) 1(A) If the decedent named his 18 year old daughter as the beneficiary of his life

insurance policy, are the proceeds subject to claims of collation or reduction by other F.H? No, see Section 22: 647(A)(1)

1)(b) If the decedent's daughter claims her F.P. from her father's estate, in addition to collecting the proceeds of the policy, what argument may be raised by the decedent's 22 year old son?

1505(C) provides that the value of such proceeds at the donor's death payable to a F.H., or for his benefit, shall be deemed applied & credited in satisfaction of his F.P.

2) A H & W were both killed as a result of an auto accident. The W died instantly, whereas the H died on the way to the hospital. The W owned a life insurance policy, naming the H as beneficiary. The H's estate received the proceeds of the life insurance policy and these proceeds were the only assets of his estate. The wife's minor children from a previous marriage sued the H's estate, claiming that his negligence caused the accident, which killed their mother. If the children are successful in their suit, may they attach the life insurance proceeds in their stepfather's estate? Would it make a difference if, due to procedural delays, the proceeds had not been paid to the stepfather's estate?

Yes, b/c when he died the proceeds became assets of the estate

3) Decedent had a life insurance policy with the proceeds payable to his estate and included a clause in his will expressing a desire that all "just debts" be paid. At the time of the decedent's death, it other assets in the decedent' s estate are insufficient to satisfy the claims of creditors, may the creditors seize the proceeds from the life insurance policy/

No, life insurance policy proceeds are exempt from payments of debt despite the provision to pay debts in the will

Could make a difference if more specific example use L.I. proceeds to pay the debts- Annuities

o The Legislation: R.S. 22:647 Exemption of proceeds; Life, endowment, annuity B. (1) The lawful beneficiary, assignee, or payee, including the annuitant's estate, of an

annuity contract, heretofore or hereafter effected, shall be entitled to the proceeds and avails of the contract against the creditors and representatives of the annuitant or the person effecting the contract, or the estate of either, and against the heirs and legatees of either such person, saving the rights of forced heirs, 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

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time the proceeds or avails are made available for his own use.(2) The term "annuity contract" shall include any contract which:(a) Is issued by a life insurance company licensed to provide the contract in the state in which it was issued at the time of issue.(b) States on its face or anywhere within the terms of the contract that it is an "annuity" including but not limited to an immediate, deferred, fixed, equity indexed, or variable annuity, irrespective of current pay status or any other definition of "annuity" in Louisiana law.(c) Provides the contract owner the ability to defer United States income taxes on any interest earned and not distributed to the owner.(d) Transfers some risk of financial loss to the insurance company for financial consideration.(e) Was approved as an annuity contract by the Department of Insurance of the state in which it was issued prior to issue.

o The Treatise: The legislation expressly provides that the beneficiary of the proceeds of the annuity policy is

answerable to forced heirs. F.H. has action of reduction if F.P. is not satisfied. Thus, the amount of annuity is subject to

be included in fictitious collation- see Osterland In Succession of Fakier, the La supreme court was asked to determine the effect of naming a

beneficiary of an annuity in which the proceeds were payable upon the annuitant's death. However, the court sidestepped the issue, only stating that the annuities were not

transferred by virtue of an inter vivos donation. The court refused to decide whether annuities, like the insurance policies, should

escape the dictates of the CC and instead be governed by the contractual terms of the policies.

While the decision explicitly provides that an annuity is not subject to actual collation, still unresolved is whether an annuity forms part of the active mass of the decedent's estate and, thus, included in the fictitious collation calculation.

- Pensionso The Legislation:

Art. 1505. Calculation of disposable portion on mass of succession – D. Employer and employee contributions under any plan of deferred compensation adopted

by any public or governmental employer or any plan qualified under Section 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.

o The Jurisprudence: T.L James & Co. v. Montgomery (1976)(beneficiary named in pension paid in full-before

reimbursement): The decedent was married to his first in 1935 until their divorce in 1958. Of this marriage he had one son. In 1958, he married his second wife (the surviving widow). Of this marriage he had another son. The decedent began work for T.L. James in 1946 and worked until his death in 1971. He was a participant in the company's retirement and profit-sharing plans. At time of divorce, the first wife's interest in these funds were not settled or partitioned.

The La Supreme Court recognized that the designation of a beneficiary of an employee retirement plan is contractually valid, despite deviation from the form requirements of the CC.

The court rejected any analogy to the proceeds of a life insurance policy. The employee benefits represent additional earnings of an employee that form a part

of his estate. Thus, while the beneficiary receives the plan benefits in full ownership, any

infringement on the legitime or community property interest necessitates reimbursement.

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The modern art. 1505 (D) specifically states that pensions, qualified under 408 of the internal revenue code, are not part of the active mass of the decedent's estate, thus legislatively overruling T.L James in part. For an application of this piece of legislation see Succession of Durrab, which noted that a qualified IRA falls under 1505(D) exception and was properly excluded from the mass estate.

Additionally, R.S. 23:652 allows the plan to dictate the form requirement of naming a beneficiary, thus testamentary and authentic form is not necessarily required.

Boggs v. Boggs (1997)(federal pensions not subject to state community property law): The non-employee first wife of the decedent previously died and left her employee husband 1/3 of her estate in full ownership and a lifetime usufruct over the remaining 2/3. The descriptive list of the fist wife's estate included ½ of the then balance in the husband's retirement plan. The surviving husband later remarried and rolled over benefits in an IRA when he retired. He named his second wife as beneficiary of the IRA. When the husband died, two of his sons from his first wife filed suit against the second wife seeking a portion of the retirement benefits alleged to belong to the first wife, inherited by them under La. community property law.

ERISA requires that every qualified joint and survivor annuity include an annuity payable to a nonparticipant surviving spouse.

o This annuity may not be less than 50% of the amount of the annuity which is payable during the joint lives of the participant and spouse.

o This provision may not be waived.o Boggs, as the surviving spouse, is entitled to a survivor's annuity under

these provisions.o ERISA's solicitude for the economic security of surviving spouses would be

undermined by allowing a predeceasing spouse's heirs and legatees to have a community property interest in the survivor's annuity.

Even a plan participant cannot defeat a nonparticipant surviving spouse's statutory entitlement to an annuity.

o In the face of this direct clash between state law and the provisions of ERISA, the state law cannot stand.

Beyond seeking a portion of the survivor's annuity, respondents claim a percentage of: the monthly annuity payments made to the decedent during his retirement.

o The principle object of the statute is to protect plan participants and beneficiaries.

o QDRO is a type of domestic relations order which creates or recognizes an alternate payee's right to, or assigns to an alternate payee the right to, a portion of the benefits payable with respect to a participant under a plan.

QDRO's are exempt from both the pension plan anti-alienation provision and ERISA's general pre-emption because Congress intended the alternate payee to be considered a plan beneficiary.

ERISA's silence with respect to the right of a nonparticipant spouse to control pension plan benefits by testamentary transfer provides a powerful support for the conclusion that the right does not exist.

- U.S. Savings Bondso The Legislation:

Noneo The Jurisprudence:

Winsberg v. Winsberg (1952)(beneficiary bond/USGSB is a valid donation-state substantive requirements govern): The decedent purchased three USG Savings Bonds and designated his brother, as payee on death. Thereafter, he died leaving a wife and posthumous child. His succession opened and the bonds were inventoried as an asset of his separate estate. The brother had taken possession of the bonds and refused to deliver them to the succession.

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The La. Supreme Court noted that they were confronted with the fact that the U.S. Savings Bond plan establishes an additional method of disposing property superimposed by federal law and which is to be considered effective notwithstanding that it is not in the form prescribed by the CC.

The court held that by virtue of the bond agreement, a designated beneficiary receives the proceeds of the bond in full ownership with a right to immediate possession.

Although the court held that federal regulations dictate the form requirements of gratuitous transfer of savings bonds, it nonetheless held that all state substantive requirements governing donations remain applicable.

o The court held that savings bond was revoked by the subsequent birth of the donor's child.

o While recognizing that a requirement that the bonds be paid to anyone other than the named beneficiary was contrary to federal law, the court held that the beneficiary or payee is indebted to the estate of the former owner, or his heirs, in an amount equal to the value of the gift.

o Thus, the beneficiary received the proceeds, but had to turn them over to the forced heir.

Free v. Bland (1962 USSC -TX)(co-owner bonds/exception to federal supremacy-fraud/breach of trust): Free purchased Co-owner bonds with community funds in his name and his wife's name. She died first and he goes to collect his money. The son of the wife from a previous marriage challenges asserting that since community funds were used he is entitled to ½. The Texas court gave the money to free but, in turn, made him pay the son.

The Supreme Court said that the governmental interest in the USGSB were there marketability. If someone else were allowed to take in part, that would deter the purchase of such bonds.

The court holds that USGSB confer the rights of full ownership upon the payee. However, the court states that federal regulations regarding savings bonds are not

intended to be a shield for fraud and relief would be available in a case where the circumstances manifest fraud or a breach of trust tantamount thereto on the part of a husband while acting in his capacity as manager of the general community property.

o Hence, the court carved out an exception to federal supremacy based upon fraud.

Question remains as to what effect did the Free holding have upon Winsberg. o It appears that the Supreme Court favors the designated payee despite

community property laws.o However, Winsberg dealt with state substantive law, this not an issue in

Free. Yiatchos v. Yiatchos (1963 USSC-WA)(beneficiary bonds/Free exception applied):

Husband purchased beneficiary bonds with community funds but named his brother as beneficiary.

Relying on dicta from Free (namely the fraud exception), the Court held that beneficiary bonds may not be used as a device to deprive an individual of a property interest established under state law.

o Because the husband purchased the beneficiary bonds with community funds, the wife's estate was entitled to a ½ interest in the proceeds even though the deceased husband had named his brother as beneficiary.

o The court reasoned that the husband's actions amounted to a constructive fraudulent invasion of the wife's community interest.

o Note : Beneficiary bond treated as a donation mortis causa. The value is added to the estate and divided according to applicable laws.

Succession of Guerre (1967)(no conflict-apply state law): Decedent died leaving three forced heirs; in his will he designated that they be left the legitime allowed by law. The decedent acquired 50 Co-owner USGSB, which were appraised at $42, 779.60. The bonds

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were payable to the decedent or eight others, not the forced heirs. The rest of the decedent's estate consisted of $8,941.35; obviously the exclusion of the bonds would greatly diminish the value of the forced portion.

The court noted that if there is a conflict between federal and state law the federal law preempts; however, if no conflict, there may be an accessible way to address state interests.

The court held that despite any dictates of federal law, the bonds are still subject to the substantive right of reduction granted to forced heirs under state law.

Ridgeway v. Ridgeway (1981USSC)(fraud exception only applicable with vested rights): The court rejected an argument based on the fraud exception, holding that exception is only applicable when "vested" property rights under state law are involved.

Note : Question remains as to forced heirs regarding Guerre (applying the fraud exception to forced heirs) and the Ridgeway (holding that the fraud exception only applies in situations of vesting-forced heirship in not such a situation).

Osterland v. Gates (1981La.)(dispensing with collation is not fraud): Mother purchased co-owner bonds totaling 56,000 listing herself and one daughter as co-owners and 25,000 of such bonds naming herself and the other daughter as co-owner. When the decedent died, the co-owners of the respective bonds became the sole and absolute owners of the bonds. The daughter who received less, in her capacity as administratrix of the succession, filed an action seeking collation against her sister.

The held that under Free and Yiatchos, that both daughters are entitled to their respective co-owner bonds in full ownership w/o any obligation to collate unless decedent committed fraud or breach of trust tantamount to fraud.

After noting that La. law allows a parent to dismiss with collation by a formal expression in the will, the court found that the mother did not commit a fraud or breach of trust because she could have under La. law made the bonds exempt from collation, thus, not depriving either daughter of any property rights under La. law which would not have been transferable by the decedent but for the survivorship provisions of the federal regulation.

Note : The forced heir's right to collation is not considered a vested right. Note : Collation may be avoided by stating donation is an extra portion expressly in

an instrument. Succession of Weis (1964)(co-owner bonds are not calculated in the decedent's mass

estate): The decedent died leaving an olographic will naming Beebe the recipient of a total of $5,000 and a residuary legatee, Ms. Weis. Additionally, the decedent had purchased three USGSBs, each having a face value of $1,000. They were registered in the joint names of the decedent and Beebe. Mrs. Weis was confirmed the executrix and tendered Beebe the three USGSBs to Beebe and two thousand dollars. Beebe refused, thus placing the residuary legatee in possession. Beebe filed suit to get the USGSBs in addition to $5,000.

The bonds were co-owned and no payee on death was provided for. Thus, immediately upon issuance, either co-owner could have received payment of the bonds upon his separate request.

The court opined that if Winsberg, in dealing with USGSB, established and superimposed on the state law an additional method of disposing of property mortis causa, by the same token USGSB has also established and superimposed and additional method for disposing property inter vivos, effective w/o authentic deed or manual gift.

The right to the proceeds of the bonds was already Beebe's by virtue of his status of co-owner. He is therefore entitled to the bonds and his legacy.

Note : The state law applies in calculating the inheritance tax, or a legitime, or an interference with the rights of a child born subsequently to the naming of a payee on death.

Distinction between co-owner and beneficiary bonds:CO-OWNER BONDS BENEFICIARY BONDSDonation Inter Vivos Donation Mortis Causa

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Proceeds may be received duringthe life of either co-owner.

Proceeds received upon death

Not in descriptive list In descriptive listRisk of who dies first No riskApply rules of 1505 for a calculation – Within 3 years – Use purchase time for value

Subsequent birth – revocable

o The Taxation Issues: In U.S. v. Chandler (1973) the US Supreme Court ruled that co-owner savings bonds were

included in the grandmother's estate for purposes of federal estate tax. In Guapp v. Tarver (1977) the La. court of appeal determined that co-owner bonds were no

subject to the La Inheritance Tax; however, beneficiary bonds are subject to the La. Inheritance Tax because the rights of the beneficiary only arise upon the death of the registered owner.

Note : The La. inheritance Tax is being phased out and will no longer apply to inheritances from persons dying after 06-30-04.

Note : Are bonds subject to Federal Estate Tax? Depends, if decedent retains a form of ownership, then they are. If decedent properly transfers the bonds out of the estate prior to death, than they are

not taxed b/c not part of the gross estate. U.S. v. Chandler Are bonds subject to La inheritance tax?

Distinguish b/w co-owner & beneficiary o Co-owner: not subject to tax Gauppo Beneficiary: subject to tax b/c rts. of beneficiary only arise upon the death

of the registered owner (m.c.)o The Problems:

1. Herman and his wife Kayona died as a result of injuries sustained in a common car accident. Kayona died on the scene and Herman died five hours later in the hospital. Herman had a life insurance policy naming his brother Will as beneficiary. Kayona had a life insurance policy naming Herman as beneficiary. Will Herman's minor son have a claim to any of the life insurance proceeds? How? Why?

B/c life insurance polices are sui generis they are governed by the contract making the proceeds payable to the named beneficiary. See 22: 1521. Thus, the son does not have a claim to the proceeds that go to Will. However, b/c Herman was the beneficiary of Kayona's policy, the proceeds go to his estate when he dies and son inherits them as the heir of the estate.

2. Assume the fact as above, but rather than a life insurance policy, the property in question was an annuity?

Under T.L. James, if there is an infringement on the legitime, then the beneficiary owes reimbursement. Thus, the son inherits the dad's share & son may have an action for reduction against the will.

3. Assume the same facts as above, but rather than being life insurance or an annuity, the property in question was in an IRA.

Don't include it in the mass estate, however if bequeathed to a forced heir credit it to their portion.

4. Frank left a valid testament bequeathing all the property of which he died possessed to his dear friend Joe. All Frank died possessed of was a USGSB naming his wife as beneficiary. Does Joe have a valid claim to this bond? What if Joe, rather than being a friend of Frank's was Frank's minor child?

No, the form of beneficiary bonds are governed by federal law b/c they are federal contracts payable to the named beneficiary. Winsberg. However, state law governs the substantive aspects. Thus, b/c Joe is not a F.H., he does not have a claim. If Joe were a F.H, then the payment of bonds interferes with the rights of a child & if the

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child was born subsequently to the naming of a payee on death, then state law governs and may have to include payments to satisfy F.P. (Caroine)

5. Dimitri and Ana were married for five years. Dimitri has a son George from previous relationship. During the marriage to Dimitri, Ana purchased a savings bond with community property funds naming her mother Sophia as beneficiary. Dimitri and Ana died in a car accident. Sophia cashed in the savings bond. Does George have a claim to the proceeds of the savings bond? What other facts about George would help you make the decision? (Caroline)

Under federal law, S is entitled to bond unless fraud or breach of trust to deprive someone of his/her interest. However, community funds were used, so D was entitled to ½ of community property. D's estate, ultimately G, should get ½ the value of the proceeds because it was purchased with community funds.

Congress did not mean to circumvent state law by using federal contracts. Yiatchos. Also, would want to know if G was F.H. Could argue Guerre, but Rideway could be

used to counter. Capacity Necessary For Disposing And Receiving By Donation Inter Vivos And

Mortis Causa- Introduction

o The Legislation: Art. 1470. Persons capable of giving or receiving – All persons have capacity

To make And receive Donations

o Inter vivos o And mortis causa,

Except as expressly provided by law. (No Comments)

- Capacity to Receiveo The Legislation:

Art. 1472. Capacity to receive, time for existence Capacity to receive a donation inter vivos

o Must exist at the time the donee accepts the donation. Capacity to receive a donation mortis causa

o Must exist at the time of death of the testator. (Comments): This article is not intended and should not in any way impair the ability

of a testator to make a charitable bequest that is contingent upon the creation of a charitable trust.

Art. 1473. Capacity to receive conditional donation, time for existence – When the donation depends

On the fulfillment of a suspensive condition, The donee must have capacity to receive at the time the condition is fulfilled. (No Comments)

Art. 1474. Unborn children, capacity to receive To be capable of receiving by donation inter vivos,

o An unborn child must be in utero at the time the donation is made. To be capable of receiving a donation mortis causa,

o An unborn child must be in utero at the time of the death of the testator. In either case,

o The donation has effect only if the child is born alive. (No Comments) Accord the following articles:

o Art. 25. Commencement and end of natural personality – Natural personality

Commences from the moment of live birth And terminates at death.

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o Art. 940. Same; unborn child – An unborn child Conceived at the death of the decedent And thereafter born alive Shall be considered to exist at the death of the decedent.

(Notes) A juridical person such as a corporation may receive from the time of its incorporation.

Art. 1475. Nullity of donation to person incapable of receiving – A donation In favor of one who is incapable of receiving Is null. (No Comments)

o The Jurisprudence: Carr v. Hart (1952)(incapacity to receive): Decedent was trying to set up trust fund to

maintain a certain cemetery. The will was olographic a valid as to form. In the decedent's will she provided 2500 to keep cemetery clean and repaired. The challenger seeks to have such clause declared null and void, on the ground that there is no one to receive either bequest, nor any trust, person, corporation, congregation, or legal entity capable of receiving.

The court found that the cemetery in question had not the legal capacity to receive at the time of the decedent's death nor did its subsequent incorporation.

When capacity was found, the disposition fell intestate. Milne's Heirs v. Milne's Executors (1941)(suspensive condition will allow for capacity to

be met): Decedent died wishing the executor's of his estate establish two asylums mentioned in his will as well as provide a portion of his estate to two others. The challenger alleged that the intended recipients did not have capacity to receive, as there was no legal existence at the time the will was made.

Corporations are placed on the same capacity to receive as natural persons. When a legacy is made to a certain class or collection of persons and is not dictated

by caprice but by charitable and meritorious motives, although the individuals are unknown to the testator, such a legacy will not under out laws be considered void for uncertainty.

