Trahan Successions & Donations Quick Final Guide PART I: DONATIONS: General: Only way to acquire or dispose of property

gratuitously is a donation inter vivos or a donation mortis causa; all donations require a juridical act (voluntary act/expression intended to have legal consequences) Elements: Gratuitous: Doesnt need to be purely gratuitous but must be predominately gratuitous; scholars have construed this to mean anything that doesnt attempt to get a patrimonial (net assets) advantage in return for giving something 2 categories of donations inter vivos: 1) Purely gratuitous: made w/o a condition and merely from liberality (generosity) 2) Mixed Motives: (not purely gratuitous but possible for theses to be predominately gratuitous material benefit is connected) a) Onerous ex/ sale each person obtains advantage in exchange for his obligation; done bears a charge (a duty; must do something in return) Careful not to confuse a suspensive condition and a charge charge means that there is an agreed upon obligation or duty (bilateral contract) which provides a direct economic benefit to the donor himself and a suspensive condition is more like an invitation to a contract (if you do this I will give you $100) but is not yet onerous [this just to determine if there is even a charge however you could also have a donation with a suspensive condition attached to it but we arent worried about that regarding onerous donations I donate my house to you when I die. What if a donor imposes an obligation to do something on the donee but wants the donee to perform the obligation for the benefit of a 3P? Thompson case any obligation undertaken by donee (whether for the benefit of the donor or a 3P) is onerous mixed transfer (do 2/3 rule to determine whether it is gratuitous) Loyola case- if the charge is not for the benefit of the donor it is not automatically purely gratuitous Trahan says: it should be that the charge does not have to benefit the donor, it could be for the benefit of anyone but we should still have to determine if it is gratuitous under the 2/3 rule; talk about both 1) Remunerative- purpose is to recompensate for services already rendered; this stems from a natural obligation to repay but this is not a legal obligation Disposition of a thing: A. THING: A thing is either common, public, or private; corporeal or incorporeal; movable or immovable. o Incorporeal personal rt (rt to collect on a debt), predial (rt of passage), mineral rights B. DISPOSITION: Disposition deposit/get rid of (depose) abusus Abusus takes place in two ways either alienation or destruction; alienation is the transferring rights or ownership of a thing (juridical abusus) and destruction is physical (totally get rid of it)

Simply borrowing something or watching someones pet for the weekend is not a disposition or doing someones laundry is not a donation: A service is not a thing therefore not a donation! Remission of a debt (incorporeal personal right) is an abusus of that debt it is a disposition; but a surety (accommodation party) is not a disposition- it is gratuitous but not a donation b/c no one is transferring rights or ownership

I. Classifications: Time: o Inter vivos effective at present (donor still alive) at the time the donee accepts and are irrevocable except for cause Bilateral juridical act (contract- contract rules apply unless specific rule of donation - therefore must be a meeting of the minds - Form requirements the same as in contracts) AT PRESENT At present means that you make the contract now; you can make a contract w/a future performance i.e. this will be donated to you at my death/or on September 15, 2012 which is merely a suspensive term (b/c we know that day will occur); or you could write this will be donated to you if I die before you this is a suspensive term b/c we dont know who will die first; in addition, you could say Ill give you my car now but if you die I will take it back this is a resolutory condition Resolutory condition (definition) think of buyer who creates a contract to say if my shipment of supplies does not come in by January, I will buy from you. The shipment comes in so there is no contract. IRREVOCABLE AT WILL (REVOCABLE FOR CAUSE) o Cant say Im going to donate this you but Im going to come get it whenever I want to! That is revocable at will o Following causes allow the donor to revoke: 1) Ingratitude of donee Donee tried to take life of donor Donee guilty of cruel treatment, crimes, or grievous injury against donor 2) Non-fulfillment/non-performance of conditions 3) Legal/conventional return o Contrast Mortis causa effective upon donors death and is revocable Unilateral juridical act therefore contract rules dont apply; only reflects the will one person, which means that when the donor dies the donation is effective whether or not the donee wants it and whether or not he even knows about it! Luckily for the donor, he has the ability to renounce the donation Form requirement (written testament) This is freely revocable during the donors lifetime and only becomes binding upon the death of the donor Donations a cause de mort Note that this is a 3rd category of donations in France but it is not allowed under LA law

