Succession Attack Outline:
PART 1: Successions
Intestate Succession

Order of people in intestate succession:
Community Property
(anything earned through effort by
either spouse during the marriage)
Separate Property

1.
Descendants
1.
Descendants
2.
Siblings (and siblings' children)
2.
Surviving spouse
3.
Parents
4.
Surviving Spouse (not judicially separated)
5.
More remote (than parents) ascendants (895) - nearest in degree excludes all others
6.
More remote (than siblings and siblings' children) collaterals (896) - nearest in degree
excludes all others
Anomalous return if:
(1) Immovable property
(2) Is donated
(3) By the ascendant
(4) And decedent lacks descendants
(5) And the property is found in the succession
1
Filiation
Maternity: established by a preponderance of the evidence that child was born of a particular woman
 Requirements to establish maternity:
o Standard of proof: preponderance of the evidence
o Types of proof: by any evidence (testimonial, documentary, scientific)
o Time limitations: at ANY TIME
Paternity
Two ways to establish paternity:
1) A presumption of paternity if:
1. Child is born during the father’s marriage to the mother or within 300 days of the termination of marriage
DISAVOWAL:
o Requirements for HIS disavowal action:
 Standard of proof: clear and convincing evidence
 Types of proof: testimony of the husband (required); also documentary & scientific
 Time limitations: 1 year liberative prescription
 General rule: Begins to run the later of…
1) The day of the child’s birth OR
2) The day the husband knew or should have known that he was not
the father
 Exception: if the couple lived separate and apart during the 300 days
preceding the birth of the child, then the prescriptive period does not
begin to run until the husband is notified in writing that a party asserts the
husband is the father of the child
o
Requirements for HIS SUCCESSORS’ disavowal action:
 Time limitation: 1 year liberative prescription
 If prescription commenced before husband died (if while alive, child is born
or he knew/should have known he was the father), prescription
commences against his successors upon the death of the husband
 If prescription did not commence before husband died, prescription
commences against his successors when notified in writing that a party in
interest asserts the husband is the father
2.
Child is born within 300 days of the termination AND the mother remarries within 90 days of the divorce
being finalized
3.
Child is born within 300 days of the termination AND the mother remarries within 90 days of the divorce
being finalized AND H1 disavows, H2 is presumed to be the father
 DISAVOWAL:
o Requirement’s for H2’s disavowal action:
 Standard of proof: clear and convincing evidence
 Types of proof: testimony of the husband (required); also documentary & scientific
 BUT Time limitations: 1 year peremptive prescription from the judgment of
disavowal by H1
o
Requirements for H2’s SUCCESSORS’ disavowal action:
 Time limitation: 1 year liberative prescription:
 If prescription commenced before husband died (if child born while he was
alive or if he knew/should have known of the child while he was alive),
prescription commences against his successors upon the death of the
husband
 If prescription did not commence before husband died, prescription
commences against his successors when notified in writing that a party in
interest asserts the husband is the father
2

MOTHER’S CONTESTATION ACTION:
o Prerequisites:
(1) Prove that H1 is not the father and prove that H2 is the father
(2) W is married to H2
(3) H2 acknowledges child in authentic act
o Standard of proof: clear and convincing evidence
o Types of proof: testimony by H2 (required); Also documentary & scientific evidence
o Time limitation: dual peremptive periods:
(1) Within 180 days from her marriage to H2, AND
(2) Within 2 years from the birth of the child

THREE-PARTY ACKNOWLEDGEMENT:
o Mother, former husband, and current husband/boyfriend get together and acknowledge
that H1 is not father and H2 is
o
o
4.
Types of proof: 99.9% scientific match is required
Time limitation: Peremptive period of 10 years from child’s birth AND more than 1 year from
child’s death
(1) Child not filiated to another man, (2) Father acknowledges child in proper form and with mother's
concurrence, and (3) Father marries mother
 Acknowledgment must be through authentic act after 2016; before 2016, just sign birth certificate
 Filiation runs both ways
DISAVOWAL:
o Time limitation: Peremptive period of 180 days from the later of:
1) marriage or
2) acknowledgment
o
5.
Successors of the father can probably disavow
(1) Child not filiated to another man and (2) Father acknowledges child in proper form
 Filiation runs only one way (only in favor of child)
2) A judicial action to establish paternity:
1. Child’s action to establish paternity
 Prerequisites: None since dual paternity permitted
 Standard of proof
o Before father’s death  preponderance of the evidence
o After father’s death  clear and convincing
 Types of proof: All types are relevant. Blood test results of 99.9% create a presumption of paternity
 Time limitations: For succession only, one year from father’s death; peremptive

2.
Successors of the child can probably bring an action to establish paternity
Father’s action to establish paternity
 Prerequisites: None since dual paternity permitted
 Standard of proof: preponderance of the evidence
 Types of proof: All types are relevant. Blood test results of 99.9% create a presumption of paternity
 Time limitations: depends:
o If child not filiated to another man  then none
o If child is filiated to another man  then peremptive period:
1) 1 year from birth of child
2) If father was deceived, 1 year from the day he knew or should have known, but
always within 10 years of birth of child
o After child dies, 1 year from death of child

Successors cannot bring this action
3
Surviving Spouse
Who can be a surviving spouse? Valid Spouse and Putative Spouse

Valid Spouse – must have valid marriage. Requirements for valid marriage:
(1) Absence of legal impediment
o Possible Impediments:
1) Existing marriage (bigamy)
2) Same sex
3) Impediment of relationship:
 Ascendants and decedents
 Collaterals within the 4th degree whether whole or half-blood or adoption (siblings,
aunts/uncles, first cousins)
4) Impediment of age:
 No minor under 16 can get married.
 If 16 or 17, then can get married only to someone of majority if not 3 years or older (so 16
can marry someone 17 and 18 but not 19)
(2) Marriage ceremony
o Ceremony requires:
(1) Officiant (priests, judges (including retired state judges but not 5th Cir.), as well as anyone w/ license)
(2) Physical presence (no procuration)
(3) Free consent of the parties
o Consent - not free if:
1) Under duress (so fraud and error are okay since divorce is available)
2) Person incapable of discernment (such as someone very young)

Putative Spouse
o How these spouses are treated depends on whether the marriage is a relative or absolute nullity: 1
 Relative nullity:
 When consent was not freely given
 Spouse gets civil effects until marriage is declared relatively null (it is a valid marriage until not)
Remember: Relative nullities are prescriptive and can be raised only by the person who can render it null

Absolute nullity
 When there is an impediment, no ceremony, or procuration
 Whether they get civil effects depends on good/bad faith of the parties
o Non-bigamous party:
 If in good faith, then will get civil effects for as long as they remain in good
faith. Civil effects will continue even after she loses good faith until she
contracts a valid marriage or until the marriage is pronounced null
o Bigamous party:
 When in bad faith, he loses his ½ of the property
 When in good faith, he keeps his ½ of the property with regard to each
marriage, with his overlapping spouses sharing equally
1
ON EXAM: If there is a bigamous marriage – need to discuss what kind of nullity (absolute or relative) and the effects of the nullity.
Since a nullity renders a marriage as never having existed, then effects that need to be addressed are:
 Do the spouses get civil effects (community property)? How much? (depends on if/how long in good faith)
 If they have children, then that raises a presumption of paternity issue if the parents were not actually married when
the child was born (only issue for absolute nullities though)
4
Divorce actions – who can bring them? Only that person since it is a strictly personal action (but see Ricks (husband’s succession rep)
and Larocca (wife’s child)). Caselaw shows though that one party can continue the action when the other dies IF there are ancillary
issues in the case (such as property interests, like legacies and testamentary provisions in a will)
Spousal Usufructs
 Legal usufruct: (“890 usufruct”): Arises by virtue of law when a decedent dies having community property, the usufruct
or full ownership of which is not dispensed of by testament
o Property: community property only
o Duration: terminates at death or remarriage, whichever occurs first (*regular usufructs end only upon death)
o Security is not owned, unless:
1) The naked owner is not a biological child of the usufructuary (e.g., when naked owner is a step child
of the usufructuary), OR
2) The naked owner is a FH (can demand security only to the extent of the legitime)
2

Testamentary usufruct: (“1499 usufruct”): Arises by virtue of will when decedent leaves any property to SS. Can
burden the legitime of a forced heir
o Property: Community and/or separate property
o Duration: Terminates at death, unless testament says otherwise
o Security is not owed, unless:
(naked owner must request it)
1) The usufruct burdens the legitime of a FH AND the FH is a stepchild of the usufructuary, OR
2) The usufruct burdens the legitime of a FH AND affects separate property, OR
3) The testator requests security in the will