Had the decedent made a legacy to the destitute of this parish without providing that they should be incorporated, the question would have been whether under art. 1536, the police jury of the parish would not have been competent to accept it on behalf of the intended objects of his benevolence.

However, aware that the institutions must be incorporated to receive, he provided that they be incorporated.

o Based upon such, the court uses a conditional/suspensive condition theory – if/when the institutions become incorporated, they shall have capacity to receive.

o Because capacity would be needed only at the moment of the accomplishment of the condition, the asylums were established and capacitated at the same moment.

Note : Many commentators today believe that this same outcome would not be reached.

Accord:o Fink v. Fink : Decedent's will provided for the erection of support of a

suitable asylum for Protestant widows and orphans. The court found that the protestant widows and orphans were

residuary legatees. Problem with that reasoning is that it could be argued that the

recipients would be limited to those in existence at the time of the testator's death, and not permit later ones to benefit from the legacy.

o City of NO v. Hardie : Invalidated a legacy (that provided support of asylums in the faith of protestant religion especially devoted to the care of

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aged persons) because no such asylum was in existence and these words would not support an intention to donate to the aged.

The court opined that the donation was not made to the aged in particular, although they were to be benefited by the donation.

The legacy was made to the asylum, which he supposed to be existence at the date of the will, or would exist at the time of his death.

o The problem was that there was no home in existence at the time of the decedent's death and he did not provide for the establishment of their death

- Capacity to Giveo The Legislation

Art. 1471. Capacity to give, time for existence Capacity to donate inter vivos

o Must exist at the time the donor makes the donation. Capacity to donate mortis causa

o Must exist at the time the testator executes his will. (Comments): For the inter vivos donation of an immovable, an authentic act is

required and capacity must exist at the time the donor executes the act of donation. Thus, the determination of capacity of the donor is as of when he "makes" the

donation, and if he becomes subsequently incapacitated before the donee accepts, that will not prevent the donation from being effective.

The death of the donor prior to acceptance, however, would prevent the donation from being completed by acceptance, as would the death of the donee prior to acceptance.

Art. 1476. Minors; incapacity to make donations, exceptions A minor under the age of sixteen years

o Does not have capacity to make a donation either Inter vivos Or mortis causa,

o Except in favor of his spouse or children. A minor who has attained the age of sixteen years

o Has capacity to make a donationo But only mortis causa.o He may make a donation inter vivos in favor of his

Spouse Or children.

(Comments): The testament is subject to more strict formalities and does not dispose of the minor's property until a later date, namely the date of which the minor presently and irrevocably disposes of property.

Art. 1477. Capacity to donate, mental condition of the donor – To have capacity To make a donation inter vivos or mortis causa, A person must also be able to comprehend

o Generallyo The nature o And consequences of

The disposition that he is making. (Comments): The article purposefully rejects the phrase "of sound mind" in order to

avoid the jurisprudence regarding the usage of that phrase . . . and it sets forth criteria that are intentionally not limited to the prior jurisprudence.

Under the new rule, mental retardation alone will not necessarily mean, that a person lacks donative capacity, but it will certainly be a factor to consider.

o If the extent of the retardation is such that the individual cannot comprehend generally the nature and consequences of the disposition the he is making, then that individual will lack donative capacity.

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In many respects the test is derived from the common-law test for testamentary (donative) capacity that requires a person to be able to understand in a general way the nature and extent of his property, and his relationship to the persons who are considered to be the natural objects of his bounty, and the consequences of the disposition that he is making.

o The donor who is capable of understanding has donative capacity even though he may not actually understand the exact instrument that he executes.

o Focus is not on the accuracy of understanding but the ability to understand. Reference to "nature" of the disposition means that the donor must be capable of

understanding the he is making a gratuitous transfer of property the he owns to someone else who will become the owner of it, without recompense.

Use of the word "generally" in the article is intended to remove any doubt in this regard: The donor is not required to understand technical terminology of the donation or testament.

Cases involving challenges to capacity art fact intensive.o Illness, old age, delusions, sedation may not establish lack of capacity but

may be important evidentiary factors.o Outrageous behavior may or may not be indicative of lack of ability to

understand.o Heavy sedation should be strongly considered.

The court will look to the medical evidence that is available:o Medical recordso Testimony of treating doctorso Other expert testimonyo Lay witness testimony

Art. 1478. Nullity of donation procured by fraud or duress – A donation Inter vivos or mortis causa Shall be declared null Upon proof that it is the product of fraud or duress. (No Comments)

Art. 1479. Nullity of donation procured through undue influence – A donation Inter vivos or mortis causa Shall be declared null Upon proof that it is the product of influence

o By the doneeo Or another person

That so impaired the volition of the donee or other person For the volition of the donor. (Comments): This article presumes the donor had capacity. The article does not use the word undue" influence, despite the title, but instead

defines the influence as being of such a nature that it destroys the free agency of the donor.

In the case law, the proof of undue influence are either largely or entirely circumstantial.

The character of the gift or testamentary disposition itself is not determinative of the issue.

Moreover, everyone is more or less swayed by associations with other persons, so this article attempts to describe the invalidity of a gift or disposition.

o Physical coercion or duress – clearlyo Mere advice, or persuasion, or kindness and assistance, should not

constitute influence that would destroy the free agency of a donor. Influence has to be exercised with the object of procuring a particular gift or bequest. While the influence may be exerted by the donee himself, the article covers the

situation where the donee takes no part in the activities and may be ignorant of them.

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The influence must be operative at the time of the execution of the inter vivos donation or testament.

o It should not be necessary that the acts themselves be done a that time, o Or that person exercising the pressure be present then.

Art. 1480. Nullity to due to fraud, duress, or undue influence; severability of valid provision – When a donation

Inter vivos or mortis causa Is declared null Because of

o Undue influence or because ofo Fraud oro Duress,

It is not necessary that the entire act of donation or testament be nullified. If any provisions contained in it is not the product of such means, That provision shall be given effect,

o Unless it is otherwise invalid. (Comments): This article adopts the doctrine of partial invalidity. The task of determining what parts of a will or an inter vivos gift are tainted by the

elements discussed above and what parts are not tainted is essentially subjective.o The fundamental intention is not to do violence to the donor's intention and

invalidate the entire instrument unless that is the only acceptable result. o The Jurisprudence:

Succession of Cole (1993)(burden of proof/clear and convincing/shift): Having suffered from shellshock due to WWII, the decedent resided in a V.A. hospital until 1972. In 1970, he was judicially determined incompetent. After leaving the hospital, he lived with his brother and his brother's wife. Brother died in 1984 and his wife assumed responsibility for the decedent. In decedent's will of valid olographic form, he left everything to Donee and to his son he left his house in Abbyville.

Art. 1482. A person who challenges the capacity of a donor must prove by clear and convincing evidence that the donor lacked capacity at the time; however, if the donor made the donation or executed the testament at a time when he was judicially declared to be mentally infirm; then the proponent of the challenged donation or testament must prove the capacity of the donor by clear and convincing evidence.

Under art. 1482, after being declared mentally incompetent, the burden shifts from the challenger to the other party for showing capacity. However, nothing in art. 1482 shifts the burden for undue influence.

Additionally, the court utilized art. 1477 and determined that donor had a general understanding of the nature and consequences of his disposition.

Note : Previous interdiction is insufficient to prove lack of donative capacity. Robertson v. Cubine (1999)(subsequent interdiction does not shift burden): Donor donated

to her husband an undivided ½ interest in immovable property that belonged to her separate property. The donation deed reflects the intention that it became community property. Her husband died in 1996. Fay was interdicted shortly after the husband's death. Robertson, the curatrix, filed a petition to set aside the donation.

The burden of proof does not change because donor was interdicted after the donation.

o Argument can be made that later interdiction was final link in chain of mental illness-Progressive disease

o Argument can be made that decedent's condition at time of donation was different due to the four-year time difference.

o Breau: Look at exact time; medical diagnosis is used to assist. Succession of Horrel (1996)(illustrative of facts sufficient to find no capacity-

contradicting donations): The decedent died leaving a wife and five children. Shortly after death, wife filed petition and order for appointment of administratrix with a sworn descriptive list, stating that he died intestate. The detailed list indicates several pieces immovable

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property. Several days prior, the decedent's oldest son, sought to have a statutory will probated. The will was prepared while the decedent was in the hospital. On the same day that the decedent signed the will, he also signed and Act of donation prepared by the oldest son giving it to the oldest son. The wife was appointed administratrix, but was removed and replaced by Walter after a petition was filed. Wife filed a petition to nullify the will for lack of capacity.

Decedent was an elderly man, but no interdiction or medical conclusions as to Alzheimer's disease

However, due to the fact that many witnesses testified to his disorientation and easy agitation, which was corroborated by medical testimony, the court found incapacity and tossed the will.

Additionally, several positions of the will itself are indicative of decedent's lack of comprehension as to the document and its consequences.

o Many thought after this that many wills would be thrown out-aberrational. Note : Case was tried on two theories. What happens if find _______?

o Undue influence: Just the tainted part is deleted.

o Capacity: Will falls intestate.

Succession of Deshotels (1999)(debilitating condition at time of execution-insufficient): Decedent had two daughters: one adopted one natural. The decedent executed a statutory will in which she left her entire estate to her natural daughter. The will was prepared by an attorney who was told by decedent that AD was already given too much and that it was time to take care of Loretta. Several times she exclaimed her wishes to the attorney. Witnesses were present. The decedent was diagnosed with moderate Alzheimer's disease and the treating physician believed she could not execute the will. The doctor's testimony was corroborated by other testimony to her forgetfulness.

The court ruled that the presence of mentally debilitating condition at the approximate time that the will was executed is insufficient, especially in light of conflicting evidence of the decedent's capacity at the actual time the will was executed. The fact that the decedent had been previously interdicted was insufficient to prove lack of testamentary capacity.

Additionally, there was not enough evidence to prove undue influence based on the rules above.

o Note : 3 Different Scenarios: o If will is upheld, natural daughter gets it all.o If will thrown out for lack of capacity, intestate both daughters would

receive ½.o If will thrown out for undue influence, same result as above because of

what is tainted Succession of Brantley (1997)(qualification for a judicial declaration): A judgment

revoking a testator's interdiction, but substituting a requirement that the testator act subject to "revocable trust agreement" which could only be altered by court approval was not a "judicial declaration" of mental infirmity. Nor did the judgment create a "limited interdiction."

Thus, the greater burden on a donor to prove capacity by clear and convincing evidence pursuant to art. 1482 was not imposed.

Succession of Reeves (1998)():

Claim Who carries

Burden Burden of proof Relief granted

1479 – Undue influence

Challenger Normally – clear and convincingIf relationship of confidence –

The particulardonation is null, other valid parts keep.

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preponderance ofthe evidenceIf related by blood, marriage, or adoption – clear and convincing.

1480 – Fraud or duress

Challenger Normally – clear and convincingIf relationship of confidence – preponderance ofthe evidenceIf related by blood, marriage, or adoption – clear and convincing.

The particulardonation is null, other valid parts keep.

1482 Incapacity ChallengerHowever, if donorwas judicially determined mentally infirm,burden shifts to proponent of capacity.

Clear and convincing

Entire donation Null

The Disposable Portion, The Legitime and Reduction- Introduction

o Legislation Art. 1495. Amount of forced portion and disposable portion – Donations inter vivos or

mortis causa May not exceed

o Three-fourths of the property of the donor If he leaves, at his death, one forced heir,

o And one-half If he leaves, at his death, two or more forced heirs.

The portion reserved for the forced heirs is called the forced portion and the remainder is called the disposable portion.

Nevertheless, if the fraction that would otherwise be used to calculate the legitime is greater than the fraction of the decedent's estate to which the forced heir would succeed by intestacy, then the legitime shall be calculated by using the fraction of an intestate successor.

(Comments): In certain instances the fraction to determine the share of the decedent's estate that a child would inherit by intestacy would be less than the fraction used to calculate his legitime,

As, for example, when a parent had five competent children, four of whom are twenty-four or older and one of whom qualifies as a forced heir because he is twenty-three or younger. In such a case the percentage used to calculate the forced portion under art. 1495 would be twenty-five percent, but the intestate share under art. 888 would be only twenty percent.

- Who is a forced heiro Legislation:

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Art. 1493. Forced heirs; representation of forced heirs A. Forced heirs are descendants of the first degree Who, at the time of the death of the decedent,

o Are 23 years of age or youngero Or descendants of the first degree of any age

Who, because of mental incapacity or physical infirmity Are permanently incapable of taking care of their persons or

administering their estate At the time of the death of the decedent.

B. When a descendent of the first degree predeceases the decedent, Representation takes place for purposes of forced heirship Only if the descendant of the first degree would have been twenty-three years of age

or younger at the time of the decedent's death. C. However, when a descendant of the first degree predeceases the decedent, Representation takes place in favor of any child of the descendant of the first degree,

o If the child of the descendant of the first degree,o Because of mental incapacity or physical infirmity,o Is permanently incapable of taking care of his or her person or

administering his or her estate o At the time of the decedent's death, o Regardless of the age of the descendant of the first degree at the time of the

decedent's death. D. For purposes of this article a person is twenty-three years of age or younger until

he attains the age of twenty-four years. (Comments): Paragraph B nowhere provides for grandchildren to be force heirs.

Nonetheless, representation of a deceased parent is a fiction of the law of long standing and general acceptance, and it is certainly reasonable to accept the distinction that a grandchild who represents a deceased child is not a forced heir in his own right but standing in the place and degree of a child who would have been a forced heir if he were still alive.

Paragraph B requires that a predeceased parent not have attained the age of twenty-four by the time of the decedent's death for the grandchild to be able to represent him.

Paragraph C, on the other hand, permits representation irrespective of the age of the predeceased parent, if the grandchild is disabled at the time of the death of the decedent.

It should be noted that a grandchild of any age who is disabled does not qualify as a forced heir unless the grandchild's parent predeceases the grandparent.

Art. 1494. Forced heir entitled to legitime; exception – A forced heir May not be deprived of the portion of the decedent's estate reserved to him by law,

o Called the legitime, o Unless the decedent has just cause to disinherit him.

(Comments): The legitime of a child is determined by dividing the forced portion by the number of qualified children living or represented at the death of the decedent.

Thus, when a predeceased child is represented by his descendants, the legitime of each descendant is determined by dividing the legitime of the child who is being represented among the descendants who represent him.

Art. 1496. Permissible burdens on the legitime – No charges, conditions, or burdens May be imposed on the legitime Except those expressly authorized by law, such as

o A usufruct in favor of a surviving spouse o Or the placing of the legitime in trust.

(Comment): Another example of a condition that may be imposed on the legitime is the short-term survivorship provision presently authorized by art. 1521(vulgar substitutions).

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Art. 1497. Disposable portion in absence of forced heirs – If there is no forced heir, Donations inter vivos and mortis causa May be made to the whole amount of the property of the donor, Saving the reservation made hereafter. (No Comments)

Art. 1503. Reduction of excessive donations – A donation, inter vivos or mortis causa, That impinges upon the legitime of a forced heir Is not null But is merely reducible to the extent necessary to eliminate the impingement. (Comments): Under R.S. 9:2372 there is a three year cut off on including in the

calculation of the "active mass" to determine the forced portion as well as to be subject to the action to reduce.

Under this article, if the husband's will leaves all to his wife and there is a forced heir who is entitled to one-fourth, the legacy to the wife is reduced to the disposable portion, since that usufruct could have been left to her expressly under art. 1499. This is the maximum extent to which reduction is needed to eliminate the excess that impinges upon the legitime, since the decedent could legally have made such a bequest to his surviving spouse. No further reduction is necessary or appropriate.

Art. 1504. Reduction of donations, exclusive right of forced heirs – 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

of any of them Who has an express conventional assignment, made after the death of the decedent,

of the right to bring the action. (Comments): There is some possible conflict in the jurisprudence because of the

earlier case of Succession of Henican which held that a bank as an unsecured creditor of a forced heir could not compel the forced heir to assert his rights as a forced heir because those rights were strictly personal.

A later case, Succession of Hurd held that because of the supremacy of federal law over state law a trustee in bankruptcy could assert the personal right of the bankrupt to demand collation, which, like the right of the forced heir to assert an action to reduce, is also a personal right.

To the extent possible, the article clarifies that a creditor should not have the right to assert an action to reduce unless the creditor has an express conventional assignment. The rule is consistent with Henican in every context other than a bankruptcy context and, it is hoped, the rule will be held to apply even in that context.

Art. 1505. Calculation of disposable portion on mass of succession A. To determine the reduction to which the donations, Either inter vivos or mortis causa, are subject, An aggregate is formed of all property belonging to the donor or testator at the time

of the his death; To that is fictitiously added the property disposed of by donation inter vivos

o Within three years of the date of the donor's death, o 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,

o Taking into consideration the number of forced heirs. C. Neither the premiums paid for the insurance on the life of the donor Nor the proceeds paid pursuant to such coverage shall be included in the above

calculations. Moreover, the value of such proceeds

o At the donor's death o Payable to a forced heir, or for his benefit, o Shall be deemed applied and credited in satisfaction of his forced share.

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D. Employer and employee contributions o Under any plan of deferred compensation o Adopted by any public or governmental employer o Or any plan qualified under Section 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

o Paid or payable to a forced heir, or for the benefit of a forced heir, o Shall be deemed applied and credited in satisfaction of his forced share.

(No Comments) Art. 1507. Reduction of legacies before donations inter vivos, order of reduction –

Donations inter vivos 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

o That a legacy shall be paid in preference to others, o In which case the preferred legacy shall not be reduced until the other

legacies are exhausted. Art. 1508. Reduction of donations inter vivos – 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 three years of the date of the decedent's death, Beginning with the most recent donation and proceeding successively to the most

remote. o Problems : Who among the following persons are forced heirs.

1. Testator's three children who are 27, 24, and 18 years old, respectively. 2. Testator's two grandchildren who are both healthy. One is 15 and the other is ten. Testator

leaves no other surviving descendants. His daughter, the children's mother predeceased the testator and was 35 years old at the time of he death.

3. Testatrix's 25 year old son and two grandchildren. One grandchild is 2 and the other 6 months. Their 20 year old mother, testatrix's daughter, died in a car accident two months before the testator.

4. The same facts as number 3, except at the time of the death, testatrix's daughter was 33. Might the otherwise healthy grandchildren qualify as forced heirs by virtue of mental incapacity or physical infirmity? Are they "permanently incapable of taking care of their person of administrating their estates," at the time of death? If the time of death is critical time for analysis, how can their incapacity be deemed a "permanent" condition?

- Mental Incapacity or physical infirmityo Legislation:

See art. 1493 above.o Jurisprudence:

Succession of Martinez (1999)(): Decedent executed a will in favor of her husband (father of the plaintiff). Decedent died and husband was placed in possession of dead wife's estate. Plaintiff filed petition contending he was a forced heir. Plaintiff is 33 years old and mildly mentally handicapped.

He receives social security disability income; he has difficulty with money transactions; and he cannot perform more than one task at a time and is unemployable.

Plaintiff does not consider himself severely handicapped and is socially active. The court noted the comment to art. 1493 and stated that intent of the legislature was

to provide a remedy only for severely handicapped children.

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Because he is only mildly handicapped he is not considered a forced heir. Notes : The edited version of the comments omitted two sentences relied on by

Martinez, specifically: The legislature thereby expressly manifested its intent to that the rule making disabled children of any age forced heirs should only apply to "seriously handicapped individuals. The legislature requested specifically that the Comments be written to explain that it is the purpose of adding the word permanently to more effectively express the public policy intended, namely, to protect children who are over the age of 23 as forced heirs if, and only if, they are severely disabled.

Treatise: The court relied on Comment (c) under revised art. 1493 erroneously equating duration with severity, and held that a mildly mentally handicapped child was not a forced heir.