These are donations that will only take effect upon the death of the donor however it is completely revocable during the donors lifetime this makes it difficult to tell whether the transfer is at present This is uncommon and are disguised under the form of transfer known as a joint tendency meaning that one person owns something and creates an understanding that he is the half-owner and when one of the two people die, the other person is granted full ownership Ex/ A donates farm to B but if B dies first then ownership reverts to A DIV subject to a resolutory condition Ex/ A donates farm to B if A dies first DIV subject to a suspensive condition

II. Predominately Gratuitous: Mixed onerous donation or a mixed remunerative donation We have a mathematical rule to determine whether or not a motive is predominantly gratuitous. C = charge. S = services. (C and S are interchangeable.). O = donatum. C/S < 2/3 x O. If so, then it is a true donation. If not, it is onerous/remunerative and therefore not subject to the rules of donations. Value the object of the donation (O) at the time the donation is made o Remunerative Donation made to recompensate for services rendered Time of Valuation: the date at which service was rendered o Onerous: This is a donation similar to a sale; determine charges/payment before performance Time of valuation: LA Doctrine and jurisprudence have two different possibilities, no CC Art. or cases: Priori method: If you have to value while the obligation is still going on, this is your only choice. You try to determine what the projected value of the charge/service will turn out to be. Posteriori method: determine the value of the charge/service after it has been performed o If the charged has been completely discharged (the charge is performed and the donation has taken place) but now someone is challenging whether it was a donation or not the court will choose b/w them. If you are interested in accuracy of economics posteriori is preferable; if interested in motives priori is preferable III. o o Scope of the classification: whether or not this is donation why does it matter? If it is a donation then you apply the specific rules of donation; if it is not a donation but just a remunerative/onerative transfer then you apply the rules of obligations; The rules for capacity Capacity rule under donation: under 16 years doesnt have capacity to donate except in favor of spouse/children; at 16 may make donations mortis causa; can donate inter vivos in favor of spouse/children Capacity rule under obligations: Emancipated minors can contract/engage in an remunative mixed transfer The rules for Consent: Donations: undue influence makes the donation relatively null Obligations: undue influence is not a vice of consent Object Requirements:

o o

o o o

Donations: Although anything can be given in gratuity, the object of a DIV can only be the present property of the donor; future property = null Obligations: there can be the sale of a future thing Different form requirement: Donation: DIV authentic act or null Obligation: transfer of an immovable may be by either act under private signature or authentic act; movables just need consent Survivorship could be both donations and obligations Collation & Reduction only for donations not obligations Also important to know classifications b/c there are difference b/c DIV and DMC Onerous DMC are exempt from reduction and Trahan thinks collation also Formation and Validity: 4 requirements for DMC and DIV: 1) CAPACITY: Persons involved must have capacity for the donation to be valid Donor capacity to give; donee capacity to receive CC 1470: All persons have capacity to make and receive donations (except expressly provided by law) Donative incapacities in general: o Incapacity of enjoyment: means that it is impossible for a particular right to enter into a persons patrimony Incapacity to receive is an incapacity of enjoyment o Incapacity of exercise: has the capacity of enjoyment but cannot obtain the right himself, someone else must act for him i.e. minor trying to enter a contract by himself cant do it, need someone elses help Can have the incapacity of exercise to give or to receive

IV.

Incapacity to receive (Active incapacity) Absolutely incapable of receiveing a donation (even w/ assistance) Any person in existence can receive capacity of enjoyment Natural Person: Exists from Birth until Death Birth: o Natural person: CC 24 definition: from live birth to death; live birth is the general rule but it also includes a child not yet born for purposes related to its interests (from fertilization in mothers body); existence is retroactive at birth he is said to have existed from the moment of fertilization o This is not consistent w/ CC 1474: to be capable or receiving a DIV, unborn child must be in utero (implanted in uterine lining) at time donation is made; for DMC unborn child must be in utero from time of death of testator; the donation only has effect if the child is born alive o Rule: Specific rule trumps general whenever the zygote implants in uterine wall child is in existence; test tube babies in freezer is not good enough, they must be implanted (in utero) Death: o Dead (spontaneous circulatory and respiratory functions have ceased; if on life support - brain dead total cessation of brain