Which law applies when the will just repeats the laws of 890 usufruct? Nowadays, laws of 1499 would apply

Retirement plans: Recurring payments under retirement plan that are classified as community property
o When funded with community property and the non-employee spouse dies while those payments are being
made, then the employee spouse enjoys a legal usufruct over the non-employee spouse’s share in the
payment2
o This usufruct exists “despite any provision to the contrary” contained in a testament
o This usufruct is treated as a legal usufruct, not an impingement on the legitime, so no security is owed
Reason for this = to keep non-employee spouse from willing away their half of the retirement account (goes back to the earner)
5
Marital Portion
 This is a protective device. It is an incident of marriage and not inheritance, so cannot be renounced through prenup
 Applies when one spouse dies “rich in comparison” to the surviving spouse.
o Standard = 5 to 1 ratio
 Right to claim marital portion is personal and nonheritable
 It prescribes 3 years from death
 Post-Separation Fault Deprives wife of MP. SS doesn’t get MP because adultery is a ground of fault. Reconciliation
wipes any prior fault clean though.
 Periodic allowance is allowed during the administration (SS’s portion placed in trust)
 Always capped at $1M
 Quantum:
No descendants
3 or fewer descendants
4 or more children
o
1/4 of succession
1/4 of succession
A child’s share (count SS as a child)
SS gets full ownership
SS gets usufruct
SS gets usufruct
IF there are descendants and thus SS gets usufruct over the property:
 Duration: Usufruct terminates at death
 Security is owed if naked owner is child of the decedent but not child of the SS
 Other interesting aspects:
 If the usufruct is in cash, the SS receives cash in the amount of the percentage value of the
succession. No reduction for “present value” should be made
 Deductions: deduct for legacies of cash and “payments” (e.g., social security death benefit,
life insurance, pension payments)
o This means you must figure out what SS is entitled to under marital portion and
take out the stuff she is already getting (so that she doesn’t get more than what she
is entitled to)
6
Absent Persons

Absent person: person who has no representative in this state and whose whereabouts are (1) unknown AND (2) cannot be
ascertained by diligent effort

Absent person’s property:
o If owns property in LA, the state may (upon petition of an interested party with a showing of necessity), appoint a
curator to manage the property
o
What property? Curatorship is limited to SEPARATE PROPERTY
 When curatorship is established, the absent person is not deprived of their capacity to make judicial acts.
However, disposition of property is not effective towards third persons and curator unless filed in public
records (in parish where property is)  first to file wins

Curatorship ceases if 1) absent person appoints someone else to be the curator or 2) absent person dies
Presumption/Judicial Declaration of Death
 How long does someone have to wait before an absent person is presumed dead? Depends on reason:
1) Mere passage of time:
 Presumed dead 5 years after absence
 Day of death = date of absence + 5 years

Succession is opened as of the date of death fixed in the judgement. So anyone dying within
those 5 years following absence cannot inherit
2) Passage of time following Katrina/Ida:
 If the absence commenced between August 26, 2005 – September 30, 2005, and was related to or
caused by Hurricane Katrina or Rita, and if absent person not a felon, then presumed dead after two
years
 Day of death = date of absence + 2 years

Succession is opened as of the date of death fixed in the judgement. So anyone dying within
those 5 years following absence cannot inherit
3) Suspicious Circumstances:
 Person (1) disappears and (2) death seems certain, then they are presumed dead on the day of the
event. Burden of proof = preponderance of the evidence
 Day of death = day of the event
 Succession is opened as of the date of the event. So anyone dying after the event can still
inherit
7
Opening of Successions
SUBSTANTIVE PART – Commencement of Succession
 Commences at death. Person is dead if:
Doctor declaration:
1) Doctor declares that there is an irreversible cessation of spontaneous respiratory and circulatory functions
2) Person is on life support and doctor declares that there is an irreversible cessation of brain function
3
Judicial declaration:
3) Person disappears under circumstances where death seems certain
4) Military person disappears under circumstances where his branch presumed he is dead
5) Person is absent for 5 years

Simultaneous deaths:
o If you seek to inherit from one, burden is on YOU to prove that they did in fact outlive the other. If you cannot
meet this burden then:
 All of H’s separate property + ½ of community property goes to H’s family
 All of W’s separate property + ½ of community property goes to W’s family
o

BUT: For life insurance, you are presumed to have outlived your beneficiary (so that if a policy holder and their
named beneficiary die together, the proceeds go to the policy holder’s family and not the family of the named
beneficiary) – assuming no contingent beneficiary
Transferring ownership and possession of decedent’s estate
o Universal successors acquire ownership of the estate and particular successors acquires ownership of the things
immediately at the death of the decedent. If no will, all are universal
 Regardless of whether the successor accepted or not, his rights are transmitted to his successors upon his
death
o
HOWEVER, there is SEIZIN:
 Defined: The legal investiture of one class of heirs with possession of the succession upon the death of the
decedent, enabling those heirs to bring all actions the decedent could have brought (NOT ownership). The
ability to exercise rights:
 Personal rights  before a succession representative is qualified, only a universal successor may
represent the decedent with respect to the decedent’s heritable rights and obligations
[So
particular legatees do not have seizin]

Property rights  before a succession representative is qualified, a successor may exercise
rights of ownership with respect to his interests in a thing of the estate or in the estate as a
whole.
o
o
If a successor sells something but the estate needs it back to pay costs, then estate takes it back

Person with seizin can kick out owners while administering estate. Owners can 1) seek to remove the
administrator, or 2) can petition for possession

There exists “conditional seizin”  you can make seizin conditional/can suspend seizin, but only up to 6
months. When condition is fulfilled, there is retroactive application
Tacking possession: Tacking possessor is basically a continuation of the decedent
o A universal successor continues the possession of the decedent with all its advantages and defects,
and with no alteration in the nature of the possession.
o A particular successor may commence a new possession for purposes of acquisitive prescription
8
PROCEDURAL PART – Judicial Opening of Succession
 Succession proceedings are not required to transfer ownership of the estate (that’s substantive). All proceedings culminate
in a “judgment of possession” (JOP)
o JOP is prima facie evidence of the relationship of the deceased to heirs/legatees and of their rights in the estate
o
JOP is an act declarative of title; not translative of title (doesn’t give you more rights than you already have absent the JOP)

Succession procedure:
1) Simple possession without administration
 Intestate: available if heirs are competent, heirs accept, and estate is relatively free of debt
 Testate: available if all are universal and general legatees, all are competent, all agree, and no
creditor has demanded an administration

What it entails:
o Petition to probate a will (if applicable)
o Petition for possession
o Affidavits (2) of death, domicile, and heirship
o Detailed descriptive list of assets (to show relatively free from debts)
o JOP

Note: Small successions pay lower court fees (this is only for estates worth $125k or less, or if death
occurred 25 years before filing)
Administration (when situation is more complicated; needs supervisor)
2) Formal administration (no one does this anymore)
 What it entails:
o Succession representative
 Intestate: administrator (chosen by court)
 Testate : executor (chosen by will, or court)
o A fiduciary, charged with “collecting, preserving, and managing the property” as a “prudent
administrator”
o Dealing with creditors, managing estate property, accurate accounting
o All the same procedures for “simple possession” PLUS
 Confirm/appoint succession rep; detailed list; collect/preserve/manage assets
(seizin); pay debts; close succession, etc.
3) Independent administration
 The independent administrator exercises the rights and duties of succession rep without actually
being appointed by court. Designed to reduce the time and expense of administering the estate.
 What it entails: All the same procedures for simply putting into possession, BUT…
o No need for court approval for administrator’s actions
o No need to file annual accountings
 Not discretionary (not up to the court to decide if you get one) if
1) Testator has demanded it (put in the will), or
2) All successors agree

Notes:
o JOP is not required for ownership to transfer – they’re sometimes helpful, but you don’t need them. When
someone dies, the rights transfer to successor immediately. Burden is on the defendant to prove it did not.
Usually, defendant cannot require you to get a JOP. HOWEVER, EXCEPTIONS:
 Insurance companies, for policies payable to the estate, can require a JOP, as can banks and certain
corporations, before paying out proceeds under a policy. Statutes also give them immunity if they
pay the wrong person.