The 1996 Revision Comment (c) under art. 1493 was subsequently edited pursuant to legislative direction, omitting "all references describing incapable children in terms other than those used in that article, to wit: children who are 'permanently incapable of caring for their persons or administering their estates.'"

o Problems: 1. Would a 25 year-old quadriplegic, in law school with a 4.0 GPA qualify as a forced heir? 2. What if the 25 year old was a paraplegic with an IQ of 80 who was able to work at "Good

Will" forty hours per week sorting donated clothes? 3. Testator's grandson was born deaf. His mother, testator's daughter died when she was 32.

At testator's death, his grandson was two years old. Would the grandson qualify as a forced heir?

4. What if, at the time of testator's death, the grandson mentioned in problem 3, was 25, had learned to read lips, and was working as a data entry clerk?

- The Transitiono The Legislation:

R.S. 9:2501 Construction of testaments executed prior to January 1, 1996 – If a dies testate After July 15,1997, And the testament is executed before January 1, 1996, Then the testator's intent shall be ascertained according the following rules:

o (1) That the testament shall be governed by the law in effect at the time of the testator's death in any of the following instances:

(a) When the testament manifests an intent to disinherit a forced heir or to restrict a forced heir to the legitime under the law in effect at the time of the testator's death.

(b) When the testament leaves to the forced heir an amount less than the legitime under the law in effect at the time the testament is executed.

(c) When the testament omits a forced heir and the language of the testament indicates an intent to restrict the forced heir to an amount less than the legitime under the law in effect at the time the testament is executed.

o (2) That in all other instances the testament shall be governed by the law in effect at the time the testament was executed.

o (3) That the term forced heir, as used above, shall mean a presumptive forced heir under the law if effect at the time the testament was executed.

(No Comments) The legislature enacted the statute to aid in the transition between the time-honored concept

that all children were forced heirs unless they were expressly disinherited for just cause by their parents and the new law that provided forced heirship status only to children 23 years of age or younger.

o The Jurisprudence: Succession of Boyter (La. 2000)(): Boyter executed his will on 12-30-91, and died on 01-28-

97. The plaintiff's argue that they be considered forced heirs under 9:2501.

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The trial court found that the testator's intent in his last will was that the law in effect at the time of his death govern his succession.

The Supreme Court held that the language of 9:2501, along with the legislature's purpose in enacting the statute and the policies underlying successions law, indicates the legislature intended that it be applied to the successions of all persons who die after 12-31-95, leaving a testament that was executed before 01-01-96.

Additionally, the court held that each of the three requirements found in the statute requires a clear and affirmative action by the testator.

The court found that none of the three provisions were applicable, thus, triggering subsection (b) and the law in effect on 12-31-95 controls.

See also Succession of Toncrey (1999)(holding that the testator evidenced his intent to leave less than the forced portion).

o Problem : Testatrix executed her will prior to 01-01-96. She died after 07-15-97, survived by her husband and her only child, an able-bodied and sound minded young man who was twenty-five at the time of his mother's death. (Which law applies and thus what the son would receive if the phrase appeared in the testatrix's will.

I wish to disinherit my son. I leave all my property to my sister I leave my entire estate to my husband. I leave to my son a fractional interest in my property equal to the value of his legitime under

La law as it may exist at the time of my death. I leave the forced portion of all of the property of which I die possessed to my son. I leave to my son the minimum amount required by law at the time of my death. I leave 1/5 of all my property to my son. I leave ¼ of all my property to my son. I leave1/3 of all my property to my son. I leave to my son his forced portion of ¼.

- Conflict of Lawso Legislation:

Art. 3532. Movables – 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 his death. (Comments): When the particular issue does not qualify as an issue of form, capacity,

or interpretation falling within the scope of art. 3528-3531, the issue will be decided under this article.

The domiciliary rule adopted by this article realigns La. with the rest of the nation and the civilian world and satisfies two important succession-law policies:

o The ensurement of a uniform treatment of the succession as a single unit in cases involving movables located in more than one state;

o And the protection of the justified expectations of the more likely to have relied on the law of his domicile than, say, the law of the situs of the movables.

Art. 3533. Immovables situated in this state – 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 forced heirship law of this state does not apply if

o The deceased was domiciled outside of this state At the time of death

o And he left no forced heirs domiciled in this state At the time of his death.

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(Comments): The article applies to questions other than form, capacity, consent, and interpretation, which are governed by art. 3528 – 3531.

The terms movable and immovable are used here and throughout this title in their usual signification under La. law, and include incorporeals.

However, whether an interest in land or an attachment thereto actually qualifies as an immovable is determined by the law of the situs of the land.

This title removes the following issues from the scope of the situs rule:o Issues of testamentary formalities,o Capacity,o Vices of consent,o And unworthinesso And interpretation

Art. 3534. Immovables situated in another state – Except as otherwise provided in this title,

Testate and intestate succession To immovables

o Situated in another state Is governed by the law that would apply by the courts of that state. If the deceased died domiciled in this state And left at least one forced heir

o Who at the time was domiciled in this state, The value of those immovables

o Shall be included in calculating the disposable portion o And in satisfying the legitime.

(Comments): By authorizing the application of the law that would be applied by the courts of the foreign situs, the first paragraph of this article authorizes a renvoi, that is, a consideration of the conflicts rules of the foreign state.

The forced heirship exception authorizes the inclusion of the value of the foreign immovable into the fictitious mass of the estate of the La deceased for purposes of calculating his disposable portion and satisfying the legitime of his forced heirs.

o Jurisprudence: Jarel v. Moon's Succession (1939)(): Jarel (Minnesota) is the only child of Moon (Iowa), and

was the only surviving decedent and forced heir. Moon left all her property to her niece (Kansas) less $1,000 for Jarel. Deceased left real property in La. Jarel argues that, under the forced heirship laws of La., she is entitled to 1/3 of her mother property wherever situated and that she be put in possession of the immovable property or alternatively 1/3 of the property.

The court noted that La. courts are only concerned with property located within the state of non-resident testators.

o The court was unwilling to apply its forced heirship laws to other property not located in the state.

o The court noted that if no bequest had been made in favor of Jarel, the most she would have received would be 1/3 of the property here.

o The court held that Jarel was not aggrieved because she received more than the value of the property here was worth ($500).

Questions: Would the result be different after the amendments to the conflict laws.o Problem: Decedent died as La domiciliary. At the time of his death, he owned a condo in Fla. valued

at 200,000 and a home in La. worth 250,000. He owned movables including jewelry, an automobile, and stock. His movables were valued collectively at $100,000. Decedent wrote a valid will leaving all his property to his surviving spouse, who was his second wife. He was survived by his wife and by his four-year old daughter Rebecca, born of his first marriage. Rebecca lives with her maternal grandmother.

If Rebecca and her grandmother are La domiciliares, what assets of her father, if any, will be included in calculating her forced portion:

What if Rebecca was domiciled in Kansas at the time of her father's death?

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Would it matter if Rebecca was domiciled in Kansas, but had a two-year old half-brother, decedent's son, who was living in La.?

If Rebecca lives in La., and all the facts are the same except that, at decedent's death, he is a domiciliary of Tx. is Rebecca entitled to a forced portion? What assets will be included in determining the forced portion? If Rebecca's father left her the condo in Fla. does she still have a right to claim her legitime in La.

- Protecting the forced portion (unlawful impediments)o Legislation:

Art. 1496. Permissible burdens on the legitime – No charges, conditions, or burdens May be imposed on the legitime Except those expressly authorized by law, such as

o A usufruct in favor of a surviving spouse o Or the placing of the legitime in trust.

(Comment): Another example of a condition that may be imposed on the legitime is the short-term survivorship provision presently authorized by art. 1521(vulgar substitutions).

o Jurisprudence: Succession of Turnell (La. 1880)(): Decedent left four forced heirs. In his testatment he

declared "All my property shall be kept together, and be administered by my executors for five years after my death, when the same shall be sold, and the proceeds thereof be invested, and as my grandchildren severally arrive at the age of 21 years, they shall receive their share."

The forced heirs argued that this was unlawful condition imposed upon their legitime.

The court declared the conditions imposed upon the legitime shall be null and void. Thus, the forced heirs receive their portion by operation of law and not the will. Note : if the testator bequeaths more than the forced portion to the forced heir with a

condition attached, the forced heir has the option to take the disposition with the condition as it is or renouncing the testamentary advantage, and claiming his legitime only as secured by the law independent of the testament.

Treatise : Upheld a restriction forbidding forced heirs from selling property constituting their forced portion for a period of 5 years from the legatee's death was held as violative of the prohibition against imposing charges on the legitime.

Succession of Williams (1996)(): The decedent left the entire estate to her grandchildren subject to a usufruct in favor or her son, her only forced heir, and a right of habitation to a third person.

Son claimed his legitime of 1/3 in full ownership and claimed a usufruct over the remainder of the decedent's property as provided in the will.

The court held that the son was entitled to 1/3 of the decedent's property, not 1/3 of the value of the property, regardless of the value of the usufruct as compared to the value of the legitime.

The court reduced the legacy and gave the forced heir his 1/3 forced portion in full ownership.

The heir was also permitted to keep the usufruct over the remainder as it was bequeathed to him.

o Treatise: Generally, the forced portion must be given in full ownership, although no specific provision

of the Code so provide. The donation of a usufruct to a forced heir will not suffice in satisfaction of his legitime. The right to habitation may also not burden the legitime. In Williams, because the 1/3 forced portion had to be free of any restraints, and because

habitation of 2/3 could not practically exist, the habitation restriction was totally removed. Just as a usufruct alone is not enough to satisfy the legitime, generally naked ownership alone

will also be inadequate, even though a naked ownership interest my be passed on to the forced heir's heirs, whereas a usufruct terminates with the death of the forced heir.

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A couple of exceptions exist that permit the imposition of a usufruct on the legitime. See next section.

- Protecting the forced portion (spousal usufruct and security):o Legislation:

Art. 890. Usufruct of surviving spouse – If the deceased spouse Is survived by descendants, The surviving spouse shall have a usufruct

o Over the decedent's share of the CP o To the extent that the decedent has not disposed of it by testament.

This usufruct terminates when o The surviving spouse o Dies or remarries,o Whichever occurs first.

(No Comment) Art. 1499. Usufruct of surviving spouse – The decedent may grant a usufruct

To the surviving spouse Over all or part of his property,

o Including the forced portion, And may grant the usufructuary the power

o To dispose of nonconsumables as provided in the law of usufruct. The usufruct shall be for life

o Unless expressly designated for a shorter period. A usufruct over the legitime

o In favor of the surviving spouse Is a permissible burden that does not impinge upon the legitime,

o Whether it affects community property or separate property, o Whether it is for life or a shorter period, o Whether or not the forced heir is a descendant of the surviving spouse, o And whether or not the usufructuary has the power to dispose of the

nonconsumables. (No Comment)

Art. 1514. Usufruct of surviving spouse affecting legitime; security – A forced heir May request security When a usufruct in favor of a surviving spouse

o Affects his legitimeo And he is not a child of the surviving spouse.

A forced heir may also request securityo To the extent that a surviving spouse's usufruct over the legitimeo Affects separate property.

(Comments): The first sentence makes a limited exception to the rule that a legal usufructuary is not required to give security.

When the law was expanded to permit the testator to grant such a usufruct to a surviving spouse, the last paragraph of art. 890 was also added to authorize the naked owner in those instances to request security.

In the absence of such authorization, the usufruct of the surviving spouse would be a legal usufruct and security would not have been acquired.

o Jurisprudence: None

o Problems: (1) If all three children are forced heirs, can they successfully contest the usufruct granted to

their mother? Has the father granted excessive powers to his wife by allowing her to sell, mortgage, lease or otherwise dispose of the assets?

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(2) If the court finds hat the legitime is not unduly burdened by the usufruct, do the forced heirs have a right to obtain security form their mother to protect their interests? Over which property? See art. 1514.

(3) Would the right of decedent's sons to request security be different if the spouse was the father's second wife and they were children of his first marriage?

o Treatise: The most common exception to an imposition on the forced portion is a usufruct. It is possible under art. 890 to have the entire legitime subject to the usufruct of the surviving

spouse.- Protecting the forced portion (the legitime in trust)

o Legislation: Art. 1502. Inability to satisfy legitime by usufruct or income interest in trust only –

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

o Is both income and principal beneficiary of the same interest in trust, however,

That interest shall be deemed a full ownership interest o For purposes of satisfying the legitime o If the trust conforms to the provision of the La Trust Code governing the

legitime in trust. (Comments): This article is consistent with Succession of Williams, which held that a

child's forced portion may not be satisfied by a bequest to him of a usufruct. R.S. 9:1841. General rule – The legitime or any portion thereof may be placed in trust

provided: (1) The trustee after taking into account all of the other income and support to be

received by the forced heir during the year shall distribute to the forced heir, or to the legal guardian of the forced heir, funds from the net income in thrust sufficient for the health, maintenance, support, and education of the forced heir.

(2) The forced heir's interest is subject to no charges or conditions except as provided in 9:1843, 44, 91-1906.

(3) Except as permitted by 9:1844, the term of the trust, as it affects the legitime, does not exceed the life of the forced heir; and

(4) The principal shall be delivered to the forced heir or his heirs, legatees, or assignees free in trust, upon the termination of the portion of the trust that affects the legitime.

R.S. 9:1844. Legitime burdened with income interest or usufruct – The legitime in trust May be burdened

o With an income interest o Or with a usufruct in favor of a surviving spouse

To the same extent and for the same term That a usufruct of the same property could be stipulated

o In favor of the same person o For a like period.

o Jurisprudence: Sachnowitz v. Nelson (1978)(forced portion in trust equivalent to usufruct):

Whether an income interest in a Texas trust can satisfy the rights of a nonresident forced heir under La. law.

No. The determination of the forced portion is computed by the value of the property located in La. only, however, the total bequest, wherever located, can satisfy the amount of the forced portion. See Jarel v. Moon's Succession.

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Thus, if the legitime held in trust was not satisfied by any bequest outside of La., the trust must fall under the provisions of R.S. 9:1832 and 9:1841(3).

A cursory look at 9:1844 reveals that the legislature has determined that an income interest in trust is synonymous with a usufruct as far as the satisfaction of the legitime is concerned.

o Since a usufruct cannot satisfy the legitime, neither can an unconditional income interest in a trust, irrespective of where the trust may be located.

o Treatise: Other than the surviving spouse's usufruct, there are some additional sanctioned ways to limit

the legitime. The legitime may be put in trust. This may only be done if the net income from the legitime is paid to the forced heir

at least one a year. Except for the restriction imposed by the surviving spouse's usufruct or income

interest, the term of the trust may not exceed the life of the forced heir. At the termination of the portion of the trust affecting the legitime, the principal must

be paid to the forced heir, his heirs, legatees or assignees.- Calculating and satisfying the forced portion: The mass estate and reduction

o Legislation: Art. 1495. Amount of forced portion and disposable portion – Donations inter vivos and

mortis causa may not exceed ¾ of the property of the donor

o If he leaves, at his death, o One forced heir,

And ½ o If he leaves, at his death, o Two or more forced heirs.

The portion reserved for the forced heirs is called the forced portion And the remainder is called the disposable portion. Nevertheless,

o If the fraction that would otherwise be used to calculate the legitime o Is greater than the fraction of the decedent's estate

To which the forced heir would succeed by intestacy, o Then the legitime shall be calculated by using the fraction of an intestate

successor. (Comments):In certain instances the fraction to determine the share of the decedent's

estate that a child would inherit by intestacy would be less that the fraction used to calculate his legitime, as, for example, when a parent had five competent children, four of whom are 24 or older and one of whom qualifies as a forced heir because he is 23 or younger. In such a case the percentage used to calculate the forced portion under art. 1495 would be 25%, but the intestate share under art. 888 would be only 20%.

Thus, the forced heir may receive a greater share than the actual intestate share, which is 20% of the probate estate, but not as large a hare as he otherwise would be entitled to a claim, namely 25% of the result of the article 1505 calculation.

Art. 1500. Forced portion in cases of judicial divestment, disinherison, or renunciation of succession rights – When a forced heir

Renounces his legitime, Is declared unworthy, Or is disinherited, His legitime becomes

o Disposable o And the forced portion is reduced accordingly.

The legitime of each remaining forced heir is not affected.

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(Comments): This article changes the law in part by providing that when a forced heir renounces his legitime, the decedent's forced portion is determined by the number of other forced heirs of the decedent living or represented.

Art. 1503. Reduction of excessive donations – a donation inter vivos or mortis causa, That impinges upon the legitime of a forced heir Is not null But is merely reducibile to the extent necessary to eliminate the impingement. (Comments): Under 9:2372 there is a 3 year cut off on including gifts in the

calculation of the active mass to determine the forced portion as well as to be subject to the action of to reduce.

Under this article, if the husband's will leaves all to his wife and there is a forced heir who is entitled to ¼, the legacy to the wife is reduced to the disposable portion in full ownership and a usufruct for life, with the power to dispose of nonconsumables, over the forced portion, since that usufruct could have been left to her expressly under art. 1499.

This the maximum extent to which reduction is needed to eliminate the excess that impinges upon the legitime, since the decedent could legally have made such a bequest to his surviving spouse. No further reduction is necessary or appropriate.

Art. 1504. Reduction of donations, exclusive right of forced heirs – An action to reduce excessive donations

May be brought only after the death of the donor, And then only by

o A forced heir,o The heirs or legatees of a forced heir,o Or an assignee of any of them o Who has an express conventional assignment,

Made after the death of the decedent, Of the right to bring the action.

(Comments): There is some possible conflict in the jurisprudence because of the earlier case of Succession of Henican, which held that a bank as an unsecured creditor of a forced heir could not compel the forced heir because those rights were strictly personal.

A later case, Succession of Hurd, held that because of the supremacy of federal law over state law a trustee in bankruptcy could assert the personal right of the bankrupt to demand collation, which, like the right of the forced heir to assert an action to reduce, is also a personal right.

To the extent possible , this article clarifies that a creditor should not have the right to assert an action to reduce unless the creditor has an express conventional assignment.

The rule is consistent with Henican in every context other than a bankruptcy context and, it is hoped the rule will be held to apply even in that context.

Art. 1505. Calculation of disposable portion on mass of succession A. To determine the reduction to which the donations, either inter vivos or mortis

causa, 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 inter vivos within three years of the date of the donor's 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 forced heirs.

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 donor's death payable to a forced heir or for his benefit shall be deemed applied and credited in satisfaction of his forced hare.

D. Employer and employee contributions under any plan of deferred compensation adopted by any public or governmental employer or any plan qualified under Section

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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.

(No Comment) Art. 1507. Reduction of legacies before donations inter vivos, order of reduction –

Donations inter vivos May not be reduced Until the value of his property

o Comprised in donations mortis causa are exhausted The testator may expressly declare

o In the testamento That a legacy shall be paid in preference to others,o In which case

The preferred legacy shall not be reduced Until the other legacies are exhausted.

(No Comment) Art. 1508. Reduction of donations inter vivos – When the property of the estate

Is not sufficient to satisfy the forced portion, A forced heir may recover

o The amount needed to satisfy his legitime o From the donees of inter vivos donations

Made within 3 years of the date of the decedent's death, Beginning with the most recent donation And proceeding successively to the most remote. (No Comment)

Art. 1509. Insolvency of a donee – When a donee From whom recovery is due Is insolvent, The forced heir may

o Claim his legitime from the donee of the next proceeding donation o And so on to the donee of the most remote donation.

A donee who pays the share of an insolvent doneeo Is subrogated to the rights of the forced heir against the insolvent donee.

(No Comment) Art. 1510. Remunerative donations, extent of reduction – The value of a remunerative

donation Is not included in the calculation of the forced portion, And the donation may not be reduced,

o Unless the value of the remunerated serviceso Is less that 2/3 the value of the property donated o At the time of the donation,o In which event

The gratuitous portion is included in the calculation And is subject to reduction.