function) or presumed dead (disappeared under circumstances where death seemed certain 5 year absentee) Juridical Person: 1) Corporation exists when incorporated (articles of incorp are filed w/ the Secretary of State) and dies when corp is dissolved in some way 2) Partnership exists when formed (if inadvertent- formed moment partnership is formed in mind) 3) Unincorp association exists when formed must determine o Unincorp association is a group of people acting together for some purposes as if it is one person; it is a juridical person distinct from its members; doesnt come into existence just b/c people have been acting together there must be an agreement in which 2+ people combine certain attributes to create a separate entity for a legit purpose; ex/ churches o (Emmert duck hunting case- the people never drew instruments, had no formal meetings or rules not incorporated association) A few strange issues: 1) Posthumously Conceived children R.S. 9:391.1: o If after donors death, the kids are implanted into donors wife, the kids can still receive the donation if born within 3 years of decedents death. o For the child to be capable of receiving: (a) need a married couple; (b) both parents must have made a deposit of his prospective gametes at an authorized clinic before the testators death; (c) there must be a granting of permission in writing to the surviving spouse to follow through; and (d) the child must be born within 3 years of the testators death. 2) Minority, interdiction, mental defect (deficient comprehension) does not mean the incapacity of enjoyment (incapacity to receive) but the incapacity of exercise 3) When do you determine if a person has the incapacity to receive? o Capacity to receive a DIV must exist at the time donee accepts the donation o Capacity to receive a DMC must exist at the time of death of the donor o Basically, both of these are saying when the donation takes effect is the time to make sure that the person can receive it Issues of Proof: o Standard is a preponderance of the evidence o If a donation is made to a person that has an incapacity to receive aka incapacity of enjoyment (b/c doesnt exist at the critical moment) that donation is null; unclear as to whether it is considered absolutely null or relatively null authority states relative but principals point to absolute o If a donation is made to a person that has an incapacity to exercise, the donation is relatively null Incapacity to Give (Passive incapacity): o Causes: 3) Minority o under 16 years doesnt have capacity to donate except in favor of spouse/children; at 16 may make donations mortis causa; can donate inter vivos in favor of spouse/children 3) Interdiction o 2 kinds: full and limited

1) Full is unable consistently to make reasoned decisions regarding the care of his person and property, or to communicate those decisions lacks capacity to make or revoke a DIV or DMC; per se incapacity; no matter the kind of donation he makes it is null; must have a curator 2) Limited Lacks capacity to make/revoke a DIV of property under curators control Presumed to lack capacity to make/revoke a DMC with respect to the property that is under the authority of his curator; rebuttable presumption He has capacity w/ respect to other property not under curators control Different levels of intrusion: may be able to take care of self but not property, property but not self, may only be able to manage certain types of property 3) Inability to understand o CC 1477: To have capacity to make a DIV or DMC, a person must also be able to comprehend generally the nature and consequences of the disposition that he is making (same principal as interdiction) Able to comprehend: Capable of understanding even though you may not be able to understand the intricacies of the instrument that you are executing; dont need to actually understand all potential consequences at the time of the execution Generally Means understanding the basic idea of what that you are giving something away dont need to understand specifics Nature Must understand he is making a gratuitous transfer or property to someone else; he will no longer be the owner and donee will; donor will not be compensated Consequences Must understand that he is no longer the owner can no longer enjoy it or consider it to be a part of its patrimony and the effect of the donation is that it enhances the patrimony of the donee; these are immediate consequences Standard: fuzzy you can make all kinds of arguments; also note that if you donated something then someone explained that fact later you have the ability to comprehend the donation even if you didnt understand it at the time of the donation think of a drunk person; this also may occur w/ a child but note that the child would have the incapacity to give based on minority o Time: When must the donor have this capacity to give? o DIV at the time the donor makes the donation o DMC at the time the donor makes the testament for the donation Remember, like before this is the point of effectiveness of the donation Proof: Each stage (general rule and exceptions) ask 2 questions: (1) Who bears the BOP? o Either person challenging it or person defending it (2) What is the standard of proof? o Either preponderance of the evidence or clear and convincing