Life insurance:
 First, life insurance is a non-probate asset – it first goes to named beneficiary.
 Second, if no beneficiary, must prove you are the only heir
 Third, even if she is the only heir, insurance company can require JOP
9
Loss of Succession Rights
Reasons to not inherit: 1) incapacity or 2) unworthiness
1) Incapacity = incapable if doesn’t exist at the time of the decedent’s death
 Capacity = existence at the time of the death
o Existence = alive. But also includes those conceived before decedent died and born alive after decedent died.
But if not born alive, then deemed never to have existed
 What is conception though? Does it include in vitro fertilization? Yes, if born alive, but does it have to
be implanted first? Does it include posthumous conception?
2) Unworthiness
 Declared unworthy if:
1) Convicted of a crime involving the intentional killing, or attempted killing, of the decedent, OR
2) Judicially determined to have participated in the intentional, unjustified killing, or attempted killing (such as
civil suits for wrongful death)
o
o
Includes conspiracy but excludes involuntary manslaughter
Other notes:
 Unworthiness action is brought in the succession proceeding
 An executive pardon or pardon by operation of law does not affect the unworthiness of a successor

BUT Cannot be declared unworthy if:
o If successor proves reconciliation or forgiveness by decedent
o Action prescribed: unworthiness claims are subject to liberative prescription
 Must bring action within 5 years of the decedent’s death for intestate successors
 Must bring action within 5 years of probating will for testate successors.

Who can bring unworthiness action?
o Only a person who would succeed in place of or in concurrence with the successor to be declared unworthy,
or by one who claims through such a person.
 But if that person is a minor or interdict, then the court, on its own motion, or on the motion of any
family member, may appoint an attorney to represent the minor/interdict for purposes of
investigating and pursuing an action to declare a successor unworthy.

Effects of declaring someone unworthy:
o Takes away succession rights. Property gets diminished and you have to return it
o Also, testator shall be removed as executor, trustee, or attorney in intestate or testate

Devolution of succession rights of successor declared unworthy
o If decedent dies intestate:
 When successor is declared unworthy, the unworthy successor’s succession rights devolve as if he
had predeceased the decedent (ignore the unworthy person)

o
If decedent dies testate:
 When successor is declared unworthy, the unworthy successor’s succession rights devolve in
accordance with the provisions for testamentary accretion as if the unworthy successor had
predeceased the testator
o
When a parent is deemed unworthy and the succession rights devolve to their child, they cannot claim a legal
usufruct upon the property inherited by their child
Summary: When can someone not be declared unworthy?
1) When they were not convicted of killing/attempting to kill decedent
2) When they were not judicially determined to have participated in killing/attempted killing of decedent
3) When they reconciled with decedent/decedent forgave them
4) When they are an intestate successor and it has been over 5 years since decedent’s death
5) Whey they are a testate successor and it has been over 5 years since probating the will
10
Acceptance and Renunciation Succession Rights
General rules
 Don’t have to accept
 Can also partially accept
 Once a successor accepts or renounces, the decision is irrevocable
 When one renounces, they are treated as dead

Timing of acceptance/renunciation
o Need to know (1) that the decedent died and (2) successor had rights as a successor
o Premature acceptance is absolutely null

Form > substance for purposes of renunciation: if someone renounces his intestate rights and then finds out he was in
the will, he has not renounced

Other matters:
o Conditional legacies – may be accepted before OR after condition satisfied
o Retroactivity – the effects of acceptance/renunciation are retroactive to the death of the decedent (CC 954)
 If I renounce, I never had those rights. Went right to daughter - this is good for creditor reasons
o Successor/creditor – a successor who is a creditor does not impact his claim against the estate as creditor
through acceptance/renunciation
Acceptance
 Can be formal or informal
o Formal acceptance: in writing or judicial proceeding
o Informal acceptance: act that clearly implies one’s intention to accept
 Simply preserving estate is NOT tacit acceptance since anyone can do that. BUT selling property is
informal acceptance only an owner can do that

In the absence of a renunciation, one is presumed to accept. But, for good cause, court may compel one to choose

Effects of acceptance: ownership, seizin, and liability for debts
o Liability for debts
 ONLY a universal successor is liable for estate debts in proportion to the part he has in the succession,
BUT only to the extent of the value received by him, valued at the time of receipt. Broken down:


Estate debts = debts of the decedent and administration expenses.
o Debts of the decedent: decedent’s obligations or those obligations arising as a
result of his death (funeral expenses)
o Administration expenses: obligations incurred in the collection, preservation,
management, and distribution of the estate of the decedent.

Proportional liability: each successor is liable for % of the liability. but it is limited to amount
of property received (so would never have to take money out of their own pockets)
Direct liability to creditors vs. responsibility of successors among themselves
 Rights of Creditors (vertical effects)
o If there is a judicial proceeding, universal successors who have accepted are directly
liable to creditors for debts. Particular successors are not personally liable to creds
o After universal successors have paid creditors or after the administrator (if there is
an administration) has paid creditors, responsibility for debts is worked out as
shown below in “rights of successors among themselves”
o If creditor asserts claim after other creditors have been paid pursuant to a court
order, claim must be satisfied in this order:
 Assets remaining under administration
 Successors to whom distribution has been made
 Unsecured creditors who received payments
11

Rights of successors among themselves (horizontal effects)
o Universal successors have the ability to talk with creditors, and may agree to pay off
the mortgage, and then they can go after the rest of the successors to be paid back
o Unless otherwise provided by the testament/ successor agreement/ law, estate
debts are charged against the property of the estate and its fruits/products as
follows:
 **Default: Charge universal successors ratably
 But exception for identifiable debt and encumbered property:
 Estate debts attributable to identifiable property or to the
production of its fruits/products are charged to THAT property
and its fruits/products.
 Also, when the decedent has encumbered property to secure a
debt, the debt is presumptively charged to THAT property and its
fruits/products. But can rebut this presumption by showing by a
preponderance of the evidence that the secured debt is not
attributable to the encumbered property
o How this works out: the universal will pay the bills and
then will charge the person getting the property (the
particular successor). For example, if mortgage taken out
not to buy the house but to start a business, then
wouldn’t go after the person receiving the house
Renunciation
 Renunciation must be:
(1) express and
(2) in writing

How it works: In BOTH intestate and testate successions, rights accrete to universal successors as if the renouncing
successor predeceased the decedent
o For intestate successions: “Quasi-representation” when representation is allowed. This is not really
representation because the person that renounced is still alive, but we pretend that she is dead (same effect
as when deemed unworthy) 3
o
3
If truly don’t want any property, then must renounce both the succession and the accretion if more than one
successor renounces:

Donative renunciation: donative renunciation is not really renunciation; it is an acceptance of the succession and
donation of the succession to someone who would not usually be entitled to it

Revoking renunciation:
(1) You can contract away your own succession but not what you will receive from another’s succession (third
party not in k)
o The rule that states that an individual cannot contract on the succession of a living person applies
only when two people are contracting on the succession of a third party who is not involved in the
contract; law has always allowed an individual to contract in his own succession.
(2) A promise to leave something in your will in return for counter-performance is an enforceable, onerous
contract (detrimental reliance)
o Art. 1967 cmt. f: A promise to make a disposition mortis causa is enforceable against the promisor’s
estate when the formal disposition is not made.
o But if purely gratuitous, then unable to recover for breach
But remember, representation only works for children and descendants of brothers and sisters (nieces and nephews, not cousins)
12


Prescription
o Successions are subject to a 30 year liberative prescription commencing upon death; means that if successors
don’t accept succession within 30 years of the death, then cannot accept it
o
BUT may still prescribe before 30 year-mark due to acquisitive prescription between co-owners
 A co-owner (or his universal successor) may commence to prescribe when he demonstrates by overt
and unambiguous acts sufficient to give notice to his co-owner that he intends to possess the
property for himself. The acquisition and recordation of a title from a person other than a co-owner
thus may mark the commencement of prescription.
o
Note: Also a 30-year prescription on the right of partition
Acceptance by Creditor
o A successor’s creditor may (with judicial authorization) accept succession rights in the successor’s name if the
successor has renounced them in whole or in part to the prejudice of his creditor’s rights. When this happens,
the renunciation may be annulled in favor of the creditor to the extent of his claim against the successor, but it
remains effective against the successor.
 This is the cousin to oblique/revocatory actions

Revocatory action - If do something to increase the insolvency of a creditor to prejudice the creditor

o
(e.g., give property to brother before creditor come after you), creditor can revoke that action
Oblique action - rather than giving away property, suppose brother owes you something but you tell
him not to pay you because then the creditor can come and take the property. Can force brother to
pay you so that the creditor can then take it
Requirements for a creditor to be able to do this:
(1) Have judicial authorization
(2) Prove “prejudice” to creditor’s rights
(3) AND prove fraudulent intent
 See Succession of Neuhauser  La. Supreme Court held that fraudulent intent is required
to allow a creditor to accept the succession in the renouncing successor’s name.
 So it adds to code article - what you have to prove: have to show fraudulent intention on the
part of the successor. While fraud is not mentioned in the article, the court is analogizing to
the old articles on revocatory actions which used to require the showing of fraud.
 Since the case, it has been revised but still doesn’t say fraud is required. Nonetheless, they
interpret 967 as containing a requirement that fraud be proven
13
Collation

Collation: the return of property which was received in advance of his share so that the property may be divided together
with the other effects of the succession
o Children/grandchildren, coming to the succession of their fathers/mothers/other ascendants, must collate what
they have received from them by donation inter vivos and they cannot claim the legacies made to them unless
the donations and legacies have been made to them expressly as an advantage over their coheirs

**Default: Collation is presumed
o But no collation if:
1) The donor dispenses with collation (opts out)
2) Or the law exempts a gift from collation 4

Disposing of collation:
o Substantive requirement: Decedent must have the intent to dispense with collation.
 Reasons for collation: 1) Mom and Dad love every child equally; 2) What a child receives from his
parents while they are alive is an advance on his inheritance.