(No Comment) Art. 1511. Onerous donation, extent of reduction – The value of an onerous donation

Is not included in the calculation of the forced portion, And the donation may not be reduced

o Unless the value of the charges o Is less than 2/3 o The value of the property donated

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At the time of the donation, o In which event,

The gratuitous portion is included in the calculation And is subject to reduction.

Art. 1512. Retention of fruits and products of donation by donee until demand for reduction –

The fruits and products Of property donated inter vivos Belong to the donee Except for those that accrue

o After written demand for reduction is made on him. (Comments): The donee owns and is clearly entitled to keep all of the fruits and

products that accrue before the donor's death as well as those received after death and before demand.

The demand contemplated by this art. is not necessarily a judicial demand, as in an action to reduce excessive donations, but a written demand of any kind.

Art. 1513. Reduction in kind when property is owned by the donee or successors by gratuitous title; effects of alienation by donee – 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,

o Beginning with the most recent donation. When the donated property is still owned by the donee or the successors, Reduction takes place

o In kind o Or by contribution

To the payment of the legitime, At the election of the donee or the successors,

o Who are accountable for any diminution in the value of the property o Attributable to their fault or neglect o And for any charges or encumbrances imposed upon the property after the

donation. When the property given

o Is no longer owned by the donee or his successorso By gratuitous title,

The donee and the successorso 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

o Only to the extent of the value of the donated property o At the time the donee received it.

(No Comment) 9:2373. Donations inter vivos to spouse of previous marriage; exemption from reduction and

calculation of succession mass – No donation inter vivos Made by a person To his or her spouse

o Of a previous marriageo Which was made during the existence of such marriage

Shall be subject to reduction o Under the provisions of CC art. 1502 through 1518,

Nor shall the property transferred by such donation

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Be fictitiously added to the aggregate of all property o Belonging to the donor o In calculating the mass of the donor's succession o Under the provisions of CC art. 1505 o Or in calculating the legitime portion under CC art. 1234.

(No Comment)o Jurisprudence:

Succession of Willis (1996)(): The estate of testator after the estate debts totaled 557,921.50. The forced portion is 278,960.75 and each child receives 1/6. An action for reduction of testamentary donation made by testator to one of his six children. The appellee argues that trial court should have reduced her testamentary legacies by the amount of life insurance proceeds that she received.

The court notes that life insurance proceeds which are payable to a named beneficiary other than the insured's estate are not a part of the insured's estate.

The appellate court held that the trial court erred when it ordered the appellee to pay the life insurance proceeds to the estate (ordering the redistribution of these proceeds from the intended and named beneficiary to the other forced heirs).

Life insurance proceeds form no part of the estate. Succession of Henican (1971)(): Testator executed will in favor of five grandchildren

bypassing her son due to his indebtedness. Bank asserts it is an attempt to avoid the payment to the indebted son and that they as creditor be authorized to accept the succession in his favor.

The court unequivocally held that a creditor may not assert the right of reduction which is reserved to the forced heir.

Note: Article 1504 would maintain the result reached by Henican and is according the Revision Comment, an attempt to avoid the application of the decision reached in Succession of Hurd in which the trustee in bankruptcy was permitted to demand collation for a forced heir.

Succession of Vincent (1988)(party opposing disinherited bear burden of proof): Testator disinherited his son due to physical attacks.

The party opposing disinherison has the burden of rebutting the presumption imposed under (former) art 1621.

Self serving testimony of the disinherited do not rebut the presumption. Note : The only remnants of disinheritance remaining are art. 1494 and art. 1500. Note : Under former art. 1621 twelve grounds for disinherison existed. The law

institute has a proposition that would recognize eight of the former grounds in .o (1) If the child has raised his or her hand to strike the parent, or if he or her

has actually struck the parent; but mere threat is not sufficient.o (2) If the child has been guilty, towards the parent, of cruelty, of a crime or

grievous injury.o (3) If the child has attempted to take the life of either parent.o (4) If the child has accused a parent of any capital crime, except, however,

that of high treason.o (5) If the child used any act of violence or coercion to hinder a parent from

making a will.o (6) If the son or daughter, being a minor, marries without consent of his or

her parents.o (7) If the child has been convicted of a felony for which the law provides

that the punishment could be life imprisonment or death.o (8) If the child has known how to contact the parent, but has failed without

just cause to communicate with the parent for a period of two years after attaining the age of majority, except when the child is on active duty in any of the military forces of the US. (Plenty litigation under – no communication).

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Succession of Bertaut (1990)(non-communication with just cause): Testator disinherited two forced heirs. Father was estranged from children by choice.

The father was seeking to disinherit under former art. 1621((8) listed above (no communication without just cause)).

The burden is upon those who oppose disinherison, here, the forced heirs. The record revealed that the father did not establish any type of meaningful

relationship with his sons and the majority of his contracts with his sons were initiated by other people.

The purpose of former art. 1621(no communication ground) is to require communications between children and parents so that strong family ties are maintained.

The court held that although former art. 1621 places the burden on the child, a child does not need to attempt when those attempts would be futile.

Here, the court found that the father did not want to establish a relationship, thus, the failure to communicate by the children was with just cause.

Succession of Gray (1999)(preponderance of evidence was not shown - disinherited): Will attempts to disinherit daughters for lack of communication for a period over two years.

The testator attempts to use the no-communication ground listed above. The court notes that the daughters must rebut the presumption. Commenting on the trial court's ruling that one or two visits does not establish

communication contemplated by the article, the cited previous jurisprudence that held sending birthday and Christmas cards were enough. Citing Steckler (1995)

The court noted that disinherited must show "by a preponderance of the evidence" that two years had not elapsed

o Note : It appears that two years would be a sufficient durationo Note : The standard is a preponderance of the evidence.

The facts proved that some relationship existed, but the daughters did not prove by a preponderance of he evidence that they communicated with their father for a period of two years after their 18th birthday.

o Note: By repealing former article 1511, the revision is unclear as to whether the reduction should be

pro rata or whether universal and general legacies are to be reduced prior to particular legacies.

When a forced heir requests reduction of an onerous or remunerative donation, he is only entitled to a reduction of that portion which is gratuitous. See art. 1510-11.

Donations Omnium Bonorum & Dispositions Reprobated by Law- Donations Omnium Bonorum

o Legislation Art. 1498. Nullity of donation inter vivos of entire property – The donation inter vivos

Shall in no case Divest the donor of all his property; He must reserve to himself for subsistence. If he does not do so,

o A donation of a movable is null for the wholeo 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 shall not be declared null 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 the donee received it.o If the donee has created a real right

By onerous title in the immovable given to him,o Or such right has been created

By operation of law

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Since the donee received the immovable,o The donation is null for the whole o And the donor may claim the immovable

In the hands of the donee,o But the property remains subject to the real right that has been created.o In such a case,

The donee and his successors by gratuitous title Are accountable for the resulting diminution of the value of the

property. (No Comment)

o Jurisprudence Lagrange v. Barre (La. 1845)(donation omnium bonorum and prescription): The plaintiff

wishes to make null a donation made in favor of defendants, in which he donated land and slaves. Additionally, he alleges that the defendant's failed to comply with the obligations stipulated to in the contract.

The court notes that former art. 1484 (the substance of which is present in art. 1498) throws a certain incapacity upon every citizen to divest himself of all his property.

At the time of the donation the plaintiff was not possessed of any property except that in the donation.

This nullity is based upon motives of public order, and the act done in contravention of its prohibition is against good morals.

The law on which the action is based, declares the absolute nullity of the disposition, and such a nullity cannot be removed or cured by the prescription of 5 years.

Note : Art. 1533. The donor is permitted to reserve for his own advantage, or to dispose of for the advantage of any other person, the enjoyment or usufruct of the immovable property given.

Note : Thus, the donor here could have reserved the usufruct for himself and validated the donation.

See Bernard v. Noel (holding that the donation between two spouses was too remote and contingent to have been attempted to be safeguarded by this article, thus allowing interspousal donations).

Note : In a La. Law Review article, the author points out that the policy implications behind the art. 1498 is for the protection of the public from the burden of supporting the donor. However, the jurisprudence definitively holds that collateral heirs nor forced heirs cannot annul a donation omnium bonorum while the donor lives, he alone can annul the gift. The jurisprudence has created a legal lacuna, defeating the policy implications behind the articles enactment.

See Givens v. Givens (1973) (holding that the donee had acquired by 30 year acquisitive prescription the land that the donor had donated, thus, the donor was prevented from anulling).

See Jenkins v. Svara (1912) (holding that ten year acquisitive prescription prevented the donor from annulling the donation – the defendant was the last in a series of transfers by onerous title – tacking).

- Immoral, Illegal and Impossible Conditionso Legislation

Art. 1519. Impossible, illegal or immoral conditions – In all dispositions inter vivos or mortis causa

Impossible conditionso Those which are contrary to the laws or to morals,

Are reputed as not written. (No Comment)

o Jurisprudence Succession of Thompson (1909)(primary concern for making donation): Testator left the

residuum of his estate to the an asylum which cares only for indigent widows and orphans, on the condition that the institution support his daughters if rendered homeless.

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The argument was made that because the condition was impossible (the daughters were not widows or orphans under 25) it should be treated as never written and the asylum should get the donation unencumbered.

However, the court held that when the condition is the prime and moving cause of the donation or legacy, the impossibility of the condition entails the nullity of the disposition itself-despite what art. 1519 provides.

Labarre v. Hopkins (1855)(): Testament provided that the husband should receive the usufruct over the testator's separate property until he remarries.

The argument was made by the husband who remarried that the condition prohibited marriage and was contrary to good morals.

The court held that second marriages do not fall into the category of contra bonos mores, unlike first marriages.

Note: The duty of the court is to find out the intent of the testator. Note: The whole donation fell, and the daughters received the money by way of

intestate succession. Note: Normally, the tainted condition is removed from the testament. See Succession of Ruxton (1955)(holding that a legacy conditioned on the unmarried

status of the legatee at the date of the testator's death, at least where the legatee has no prior knowledge of the condition, was an art. 1527, and not an article 1519, condition).

o Note : Although a legacy conditioned on a continuing state of unmarried bliss might fall under art. 1519, one merely dependent on a status at a moment in time would not, because in such a case there would be no inducement to the legatee to remain unmarried or to become married. At least this is true if the legatee is ignorant of the legacy or the condition.

o Art. 1527 Charges or conditions imposed by donor - The donor may impose on the donee any charges or conditions he pleases, provided they contain nothing contrary to law or good morals.

Succession of Augustus (1978)(testamentary termination of usufruct upon remarriage): The testatrix left her husband the usufruct of her separate property under the condition that it should terminate only upon his death or in the event he allows Thelma Pointant Augustus or Cecile Hill to enter this house.

After death of testatrix, husband remarried his former wife, Thelma, and they lived in the house in question.

The court held that the condition was governed by art. 1527 and not art. 1519 The court clarified its holding and noted that it was a condition to terminate a

usufruct, not a condition prohibiting remarriage. Prohibiting, by testament, certain individual from entering upon property is not

contra bonos mores. Succession of Feitel (1933)(cannot keep property out of stream of commerce by

testatment): A prohibition against alienation for ten years in a legacy was held to be an article 1519 illegal condition because it took the property out of commerce and allowed the dead to control the living.

The court apparently regarded an illegal condition as a form of impossible condition. The court noted that the stipulation mandating the bequeathed property not be sold

for ten years was illegal and an impossible condition. Note: The court did not find a prohibited substitution because the testator did not

direct the donee to only alienate the property in favor of a third person. Accord: R.S. 9:2119: A settlor by the provisions of the trust instrument cannot forbid

a sale of immovable property for a period beyond 15 years from his death.o Treatise:

It could be argued that 1519 requires inquiry into the testator's motive for imposing the condition.

The common law view is that the conditions in restraint of first marriages are impermissible, but not in the case of considering second marriages.

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More recent French cases indicate that conditions restricting marriage, including first marriages are valid unless dictated by reprehensible motives.

Yet in La. it has been held that conditions based on whim and caprice are not (although perhaps reprehensible; necessarily illegal, immoral or impossible.

Nonalienation clauses in wills have been held to fall under the gamut of art. 1519. It has been held, for instance, that the right to alienate is an essential element of ownership and restriction on this right are thus contrary to the codal provisions dealing with the concept of ownership.

Such conditions must be reputed not written under art. 1519. The underlying condemnation of taking property out of commerce found in art. 1520

prohibition of substitutions is also relevant to the determination of the condition's validity. The article 1519 condition and the precatory suggestion have on several occasions been

treated as synonymous. But the two rationales are not the same. If the directive to do or not to do, something with the property is regarded as a

condition, then it is intended to be binding, but art. 1519 may invalidate it. But if the disposition of the property is intended to be absolute and the directive is

intended to be no binding, but just suggestive, the directive is regarded as precatory only and merely directed to the conscience of the donee or legatee.

- Prohibited Substitutionso Legislation

Art. 1520. Substitutions and fidei commissa – Substitutions are and remain prohibited, Except as permitted by the laws relating to trusts. Every disposition not in trust By which the donee, heir, or legatee Is charged to preserve for And return a thing To a third person Is null,

o Even with regard to the donee, instituted heir or the legatee. (No Comment)

o Jurispurdence Succession of Johnson (La. 1953)(three conditions of prohibited substitution – not

satisfied): The testator declared in his will "I do here by leave everything to my wife . . . as long as she live and then she is to leave to her stepson . . . of what is left.

The conditions necessary for a prohibited substitution:o A double disposition in full ownership.o A charge on the donee to preserve and render the property to another;o Successive order.

The court holds that there is no charge on the legatee to preserve anything for any one. It is only in the event that she does not so dispose of the whole estate that she is to leave to her stepson ¼ of the share of what is left.

o "what is left" conveys that title to all the property was conveyed to the donee to the exclusion of all others.

Note : The donation in the above case is a disposition that is null even with regard to the original legate.

o Distinguish : In a fidei commissum, whereby the donee or legatee is invested with the title and charged or directed to convey it to another person to make a particular disposition of it, only the charge or direction, as to the ultimate disposition of the donation or legacy, is null and is to be considered not written, leaving the donation valid as to the donee.

o Thus, a substitution is necessarily a fidei commissum, but a fidei commissum is not necessarily a substitution.

Note : The underlying problem with prohibited substitutions is that that the original testator is writing the testament of the donee as well.

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Succession of Morgan (1972)(example of prohibited substitution): The testator's land is willed to Johnny at his death and his wife's death. Additionally, the testator willed to Randy other property after the death of himself and his wife.

In both cases, the lands devised may be sold only by the ultimate legatees and they gain ownership thereof only when the testator's wife is also dead.

The court notes that this is an undisguised attempt by the testator to make a will for his widow (the widow is prohibited from alienating the property or disposing of it by donation mortis causa).

Baten Tayor (La. 1979)(): Succession of Walters (La. 1972)(): Prior jurisprudence held that the entire disposition was

null when a prohibited substitution was named. This court held that a provision tainted by a prohibited substitution is null but the other dispositions in the testament will be upheld.

o Treatise: In the fidei commissum the title is not tied up or kept out of commerce; the direction or

charge, as to its disposition, is to be regarded only as a precatory suggestion addressed to the conscience of the donee or legatee, which being illegal, but harmless, can have no binding effect, and may be legally regarded as not written.

- Disposition of Usufruct:o Legislation:

Art. 1522. Separate donations of usufruct and naked ownership – The same Shall be observed As to the dispositions

o Inter vivoso Or mortis causa,

By which the usufruct is given to one, and the naked ownership to another. (No Comment)

o Jurisprudence: Succession of Thilborger (La. 1958)(use was unequivocally a usufruct): The testator wrote:

[t]o my dear husband, I give, devise, and bequeath the use of the Lodge . . . as long as he lives and at his death to be given to the Charity Hospital to be used as a convalescent home . . . .

The court noted the confusion of the prior jurisprudence in determining what was a donation usufruct-naked ownership situation as opposed to a prohibited substitution.

o "The jurisprudence of this court is not a confused state, especially in that type of case where the testator used qualifying words or phrases to designate the interest that the first party was to take . . .".

The court opted not to find a prohibited substitution relying on the idea of "reasonable will construction".

Succession of Fournet (1967)(successive usufructs - okay): The testator wrote: "I will bequeath unto my [first] daughter . . . the usufruct during her natural life . . . I also bequeath my [second] daughter . . . the usufruct of all the above specified property from and after the death of my [first] daughter."

Whether the provisions of the will creating successive usufructs must be considered a prohibited substitution.

Successive usufructs are not prohibited substitutions. Note : Today, art. 546 Usufruct in favor of successive usufructuraries – Usufruct

may be established in favor of successive usufructaries. Succession of Goode (La. 1982)(royalty payment is the grant of a usufruct): The testator

wrote: "All oil and gas royalty interest payments owned by me shall be paid to 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."

The court notes the first task was to determine the intention of the testator. The difficulty in this case arises from the nature of the underlying asset (the mineral

right) and the future payments, which it generates (the royalty payments), and whether the two may be considered separately or as one.

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The court held that a legacy of oil and gas royalty interest payments to a named legatee for life and then after her death the payments to a named legatee for life and then after her death the payments to be divided among named legatees, was not a prohibited substitution but rather a bequest for successive usufructs.

Note : The court notes that although the testator did not expressly say the word "use or "use and benefit," the testator's intent was to bequeath less than full ownership. The court held that "In bequeathing the payments rather than the royalty interest, the testator fully described the benefits that would flow to a usufructuary of mineral royalty."

Note : Distinguish between royalty payments and royalty interests.o Payment = usufructo Interest = ownership (of asset producing the payment)

- Vulgar Substitutions:o Legislation:

Art. 1521. Vulgar substitutions; simultaneous death A. The disposition, by which a third person is called to take a gift, the inheritance or

the legacy, in case the donee, the heir, or the legatee does not take it, shall not be considered a substitution and shall be valid; provided:

(1) That a testator may alter or negate the presumptions or survivorship contained in articles 936 through 939 of this code to provide that when a disposition of property to a donee, heir, or legatee depends upon priority of death, and there is no sufficient evidence that the parties have died otherwise than simultaneously, the property of the testator so disposed shall devolve as if the testator had survived.

(2) That, with regard to the taking of a disposition by any heir, legatee, or trust beneficiary, including the legitime of a forced heir, a testator may impose as a valid suspensive condition that the donee, heir, legatee, or trust beneficiary must survive the testator for a stipulated period, which period shall not exceed ninety days after the testator's death, in default of which a third person is called to take the gift, the inheritance, or the legacy; in such a case the right of the donee, heir, legatee, or trust beneficiary is in suspense until the survivorship vel non as required is determined. If the donee, heir, legatee, or trust beneficiary survives as required, he is considered as having succeeded to the deceased from the moment of his death, and 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 or a forced heir shall 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 time.

B. In all cases under this article the party whose claim is dependent on survivorship shall have the burden of proving that fact by a fair preponderance of the evidence.

(No Comment)o Jurisprudence:

Swart v. Lane (La. 1926)(prohibited substitution/if can't – then): The testator wrote" I will and bequeath to my child all that I own . . . In case of my child's death as well as my own, I will and bequeath to my husband . . .

The nullity propounded against the will is that it contains a prohibited substitution; that the entire estate is bequeathed first to the testatrix's child and then at the death of the child to the testatrix's husband.

If it can be reasonably construed as showing the intention of the testatrix to give the estate to the husband in the event that the death of child preceded that of the testatrix, then there is obviously no prohibited substitution, but a vulgar substitution, which is permitted.