General Rule: Person who challenges donors capacity have BOP: clear and convincing at time donor made DIV or at the time donor made the testament for the DMC Exception for Limited Interdicts: With respect to property not covered in a limited interdiction order, the limited interdict is presumed to have the capacity to make donations, but this can be rebutted by a preponderance of the evidence by the person challenging the donation. Lower burden of proof. o We also already saw that if a person is a limited interdict over a certain property, he doesnt have the capacity to make a DIV and is presumed to lack capacity to make a DMC. The defender of the donation can rebut this presumption (BOP) via preponderance of the evidence.

Proof: Anything relevant to mental capacity o Clear and convincing to prove the in ability to understand is a high burden; you probably have to prove that a person was doing crazy things w/ property according to Chandler v. Barret b/c it is possible that a lunatic would be able to understand the consequences of making a donation at the critical moment; in addition, the mere fact that you cant recall all of what you own or misvalue it does dont make you unable to understand; CC 1447, cmt c: you only need to have an apporximate understanding of the nature and extent of the donation; if this were a preponderance of the evidence standard where donor forgot whole categories of property/grossly misstated then this would probably be enough Effect: Consequence of incapacity: o Incapacity of enjoyment (only because of non-existence) - absolutely null o Incapacity of exercise - relatively null

2) CONSENT: Refers to consent to a juridical act (donation) which as same meaning as consent to contracts covered in obligations course o Formation: in contracts there must be an offer and an acceptance o DIV: must have offer and acceptance for there to be consent o DMC: we dont require acceptance on the part of the donor Vices: there must be freedom of consent if vice found then relatively null (only defective parts become null) 1) Fraud: o Need misrepresentation/suppression of the truth w/ intent to obtain unjust advantage, cause loss, or inconvenience o The fraud must concern a factor that substantially influenced the consent o If there is a duty to speak and you are silent this is fraud o Proof: o General rule: BOP on person claiming fraud via clear and convincing evidence; evidence can be anything relevant o Exception: If a relationship of confidence existed b/w donor and wrongdoer at the time the donation was made or testament was executed (written) AND the wrongdoer was not then related to the

donor by consanguity, affinity, or adoption the challenger has a lower BOP (easier to exploit someone therefore want to make it easier to catch him) preponderance of the evidence Issues: Relationship of confidence includes attorney-client, principal-agent, doctor-patient, pastor-parishioner all professional relationships that entail fiduciary duties, husband-wife, parent-child But if there is a family relationship the BOP goes back to clear and convincing b/c more likely to donate to family; this is written to include 10th cousins, etc. 2) Duress: o Definition: To gain consent by causing a reasonable fear of unjust and considerable injury to a partys person, property, or reputation o Proof: the exact same as fraud; BOP always on challenger o Issues w/ proof: normally threatening to take a lawful action i.e. threatening to sue person unless he donates to you is not normally duress; however cts relax the standards for duress when dealing w/ donation and may call this duress 3) Undue Influence: o Definition: The donation is the product of influence by the donee/3P that impaired the volition of the donor so much as to substitute the volition of the donee/3P for the volition of the donor o Proof: the same as duress and fraud o Issues: o The follow are not undue influence: mere advice, kindness, assistance, persuading/asking (p/a this can be a thin line) o Doesnt matter whether the donee knew about it or not; if it happened via 3P the donation = null o Issues of Proof: for evidence look to whether the donor took the initiative to make the donation or someone urged him; what was the magnitude of the urging; it is rare to overcome this standard and to prove undue influence; the cts take this very seriously in fact in LA when the standard is C&C no court has ever found undue influence; signs of UI: donee initiative, nagging, isolation of donor from children basically threats that would not meet duress alone Reeves case says there are 4 prima facie element of UI: (1) susceptibility (2) opportunity (3) disposition (4) coveted result but this doesnt help much b/c more of a selfevident definition; ct says that since UI wasnt really meant for spousal situations b/c one spouse is the natural object of the others affection there are only specific cases where it might rise to UI: physical or emotional abuse, fraud deceit, criminal conduct (obviously if you show fraud you dont have to show UI) but no other jurisdiction in the word draws this distinction so Trahan doesnt like this result 4) Error: o Donation articles dont address this vice of consent so we assume that it is not a vice but that it not true; comment in UI article says dont mistake UI for error and all other civil law jurisdictions include it o DIV there would be a vice of consent b/c it is a contract