 Declaration must be explicit. Declaration must, in equivalent terms, say that he intends the
gift/legacy to be an advantage or extra portion
 The following two cases together show that for inter vivos you must be more clear than for legacies:
 Jordan v. Filmore rule: Legacies are NOT collated. A bequest of the entire estate (or
disposable portion) to one child to the exclusion of another dispenses with the obligation of
the legatee to collate the legacy (this was enough)
 Succession of Fakier rule: Parent’s desire to have her 3 children “share equally” in the
amount received does NOT constitute a dispensation from collation (needs to be more
specific – this was not enough)
 While collation is only subject to 3 years, can go back farther if you want. 3 is just the default
o
4
Formal requirements: Need dispensation via one:
1) The act of donation
2) A subsequent authentic act
3) The will & testament --- easiest option

IF put blanket dispensation - covers both prior gifts and future gifts

Note: Art. 1235 - disguised donations are donations of the immovable itself and are collatable only if
made within 3 years from death (from notes)

BUT, for manual gifts  facts and circumstances: Looser form requirement for corporeal movables
 If the facts and circumstances surrounding the donation are strong enough, that might be
sufficient.
 Donee would have the burden of establishing the intent to dispense by STRONG AND
CONVINCING PROOF so as to overcome the presumption of collation
o Succession of Fakier and Succession of Gomez: Both held that if dealing with a
corporeal movable, can exempt something from collation without the formalities as
long as there is strong and convincing proof to overcome the presumption
LIMITS ON COLLATION:
1. Applies only to gifts given within 3 years of parent's death
2. If within 3 years, subject to collation unless subject to one of the exemptions
3. Only person who can make a demand for collation is a forced heir of the first degree (23 years or younger or permanently
incapable, and must be decedent's child)
14

Things not subject to collation:
o Expenditures
 Expenditures for board, support, education, and apprenticeship are NOT subject to collation. Not
collated: Food, Housing, School (all school is covered), and marriage presents
o
Gifts

o
Arms-Length Business Transactions
 Do not collate the profit one makes from contracts with his parents, unless the contract gives the
child advantage
 Also, no collation is due for a partnership made without fraud, if the partnership is proved by an
authentic act (art. 1247)
o
Simulated Sales
 When a father has sold a thing to his son at a very low price, or has paid for him the price of some
purchase, for [or] has spent money to improve his son’s estate, all that is subject to collation.


Gifts “by their own hands” that are “usual and customary” that are for their “pleasure or use” are
NOT subject to collation
 According to Fakier this does not refer to all manual gifts, but only manual gifts that are
“usual and customary” (i.e., birthday gifts, holiday presents, etc.)
Simulations may be absolute or relative
 Absolute - mom and son execute an act of sale in which mom purports to sell her house to
son. In fact, neither party intends a transfer of any kind
o Not really selling it (or giving it away at all), just pretending like I am
 Relative - mom and son exclude an act of sale in which mom purports to sell her house to
son. In fact, the parties intend that the transaction is a donation
o Not really selling, really giving it away -- subject to collation because really a gift
o
Other Advantages
 Technically, “any advantage” received by a child is subject to collation BUT Courts have imposed “de
minimus” exception, in which in situations where child did work in return, and value was really so
little when balanced together, court will not collate it
o
Collation of Debts
 When a debt owed to the deceased has been the object of a remission by the latter, there is actually
a donation, subject to collation as such
o
Collation of Fruits
 Must collate fruits/revenue of the thing being collated only for those fruits earned after written
demand. Thus, all fruits gathered BEFORE someone demands collation are NOT subject to collation;
but all fruits gathered after demand IS subject to collation
Who receives collation?
o Only descendants in the first-degree who qualify as FHs
o NOT FHs by representation since not in the first degree. Yet they still must collate in favor of other FHs
15


Who must collate?
o All children and grandchildren called to the succession
o Special rules for grandchildren: Must collate if affirmatively answer these 3 questions:
(1) Did the grandchild get the gift while in the quality of an heir (heir in intestacy if grandparent died
right then when got the gift)
(2) If situation is such that the parent who has predeceased grandparent got the gift, then grandchild
only has to collate if representing the parent that got the gift
(3) Must be a FH
o
Avoiding collation
 If children, or other lawful descendants holding property or legacies subject to be collated, should
renounce the succession of the ascendant, from whom they have received such property, they may
retain the gift, or claim the legacy to them made, without being subject to any collation.
 If, however, the remaining amount of the inheritance should not be sufficient for the legitimate
portion of the other children, including in the succession of the deceased the property which the
person renouncing would have collated, had he become heir, he shall then be obliged to collate up to
the sum necessary to complete such legitimate portion.
o
Other considerations
 Creditors of forced heirs cannot demand collation on the forced heirs behalf (unless in bankruptcy)
 The testator may demand collation in the last will and testament, in which case collation takes place
according to the dictates of the will
Prescription: The right to demand collation is subject to dual prescriptive periods:
(1) 10 years from the death of the decedent AND
(2) And once heirs unconditionally accept a succession and obtain a JOP
o Also, the right to demand collation is cut off by a JOP in which the child is recognized as an heir
How Collation is Made
 Collation is made 1) in kind or 2) by taking less
o Immovables - the donee has the option to choose whether to collate in kind or by taking less
 Exception - the testator can require the donee to collate in kind
o Movables - the donee must collate by taking less. If the gift was one of money, the donee can pay money to
the estate

Valuation
o Donee is required to collate the value of the gift at the time the gift was made
o This conflicts with other provisions of the code - other articles say that value when succession is opened (when
decedent dies); since above rule is newer, assume it is right
16
PART 2: Donations (Inter Vivos and Mortis Causa)
General Dispositions
Two Types of Donations = inter vivos or mortis causa
 Donation inter vivos – contract by which a person (donor) gratuitously divests himself of a thing in favor of another
(donee), who accepts it
o Present, irrevocable divestiture
o Requires authentic act unless exception applies

Donation mortis causa – Act to take effect at donor’s death in which he dispenses of whole/part of property
o Unilateral (don’t need 2 people), juridical act (has legal effect, meaning voluntary and intended)
o It is revocable during lifetime
o NOT a contract
What is not allowed?
1. Donation “a cause de mort”
o Inter vivos donation that became definitive only upon the death of the donor (could be revoked by donor
during lifetime). Deemed as never having been made if donee predeceased the donor
o Examples:
2.
Conditional donations if dependent on WHIM of donor
o “I leave you my property if you outlive me”  conceptually allowable because you are presently divesting
yourself of something. I can’t sell it to someone else, because pending the fulfillment of the thing (my death),
you have a right to the thing.
o Therefore, only valid if you are currently divesting yourself of something – irrevocable.
 Reading the articles together, they say that a condition dependent on the whim of the donor is NULL
but a condition dependent on the will of the donor is valid
3.
Common law methods of transferring ownership, including
o Joint tenancy with the right of survivorship  Listing an individual on a joint account is NOT a valid DIV
o
Pay on death bank accounts
 Does not help successors. When a person dies, the bank pays out the money to the listed beneficiary.
That does NOT mean the beneficiary owns the money though, since succession law could affect this
(if put gf as beneficiary, wife could still bring action to claw back the funds). Therefore, by bank
paying the beneficiary, they are not actually transferring ownership from the decedent to the
beneficiary
 Pay on death Statutes:
 Form requirement – Affidavit in authentic form or act under private signature executed in
the presence of a bank officer
 This does not effect a transfer of ownership

o
Transfer of deposit to spouse:
 If a decedent dies intestate, bank may disburse funds to heirs/spouse – up to 20k from all
deposit accounts
 Form requirement – Affidavit of death and heirship
 Does not effect a transfer of ownership
Transfer on death securities (TOD)
 Brokerage/investment accounts: other states allow a person listed as a transfer of death beneficiary
of those financial assets. Not Louisiana
17
o
Exceptions though: “Other Allowable Gratuitous Transfers”
1.
Life insurance beneficiary designations
 Enforceable pursuant to state statutory law
 Exempt from claims of other successors, creditors of the estate, and creditors of the
beneficiary.
 Exempt from claims for reduction and collation, as explained below:
o Life insurance proceeds are exempt from the claims of heirs and legatees of the
decedent and creditors of the decedent
o Life insurance is exempt from the claims of the beneficiary's creditors
o Life insurance proceeds are exempt from claims of FHs for reduction
o Life insurance proceeds are exempt from collation
2.
Annuity death beneficiary designations
 Gratuitous; Take effect at death, no will or authentic act required
 Enforceable pursuant to state statutory law
 Exempt from the claims of successors and creditors
 NOT exempt from claims of FHs for reduction or collation
3.
US Savings bond co-ownership and death beneficiary designations
 Gratuitous; Take effect at death, no will or authentic act required
 Enforceable gratuitous dispositions pursuant to federal preemption
 Exempt from claims of successors and creditors
 Exempt from claims of FHs for collation (bc of Osterland)
 NOT exempt from claims of FHs for reduction (bc of Guerre, but shaky grounds)