From the verbiage in the testament, it may be fairly assumed that the testatrix had in mind the death of her child before or contemporaneously with her own death, and it

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was this contingency that caused her to provide that the property should go to her husband.

o Problem: What did the testator create: a prohibited substitution, fidei commissum, usufruct or

something else (1) Dec 7-1977

If I should go before husband, John, I want the piece of land on other side of road to bayou about fifty acers [sic] more or less to be his until his death then it will return to Cleo. I am hoping everything will work out okay. Carry out as i wish.

(2) "And the balance of whatever i may dies possessed of I give and bequeath unto Bishop Thomas Heslin, to be distributed as he see fit among my people in Ireland and for the further education of Thomas Regan, hereby instituting Bishop Heslin my sole heir and universal legatee. (Bishop Heslim unfortunately died while the succession was still under administration and his brothers and sister claim through him.

(3) "The house left like it is and the land and timber for Edward Earl Lawrence at this death it will come back to all brother Hulon and Sister Children."

Donations Inter Vivos- Introduction

o Legislation Art. 1523. Gratuitous, onerous and remunerative donations; definitions – There are three

kinds of donations inter vivos: The donation purely gratuitous,

o Or that which is made without condition and merely from liberality; The onerous donation,

o Or that which is burdened with charges imposed on the donee; The remunerative donation,

o Or that the object of which is to recompense for services rendered. (No Comment)

Art. 1524. Onerous donation - The onerous donation Is not a real donation, If the value of the object given Does not manifestly exceed that of the charges imposed on the donee. (No Comment)

Art. 1525. Remunerative donation - The remunerative donation Is not a real donation, If the value of the services to be recompensed

o Thereby being appreciated in money, Should be little inferior to that of the gift. (No Comment)

Art. 1526. Onerous and remunerative donations, when rules applicable - In consequence, The rules peculiar to donations inter vivos Do not apply to onerous and remunerative donations, Except when the value of the object given

o Exceeds by one-half that of the charges or of the services. (No Comment)

Art. 1527. Charges or conditions imposed by donor - The donor May impose on the donee Any charges or conditions he pleases, Provided they contain nothing contrary to law or good morals. (No Comment)

Art. 1528. Donation of future property, nullity - A donation inter vivos Can comprehend only the present property

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Of the donor. If it comprehends property to come, It shall be null with regard to that. (No Comment)

Art. 1529. Donation conditional on will of donor, nullity - Every donation inter vivos Made on conditions, The execution of which depends on the sole will of the donor, Is null. (No Comment)

Art. 1530. Donation conditional on payment of future or unexpressed debts and charges, nullity - It is also null,

If it was made on condition o Of paying other debts and charges

Than those o That existed at the time of the donation,

Or were expressed either in o The act of donation o Or in the act that was to be annexed to it.

(No Comment) Art. 1531. Donation reserving right of disposition - In case

The donor has reserved to himself The liberty of disposing of any object

o Comprised in the donation o Or of a stated sum on the property given,

If he dies without having disposed of it, That object or sum Shall belong to the heirs of the donor, Any clause or stipulation to the contrary notwithstanding. (No Comment)

Art. 1532. Donations excepted from Articles 1528-1531 - The four preceding articles Are not applicable to donations Of which mention is made In the eighth and ninth chapters of the present title. (No Comment)

Art. 1533. Donation or reservation of usufruct - The donor Is permitted

o To reserve for his own advantage, Or to dispose of

o For the advantage of any other person, The enjoyment or usufruct of the immovable property given. (No Comment)

Art. 1534. Stipulation for right of return to donor - The donor May stipulate the right of return Of the objects given,

o Either in case of his surviving the donee alone, o Or in case of his surviving the donee and his descendants.

That right can be stipulated for the advantage of the donor alone. (No Comments)

Art. 1535. Right of return, effect - The effect of the right of return is, That it cancels all alienations Of the property given That may have been made by the donee or his descendants, And causes the property to return to the donor,

o Free and clear of all encumbrances and mortgages. (No Comment)

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o Jurisprudence: Succession of Henry (La. 1925)(donations inter vivos may be made mortis causa – dation

en paiement): The testator wrote, "Having had poor health . . . and in constant need of attention and nursing, and that duty falling to my son . . . it is my desire that my said son should be compensated for his labor and affectionate attention to me."

Defendants argue that a remunerative donation may not be made mortis causa. Court held that all donations inter vivos may be made mortis causa according to the

language of former art. 1570. Despite the court's holding above, the court further held that the donation in the

present case was not a donation in the form "inter vivos" but a "dation en paiement" (the giving by the testatrix of her estate to the universal legatee in payment for his services).

Note : The plaintiff is claiming title to property bequeathed to him (not suing on contract or quantum meruit theory). The services rendered created a legal obligation, and the legal basis for the transfer of the property being the extinguishment of that obligation on the part of the testatrix.

Note : The court further notes that remunerative donation may be reduced by operation of present art. 1510.

Note : Value of the "dation en paiement" is not subject to reduction because this amount is not included in the mass estate, thus, excluding claims of other forced heirs.

Note : Burdens:o Donee bears initial burden of proof that donation was onerous or

remunerative because of presumption of gratuity.o If donee makes an initial showing of the value of the services, those

attacking bear the burden of proving that value of the gift exceeded the value of the services by ½.

Succession of Formby (La. 1962)(donation mortis causa – remunerative allowable): The testator wrote "I give . . . all my property to my son, this being an onerous donation, he having provided for me during my lifetime . . . .

The court on rehearing held that a remunerative donation may be created in a will.o The court reasoned that a donation mortis causa cannot take effect, as a

disposition of property, until the death of the testator; consequently, when the remunerative donation in a testament becomes so effective, and title to the bequeathed property is passable, it then constitutes a payment (dation en paiement) in keeping with the expressed desire of the testator to compensate for all services rendered prior to death.

Note : The court reviewing prior jurisprudence noted that "the presumption arises that services rendered to a parent by a child are gratuitous if he be the only child, but the jurisprudence seems to be conflicting as to whether this presumption arises if there be more than one child. However that may be, where there is an expressed intention shown to compensate a child for the services rendered the presumption of gratuity does not arise."

Succession of Danos (1978)(remunerative donation exceeded services by ½ thus subject to form requirements): Decedent died intestate survived by collateral heirs. During decedent’s life, the appellee provided decedent with bedroom, bath, & paid for everything w/o demanding any contributions. During decedent’s life, she allegedly gave the appellee a CD, which the appellee claims was in return for services rendered. The collateral heirs claim it exceeded value of services & fails as to form, thus it should be included in the estate.

The court found a remunerative donation based upon testimony of appellee and her husband that stated the donee gave the CD's saying that she wanted her to have them for the services that were rendered.

The court found that formalities were required due to the excessive nature of the donation.

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The court notes, however, that a remunerative donation of an incorporeal movable that exceeds the value of the services by ½ is subject to form requirements (authentic act and acceptance) of donations inter vivos.

Note : If remunerative donation of corporeal movable that exceed the value of the services by ½, because of manual gift exception there are no form requirements.

Distinguish : The court still classifies the donation as remunerative (not gratuitous) despite the excessive nature of the gift in comparison to the services. Simply classified as a remunerative donation subject to the form of donations inter vivos.

Note : It is the intention of the donor that classifies the donation as either remunerative or gratuitous, not simply whether the donee provided some services.

Collation & Reduction Issues:o Case law is inconsistent.

Art. 1510. Remunerative donations, extent of reduction - 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 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.

Art. 1511. Onerous donation, extent of reduction – same as above.

The value of the services are not included in mass estate because are not classified as a donation, thus not apart of forced portion.

Note: 3 year limit to reduction.o Problems:

(1) For two years every week, neighbor, Sam, while mowing his own lawn, mowed the law of Mr. Sanford, the older man who lived in the adjacent house. The value of his services were $600 per year. Mr. Sanford on his death, bequeathed to Sam, his bank account which had a balance of $1800. What if Mr. Sanford had $1799 in his bank account? $1801?

(2) If Mr. Sanford had two forced ehirs, and the $1800 bank account was all he owned, could the forced heirs attack the donation? If so, what portion of the donation could they claim? What if the bank account had a balance of 1801?

- Shares of Stocko Legislation:

See La. R.S. 10:8-301 & 10:8-302. (for reproduction see case book 15:22)o Jurisprudence:

Primeaux v. Liberstat (La. 1975)(transfer of stock subject to special legislation regarding form):

The donation in question is not a question of substance but form. The court noted that a stock certificate is an incorporeal movable and thus not

subject to manual gift exception. o However, if the stock is transferred by stock transfer legislation, its transfer

is valid as a donation without the necessity of the additional formality of a notarial act.

The court notes that although this form of donation is exempted from the external formality, it is subject to the substantive rules of donation, such as reduction and collation.

Note: The Uniform Stock Transfer Act was repealed and supplanted by La. Commercial Code.

- Checks and Negotiable Instrumentso Legislation:

See La. R.S. 10:3-104, 10:3-201 & 10:3-203 (for reproduction see case book 15:25-27).o Jurisprudence:

Succession of DePouilly (La. 1870)

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Court held that a check given to and payable to the order of the donee by the donor was a valid manual gift of a corporeal movable.

o The court noted that the check, which was drawn and collected on the same day, was nothing more than a corporeal movable effect, and since the donation was accompanied by real delivery, it required no further formality.

o The check was the means or vehicle of delivery.o Note: The check was collected before the donor's death.

Burke v. Bishop (La. 1875): The donor received the check from another and had indorsed it over to the donee. The donee failed to cash the check before the indorsor died.

The court held that the manual transfer of the check, together with the indorsement, was a valid donation.

The court noted that the indorsor's death was not of concern because the bank paid under instructions for the signator of the check not the indorsor.

o The court stated that once the indorsor indorsed the check and handed it over it ceased to be his property.

Succession of Leroy (La. 1927) Involved a certified check which was issued to the donor shortly before his death as the balance due on certain real property previously sold by him. The donor indorsed the check in blank and delivered it to the donee as a donation inter vivos by manual gift.

The court decided that because o The check was certified (where the bank had already charged the account of

the drawer so the bank was primarily liable), o And since the check was not drawn upon decedent's own funds,

That there was a valid manual gift and it did not matter that the check was not collected until after the death of the donor.

o Rational : once the check is cashed, donation is complete because it meets the elements of donations inter vivos:

B/w living persons Acceptance At present Irrevocable Check is means or vehicle of delivery for manual gift

Succession of Schneider : (1967) Four months before death, decedent handed nephew a check for $35,000 as a gift. Decedent left nothing to nephew in his will. Wrote “donation” as a notation on the check. Nephew tried to cash the check after decedent’s death; bank would not honor check even though funds in the account

Held : UNTIL CERTIFIED OR CASHED PRIOR TO DEATH IT IS ONLY AN INCORPOREAL RIGHT

Until moment of death, it could have been revoked. W/o authentic act or certification, cannot be valid transfer Note : DePoilly & Schneider cases are inconsistent: In Depoilly, the court provided

the check itself was the incorporeal representative of money whereas in Schneider, the court reasoned that until the check is collected, it is an incorporeal right. In any case, as long as the check is collected prior to the donor’s death, no 1535 formality is required – because the check is the mere vehicle by which the cash is donated and thus complies with 1539.

Treatise : The underlying principle in each of the above cases seems to be the donor has relinquished control of the instrument.

Succession of Jones (1987)(despite the commercial laws, CC substantive law still apply): Decedent stroked check to donee for $5000 executed on April 5. Decedent died two months later providing in her testament that debts and expenses be paid. The donee had care for decedent two years prior to her death, and donee claimed that the check was given as a gift for her benevolence through the years. Additionally donee claimed that donor placed charges upon the donation stating that she provide two services for decedent.

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The court held that the underlying validity of the donation is a threshold requirement that is not superseded by the Commercial Law (and that law) is controlling only insofar as the form is concerned. Therefore, the substantive requirements of donative intent and complete present divestment must still be met to effect a valid donation.

The court finds that the stipulations accompanying the check and motive compel the court to conclude that the donation was remunerative.

o Thus, it was a valid donation because authentic act required and form was acceptable under 10:3-201.

Note : The cases decided after the adoption of Commercial Laws make it clear that, unlike the form requirements, the substantive requirements essential to a valid donation inter vivos are still dictated the CC.

Note: Form & Substance requirements of donations inter vivos:o Form :

Under the CC, the form requirement is the notary public and two witnesses for immovables or incorporeals.

o Substance : Intent to divest Presently Irrevocably Acceptance

Succession of Tebo (1978)(cashing a check valid delivery for manual gift exception): Donor attempted to donate checking account balances by drawing a blank check in the donee's favor, as well as, certain bearer bonds located in decedent's bank box by way of an instrument that was undated and unsigned.

The court held that it was a valid manual gift of cash because the niece transferred the cash to a separate bank account before the decedent's death.

o The court noted that cash is considered a corporeal movable which may be donated by manual gift, the gift of an amount of money represented by the donor's check is a valid manual gift if reduced to possession by being cashed by the donee prior to the donor's death.

o Note: If niece had not cashed the check, it would nave been incomplete. The court held that the bearer bonds do not qualify as a manual gift because order

for delivery could be established. Because there is no testimony or other evidence of an express power authorizing the niece to give the bonds, we conclude that no manual gift has been established.

o Bearer bonds may also be transferred by a manual gift.o Note: If grandmother would have turned over keys or another act that could

establish the intent of the donor to allow the donee to retrieve the bonds then a different story.

Basco v. Central Bank & Trust Co. (1970)(an account on deposit is an incorporeal right): Decedent opened savings account in his name and donee's name. But the donor could only make withdrawals. Donee never had any activity with the account. Before death, decedent handed the deposit book to donee.

The court noted that the donee never:o Made a deposito Was not authorized to make withdrawalso Had no proprietary interest.

The court notes that an account on deposit in a bank is an incorporeal right, and valid donation of such requires a notarial act.

Thus, the court held in the absence of a notarial act, the delivery of a passbook to a donee does not constitute a valid donation.

- Bank Accounts and Homestead Shareso Legislation:

None

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o Jurisprudence: Succession of Graffeo (1991)(placing name on account as onerous donation):

The question before the court is whether by the husband placing wife's name on the account was sufficient to transfer his separate property to the community.

o The court noted that the wife's name was placed on the account so that she could have access.

o Additionally, the court notes that the transfer of the wife's name to the account was an onerous donation.

She alleges that husband asked her to give up her full time job, which she did, in exchange for her name on the account that granted her security.

Menard v. Muhs (1967)(transfer of optional payment shares executed before death): Decedent owned optional payment shares of the SB&LA. Decedent filled out transfer form (in the back of optional share account book). She then gave the account book to defendant. Defendant transferred funds to another account as requested by the decedent. Defendant received a new ledger card bearing her name in place of the plaintiff's name. Decedent died after transfer was effected.

The question before the court was whether the donation inter vivos was valid despite the lack of a notarial act.

Title to fully paid shares in a Louisiana homestead association represented by a certificate can be validly transferred by manual gift because the amount deposited in the account represents shares which may be redeemed for fully paid shares and that amount, or any part thereof, may be withdrawn in cash at any time (According to La. Homestead and Building and Loan Law).

The court noted that optional payment shares are analogous to checks:o The rational is that a check is not an obligation; it is an unconditional

order to pay. It represents money and to all practical intents is money. Therefore, as money is a corporeal thing, the giving of a check is a manual gift of corporeal movable.

The court held that the transfer of optional payment shares are subject to the manual gift exception.

Burkes v. Barbour (1978)(): The decedent established an optional share account in HPSA and was issued stock certificate in his name alone. Decedent added defendant's name to the shares. The defendant was allowed to make deposits or withdrawals on the account. The homestead perhaps erroneously did not add the defendant's name to the account until after the decedent's death.

The court noted that an account on deposit is an incorporeal right which may be only be donated by a notarial act.

The mere possession of the book by defendant did not transfer the obligation which it represented.

Distinguisho Menard:

The owner of the optional savings account endorsed the optional share certificate which was attached to the savings account book.

The endorsed certificate assigned all rights, title and interest in all optional payment shares.

The owner delivered the assignment and account book.o Burkes:

The owner did not assign all of his interest by retaining his name on the stock certificate and the account book – not in accordance with the definition of donation inter vivos.

The court held that the addition by its owner of an or account holder to a homestead savings account which is analogous to the purchase of a certificate of deposit jointly in the name of a person who does not own the fund will not constitute a valid donation of the account, nor can such a transaction be construed to be a manual gift.

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The court additionally noted that although past decisions have held that the Uniform Stock Transfer Act is applicable to savings and loan association stock (Menard), this conclusion now appears doubtful because of the specific provisions governing transfers of shares or savings accounts. Thus, even in the case where compliance with the stock transfer legislation may substitute for the codal formalities of a donation, the substantive requirements of a divestment and donative intent must be fulfilled in order to effect a valid donation.

Succession of Lawrence (1995)(): The accounts in the bank were payable to the decedent or Jones.

The court determined that the intent of the decedent was that Jones receive the money.

o The decedent gave bank instructions to make nephew alternate payee on accounts.

o He went to notary public and executed document expressing wish that nephew have property.

Problem: The executed instrument was not a will because it lacked form because testamentary language had been typed in by someone else, even he signed it.

The court also determined that the gift was not a pure gratuity.o Jones had assisted the decedent for 35 years.o The court found that the value of the donation did not exceed by ½ the

value of the services. Because rules applicable to donations do not apply, look to rules applicable to

obligations. o Note: An onerous contract is one where each part obtains an advantage in

exchange for his obligation to pay. Thus, the donation was remunerative and onerous respectively, and not subject to the

formalities of a donation inter vivos.- Acceptance

o Legislation: Art. 1540. Donations effective from date of acceptance – A donation inter vivos

Shall be binding on the donor, and Shall produce effects only from the day of its being accepted in precise terms.

o The acceptance may be made during the lifetime of the donor By a posterior and authentic act,

o But in that case the donation shall have effect, With regard to the donor, Only from the day of his being notified of the act establishing that

acceptance. (No comments)

o Jurisprudence: Rutherford v. Rutherford (1977)(precise terms defined by example): Decedent donated an

undivided 1/16th interest in certain property to his nephew. He gave the land “in consideration of the love and affection which he (bore) for his nephew” and his nephew accepted the donation by authentic act.

The question before the court is whether the donee accepted in "precise terms" under art. 1504.

The court held that the requirement that a donee accepts the donation in “precise terms” obligates the donee to use express, formal, and unconditional language in his acceptance.

o Here, the act of acceptance states that the donee “accepts said Donation with gratitude" and that conforms with art. 1540's requirement of "precise terms."

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The court additionally noted that the donor received notice because the acceptance was filed and recorded prior to donor's death.

Note : The notary’s signature was on the wrong line as well as the date. If there had been several tracts of land at issue this may have been a problem, but here the court held the errors were inconsequential.

Cotton v. Washburn (1955)(corporeal possession is deemed acceptance): Defendant prior to his marriage, purchased a home in the name of his fiancée and himself and used his own funds to pay for home. They did not sign the act, only the vendors signed the authentic act. Within 2 years the couple divorced and defendant wanted act of sale reformed to name himself as owner.

The court held that the defendant intended to make a donation to his future wife of ½ the home and she accepted through corporeal possession – moving into the house (see art. 1541).

- Revocationo Legislation:

Art. 1559. Causes for revocation or dissolution – Donation [Donations] inter vivos Are liable to be revoked or dissolved on account of the following causes:

o 1. The ingratitude of the donee;o 2.the non-fulfillment of the eventual condition, which suspend their

consummation;o 3. The non-performance of the condition imposed on the donee;o 4. The legal or conventional return.

(No Comment) Art. 1560. Revocation for ingratitude – Revocation on account of ingratitude

Can take place only in the three following cases:o 1. If the donee has attempted to take the life of the donor;o 2. If he has been guilty towards him of cruel treatment, crimes or grievous

injuries;o 3. If he has refused him food, when in distress.