DMC this is not a contract but cts often analogize multilateral juridical acts to contracts so it is arguable that it would be upsetable b/c of error

****Effect of lack of consent or lack of capacity: null o Incapacity to receive (lack of existence) absolute nullity o Dont have an article about incapacity to give but contract rule is that if someone w/ incapacity makes a contract to give, the contract is relatively null o If there was a lack of consent you can get a declaration of nullity which suggests that it is a relative nullity

3) CAUSE: o Definition: the reason why a party obligates itself o It must be present (existent), true, and lawful o Absent/false cause results in a relative nullity o Illegal cause results in an absolute nullity This nullity applies only to the parts of the donation that are null for cause o Normal proof rules apply 4) OBJECT: o Definition: Equivocal (capable of being multiple things) o Object of obligation performance of obligation o Object of performance thing o Requirements: existent, possible, determined/determinable, lawful o Proof: normal rules o Relative nullity but absolute nullity if unlawful o Scope of nullity: individual disposition only IV. Limitations on Donative Power FORCED HEIRSHIP/DISPOSABLE PORTION o The donor is only able to give away the disposable portion of his patrimony o Forced portion (legitime, reserve): portion of the decedents estate which the forced heir may not be deprived of (unless the decedent has just cause to disinherit him). o Disposable portion: the portion of the decedents estate that is not reserved for forced heirs. Essentially, this is the portion that the decedent may validly donate A donation that impinges upon the legitime is not totally null but is reduced to the extent necessary to eliminate the impingement; this is reduction o History: Doesnt exist in common law but other jurisdictions have it including Western Europe and south of Mexico; Barbarians of Northern Europe took law from Romans (had version of forced heirship) and created the law of forced heirship the rationale was that the wife and children were all considered owners in the father/husbands property the whole family owned the property together; modern law has an individualistic view of property law owned by one person so this is a criticism for keeping forced heirship but there were other reasons for keeping this namely the French custom of primogeniture which was giving all of the property to the first born son this concentrated economic resources in the hands of a

few the law of forced heirship was adopted to create a more democratic distribution of property it was key to the French Revolution and the civil code; In modern LA, if we didnt have forced heirship primogeniture would not ensue but FH now serves as a function of social welfare because we only have this for children that are either young or older and disabled (until 1960s it was for all descendants couldnt really rationalize this as well) o Characteristics of the Limitation: o Rule of Public Order: o De cujus cant contract around the rules even if he gets his forced heirs to agree o No direct or indirect impingements; no charges, conditions, or burden may be imposed on the legitime except those expressly authorized by law i.e. usufruct in favor of surviving spouse or placing legitime in a trust; FH has a right to full ownership of legitime o In Kind not By Value: o Jurisprudence says that a FH has a right to a share of ownership not just a right to a share of the value meaning that a FH cant get a usufruct worth 25% of the estate if he is entitled to a quarter of the estate he must have a share in the actual ownership o A gratuitous disposition in favor of a 3P must come from the disposable portion; if a gratuitous disposition in favor of a forced heir must come from the reserved portion unless declared to be made as an advantage or extra portion FH cant keep DIV in addition to legitime unless donation was expressly declared to have been given as an extra portion Generally: FH cant claim legacy in addition to legitime unless legacy was intended as an extra portion. Intention doesnt need to be expressly made for DMC and will be resolved in favor of heir-legatee (they will get both) unless testator has expressed a contrary intention this is basically Prerequisites for Triggering Limitation: o Opening of the succession: o Someone must die - until death the law of FH doesnt apply which means that a donor could give away everything he owns during his lifetime and the presumptive FH dont have any right to do anything until after he dies o Presence of at least one forced heir only children in the first degree (grandchildren can only be representatives) who are under 24 years old or b/c of physical/mental infirmity are permanently incapable of taking care of their persons or administering their estates at the time of the decedents death Actually incapacitated meaning that someone is permanently incapable This doesnt have to do with the severity of the disability but how long you are disabled If permanent, you must still be incapable of dealing w/ your own person and property, this includes descendants who at the time of the decedents death have, according to medical documentation, an inherited, incurable disease or condition that may render them incapable of caring for their person or administering their estates in the future o Inheritable dont know if we are talking about genetics here; MS, cerebral palsy, etc. but we dont know about alcoholism, diabetes, etc o Incurable even if treatable but incureable