Retirement account and pension death beneficiary designations
 Take effect at death, no will or authentic act required
 Enforceable gratuitous dispositions, as a result of LA jurisprudence and state statutory law
 Exempt from the claims of successors and creditors
 Exempt from the claims of FHs for reduction
 Exempt from the claims of FHs for collation
18
Capacity to Give and to Receive
(1) MUST HAVE TRADITIONAL CAPACITY
 Capacity to receive:
o Donee must exist
 Donation inter vivos: Must exist at the time the donee accepts the donation
 Donation mortis causa: Must exist at the time of testator’s death
 BUT if conditional: Must exist at the time the condition is fulfilled
o
In order to exist, must have legal personality:
 Natural persons (humans) receive legal personality at live birth, or when a child is conceived and later
born alive. Therefore, child must at least be in utero at the time of the donation (at testator’s death for
mortis causa; when accept donation for inter vivos)
 BUT posthumous conception allowed (child not yet in utero at time of donation) if:
(1) Child born within 3 years of death of decedent
(2) To the SS of the decedent
(3) And the decedent authorized the use of gametes in writing


Juridical persons – entities to which the law gives legal personality

Corps, LLCs, pships, and some unincorp. associations (depends on whether had intent to create
an entity with distinct personality, not simply a group of people). But NOT cemetery funds
 However, court will sometimes bend over backwards to find a donation valid:
o If will calls for an entity to be established, then court may find it as having capacity even
though not in existence yet by concluding that the donation was actually conditional or
that the donation was not actually to the entity but for the benefit of those served by it
Capacity to Give
o Capacity is presumed. However, some persons lack capacity:
1. {some} minors
2. Interdicts
3. Persons deprived of reason
o
Incapacity to give is based on Quantitative and Qualitative standards
 Quantitative standard is about age

Qualitative standard is about mental capacity
 Must be able to comprehend generally the nature and consequences of the disposition he is
making. This is the ability to understand, not the actual understanding of the donation.
Therefore, the donor need not understand the exact instrument or technical details
 Proving incapacity: Capacity is presumed, so opponent’s burden
(1) Clear and convincing evidence
 Types of proof:
o Illness, age, delusions, sedation, unusual behavior
o Med records and expert testimony
o First-hand accounts of friends/family
o Psychological autopsy
(2) That donor lacked capacity at the time the gift was made

But lucid interval doctrine – show they were lucid for the general amount of time
CAPACITY TO GIVE
Age 16 or less
MINORS
Ages 16-17
Can donate both only to spouse and children
Can donate mortis causa to anyone
Can donate inter vivos only to spouse and children
BUT if emancipated
INTERDICTS
Full interdict
Limited Interdict
May gain capacity for both
Cannot donate both to anyone
Property under
curator’s authority
Lack capacity for inter vivos
Presumed to lack capacity for mortis causa
Property not under
curator’s authority
19
Presumed to lack capacity for both
(2) MUST HAVE FREE CONSENT

Vices of consent
1) FRAUD5
(1) A misrepresentation or suppression of the truth
(2) Made with the intent to obtain an unjust advantage or cause a loss
2) DURESS
(1) Cause a reasonable fear of unjust and considerable injury
(2) To a party’s person, property, or reputation
Donation is declared null if it is the product of fraud or duress. But the act may be severable (may sever the portion
affected by the vice and uphold the rest).
3) UNDUE INFLUENCE6
(1) When a donee or someone else’s influence so impaired the volition of the donor so as to substitute the
volition of the donee/other for the volition of the donor


Donation is declared null if it is the product of such influence
Remember, capacity is a threshold question still. The closer a donor is to lacking capacity, the more likely
it is that the influencer can substitute his will for that of the donor. Often brought together 7
Burden of proof for proving fraud, duress, or undue influence:
o Clear and convincing evidence (default)
o Exception: Preponderance of the evidence IF
(1) At the time of the donation or execution of testament
(2) The wrongdoer was in a relationship of confidence with the donor
(3) The wrongdoer was not related by marriage, blood, or adoption
5
6
7
Usually, fraud must be pretty egregious to vitiate consent
Note: Doesn’t exist for contracts, only donations
EXAM TIP: first allege incapacity, then allege undue influence
Usually 3 kinds of cases:
1. Parent leaves everything to 1 kid
2. Dad remarries and leaves everything to her
3. Old person leaves everything to errand boy/housekeeper
20
FORCED HEIRSHIP:
TERMS
 Forced heirs: Certain descendants who are entitled to a certain % of a person’s estate. Who that includes:
1) First degree descendants that are…
a) 23 years of age or younger
(those not yet 24)
b) Permanently incapable at the death of the decedent, or
 “Permanently” applies to duration NOT severity; thus, temporary incapacity never counts,
regardless of severity
c)
Potentially incapable in the future
 Must meet all requirements:
(1) Disease or condition
(2) Inherited
(3) Incurable
(4) Medical documentation
(5) At the time of the decedent’s death
2) Representatives of the decedent’s predeceased descendant and…
a) The predeceased descendant would’ve been 23 years of age or younger at the decedent’s death

i.e., baby’s mom dies. Then baby’s grandma dies. If mom would have been 23 or younger when grandma
died, then baby can stand in the shoes of mom and receive property
b) Representative is permanently incapable

~~ regardless of anyone’s age ~~
i.e., if grandchild is permanently incapable and mom predeceased grandma, the grandchild can inherit from
the grandma regardless of whether grandchild’s age and regardless of whether mom would’ve been < 24

Forced portion: What is susceptible to reduction via forced heirship

Legitime: What each FH receives out of the forced portion
o If someone renounces, is declared unworthy, or is disinherited, his legitime reverts to the disposable portion and
the forced portion is thereby reduced. Thus, do not recalculate everyone’s legitime – they still get the same
amount
o FHs received their legitime in full ownership, free of all conditions, charges, or burdens. BUT permissible burdens:
1. Spousal Usufruct – okay to subject legitime to usufruct in favor of SS; FH would get legitime fraction
in naked ownership.
 The usufruct can affect community property and/or separate property
 Terminates at death by default
 Security not automatically required but may be demanded if: 1) Testator requires; OR 2) FH
is stepchild of SS AND FH is naked owner and usufruct affects both legitime and separate
property
 SS may be granted additional powers to dispose of nonconsumables
2. Legitime in trust (ok to subject legitime to trust as long as FH is both the income beneficiary and
principal beneficiary… this is deemed full ownership)

Disposable portion: The part of the estate in which the decedent can freely give away
RIGHTS OF FH’S (primary ways to satisfy the forced portion):
 Reduction (aka “fictitious collation”) – reducing donations inter vivos and mortis causa that impinge on legitime
o Each FH is entitled to their legitime. If donations inter vivos or mortis causa impinge on that legitime, the FH can
bring an action to reduce the excessive donation

Collation – reducing donations inter vivos given by parents to descendants
o Ensures each child is treated equally
21
CALCULATING ACTIVE MASS & LEGITIME