(No Comment) Art. 1561. Revocation of ingratitude; prescription, parties – An act of revocation

For cause of ingratitude Must be brought

o Within one year from the day of the act of ingratitude, Imputed by the donor to the donee,

o Or from the day that the act was made known to the donor. The revocation can not be sued for

o By the donor against the heirs of the donee, o Nor by the heirs of the donor against the donee; o Unless in the latter case,

The suit was brought by the donor, or he died within the year in which the act of ingratitude was committed.

(No Comment) Art. 1562. Revocation for ingratitude, effect on prior encumbrances or alienations by

donee – Revocation for cause of ingratitude Affects neither the alienation

o Made by the donee Nor the mortgages, Nor the real incumbrances

o He may have laid on the thing given, Provided such transactions

o Were anterior to the bringing of the suit or [of] revocation. (No Comment)

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Art. 1563. Revocation for ingratitude, restoration of value and fruits – In case of revocation for cause of ingratitude,

The donee shall be obliged To restore the value of the thing given, Estimating such value according to its worth at the time of bringing the action, And the fruits from the day that it is brought. (No Comment)

Art. 1564. Donations in consideration of marriage, revocability for ingratitude – Donations in consideration of marriage Are not revocable for cause of ingratitude, When there are children of that marriage. When there are not,

o The revocation takes place o With regard to the donee, o But without impairing the rights resulting from the marriage o In favor of the other party to the marriage.

(No Comment) Art. 1565. Dissolution for non-fulfillment of suspensive condition – When an eventual

condition, Which suspends the execution of a donation, Can no longer be accomplished,

o As if the donation was to be executed on the arrival of a certain vessel, o And the vessel is lost,

The donation is dissolved of right. (No Comment)

Art. 1566. Non-fulfillment of potestative conditions; suit to dissolve – But if the conditions Be potestative,

o That is, if the donee is obliged to perform or prevent them, Their non-fulfillment does not, of right, Operate a dissolution of the donation; It must be sued for and decreed judicially. (No Comment)

Art. 1567. Revocation or dissolution for non-execution of condition; prescription – An action

Of revocation or rescission Of a donation On account of the non- execution of the conditions imposed on the donee, Is subject only to the usual prescription,

o Which runs only from the day that the donee ceased to fulfill his obligations.

(No Comment) Art. 1568. Revocation or rescission for non-execution of condition

A. In case of revocation or rescission o On account of the non-execution of the condition,

The immovable shall return to the donor o Unless the donee has alienated by onerous title the immovable given to him.

If the donee has alienated by onerous title the immovable given to him, o The donor shall not have the right to claim the immovable in the hands of

the transferee; o However, the donee is bound to return the value

That the immovable had at the time of its donation to the donee. B. If the donee has created a real right

o By onerous title in the immovable given to him o Or a real right has been created

By operation of law

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o Since the donee received the immovable, o The donor may claim the immovable in the hands of the donee,

But subject to the real right that has been created. In this case, the donee and his successors By gratuitous title Are accountable to the donor for the resulting diminution in the

value of the property. (No Comment)

Art. 1569. Revocation or dissolution, donee's liability for fruits – In all cases, In which the donation is revoked or dissolved, The donee is not bound to restore the fruits

o By him gathered o Previous to the demand for the revocation or rescission.

But in case of the non-fulfillment of condition [conditions], Which the donee is bound to fulfill, If it be proved to have proceeded from his fault, Be may be condemned to restore the fruits

o By him received o Since his neglect to fulfill the conditions.

(No Comment)o Jurisprudence:

Whitman v. Whitman (1999)(adultery fulfills cruel treatment requirement for revocation): Wife requested that court revoke donation she made to her husband of ½ interest in immovable property. The husband did not pay any money for the property and the only condition was that if husband predeceased her it would be returned.

The husband argued that the donation was onerous and the condition had been met. The court notes that for a revocation of a donation based on ingratitude it must be

gratuitous. Although husband agreed to build house on property he was not required to do so,

thus, the court found the donation not to be onerous but gratuitous and subject to the rules of revocation.

The court found the husband adultery to fulfill the element of cruel treatment under art. 1560, thus, the donation may be rescinded.

Garcia v. Dulcich : (La. 1959)(gratuitous or onerous so long as governed by donations inter vivos):The court noted whether a donation was onerous or gratuitous, it was nonetheless subject to rescission.

If the donation is subject to peculiar rules governing donation, then it may be revoked.

If the donation is governed by the law of onerous contract, it may be dissolved for nonperformance of its condition or failure of consideration.

Note : This appears to be expressly overruled by language within Whitman:o "Onerous and remunerative donations are not real donations. The rules

peculiar to donations inter vivos do not apply. Rules restricting the causes for revocations of a donation inter vivos apply only to purely gratuitous donations and not to onerous or remunerative donations."

DiMattia v. DiMattia (1973)(prescription: ingratitude-one/non-performance-five): Husband wished to revoke a donation made to his wife on the grounds of ingratitude and nonperformance of a stipulated condition.

The court held that because the act of ingratitude had occurred more than 1 year prior to bringing of suit, this ground for revocation had prescribed. The court further held that as pertains to the nonperformance of a condition, the prescriptive period was 5 years, citing the articles governing prescription for the rescission of contract.

Note : If 1-year time frame bars you based on ingratitude, consider whether you can bring action for non-performance because it has a 5-year prescriptive period.

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Board of Trustees v. Richardson (1949)(onerous donations have implied resolutory clause): Richardson donated property to Church conditioned that Church be built one year from the date.

The court held that all onerous donations are subject to an implied resolutory condition which negates the need for a reversionary clause.

Church was w/o right to dispose of the property as contemplated in their advertisement, and for any other purpose than that stated in the act of donation.

Richardson was not entitled to have the act of donation revoked b/c the property was still being used for the purposes for which it was donated and that its use as such has not been terminated.

Note: LA. R.S. 9:2321: Title quieted and perfected by lapse of timeo There is hereby quieted and perfected title to real estate donated to church

and religious representatives, religious associations or religious corporations, or their successors or religious assigns, where over 10 years continuous and uninterrupted possession and use for the purposes intended by the donation have been had and elapsed since the date for the execution of the donation and where the real estate presently is being possessed and used for the purposes intended in the donation and where such donation is of recorded in the office of the clerk and recorder of the parish in which the donated property is situated.

Note : LA. R.S. 9:2322: Rights in property after perfection of titleo In all cases the donees or their successors, assigns or representatives may

effectively use, mortgage, hypothecate, encumber, alienate and/or dispose of the property donated or any part thereof without regard to the conditions of changes imposed in the donation, upon declaring the dame to have been fully complied w/ to all intents and purposes by said lapse of time, possession and use in compliance w/ said conditions or changes, and upon declaring the public policy served to be against restricting property from commerce.

Dispositions Mortis Causa and the Marital Portion- In General: Intent and Form

o Legislation: Art. 1570. Testaments; form - A disposition mortis causa

May be made Only in the form of a testament authorized by law. (Comments): Dispositions mortis causa remain revocable during his lifetime. So long as the testament is in an approved form and demonstrates an intent to

dispose of property, it is irrelevant that the testator may have intended it to be in a different form.

Art. 1571. Testaments with others or by others prohibited - A testament May not be executed By a mandatary for the testator. Nor may more than one person execute a testament in the same instrument. (Comments): The prohibition set forth in this article does not apply to the situation

where the testator is unable to sign the testament personally because of a mental or physical infirmity. See Article 1579.

Art. 1572. Testamentary dispositions committed to the choice of a third person - Testamentary dispositions

Committed to the choice of a third person are null, Except as expressly provided by law. A testator may delegate to his executor

o The authority to allocate specific assets o To satisfy a legacy o Expressed in terms of a value or a quantum, including a fractional share.

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The testator may expressly delegate to his executor o The authority to allocate a legacy o To one or more entities or trustees of trusts o Organized for educational, charitable, religious, or other philanthropic

purposes. o The entities or trusts maybe designated by

The testator Or, when authorized to do so, by the executor in his discretion.

In addition, the testator may expressly delegate to his executor o The authority to impose conditions on those legacies.

(Comments): The revision clarifies that "quantum" includes fractional shares, such as one-fourth or one-half of something.

The first paragraph authorized the executor to select assets not to select legatees. The second paragraph goes a step further, however, and authorizes the executor to

select only charitable legatees.o Jurisprudence:

In Re Billis' Will (La. 1908)(illustrative of olographic simplicity): The court held that a letter, entirely written, dated and signed by the testator, and exhibiting testamentary intent, is an olographic will capable of probate.

Succession of Shows (La. 1964)(intent must be ascertainable): Document was entirely written, dated and signed in the handwriting of the decedent on the same day she was to be hospitalized. The envelope which contained the writing was opened two days after death. The document offered for probate was attached to a bundle of papers including deeds, copies of proceedings, and various bills and receipts.

The court held that the language totally lacks language to indicate that it was to the be her last will and testament.

Note : The document could have been authority to simply discharge the decedent's debts.

Succession of Hammett (1966)(interpretation as a whole): "To whom it may concern, 75% of all my monetary, real estate and stock holdings to Sam . . . 25% of all my monetary, real estate, and stock holdings to James . . . Donald is not longer my husband and I leave him nothing."

Issue: Does the language of the document clearly indicate that the deceased intended to dispose of her property on her death.

The court held that the last sentence indicates that the writer intended to convey property upon her death.

The court found that the document taken as a whole clearly indicateso The decedent intended to convey her propertyo The conveyance take place upon her deatho Accomplish conveyance by means of this document.

Hendry v. Succession of Helms (1990)(need intent in addition to valid form): In 1985, decedent executed a statutory will. In 1988, decedent executed a handwritten will signed and dated. After decedent's death the 1985 statutory will was probated. The plaintiff seeks to have the 1988 will probated as a valid olographic will.

The attorney testified that the document executed in 1988 was a draft for the preparation of another statutory will. The plaintiff concedes that the document was not intended to be the last will but since it is valid and expresses last wishes it should be probated.

The court held that although in valid form, it lacks the necessary animus testandi (intent).

Succession of Mott (1993)(find disposition of ownership despite presence of seizin): "I Lillie, being of sound and disposing mind and knowing that life is precarious, wish to make proper disposition of my property in case of my death, and declare this to be my last will and testament . . . I hearby appoint Hodges as executrix of this my last will and testament, with seizin of my entire estate . . . ."

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Whether the handwritten document signed and dated by the decedent is a valid olographic will.

The court noted the testator's use of "last will and testament" and "to make a proper disposition of her property."

Further the court noted that the trial court placed great emphasis on the use of the word seizin in finding no testamentary intent to dispose of the property.

The court held that although seizin refers to possession and not ownership, the decedent is not held to the technical meaning of a purely legal term.

- Will formso Legislation:

Art. 1573. Formalities - The formalities Prescribed for the execution of a testament Must be observed Or the testament is absolutely null. (NoComment)

Art. 1574. Forms of testaments – There are two forms of testaments:

o Olographic o And notarial.

(Comments): The notarial testament provided in the revision can be used in every instance in which those wills would be usable, and is much easier and simpler to obtain and execute.

One distinction that arguably might justify keeping the private nuncupative testament is that it does not require a notary public.

o Accordingly, this lack of a notary hardly seems a justification for retaining nuncupative wills.

The sole justification of the mystic will is the secrecy that it affords the testator. o That secrecy may as easily be obtained by using an olographic testament. o The enactment of this Article does not invalidate testaments that were valid

when written. Art. 1575. Olographic testament - An olographic testament

Is one entirely o Written, o Dated, o And signed in the handwriting o Of the testator.

It is subject to no other requirement as to form. Additions and deletions on the testament may be given effect

o Only if made by the hand of the testator. (Comments): There is no intent to change the rationale of Succession of Burke, in

which the testament was written in the hand of the testator on a form with printed words intended for another form of testament. The court ignored all printed matter and upheld the olographic testament made up solely of the material in the testator's handwriting and in compliance with the predecessor of this Article.

In Succession of King, it was held that in an olographic testament the signature should be at the end, and anything written after the signature would not be effective. This article is not intended to change the rule of Succession of King.

Art. 1576. Notarial testament - A notarial testament Is one that is executed In accordance with the formalities of Articles 1577 through 1580.1. (Comments): A notarial testament may be made in one of four ways:

o (1) The notarial testament described in Article 1577 may be made only by a person who knows how to sign his name and how to read the testament as written, and is physically able to do both.

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o (2) If the testator lacks the physical ability to sign his name, the testament must be made in the manner described in Article 1578.

o (3) If the testator's sight is impaired to the extent that he cannot read or if he is a person who does not know how to read, the testament must be made in the manner described in Article 1579.

o (4) If the testator knows how to and is physically able to read braille, the testament may be made in the manner described in Article 1580.

Art. 1577. Requirements of form - The notarial testament Shall be prepared in writing And shall be dated And executed in the following manner. If the testator knows how to sign his name and to read, and is physically able to do

both, then:o (1) In the presence of the notary and two 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.

o (2) 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 _________, ____."

(Comments): The testator need not sign after both the dispositive or appointive provisions of this testament and the declaration, although the validity of the document is not affected by such a "double" signature.

o The testator need only sign at the end of the dispositive, appointive or directive provisions.

o The witnesses and the notary are attesting to the observance of the formalities; they need only sign the declaration.

The instrument must be in writing. The form of the writing is immaterial. Moreover, there is no requirement that the testament be written in the English

language, or even in Roman characters. So long as it is written in a language that the testator can read and understand, the protections to assure verity of the provisions are satisfied.

This Article does not require that the testator actually read the testament at the time of its execution.

This Article requires that the testament be dated but intentionally does not specify where the date must appear, nor does it require that the dating be executed in the presence of the notary and witnesses or that the dating be made by the testator. It is common practice to have a typewritten testament that is already dated, and that testament should be upheld if it is valid in all other respects.

Nor is there any requirement that the testator be the one to date the testament. The critical function of the date is to establish a time frame so that, among other things, in the event of a conflict between two presumptively valid testaments, the later one prevails.

Art. 1578 – 1580.1. See addendum. Art. 1581. Persons incompetent to be witnesses - A person

Cannot be a witness to any testament If he is

o Insane, o Blind, o Under the age of sixteen, o Or unable to sign his name.

A person who is competent o But deaf or unable to read

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o Cannot be a witness to a notarial testament under Article 1579. (Comments): The fact that a person cannot speak should not in and of itself

disqualify him as a witness. The requirements stated in this Article are not in derogation of, but rather are

supplementary to, the general competency requirements of R.S. 13:3665, and Article 691 of the Code of Evidence.

Art. 1582. Effect of witness or notary as legatee - The fact That a witness or the notary Is a legatee Does not invalidate the testament. A legacy to a witness or the notary is invalid,

o But if the witness o Would be an heir in intestacy, o The witness may receive

The lesser of his intestate share Or the legacy in the testament.

(Comments): Historically, legatees were prohibited altogether from being witnesses to testaments, under penalty that the entire testament was invalid.

Nevertheless, in light of recent developments in the law of capacity and undue influence, it can be anticipated that there may be more will contests involving challenges to testamentary capacity or allegations of undue influence on the testator.

The rule is not relaxed as to the notary public, who performs a more solemn function than the witnesses and is a public officer. The notary remains prohibited from taking under the testament.

o Jurisprudence: Succession of Burke (1978)(not valid statutory will but valid olographic): On a statutory

will form, the decedent dated, signed and filled out dispostions. The wording "last will and testament" was preprinted. The testator wrote: "to my sister . . . my interest in property . . . to be shared equally with my other sister . . . . "

Whether the document purporting to be the will of Emmett which was offered for probate is a valid olographic will under the requirements of 1588.

The court noted from the words written his testamentary intent is unmistakable. o The writing speaks of immovable property and says it is to be shared by two

sisters. o Thus, the writing does contain, in a context referable to the testator's intent,

a verb. The court further held that although the preprinted form has many superfluous

words, there remain sufficient words in his own handwriting to provide the essential formalities of an olographic will.

Succession of Squires (1994)(slight departure from form tolerated when fraud not present): Will was executed before a notary and two witnesses in proper form for authentic act. Instead of signing his name to every page he only initialed the first page while signing the last two pages.

In deciding what constitutes substantial compliance, the courts look to the purpose of the formal requirements – to guard against fruad.

When the departure from form has nothing to do with fraud, ordinary common sense dictates that such departure should not produce nullity.

Slight departures from form should be viewed in the light of their probable cause. Testimonial evidence by witness corroborated the intent of the testator that this be

his last will and testament.- Designation of executor and attorney

o Legislation: Art. 1583. Certain designations not legacies - The designation

of a succession representative or a trustee,

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or an attorney for either of them, is not a legacy. (Comments): See Succession of Jenkins, holding that the designation of an attorney

in a will is merely precatory and is not binding on the executor. See also Succession of Wallace, holding the enactment of La. R.S. 9:2448, which

provided that an executor of an estate may discharge the attorney designated in a testator's will "only for just cause" unconstitutional.

o Jurisprudence: Succession of Wallace (La. 1991)(may discharge lawyer at anytime without cause): The

La. Supreme Court held that R.S. 9:2448 violated the Supreme Court's inherent constitutional powers to supervise the practice of law. The court invoked the doctrine of the separation of powers under the La. Constitution. The court also held that the statute conflicted with Rule 1.16(a)(3), of the Code of Professional Responsibility, which provides that a client has a right to discharge a lawyer at any time without cause. The provisions in R.S. 9:2448 that provided that the designated lawyer could only be discharged for just cause obviously conflicted with the Supreme Court rule. The statute was held unconstitutional.

- Types of legacies, lapsed legacies, and accretiono Legislation:

Art. 1584. Kinds of testamentary dispositions - Testamentary dispositions Are particular, general, or universal. The three categories of legacies under prior law

were universal legacies, legacies (Comments): The importance of the three classifications is in allocating liability for

the payment of estate debts, and in determining accretion rights among successors when a legacy lapses or is renounced.

Art. 1585. Universal legacy - A universal legacy is a disposition Of all of the estate, Or the balance of the estate that remains after particular legacies. A universal legacy

o May be made jointly for the benefit of more than one legatee o Without changing its nature.

(Comment): It also codifies the prior jurisprudential rule that a legacy of the residuum following a particular legacy is a universal legacy. See Willis v. McKeithen.

It must be noted that when the testament contains a general legacy, then by definition under this article there cannot also be a universal legacy.

o The two legacies are defined in such a way that they cannot exist in the same testament.

The jurisprudence has recognized that leaving the entire estate or the residue of the estate to multiple legatees does not destroy the universality of the legacy, provided that the legatees are conjoint legatees.

o Thus, a legacy of the entire estate to A, B and C conjointly is a universal legacy, even though its practical effect is to leave one-third of the estate to A, one-third to B and one-third to C. By the nature of the legacy's being conjoint, if A predeceases B and C, A's share of the estate accretes to B and C.

Art. 1586. General legacy - A general legacy is A disposition by which the testator Bequeaths a fraction Or a certain proportion of the estate, Or a fraction or certain proportion

o Of the balance of the estate o That remains after particular legacies.

In addition, a disposition of property o Expressly described by the testator o As all, or a fraction or a certain proportion of one of the following

categories of property,

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Is also a general legacy: o Separate or community property, o Movable or immovable property, o Or corporeal or incorporeal property. o This list of categories is exclusive.

(Comments): A legacy of "one-fourth of my property" is a general legacy because it disposes of a fraction of the estate, even though it does not use one of the enumerated categories, as does a legacy of one-fourth of "all my movables" or "all my immovables," or a legacy of "all my community property" or "all my separate property." The bequest of all or a fraction of the movables or all or a fraction of the immovables would be a disposition of a category of property. If the testator made a specific listing of assets and stated that he thought that the list would equal the portion he had in mind for the legatee, that would not be a general legacy as defined in this Article.