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Presence Presence of right: FH exists at the time Presence of Representative: FHs representative appears o Possibility #1: Representee: child of de cujus Representative: grandchild of de cujus whose parent is dead but parent would have been a FH b/c he was under 24 a the time of the de cujus death o Possibility #2: Quasi Representation Representee dies before de cujus; de cujus dies; the representative (grandchild) is physically incapable of caring for his person and property

Disinherison of a Forced Heir: o CC 1617: FH shall be deprived of his legitime if he is disinherited by the testator, for just cause, in the manner proscribed; the forced heirs portion of the legitime becomes part of the disposable portion (not the forced portion) o Just cause: Just cause for disinheriting FH Exhaustive list in CC 1621: Parent has just cause to disinherit a child that: o Is guilty of cruel treatment towards parent physical mistreatment o Is guilty of committing a crime towards a parent punishable by law; although some things so minor that it may not be enough o Is guilty of inflicting a grievous injury towards a parent psychological injury o Has been convicted of a serious felony o Has married w/o the consent of a parent (if the child is a minor) o After obtaining the age of majority and knows how to contact parents but has failed to communicate for 2 years w/o just cause unless the child was on active duty in the military forces of the US What is just cause? Basically we just dont want people not to contact for vain and useless things These are all available against the grandchild except that grandchild will not be disinherited for being married as a minor w/o the consent of the grandparent; in addition, if the child exercises abusive behavior toward the grandparent or the parent the grandparent may disinherit o Formal Requirements: o Disinhersion must be made expressly (say the word disinherit- cant be implied) in writing (in one of the forms prescribed for in testaments olographic or notarial) and it must be for just cause otherwise it is null o Disinheritee does not need to be specifically named but his identity must be identifiable from the instrument that disinherits him

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Disinheritor/testator shall express in the instrument the reasons, facts, and circumstances that constitute the cause of the disinhersion otherwise it is NULL; the facts, reasons, circumstances shall be presumed to be true but may be rebutted by a preponderance of the evidence; the unsupported testimony of the disinheritee shall not be sufficient to overcome the presumption Cant say I disinherit you b/c you did me wrong; you can say b/c of cruel treatment but you also need to describe the circumstances o Although a person may not be a presumptive FH at the time (b/c your kids are at least 24 years old) there may be a situation which renders him incapable of taking care of himself later in life which could allow him to become a forced heir; basically if your kid tries to kill you disinherit him b/c I f the kid ever becomes disabled he will become a forced heir Defenses: o Reconciliation Disinhertee may prove reconciliation w/ the testator after the occurrence of the events identified in instrument as the readon for identifying but must prove via clear and convincing evidence; A writing signed by testator that clearly and unequovically demonstrates reconciliation shall constitute clear and convincing evidence If you dont have this writing no particular type of evidence (such as writing- obviously helpful though) is needed This is showing the reestablishment of the relationship forgiveness of the offense that gave rise to the estrangement o Incapacity, lack of intent, justification: A disinherison is not effective if the disinheritee shows that because of his age or mental capacity he was not capable of understanding the impropriety of his behavior or that behavior was unintentional or justifiable proof is by a preponderance of the evidence o