STEP 1: Calculate the active mass
Active mass = Net Estate + Value of Donations Made Within 3 Years )
o
Net estate = aggregate value of property – debts
 Aggregate property = generally all movables and immovables at the date of decedent’s death
 Movables: all included as long as decedent is domiciled in LA
 Immovables located in LA are included unless both decedent and FH are not domiciled in LA
 Immovables not located in LA are included only if both decedent and FH are domiciled in LA


o

But net estate does not include:
o Life insurance proceeds8
o Retirement accounts and pension benefits
o Annuity death benefits
o US Savings bonds naming beneficiaries
Debts = all debts owed by decedent + admin expenses
 If net estate is a negative number, zero it out. Cannot be a negative number
Donations:
 Included: US Savings bonds and Annuities
 Excluded:
 Life insurance proceeds
 Retirement accounts and pension benefits
 Some Remunerative donations and Onerous donations9 (exclude if the value of the condition >
2/3 gift value
 Donations during marriage to former spouse (even if within 3 years)
STEP 2: Calculate the forced portion, since forced heirs together are entitled to that portion
Forced portion = Active mass x applicable fraction )
1 FH  1/4 of the estate
2 or more FHs  1/2 of the estate

STEP 3: Calculate each FH’s legitime
o
FHs in first degree inherit by heads, those via representation inherit by roots
 BUT Greenlaw rule  if fraction that would otherwise be used to calculate the legitime is greater than
the fraction of the decedent’s estate to which the FH would succeed by intestacy (regardless of whether
actually use intestacy or not), then use the fraction of intestacy instead
 In other words, if have 5 or more kids, then have to use intestacy fraction (since with 5 kids, each kid gets
1/5 in intestacy but if 1 is a FH, then he would get ¼, so have to use 1/5)
8
EXAM TIP – this is an easy loophole. Just take all your money and put it in a life insurance policy and name kids as beneficiary. That
way it is excluded from this calculation
9
Onerous donation = I give you a gift card for $120 on condition you do legal research for me
Remunerative donation = to repay you for 5 hours of legal research, I give you a gift card worth #120
22
SATISFYING THE LEGITIME

STEP 4: Impute property ALREADY received by FHs
(Each heir’s legitime – property received already – property subject to collation) =
o
. Remainder of .
legitime still. .
needing to be..
. satisfied
.
Property needing to be imputed:
 Property received by intestacy
 Property received by testament
 Proceeds of insurance policies (if FH is beneficiary)
 Proceeds of retirement plans
 Property subject to collation (includes donations inter vivos made within 3 years of death if collatable)

STEP 5: Distribute available assets (those remaining in the succession)
o Available assets = net estate, which is net assets – debts

STEP 6: Reduce excessive donations in this order:
1. Donations mortis causa
a. Exhaust universal and general legacies first
b. Then Particular legacies in this order:
i. Money legacies
ii. Legacies of groups or collections of things
iii. Legacies of specific things
2.
Donations inter vivos within last 3 years, exhausting most recent donations first
 If a donee is insolvent, skip them and go after the next. They can bring action against the skipped donee
 Remunerative and onerous donations – not reducible unless the condition is worth less than 2/3rd of the
value of the things given, in which case you reduce the gratuitous component only
 Fruits and products derived from DIV – not reducible unless they are accrued after written demand for
reduction has been made
o
Note on reducing legacy to SS: Must reduce only the extent necessary to eliminate the impingement on the
legitime. If H dies leaving entire estate to W, then reduction would simply be giving naked ownership to FH with
usufruct to W
Prescription: subject to 5 year liberative prescription (for both annulling testament and reducing excessive donation)
23
Disinherison

Must be:
(1) Express
(2) For just cause
 12 allowed “just causes”:
1. Child struck parent or almost did
2. Child has been cruel towards parent or committed crime/grievous injury to parent
3. Child attempted to kill parent
4. Child, without reasonable basis, accused parent of committing a crime punishable by life
imprisonment or death
5. Child used any act of violence or coercion to hinder parent from making a testament
6. Minor child married without the consent of parent.
7. Child convicted of a crime punishable by life imprisonment or death
8. Child, after turning 18 and knowing how to contact parent, failed to communicate with parent
without just cause for a period of 2 years, unless the child was in military




Cause must have occurred before executing the instrument
Grandparents can disinherit grandchild for all reasons except #6 (marriage)
Testator must express in the instrument the reason, facts, or circumstances constituting cause. The
reasons are presumed true but can rebut by preponderance of the evidence. Person being disinherited
must be identified or otherwise identifiable.
3 ways to challenge the disinherison
1) Rebut by preponderance what you did/the cause
2) Prove reconciliation by clear and convincing evidence
3) Prove by a preponderance that you were incapable of understanding the behavior
4) Show by a preponderance that the behavior was unintentional or justified
Donations Omnium Bonorum  act of giving all your property away while alive. Makes the donation absolutely null,
therefore the action is imprescriptible. Can only be brought by the donor and his FHs
24
Prohibited Dispositions



Those dispositions that have some kind of restriction/charge that is against law/morals. Therefore, the condition is
inapplicable and donee gets to keep the property anyway.
3 baskets of cases:
1. Restrictions on alienation: Provision giving property to someone but conditioning it by saying they can never
sell it or saying they cannot sell for x years.
 But court upheld provision that person could use property if they don’t mortgage it for 10 years
2.
Restrictions on marriage: Give property to someone and say you get it provided you don't get married)
 But courts have held that provisions restricting remarriages are okay, and provisions postponing
someone’s marriage is okay since not actually restricting the ability
3.
Penalty clauses / interarm clauses: Provisions in wills saying you give property to these people and if anyone
challenges your will they get nothing). Courts have side-stepped addressing whether this is allowed though
Prohibited substitutions:
o Cannot transfer property to another on condition that they give it to another upon their death
o
The 3 elements of prohibited substitutions: (from Baten v. Taylor)
(1) A double liberality, or a double disposition of full ownership, of the same thing to persons called to
receive it, one after the other
 But has to be upon DEATH. If instead has charge to preserve and remit after for example 30
years, then NOT prohibited substitution.
(2) Charge to preserve and transmit, imposed on the first beneficiary for the benefit of 2nd beneficiary
(3) Establishment of a successive order that causes the substituted property to leave the inheritance of
the burdened beneficiary and enter into the patrimony of the substituted beneficiary
o
If can read as allowable and unallowable, read it as allowable
 Allowable: Non-explicit usufructs
 Provision giving property to brother for his sole use and at his death, to his other brother’s kids.
Allowed because really usufruct to first brother and naked ownership to kids, then all goes to
kids upon his death

Allowable: Residual substitutions
 Situation where give property to someone and if anything is left over, then gives to another
o
Not allowable: Joint usufruct with sole ownership going to whoever outlives the other. Not prohibited
substitution since full ownership is only going to one, but still not allowed since takes naked ownership out of
commerce for too long
o
Allowable: Vulgar substitutions – allows testator to name a substitute legatee in the event that the first legatee
does not accept the legacy (i.e., if predeceases the testator)
25
TYPES OF CONTRACTS
Gratuitous (Donations
Onerous
Lease
Sale
Inter Vivos)
Exchange
Purely Gratuitous
Mixed Motive
Transactions
Remunerative
Repayment for the past (2/3rds test:
at the time of the donation, the value
of the service must be less than 2/3rds
of the value of the thing donated)
Onerous
Obligation in the future (2/3rd
test: at the time of the donation,
the value of the service must be
less than 2/3rds of the value of the
thing donated)
Donations Inter Vivos
Donation inter vivos = Contract by which a person (donor) gratuitously divests himself at present and irrevocably of the thing given
in favor of donee, who accepts it.
 Requires a PRESENT, IRREVOCABLE divestiture
o No donations of future property
o No donations conditioned upon the will of the donor
o No donations burdened with an obligation to pay future debts (unless debts are expressed in the act of donation)
Requirements for Donating the Property:
Substantive requirement: Gratuitous Cause (i.e., “donative intent”)
o Must be clear. The donor may impose on the donee ANY charges/conditions he pleases, provided they contain
nothing contrary to law or good morals
 Donor may stipulate that the donee return the thing ONLY if the donor outlives the donee or outlives both
the donee and donee’s descendants


Condition that parent get gift back if they outlive the child  valid
Condition that other sibling gets gift if the parents outlive the other child  invalid, prohibited substitution

EFFECT: Returns to donor free of any alienation, lease, or encumbrance made by donee or
successors of donee. But no right of return if donee sells the thing to a transferee in good faith.
Instead, the donee and his successors are accountable to the donor for the loss
Formal Requirement: Authentic Act – notary and 2 witnesses. They must sign after both donor and donee sign
o Without authentic act, donation is an absolute nullity. But a donation that is null for improper form can be
confirmed by donor if the confirmation is made in the form required for the donation (thus, authentic act)
o
BUT EXCEPTIONS:
1. “Manual delivery exception” for Corporeal Movables
 Donation inter vivos of a corporeal moveable may be made by delivery of the thing to the
donee. No monetary limitation (checks are not corporeal movables)
2.
10
Exceptions for Incorporeal Movables
 If evidenced by a certificate/doc/instrument and transferable by endorsement or delivery,
then can donate in accordance with the thing’s usual requirements: 10
o This includes bonds, stocks, checks, CDs, promissory notes, etc.
o Examples:
BUT REMEMBER – Still need DONATIVE INTENT
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