A legacy of a usufruct over a specified portion of the testator's property is not a general legacy, either, nor would a bequest of the naked ownership of the same portion be a general legacy, unless it refers to one of the listed categories.

An executor may be given the power to select assets to satisfy a general legacy without changing the nature of the legacy.

The fact that the executor may offer, and the legatee accept, a specific sum of money in lieu of the general legacy does not change the nature of the legacy itself. In order for a legacy of a category of property to be classified as a "general" legacy, it must be a legacy of only one of the categories of property enumerated in the Code article. The list of categories is exclusive.

When the legacy is phrased in terms of overlapping categories of property, instead of only one category, the focus of the legacy is narrowed and by definition it is not a "general" legacy.

o Thus, a legacy of "all of my movables to X" is a general legacy, but a legacy of "all of my corporeal movables to X" is a particular legacy. It is narrower in scope, and by definition is a particular legacy under Article 1587. The test, of course, is the language or terminology used by the testator.

Even though, as a practical matter, a legacy comprises, say, all of the testator's movables, unless the disposition is couched in those specific terms, that is, in that phraseology, it is not a "general" legacy.

o For example, if the testator leaves "all of my stocks and bonds to A," and he has no movable property other than the stocks and bonds, the legacy is nevertheless a particular legacy, notwithstanding the fact that its practical effect is to be a legacy of "all" of his movable property. Similarly, if the testator leaves "Blackacre to A," and Blackacre is the only immovable property that he owns, then even though the incidental effect of the legacy is to be a legacy of "all of my immovable property," that is not the phraseology of the disposition and the disposition is not a "general" legacy. The terminology used by the testator, not the net effect or practical result of the disposition, determines the classification.

Art. 1587. Particular legacy - A legacy That is neither general nor universal Is a particular legacy. (Comments): The disposition of ownership of a specified asset to multiple legatees

by fractions ("one-half of the Jones Road farm to A and one half to B") is a particular legacy, because it is a disposition of a certain object.

That classification is not altered by the fact that the testator assigns a fractional interest in the thing to each legatee.

A disposition of a right or interest in a certain object or a sum of money, such as the bequest of a usufruct of a sum of money or the usufruct of a specified asset, or the

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bequest of the naked ownership of that same asset, should also be classified as a particular legacy.

o Jurisprudence: Succession of Burnside (La. 1883)(residual legatee is the universal legatee): The testator

wrote "The residue of my property of ever description-say stock in trade, promissory notes, accounts, my interest in the firm I bequeath to my executor Oliver . . . ."

The argument is that the disposition is not a universal title because other legacies where given.

The court noted that there can be no doubt that the testator wrote his will, intended to leave the residue of all property he then had to Oliver. In other words, he intended Oliver should take his whole estate, subject only to the charges in the form of legacies.

The court held that the residue legatee of the will is the universal legatee.- Joint or separate legacies

o Legislation Art. 1588. Joint or separate legacy - A legacy to more than one person

Is either joint or separate. It is separate

o When the testator assigns shares And joint

o When he does not. Nevertheless, the testator May make a legacy joint or separate By expressly designating it as such. (Comment): This Article adopts a change in terminology from "conjoint" to "joint." This Article does not in and of itself overrule the opinion in Succession of Lambert,

and the cases following it, holding that conjointness was destroyed if the testator used a phrase such as "share and share alike" or "to be equally divided between them," which did no more than re-state the legal consequences of his disposition.

Under this revision, if the testator assigns shares the legacy is presumed to be "separate," as opposed to joint, so that the same result will be reached as under the Lambert decision, but the testator may nonetheless make the bequest joint in nature by using appropriate language to do so, and the mere use of the phrase "share and share alike" should not preclude that result. Some of the harshness of the Lambert rule is eliminated by this provision and by the coordinating provisions of Article 1593.

o Jurisprudence: Succession of Lambert (La. 1946)(share and share alike): The testator wrote "After all my

debts and obligations are paid I leave the residue of my estate to my brothers Robert and Albert share and share alike." Albert predeceased the testator.

The argument was made that since Albert predeceased the testator his portion should fall intestate.

The court noted that "share and share alike" means in equal shares or portions. The court held that the testator when employing the phrase "share and share alike"

deliberately divided the estate between his brothers living it to them in the proportion of ½; he assigned the part of each colegatee in the thing bequeathed.

Thus it follows that the legacy is not governed by discussed exception to the general rule involving testamentary accretion but falls intestate.

Succession of McCarron (La. 1965)(leans toward testator's intent and away from hard fast rules of futurity): "I leave all personal and real property in my name to my two brothers, Joseph and Merlin "to be shared equally." Merlin predeceased the testator. His children seek to be recognized as owners of their fathers portion.

The plaintiff argues that the legacy was made distributive (separate) and not joint. Whether the testament's phrase of to be shared equally constitutes an assignment of

parts.

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The court noted prior jurisprudence and recognized these earlier decisions to hold that in the absence of any showing of intent, the phase to be divided equally does not constitute an assignment of parts, and differs from the phrases "in equal portions" and "share and share alike."

The court further notes that they choose not to follow hard fast rules on the futurity of the disposition but simply try to ascertain the testator's intent – as the distinction of futurity is too subtle.

The court held that "to be shared equally" was an assignment of parts and was not joint. Thus, the lapsed portion failed to accrete to the surviving spouse.

Treatise : The words were to be shared equally, clearly words of future import under the jurisprudence endorsing the distinction, and thus words clearly raising the question as to the continued viability of the distinction. Relying on previous jurisprudence, seemingly endorsing the distinction was really based on the testator's intentions, the court rejected the distinction. The conclusion of the court was that language of futurity, such as, to be divided equally, may in some instances be interpreted as referring to future execution when, and only when, this will effectuate the obvious intention of the testator. If this was all the previous jurisprudence meant, then it was unobjectionable; but if it meant that, even in the absence of such a clear showing of intention, such words would not constitute an assignment of parts, then the earlier jurisprudence was overruled by McCarron as entirely too subtle and refined to serve as a criterion for interpretation of wills written by ordinary people and not legal scholars. After McCarron, whether words of futurity destroy conjointness depends on the intention of the testator; and thus, where such words are used, the court must grapple with this elusive intention. See Hopson.

Hopson v. Ratcliff (1983)(if unclear intent, falls intestate): The decedent left particular legacies followed by a residuary legacy, a fourth niece and a grandniece, were left out of the will. The sister predeceased the testatrix. The will contained the words "to be divided equally among them."

The court noted that the law appears to be that the phrase "share and share alike" is incapable of creating a joint legacy, while the phrase "to be equally divided among them" may, under some circumstances, be joint but only if such interpretation will effectuate the obvious intention of the testator.

The court noted that the testatrix's intention, as expressed in the testament, to be ambiguous and not in favor of jointness.

The lapsed portion fell intestate. Note: The court asked the broader question: where does the testator want the

property to go; and not: whether the she wanted jointness or not. Note: In the absence of clear intent, how the decedent would have wanted her estate

distributed under the circumstances is merely speculation. Note: When the words of futurity are used, it apparently comes down to a question of

the burden of proof, applying the obvious intention standard in the McCarron case.o Treatise:

It must be observed that the rule of Lambert and its progeny appears to allow significant legal consequences to turn on a phrase which does no more that restate the legal consequences of the disposition. It must also be asked whether most of these persons or ordinary understanding really intend that if one of their legatees does not take for some reason then the property should go to heirs who were excluded from the testament and whether such testators should entail such severe legal consequence? It must be kept in mind that, in the normal case, in the absence of these words, the legacies would be joint and accretion in favor of the other legatees would take place.

- Lapsed legacies and accretiono Legislation

Art. 1589. Lapse of legacies - A legacy lapses when: (1) The legatee predeceases the testator. (2) The legatee is incapable of receiving at the death of the testator.

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(3) The legacy is subject to a suspensive condition, and the condition can no longer be fulfilled or the legatee dies before fulfillment of the condition.

(4) The legatee is declared unworthy. (5) The legacy is renounced, but only to the extent of the renunciation. (6) The legacy is declared invalid. (7) The legacy is declared null, as for example, for fraud, duress, or undue influence. (Comments): The subsequent disposition of such legacies is governed by the

following Articles. Incapacity of a legatee is governed by the articles on capacity of successors of the Louisiana Civil Code.

In general when the validity of a legacy depends upon the fulfillment of a condition or the completion of an uncertain term, the legacy lapses when that term or condition becomes impossible of fulfillment. Thus if the testator says, "I leave $10,000 to X if she has married Y at my death," the legacy lapses if the marriage has not taken place by the time of the testator's death. Properly viewed, the preceding bequest establishes a condition only to determine a status as of the time of the decedent's death, and in that sense it is neither suspensive nor resolutory. At the moment of the testator's death, a factual determination is made, namely whether X has married Y. A true suspensive condition would be better illustrated by the following example, in which the testator says, "I leave $10,000 to Cindy if the war ends within six months after my death." In that event, Cindy's bequest is suspensive, because "the obligation may not be enforced until the uncertain event occurs.... " If the war does not end within six months after the testator's death, then the condition is not met and Cindy does not take. When the condition is merely one that suspends the execution of a legacy, the legacy is valid. Thus if the testator says, "I leave $10,000 to X, to be paid him upon his 21st birthday," and X dies at age 19, the $10,000 belongs to X's heirs. Such a legacy is actually subject to a certain term, not a condition.

The successors of a legatee had no right to a conditional legacy if the legatee died before the condition was fulfilled. Thus if a legacy is conditioned with language such as "to X, if my ship arrives in New Orleans within six months of my death," the legacy lapses if X dies before the ship arrives, i.e. before the event occurs. It also lapses if the ship sinks, since the condition can then no longer be fulfilled.

Art. 1590. Testamentary accretion - Testamentary accretion Takes place when a legacy lapses. Accretion takes place according to the testament, Or, in the absence of a governing testamentary provision,

o According to the following Articles. (Comments): "Accretion" has been expanded to include the disposition of all lapsed

legacies, not just joint legacies. Succession of Dugart, is overruled on this point. Although this Article refers to "a lapsed legacy", it should be obvious that the

provision includes the lapsed share of a legatee under a joint legacy as well as a lapsed legacy where the legatee is the sole recipient of the bequest. Thus, a legacy of Blackacre "to A," when A predeceases the testator, would be a lapsed legacy, and a legacy of Blackacre "to A and B" jointly, where A predeceases the testator, would also be a lapsed legacy insofar as the undivided one-half interest in Blackacre that was left to A is concerned.

o In one sense it is only the legatee's share that lapses in the latter case, but in either event the predecease of the legatee causes a lapsed legacy.

Art. 1591. Accretion of particular and general legacies - When a Particular or a general legacy lapses, Accretion takes place In favor of the successor who,

o Under the testament, o Would have received the thing if the legacy had not been made.

(No Comment) Art. 1592. Accretion among joint legatees - When a legacy to a joint legatee lapses,

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Accretion takes place ratably In favor of the other joint legatees, Except as provided in the following Article. (Comments): If the testator wishes to do so, he may specifically provide that the rule

of testamentary accretion that would otherwise govern his disposition does not apply. For example, if he has given an item to A and B but does not wish A to receive B's part if B predeceases the testator, he may use a vulgar substitution. In this instance, he might provide " ... to A and B, but if B should predecease me, his part to go to C."

Art. 1593. Exception to rule of testamentary accretion - If a legatee, Joint or otherwise, Is a child or sibling of the testator, Or a descendant of a child or sibling of the testator, Then to the extent that the legatee's interest in the legacy lapses

o Other than by renunciation, Accretion takes place in favor of his descendants

o By roots o Who were in existence at the time of the decedent's death.

The provisions of this Article shall not apply to a legacyo That is declared invalid or is declared null for fraud, duress, or undue

influence. When a legacy lapses because of renunciation

o The accretion is governed by Article 965. (Comments): This Article changes the law by establishing a preferred group of

legatees as to whom the law implies a vulgar substitution in favor of the descendants of such a legatee when his interest in the legacy lapses.

This Article applies to joint legatees. If one of the joint legatees is within the preferred group of legatees (children or siblings of the testator, or their descendants), and predeceases the testator with descendants, those descendants succeed to the rights of the deceased legatee per stirpes. If, on the other hand, one of the joint legatees is outside the preferred group of legatees and predeceases the testator, the remaining joint legatees succeed to his share under the preceding Article.

If the joint legacy is universal, the rights to which the preferred successors succeed include not only ownership of the share of property which would have belonged to the predeceased legatee, but also his right to take other legacies that have lapsed or are otherwise without effect under Article 1590.

If a joint legatee within the preferred group predeceases the testator and dies without descendants, the general rule of testamentary accretion applies, rather than the exception in this article.

The phrase "declared invalid" refers to the situation where the legacy is substantively invalid, as in the case of a prohibited substitution. The phrase does not refer to the legatee's being judicially divested of his rights, as for example by a declaration of unworthiness.

The lapsed legacy cannot accrete to a descendant by roots who is not in existence at the time of the decedent's death, that is, one who is conceived after the date of the decedent's death.

The exception made in this article for a lapse that occurs by reason of renunciation reconciles the provisions of this article with those of Article 965 and avoids any inconsistency between the two articles. Article 965 applies to renunciation in a testate succession, and contains a broader scope of protection for descendants than Article 1593 contains. Article 965 applies to all legatees, even those who are not related by consanguinity to the testator, whereas Article 1593 only protects descendants of children and siblings of the testator. Clearly, if a lapse occurs by renunciation, and the renouncing legatee is a child or sibling of the testator, and there is no contrary testamentary provision, both articles reach the same result. But if the legatee who renounces is a friend or distant relative such as an aunt, uncle, or cousin,

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and there is no contrary testamentary provision, then Articles 965 and 1593 might reach different results. Thus, a friend or relative who does not want his legacy to accrete to his children when it otherwise would do so should not renounce, but should accept the legacy. In any event, a successor who is considering renunciation should carefully analyze the rules of accretion before he renounces. Among other reasons, the testament itself may provide for accretion in the event of renunciation and, if it does so, then, as Article 965 provides, the testamentary provision would govern.

Art. 1595. Accretion to universal legatee - All legacies that lapse, And are not disposed of under the preceding Articles, Accrete ratably to the universal legatees. When a general legacy

o Is phrased as a residue or balance of the estate o Without specifying that the residue or balance o Is the remaining fraction or a certain portion of the estate after the other

general legacies, o Even though that is its effect,

It shall be treated as a universal legacy o For purposes of accretion under this article.

(Comments): The Article retains the general substance of the former article dealing with universal legacies and codifies the jurisprudential principle recognizing the most important consequence of such a legacy: the right of the legatee to take lapsed legacies and others that are of no effect. See Succession of Burnside.

If a universal legatee who predeceases the testator is not within the preferred group of legatees under the provisions of Article 1593, then his predecease gives to the other universal legatees both the right to his portion of the universal legacy itself and the right to take lapsed legacies, which is inherent in the universal nature of the legacy.

If a legacy lapsed and there were no universal legacy to take, and there were no "vulgar substitution," then in the absence of the second paragraph in this article, even if the testament contained a general legacy of the "residue" or "balance" of the estate, the accretion would not be to the general legatee but to the intestate successors.

The purpose of the second paragraph of this article is to modify the application of that rule in those instances where the general legacy is phrased in terms of "rest," "residue," or "remainder," which, it is believed are terms that imply an intention to pick up lapsed legacies in preference to having them devolve by intestacy. By the nature of their definitions a testament cannot contain both a general legacy and a universal legacy. See revision Comment A to C.C. Article 1585. If there is a general legacy of "all of my movables to A," and no vulgar substitution to provide for an alternative legatee if A predeceases the testator, then if A dies before the testator, the legacy of all the movables lapses and will fall by intestacy.

The accretion of a lapsed general legacy can not flow to a universal legacy, because there cannot be a universal legacy by virtue of its definition. The application of the second paragraph can be best illustrated in the following examples:

o Suppose the testament leaves "10% of the estate" to A, and "90% of the estate" to B.

o The two legacies are both general legacies, and if either legacy lapses, it does not accrete to the other legatee, but passes by intestacy.

o On the other hand, suppose that the legacies are "10% to A" and "the balance of my estate" to B.

o In that situation if A predeceases the testator, the lapsed legacy does accrete to B, under the second paragraph of this article.

o The legacy to B is by definition a general legacy, not a universal legacy, but a policy decision has been made to permit accretion to a general legacy as if

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the general legacy were a universal legacy when it is couched or phrased in terms of a "residue" or "balance."

o Several reasons support that policy decision. Essentially, the rule is based on practice and experience, and

attempts to effectuate the testator's most likely intent. The Redactors believe that when a testator has taken the time and

effort to execute a testament, it is more likely than not that the testator would prefer that his estate devolve according to his testament rather than the rules of intestacy.

Also, the view of experienced practitioners is that a testator who uses words such as "residue," "rest," "balance," or similar expressions, generally believes that if anyone else does not take under the testament, the legatee of the "rest," "residue," or "remainder" of the estate should take it.

The same implication would not prevail if the testator has more definitively assigned portions, as in saying "I leave 10% of my estate to A, and 90% of my estate to B."

The variance from that expression coupled with use of the words "rest," "residue," or "remainder" implies an intent, or indeed an indirect kind of vulgar substitution, by which the legatee of the "residue" should take the share of the legatee whose legacy has lapsed.

o Another example of a general legacy that qualifies under the second paragraph of this article is:

o "I leave all of my community property to Mary. o I leave the balance of my estate to Sue." o Since the legacy to Mary is a general legacy, o The legacy to Sue is technically a general legacy, also, because it is a legacy

of a fraction or certain proportion of the estate. o The legacy to Sue is tantamount to being a legacy of "all of my separate

property," which would also be a general legacy. o Under the second paragraph of this article, if Mary predeceases the testator,

the legacy to Mary accretes to Sue as if the legacy to Sue were a universal legacy.

o The policy decision of the second paragraph as stated above is to favor testacy over intestacy, and to presume that by leaving the "balance" of the estate rather than expressly stating "all of my separate property" or "all of my movables," the testator has indirectly manifested an intent to favor his testamentary selection of a legatee rather than have any of his property pass by intestacy.

o In other words, it is thought that the testator would more likely than not want any lapsed legacies to go to a designated legatee of the "residue" of his estate rather than to his heirs by intestacy.

o For that reason, instead of making this a presumption or rule of evidence, the rule is elevated to code status and made a principle of law.

o As a special rule, it is an exception to the general rules regarding accretion. Art. 1596. Accretion to intestate successors - Any portion of the estate

Not disposed of under the foregoing rules Devolves by intestacy. (No Comment)

Art. 1597. Loss, extinction, or destruction of property given - A legacy Is extinguished To the extent that property forming all or part of the legacy Is lost, extinguished, or destroyed Before the death of the testator.

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However, the legatee is entitled To any part of the property that remains And to any uncollected insurance proceeds attributable to the loss, extinction, or

destruction, And to the testator's right of action against any person liable for the loss, extinction,

or destruction. (Comments): Under this Article the effects of changes brought about by changes of

form or conversions into money or other property without an act of the testator, or the sale or donation of the property, are governed by the rules on revocation of legacies.

This Article recognizes the two concepts of total destruction and partial destruction, as to which there are close but not identical counterparts in the Louisiana law of lease. It does not treat the area of damage, where there may be an injury to property that is not so severe as to constitute a partial destruction.

Art. 1598. Right of legatees to fruits and products - All legacies, Whether particular, general, or universal, Include the fruits and products attributable to the object of the legacy

o From the date of death, But the right of any legatee to distribution under this Article

o Is subject to administration of the succession. Nevertheless, the legatee of a specified amount of money Is entitled to interest on it,

o At a reasonable rate, Beginning one year after the testator's death, But the executor may, by contradictory proceedings

o With the legatee and upon good cause shown, Obtain an extension of time for such interest to begin to accrue

o And for such other modification with regard to payment of interest as the court deems appropriate.

If, however, the legacy is subject to a usufruct for life of a surviving spouse Or is held in trust subject to an income interest for life,

o To or for the benefit of a surviving spouse, The spouse shall be entitled to interest on the money

o From the date of death at a reasonable rate. (Comments): To the extent that a particular asset given is actually producing

revenues and these can be identified and segregated, there is no reason to deny them to the legatee when his legacy is eventually delivered. For legacies of cash, however, there is no requirement that the succession representative undertake an investment program to produce interest, particularly since the cash may not be readily available at death. A one-year period is granted to the succession representative to arrange for payment of the cash legacy, and thereafter interest would be due.

This Article provides a rule in the absence of a provision by the testator. A testator may specifically provide that no interest is due on a particular legacy regardless of the elapsed time period since his death, or that interest shall begin to accrue earlier than one year.

If there is an administration, there is no right to distribution prior to the completion of the administration of the succession. Mineral substances extracted from the ground and the proceeds of mineral rights are not fruits, because their production results in depletion of the property. By virtue of other provisions of law, or by virtue of the testamentary provisions, such mineral rights may belong to the usufructuary, but in any event, although they would not be considered as natural or civil fruits, they are "products" within the purview of this Article.

Art. 1600. Particular legacies; preference of payment – A particular legacy Must be discharged In preference to all others.

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(No Comment) Art. 1601. Preference of payment among particular legacies - If the property remaining

After payment of the debts and satisfaction of the legitime Proves insufficient to discharge all particular legacies, The legacies of specific things must be discharged first And then the legacies of groups and collections of things. Any remaining property must be applied toward the discharge of legacies of money,

o Be divided among the legatees of money o In proportion to the amounts of their legacies.

When a legacy of money o Is expressly declared to be in recompense for services,

It shall be paid in preference to all other legacies of money. (No Comment)

Art. 1602. Discharge of an unsatisfied particular legacy - Intestate successors And general and universal legatees Are personally bound to discharge An unpaid particular legacy, Each in proportion to the part of the estate that he receives. (No Comment)

Art. 1604. Discharge of legacies, limitation of liability - In all the foregoing instances, A successor who is obligated to discharge a legacy Is personally liable for his failure to do so Only to the extent of the value of the property of the estate that he receives,

o Valued as of the time of receipt. He is not personally liable to other successors

o By way of contribution or reimbursement for any greater amount. (Comments): When a general legatee or a universal legatee takes possession of

property of the estate, his obligation to "discharge" the particular legacies becomes more significant. Although the obligation is a personal obligation in the sense that it is imposed on the legatee himself, in a practical sense it is primarily an obligation imposed upon the property of the estate, and no one should be confused by the in rem nature of the obligation. If a general legatee or a universal legatee never takes possession of any property of the estate, he incurs no personal liability and therefore has essentially no "duty" to see that the particular legacy is discharged. Thus, it is in actuality the property of the estate that is used, so to speak, to discharge the particular legacy.

Since there may be more than one general or universal legatee, it is possible that a particular legacy may be discharged by only one of those legatees, but since those legatees are obligated to discharge it on a pro rata basis, the legatee who discharges the particular legacy may be entitled to contribution or in certain instances reimbursement from the other legatees.

o For example, a general legatee who satisfies a particular legacy may be entitled to reimbursement from the intestate successor or other general legatee who should have satisfied it in its entirety. Whether the claim is for contribution or reimbursement, under any circumstances the legatee who owes the contribution or reimbursement cannot be personally liable for an amount greater than the value of the property that he has received from the estate.

Art. 1605. Probate of testament - A testament Has no effect Unless it is probated In accordance with the procedures and requisites of the Code of Civil Procedure. (Comments): When a valid testament is probated, it is effective as of the date of the

testator's death. See Article 935.

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The relevant prescriptive period for probating a testament is 5 years from the date of judicial opening of the succession of the decedent. See R.S. 9:5643.

o No Jurisprudence:o Problem:

- Revocationo Legislation:

Art. 1606. Testator's right of revocation - A testator May revoke his testament At any time. The right of revocation May not be renounced. (No Comment)

Art. 1607. Revocation of entire testament by testator - Revocation of an entire testament occurs when the testator does any of the following:

o (1) Physically destroys the testament, or has it destroyed at his direction.o (2) So declares in one of the forms prescribed for testaments or in an

authentic act.o (3) Identifies and clearly revokes the testament by a writing that is entirely

written and signed by the testator in his own handwriting. (Comments): The third paragraph which authorizes revocation by a signed writing

that identifies and clearly revokes the testament. This new ground is added to permit a finding of revocation when the testator's intent has been made clear in a writing that he has written by hand and signed but which may not be dated.

By definition such a signed but undated writing is not in the form of a testament. Nevertheless, such a clear intent to revoke should be honored. As a matter of policy, the formality required to dispose of property is greater than the

formality needed to revoke a prior disposition. o For example, if there were a contest between two undated testaments, it

would be impossible to determine which of them prevailed. But when revocation is involved, the undated writing must of necessity be subsequent to the testament it seeks to revoke, and dating is therefore less significant than a clear identification of the testament to be revoked and a clear manifestation of the intention to revoke. To the extent that the rationale of Succession of Melancon, would deny that a revocation would occur by a signed and handwritten notation to that effect that did not have a date - that decision is overruled.

Art. 1608. Revocation of a legacy or other testamentary provision - Revocation Of a legacy or other testamentary provision Occurs when the testator:

o (1) So declares in one of the forms prescribed for testaments. o (2) Makes a subsequent incompatible testamentary disposition or provision.o (3) Makes a subsequent inter vivos disposition of the thing that is the object

of the legacy and does not reacquire it.o (4) Clearly revokes the provision or legacy by a signed writing on the

testament itself.o (5) Is divorced from the legatee after the testament is executed and at the

time of his death, unless the testator provides to the contrary. Testamentary designations or appointments of a spouse are revoked under the same circumstances.

(Comments): This Article combines and restates the provisions of the predecessor Articles of the Civil Code of 1870 with some substantive change, including the deletion of the unnecessary division into "express" and "tacit" revocations.

The statement in Article 1691 of the Civil Code of 1870 that a revocation results from "some act which supposes a change of will" has not been retained as written,

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because it was too vague and general and its acceptance by the judiciary was inconsistent.

o In Succession of Muh, the court used the phrase to find revocation of an entire testament by the obliteration of the testator's signature on the document.

o But in Succession of Melancon, the lining out of certain legacies accompanied by the notation in the hand of the testator that the legacy was revoked, and his signature beneath that, was held insufficient to constitute a tacit revocation. It was "some act which supposes a change of will," but the court held that since it was not dated, it was not in one of the forms prescribed for testaments.

o The text of this Article, like Article 1607, is intended to overrule Melancon and to specify the grounds upon which revocation may be found.

The former ground of revocation that applied when an inconsistent disposition of the thing was made by sale or donation, even if null, has not been continued. If the sale, donation or other disposition is valid, the transferee rather than the testator is the owner of the property, and the legacy cannot be given effect. As a technical matter, the disposition is null, and revocation is not the correct approach nor an appropriate legal issue.

An important new provision in item (5) of this Article covers the situation of divorce that is not otherwise covered by the testament itself.

o The new rule recognizes that when a testator becomes divorced from a spouse, more often than not, he does not want bequests to that spouse to be maintained, and would very likely not want that spouse to serve as the executor or trustee.

o The new rule is consistent with Louisiana domestic relations law by providing that the divorce must have occurred after the testament was executed, and that there must have been no reconciliation.

o Furthermore, the testator may provide to the contrary, so that even though the parties may be divorced, the testator may make a bequest to the spouse, or if he wants that spouse to serve in a representative capacity he may so provide.

Art. 1609. Revocation of juridical act prior to testator's death - The revocation Of a testament, legacy, or other testamentary provision That is made in any manner Other than physical destruction of the testament, Subsequent inter vivos disposition or divorce Is not effective If the revocation itself is revoked prior to the testator's death. (No Comment)

Art. 1610. Other modifications - Any other modification of a testament Must be in one of the forms prescribed for testaments. (Comments): The rules are relaxed to permit the revocation of a legacy or a

testamentary provision by a signed writing that is not dated but which clearly revokes the will, the provision, or the legacy.

Where a replacement provision is called for, whether it is a new legacy or a new designation, the formalities should be more stringent.

For that reason, this Article continues in place the rule that any modification or amendment other than revocation of a testamentary provision must be in one of the forms prescribed for testaments.

o For example, if a document containing such a modification were written and signed by the testator it would also have to be dated in order to be in the form prescribed for an olographic testament. The difference between these rules can be shown by the following illustration: suppose that a testator executes a will naming A as the executor. Subsequently, he writes on the

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testament: "I hereby revoke the designation of A as executor, and I name and appoint B as the executor of my estate." The writing is not dated although it is written by the hand of the testator and is signed by him. Under Article 1608(4), the revocation will be effective and A will not be permitted to serve as executor under the testament. The appointment of B, however, will not be effective, because the "signed writing on the testament" is not in proper form for a testament, which requires that it not only be in writing and signed by the testator, but also that it be dated.

o Jurisprudence: Succession of Muh (La. 1883)(if important words erased then nullity – signature is an

important word): The testator's olographic testament was found after his death in a bed table drawer. All of the legacies except four were erased by a drawing a line through them; the executor's names were erased and the signature was covered with ink, although experts could make it out with great difficulty. There were no notations written by the testator in the margin and it was fairly clear that the testator had used the testament as a draft from which to confect a second testament.

The argument was made that whatever was the intention of the testator in making the erasures, they do not revoke the will because the code has provided for several modes of revocation, of which this is not one, erasures must be considered as not made, because they were not approved by the testator.

The argument is also made that erasures not approved are considered as not made, also applies to the signature.

The court held that the erasure of the signature does not have the same effect as the erasure of other words, i.e., allowing the judge to interject discretion to determine whether the erasure was something important.

The court noted that the erasures are recognized as one of the acts which will operate a revocation of a will.

The court concluded that the code has provided for the tacit revocation of wills, and that provision is of the most enlarged and comprehensive kind, viz, by any act that denotes a change of intention. Of course, the acts are not specified. They could not be. They are as numerous and as varying as the different circumstances under which men actions such occasions. The compilers were careful to omit these kinds of acts.

The court paraphrased the applicable article and stated: "if the erasures so obliterate the words that it is impossible to distinguish them, and the judge considers the erasures important, that is to say of material words, he shall pronounce the nullity of the will, but if he considers these erasures unimportant, he cannot decree nullity.

Smith v. Shaw (La. 1952)(if former will is destroyed by execution of the another, the former is nonprobatable): A valid olographic will was executed by the deceased in 1947. The olographic will was destroyed when decedent executed a nuncupative will by public act in 1948, the latter being destroyed by another nuncupative will by public act some 10 days later. The last will was declared null and void upon probate.

It is argued that the valid olographic will should be probated as the other two were void for form.

The defendant's argue the "Doctrine of Dependent Relative Revocation" which conditions the revocation of the former testament on the validity of the new one.

The court noted that this jurisdiction does not recognize the doctrine; the court additionally noted that, the fact of intentional destruction, by the testator, as constituting the most effective method of invalidation is recognized by this court.

The court held that the first will could not go into effect for the reason that the testator caused it to be destroyed by mutilation.

Succession of Bagwell (1982)(presumption of destruction): Plaintiff alleges that the decedent left a will which could not be located because it was destroyed, misplaced, or suppressed by a nephew of the decedent. The plaintiff attached an unsigned copy of the will to his petition

The court noted that a lost or accidentally destroyed will may be probated if it can be established

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o That the testator made a valid will, o What the content or substance of the will was, o That after a diligent search the will could not be found, o And was never revoked.

The court also noted that o A will in the possession of the testatoro That it cannot be found after the testator's deatho Gives rise to presumption that it was revoked.

The level of proof is clear and convincing The plaintiff could not present evidence to show that the presumption of destruction

had not occurred. Succession of Justice (1996)(evidence to carry burden for no revocation): Husband and

wife executed statutory wills in 1978. In 1990, husband executed another instrument before the notary purporting to revoke any and all other Wills. In a prior judgment, the 1990 instrument was held to be invalid for form.

The court noted the elements to rebut the presumption, including the fourth that the testator did not revoke the testament.

The proponent of a will bears the burden of establishing that the testator, who intentionally destroyed a copy of his will under the circumstances consistent with his having an aim to revoke either did not authorize or commit the destruction of the testament or did not intend to revoke the will by destroying it.

The court further noted that any act of the testator which indicates a change of will would be a tacit revocation provided the intent to revoke is fairly and legally evident from such act.

Because wife had access to location of the will and that the will was missing and her husband still remains, there is strong evidence that she destroyed it.

Additionally the revocation language in the 1990 instrument was additional evidence of a tacit revocation.

Succession of Rolling (La. 1956)(): The deceased had written a will in 1941. In 1946 she confected another testament. There was no express revocation clause in the 1946 will.

The court held that a subsequent will, which by its whole tenor indicates that it was intended to be effective to dispose of all of the deceased's property and effects, revokes completely a prior will even if not totally incompatible with it.

In this case evidence that the 1946 testament was intended to be a complete disposition was found in the fact that a certain provision of the first will was repeated in the second, and also that the testatrix has previously changed the first will by codicil, but in 1946 had written an entirely new will.

On the other hand, the fact that the second testament did not contain an express revocation of the first will is some evidence to the contrary.

Note : If a subsequent testament does not, however, indicate that it is to be a complete and total disposition of the entire estate, it revokes prior wills only insofar as there is compatibility. More than one testament may be probated.

Succession of Berdon (La. 1943)(incompatibility will revoke other disposition): In a will the testator bequeathed 1200 shares of stock, and at no one time did the testator own more than 775.

The court noted that while dealing with particular legacies, they are not particular legacies of a particular object, the bequest of 500 shares of stock to another in itself does not show that the testator changed his intention by doing something incompatible with, contrary to, entirely different from or contradictory with his previous express intention and thereby tacitly revoked any one of the previous bequests to the other particular legatee.

The court noted, after citing previous jurisprudence, that in order for the testator to show a change of intention, his subsequent acts or dispositions must be contradictory with, contrary to, incompatible with, or different from his previous ones.

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If the testator had 1200 shares of stock at the item of his death, each of the legacies would have been discharged demonstrating that there is nothing contradictory between the bequests in the will and codicil.

Note : The shares get proportionately divided. Succession of Hugeut (1998)():

Does the exchange of immovable property for interest in a partnership revoke a testamentary legacy of the testator's right, title and interest in the immovable property?

Succession of Dambly (La. 1938):

- Interpretation of legacieso Legislation:

Art. 1611. Intent of testator controls - The intent of the testator Controls the interpretation of his testament. If the language of the testament is clear, Its letter is not to be disregarded under the pretext of pursuing its spirit. The following rules for interpretation Apply only when the testator's intent cannot be ascertained

o From the language of the testament. In applying these rules, the court may be aided by any competent evidence. (Comments): When the identity of a legatee is ambiguous, the court should give

effect to the testator's probable intent by awarding the legacy to the person who had the closer friendship with the deceased.

Any competent evidence that could resolve the uncertainty, however, should of course be considered.

Art. 1612. Preference for interpretation that gives effect - A disposition Should be interpreted In a sense in which it can have effect, Rather than in one in which it can have none. (No Comment)

Art. 1613. Mistake in identification of object bequeathed - If the identification Of an object given Is unclear or erroneous, The disposition is nonetheless effective If it can be ascertained what object the testator intended to give. If it cannot be ascertained

o Whether a greater or lesser quantity was intended, o It must be decided for the lesser.

(No Comment) Art. 1614. Interpretation as to after-acquired property - Absent

A clear expression of a contrary intention, Testamentary dispositions Shall be interpreted To refer to the property that the testator owns at his death. (Comments): The former rule provided that a disposition that is silent as to time, or

one that is written in the present or past tense, applies only to property owned at the time of execution of the testament.

The new Article takes the opposite approach and provides that a disposition includes all the property of which the testator dies possessed unless the contrary clearly appears from the instrument, which is believed to be more realistic and more likely to reflect the testator's true intent.

Art. 1615. Contradictory provisions - When a testament Contains contradictory provisions, The one written last prevails.

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Nonetheless, when the testament contains a legacy of a collection or a group of objects

And also a legacy of some or all of the same objects, The legacy of some or all of the objects prevails. (Comments): Thus, if the testator leaves "all the books in my collection" to A, but he

leaves "the Iliad and the Odyssey" to B, the particular legacy to B prevails and he is entitled to the latter two works.

Art. 1616. Legacy to creditor - A legacy to a creditor Is not applied toward satisfaction of the debt Unless the testator clearly so indicates. (No Comment)

o Jurisprudence: Succession of McAuley (La. 1887)():

- The marital portiono Legislation:

Art. 2432. Right to marital portion - When a spouse dies Rich in comparison with the surviving spouse, The surviving spouse is entitled to claim The marital portion from the succession of the deceased spouse. (Comments): If either the husband or the wife die rich, leaving the survivor in

necessitous circumstances, the latter has a right to take out the succession of the deceased what is called the marital portion.

The fulfillment of the conditions depends on a comparison of the patrimonial assets of the deceased to that of the survivor. These conditions are relative.

While no concrete test has ever been devised, the survivor will ordinarily be awarded the marital portion when the comparison of patrimonial assets show a ration of five to one or more.

Courts have declared that earning or earning capacity of a spouse are not a factor in determining whether the marital portion is due.

Art. 2433. Incident of marriage; charge on the succession - The marital portion Is an incident of any matrimonial regime And a charge on the succession

o Of the deceased spouse. It may be claimed by the surviving spouse, Even if separated from the deceased, On proof that the separation occurred without his fault. (Comments): When the heirs simply have the succession and make no effort to settle

the succession, the courts do not permit the spouse's claim to the marital portion to be defeated. In such cases, the survivor's right follows the property into the hands of the heirs.

If there has been a separation in fact, the survivor, in order to obtain the marital portion, must prove that the separation occurred without his fault. The same rule ought to apply in the case of judicial separation, and the blameless survivor ought to be able to obtain the marital portion.

The survivor spouse may claim the marital portion even if the deceased spouse disposed of his property by will in favor of persons other than the surviving spouse.

The martial fourth appears to be a benefit which the law obligates an estate to provide under certain conditions to a surviving spouse, irrespective of the rights of heirs, forced or otherwise, and of legatees.

Moreover, the marital fourth is demandable in a testate, as well as in an intestate succession.

Art. 2434. Quantum - The marital portion Is one-fourth of the succession

o In ownership o If the deceased died without children,

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The same fraction in usufruct for life o If he is survived by three or fewer children,

And a child's share in such usufruct o If he is survived by more than three children.

In no event, however, Shall the amount of the marital portion exceed one million dollars. (Comments): The survivor receiving the marital portion in usufruct incurs, in

principle, the rights and duties of usufructuaries under the general law. He is exempt, however, from the requirement of posting security.

Art. 2435. Deduction of legacy - A legacy Left by the deceased To the surviving spouse And payments due to him

o As a result of the death Are deducted from the marital portion. (No Comment)

Art. 2436. Nonheritable right; prescription - The right Of the surviving spouse To claim the marital portion Is personal and nonheritable. This right prescribes Three years from the date of death. (No Comment)

Art. 2437. Periodic allowance - When, During the administration of the succession, It appears that the surviving spouse 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,

o As finally fixed, Is less than the allowance, The surviving spouse is charged with the deficiency. (No Comment)

o Jurisprudence: Succession of Alvin Lichtentag (La. 1978)():

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