Negotiable instruments must be delivered by a person who is not the
issuer
Stock Securities
 When have the certificate  Must indorse and deliver
 When do not have the certificate  Must contact broker and
have them transfer your shares to the other person
If investment property, then can be donated by a writing signed by the donor evidencing
donative intent and directing the transfer of the property to the donee (mutual funds)
Accepting the Donation
 Acceptance makes donation effective and transfer ownership to the donee. Acceptance must be made during the lifetime
of the donor and donee (successors cannot accept for them). Acceptance must be explicit. Donee acquirees the thing
subject to all of its charges at the time of acceptance

How to accept:
1) In the act of donation (authentic act)
2) Subsequently in writing
3) By taking possession of the thing (like the manual gift exception)
4) By alienating or encumbering an immovable

Who can accept?
o The donee or a mandatary for the donee
o A parent or other ascendant can accept for an unemancipated minor, even if that person is also the donor
o NOT a creditor
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Donor’s ability to revoke - Exceptions to the Rule of Irrevocability
 Inter vivos donations can be revoked for:
1. Ingratitude of the donee only IF:
1) The donee has attempted to take the life of the donor; or
2) The donee has been guilty towards donee of cruel treatment, crimes, or grievous injuries.
Prescription: Must be brought within 1 year of the donor knowing of the act of ingratitude or from when
he should have known
 If donor dies, his successors can bring the action. Their prescription rules:
o If donor knew about the act before death, they only have whatever time was remaining
o If donor did not know about the act before death, then they have 1 year from his death
 Note:
o If the action was already brought by the donor, they can take over in his place
o Donor (or his successors) may also bring the action against the donee’s successors if the
donee is deceased
Effect on Alienation/Encumbrances: if made AFTER filing for revocation for ingratitude, then effective
against donor only when it is an onerous transaction made in good faith by the transferee/lessee/creditor
2.
Nonfulfillment of a suspensive condition, the occurrence of a resolutory condition, or the nonperformance of
other conditions or charges
 If a donation is subject to a suspensive condition,11 the donation is dissolved of right when the condition
can no longer be fulfilled.
 If a donation is subject to a resolutory condition,12 the occurrence of the condition does not of right
operate a dissolution of the donation. It may be dissolved only by consent of the parties or by judicial
decree.
Effect on Alienation/Encumbrances:
 If donee fails to fulfill conditions or perform charges, the property returns to donor free from all
alienations, leases, or encumbrances. If donor cannot receive it free from all those things, then can
accept it with them but donee shall be accountable for the lowering of the value, or donee may have
to retore the full value of the thing
 Alienation/encumbrance effective against donor only if it was an onerous transaction made in good
faith
Prescription: Donor or his successors have 5 years from the day the donee fails to perform the charge/fulfill
obligation
Churches – when a church has possession donation for 10 years and fulfilled the condition (did what you
wanted them to), they can then maybe do what they want
 We know they can alienate/dispose of it after that time without regard to the conditions.
But can they do this even if they don’t decide to sell it? Unsure
11
Suspensive condition = rights are suspended until the event occurs (when condition satisfied, it breathes life into the otherwise
inoperative rights)
12
Resolutory condition = immediately get the rights but if condition is fulfilled, then rights cease (ends the existence of the rights)
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Dispositions Mortis Causa – Wills


It is an act taking effect at death of the donor, disposing his property to a donee. Revocable during lifetime of donor.
Therefore, they are unilateral, juridical acts
Rules for making testaments:
o Cannot be executed by a mandatary
o No more than one person can execute a testament for the same instrument
o Cannot leave the choice to a third person
 BUT executor can pick the ASSETS to make up a legacy
“I leave 1/4th of my entire estate to my children, and I authorize my executor to pick and choose which assets make up that 1/4”

BUT executor can pick the ASSETS and the LEGATEES for charities
“I leave 1/4th of my estate to charity, and I authorize my executor to pick and choose which assets make up that quarter and
which charities will receive the property”
Formalities
(1) Donative intent (animus testandi)
 Must intend for THAT document to be her will
(2) Correct form – wills can be either olographic or notarial
Olographic Wills
o 3 requirements:
(1) Entirely handwritten by testator
 Not really entirely handwritten though. Pre-filled forms are okay. Follow Surplusage theory,
which says that anything not in handwriting can be ignored
 But additions and deletions on the testament are effective only if handwritten
(2) Dated


An olographic will with no date is invalid (and the date must be filled in by testator, not notary)
An olographic will with an incomplete or wrong date can be corrected/completed using extrinsic
evidence
(3) Signed
 Signature must be at the end of the testament. If anything is added after the signature, court has
discretion about whether to include it

Are signatures always required? Yes but note Hamilton v. Kelly, in which court probated a will
even though the testator’s signature was torn off by his family members

What is a signature?
Ronald Joseph Scalise Jr. – yes
Ron Scalise – yes
RJS - initials are questionable
Nicknames – yes, case law seems to allow it ("auntie" or "dad")
o
Rule from Succession of Toney – signature must be:
(1) Spelled out (not initials)
(2) In cursive (not print)
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NOTARIAL WILLS
o Form Requirements
(1) Testament shall be in writing
 Handwritten not required. In fact, typewriting is standard
 Note: Doesn’t have to be on paper
(2) Dated
(Day, month, and year)
(3) Signed at the end and at the end of each page
 Which standard? Substantial compliance (Toney) vs Strict compliance (Guezuraga)
(4) Executed in the presence of a notary and two witnesses
 “PRESENCE” = “in line of sight.” Physical proximity is what matters

“NOTARY” = covers both non-lawyer notaries (notary notaries) and lawyer notaries
o If notary notary is not commissioned in the parish for which she notarized a will, still
valid will because she is a “de facto notary.” Applies if these are met:
(1) office involved must exist as a de jure office
(2) holder must have attained that office under some color of title, and
(3) he or she must be in actual physical possession of the office
o

Split courts over whether disbarred lawyers can be de facto notaries
“WITNESSES”
o Who cannot be a witness? Someone who is insane, blind, under the age of sixteen, or
unable to sign his name. But don’t have to have a detailed understanding of the
transaction - just to be there to make sure they are doing so freely
o Interested witnesses – parties receiving property should not be witnesses, but if they
are, then will is still valid but your portion is purged (don’t receive anything unless you
would also receive under intestacy. Then you receive the lesser of the intestate share
and testamentary share)
o Spouses of legatees/interested parties – extends purging provisions above to the
spouse
(5) Declared by the testator to be his testament
 Because this requirement seems unnecessary, courts have bent over backwards to find a
declaration even when there isn’t one (nod is enough)
(6) Include “attestation clause” that is signed by notary and two witnesses in the presence of the testator and
each other
 When there is defective compliance with the statute (especially in the attestation clause), need
to ask: what is the risk of fraud? Is someone alleging funny business is going on? Then look at the
context as a whole and ask whether the protected purpose of the will’s formalities have been
complied with (using extrinsic evidence) (Liner)
o

Note other “Specialized” Types of Notarial Wills for people who can’t read, are deaf/blind
E-Wills – not outright permitted in LA but due to our permissible conflict of laws statutes, an E-Will made in another state is
valid in LA if:
o Valid if valid in the state you make it
o Valid if valid in location in which it is made
o Valid if valid in state you die
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Probating Testaments
 Testament is only effective if it is probated in accordance with the Code of Civil Procedure. Procedures for probating
notarial vs olographic wills:
o Notarial wills: Automatically effective upon producing it to court, unless challenged
o Olographic wills: Must be proved by the testimony of 2 witnesses that it was entirely written, dated, and signed by
the testator
 Prescription: An action for annulment of a testament is subject to 5 year prescription (only applies to relative nullities – so
incapacity, duress, undue influence, or fraud)
Testamentary Dispositions
Categorizing portions of legacies:

Universal, General, or Particular
1) Universal legacy: It is a disposition of all of the estate, or the balance of the estate remaining after particular
legacies. It may be made jointly for the benefit of more than one legatee without changing its nature (but
can’t be separate)
 Good: “All to Bob” or “Watch to my son and residue to Bob” or “All to Tom and Bob”
 Bad: “All of my watches to Bob” or “½ to Tom and ½ to Bob”
2) General legacies: It is a disposition by which the testator gives a fraction or a certain proportion of the estate
OR a fraction or certain proportion of the balance of the estate that remains after particular legacies. Also
includes disposition of property as “all” or a fraction/certain proportion of one the following categories of
property:
 Separate or community property
 Movable or immovable property
 Corporeal or incorporeal property


Good: “All incorporeal property to Sally” or “All movable to sally”
Bad: “all my separate movables” (cannot combined categories)
3) Particular legacies
 Disposition that is neither general nor universal

Joint and Separate
o Separate = when testator assigns shares
o Joint = when testator does not assign shares
“½ to bob and ½ to Tom” = separate general
“All to Tom and Bob” = Joint universal
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Lapse of Legacies & Accretion
 A legacy lapses when:
1) The legatee predeceases the testator
2) The legatee is incapable of receiving (unworthy or inexistent)
3) Legacy is subject to a suspensive condition and 1) the condition can no longer be fulfilled or 2) the legatee dies
before the condition is fulfilled
4) The legatee is declared unworthy
5) The legacy is renounced (but only lapses to the extent of the renunciation)
6) The legacy is declared invalid (absolute nullity (against public policy, such as prohibited substitution)
7) The legacy is declared null (relative nullity, such as fraud, duress, or undue influence)

When a legacy lapses, it accretes according to the following order. ASK:
1. Does the will itself have a provision where lapsed legacies will go?
2.
Anti-lapse rule - this rule overrides all other lapse rules, but only applies where the original legatee is the testator’s
child, sibling, niece/nephew, or grandchild. Accretion takes place by roots in favor of the legatee’s descendants
who were in existence at the time of the decedent’s death.
 Not applicable if legacy declared invalid or declared null for fraud, duress, or undue influence
 *Mirrors representation: If I gave property to my son Tom and my sister, but Tom dies before I do, his property goes
not to my sister but to Tom’s kids
3.
Is the legacy a joint legacy? If so, then other joint legatees take the portion that lapses.
 Ex: Everything to Tom and Bob. But Bob’s lapses, so all goes to Tom. But remember: if ½ to Tom and ½ to Bob and
Bob’s lapses, Tom only gets his half since this is separate, not joint
4.
Is this a “little” legacy from a “bigger” legacy? If so, then the legatee of the larger legacy takes the smaller lapsed
legacy. In other words, if the legacy that lapses hadn’t been made, is there a legatee who would have received the
legacy?
 Ex: Pinot Noir to Bob and the rest of the wine to Tom. If Bob’s lapses, then all wine goes to Tom
5.
Is there a “universal legatee” or general legatee phrased as a residuary legatee? If so, he takes the lapsed legacy.
 “Half of property to Bob and rest to Tom” – Bob’s is a general legacy and is classified as a fraction, and Tom is also a

6.
general legacy (even though phrased like a universal legacy) BUT will be treated as universal legacies for accretion
purposes. So if Bob dies, Bob’s share goes to Tom.
Goes to them pro ratably
The heirs in intestacy take the lapsed legacy.
 If legatee renounces, treat legatee as if he predeceased the testator  therefore, accretion takes place in
favor of those would have received the property had the legatee died before the testator
Extinction and Priority of payment
 Extinction:
o If property is lost, extinguished, or destroyed before testator dies, then legacy is extinguished. But the legatee is
still entitled to what’s left of that property and to any uncollected insurance proceeds attributable to the loss, and
legatee can bring action against those liable for the loss
o If object is not lost but transformed, legacy still exists
o If object is condemned or expropriated prior to testator’s death, the legatee is entitled to any uncollected award
and can bring an action

Payment of legacies & preference of payment – order of abatement:
1. Those getting particular thing gets it first
2. Then legacies of groups or collections of things
3. Then any remaining property applied toward discharge of money, given pro rata
**But if traditional order would frustrate, then court can change accordingly
Fruits and Products of Legacies
 All legacies include the fruits and products of the object, but their rights are subject administration expenses
 For legacies of money: won’t get paid until haven’t gotten paid for a year. Then after that year, they will start giving you
the money (entitled to interest only after 1 year)
o
Spouse is treated differently though: legacy is put in a trust & entitled to money from the date of death (at a reasonable rate)
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Interpretation of Legacies


Read the words in the will. If still can’t understand/if there is ambiguity, then allow extrinsic evidence
When the legal effect of a term changed after the will was made and before died, court can consider the law in effect when
the will was made.
o Two different approaches taken:
 Succession of Soileau – court said should look to the meaning of the term when the will was made. The
court determined that when the father left the disposable portion to one person and remainder to his
daughter, he meant for her to receive something (under current law, she was no longer FH so she
would’ve received nothing. But under the past law all kids were FHs)
 Succession of Collett – court decided not to use the old term’s meaning because in his will he clearly
wanted to give his kids as little as possible (by giving them just the “forced portion”)


If can read a disposition as allowable and unallowable, read it as allowable
If can read a provision in two ways, one giving more property and one giving less, allow for extrinsic evidence. If still can’t
decide, then go with the less

Contradictory provisions:
o Go with the provision/will most recently written
o When one says a person gets all collection/group of things and another person gets some or all of the same
objects, the “some or all of the objects” prevails
 Ex: if I say Bob gets all of my corporeal movables but Tom gets all my wine, give Tom the wine


Must read the will as one whole document to determine the intent of the provisions
You can make conditional will, but if you are, then have to be really clear. Won’t read a will as conditional unless really
clear that that is what you want (that you ONLY want it to apply if xyz happens). Instead, her statement “if I don't return”
was more her motivation for making the will
Revocation of Testaments and Legacies
Wills are always revocable before death

How to revoke wills or legacies
o Revoking the entire will:
1) Physically destroys the testament, or has it destroyed at his direction.
2) Declares in one of the forms prescribed for testaments or in an authentic act.
3) Identifies and clearly revokes the testament by a writing that is entirely written and signed by the
testator in his own handwriting.
Like #2, but doesn’t require a date
o
Revoking a legacy
1) Declares in one of the forms prescribed for testaments.
Same as #2 above; just add codicil to will
2) Makes a subsequent incompatible testamentary disposition or provision.
The will written last prevails, so second will revokes the provision in the earlier one
3) Makes a subsequent inter vivos disposition of the thing that is the object of the legacy and does not
reacquire it.
Say leave watch to Bo, then sell the watch. Bo gets nothing (by disposing object, revoked Bo’s legacy)
4) Clearly revokes the provision or legacy by a signed writing on the testament itself.
Circling part of will and saying “I revoke”  similar to #3 above. Doesn’t HAVE to be handwritten
though, but usually will be
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.
By default, divorce revokes the ex-spouse's legacy.
33

Revoking revocation: If make W1 , then make W2 revoking W1. If revoke W2, you have revoked the revocation

Other modifications: Any modifications must be made in one of the forms prescribed for testament (notarial or olographic)

Rules from Cases
o
o

Revoking entire will
 Form of revocation
 When revoking a will, revocatory intent is required in declaration
 There is no requirement that the authentic act be dated (never required)
 A juridical act, formulated as a last will and testament, which does not substantially comply with
the formalities for olographic and notarial testaments is absolutely null and can have no effect of
any sort.  if choose to go olographic/notarial form way, cannot then choose authentic act way
(the “OR” language is there for a reason)
 Destroying will:
 If W2 revokes W1 and then destroys W2  W1 applies since neither are effective until death,
and when died, only had W1 left
 When don’t have the original, there should be a presumption that you meant to revoke the will
(can rebut by coming forward with evidence that there was no intent - maybe there was a
natural disaster)
 When guy declares intent to revoke in front of witnesses and destroys the original, presumption
is not rebuttable except upon clear proof of the contrary
Revoking legacies in a will:
 Subsequent incompatible testamentary wins
 Adding universal legatee to W2 gets rid of particular legatees in W1
 If there is more than one will, read them together and if you can cumulate the two, provided W2
doesn’t have an express revocation clause, then preferable to do it that way (make both wills
effective)
 Subsequent inter vivos disposition of the thing  When give property away before death, no longer part
of succession
 Clearly revokes by writing on testament itself  If scratch out a legatee and put new person and initial
next to it  effective if in the handwriting of testator
Grounds for revocation of testamentary dispositions (brought by successors after death)
o Revocation for non-fulfillment of condition
 Newcomb case – Takeway:
1. Must show it is a conditional donation
2. Must show you are the inheriting party that can bring the action (and that it has not prescribed)
o
Revocation for ingratitude
 Case – husband killed wife then killed himself, but her will gave everything to him, so his heirs got the
property. Today, heirs of donor can sue heirs of donee to get the property (wife’s heirs can sue
husband’s heirs and use 1610.1 (revocation for ingratitude) to get the property)  this is an option for
both inter vivos gifts and testamentary ones
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PART 3: Trusts
35