Quotients of Disposable Portion & Forced Portion: o Quotients depend upon number of FHs o Number of FHs: number of FH still alive plus number of FH representees Ex/ A and B predecease their father X; X dies when A and B would have both been 22 yo; A has 2 kids and B has three kids this is only 2 forced heirs b/c although there are 5 grandkids 2 are representatives of A and 3 are representatives of B! Be careful w/ this o Quotient-Fixing Rules: General: o One FH Forced portion: Disposable portion: o Two or More FHs Forced portion: Disposable portion: Exceptions: o Exception #1: If there is an intestate succession in which the sum of the legitime exceeds the sum of the FHs intestate share, you reduce the forced portion to his intestate share (law of intestacy says that if someone dies intestate, his descendants are preferred to everyone else) o Ex/ One FH but 5 descendants; de cujus dies intestate

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FH would normally get 1/4 but since intestate divide equally by descendant heads each gets 1/5; go w/ the laws of intestacy if the intestate portion is less than the FH portion o Exception #2: Where 1+ FH (or representatives) are disinherited, is declared unworthy or renounces, we add the amt back to the disposable portion (and other FHs retain their portion as if the FH was still a FH) o Ex/ 3 FH: A becomes disinherited; B is declared unworthy; C still FH o Since there were 3 FH, the forced portion = ; each would get a 3rd of the therefore each would get a 1/6 add the 1/6 from A and the 1/6 from B back into the disposable portion (5/6); C retains 1/6 Shares of the Forced Portion (Legitimes): o How the forced portion is divided depends on whether any of the persons called to receive it are representatives of the FH o Ex/ 3 kids: A died w/ 2 kids and they act as representative of A; B dies w/ 3 kids and they act as a representative of B; C is permanently disabled This = 3 FH therefore forced portion = ; since there are 3 roots each gets 1/3 of which = 1/6 to each root; then the two representatives of A must share their portion so they each get 1/12 (1/2 of 1/6); the representatives of B must share so they gt 1/18 each (1/3 of 1/6); C retains 1/6 V. Limitations on Conditions: o No impossible, illegal or immoral conditions allowed (it order for this disposition to constitute a gratuitous transfer) o In obligations it makes the whole obligation null but in donations is makes the condition null, not the entire donation A. Illegal/immoral conditions pertaining to personal matters: 1) Marriage/celibacy o Donation on the condition that you never marry Ruxton case said that an absolute ban on ever marrying is against public policy (inherently personal)Question is whether we are putting undue pressure on a decision we consider almost a basic right; Ruxton said it was ok to say you cant be married at the time of my death but you can marry after that o Questions to ask: (1) How important is this right? (2) How much burden is placed on this right? (Esp. temporal element) (3) What is the reason for this prohibition? 2) Remarriage o Labarre v. Hopkins: Wife gives husband DMC w/ condition that he never remarry; ct said that this is ok because not an absolute prohibition on marriage; In LA the second spouse is disfavored usufruct terminates when surviving spouses remarries and there are children involved what if there arent children involved? We dont know in LA, France says you cant when there arent kids 3) Divorce o Donation made on condition that donee never get a divorce in France it is against public policy b/c the right to not be married is considered a fundamental right but the condition limiting divorce would not be ok if there was a legitimate reason not jus bc of jealousy; We dont know what LA cts would say 4) Residence o Doctrine says that restrictions on not changing ones domicile w/o indication of a plausible motive is contrary to absolute liberty and the Privileges and Immunities Clause; however some restrictions might be ok; look to the 3 questions

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5) Sex o Donations subject to condition of sexual gratification = null; applying rule difficult b/c rarely expressly stated B. Illegal/Immoral conditions pertaining to Patrimonial matters: 1) Limits on Alienability o Hesitant to allow condition which limits donees full ownership rights but foreign doctrine says that it might be ok to do it for a legit purpose o Ex/ Leave donee farm under condition that she not sell it for at least 5 years o Feitel case said that that 10 years w/o the ability to alienate or encumber the property (not full ownership) is not ok; rationale was that the donee becomes the owner and should have the usus and abusus rights; also dont want to take the property out of commerce want to exploit property for economic reasons (less now b/c tree huggers want to see green spaces) o Factors for assessing reasonableness of condition on alienability: (1) scope (including time) and (2) reason for condition 2) Limits on Partition o Donor want to give property to multiple donees but doesnt want to separate property; you can do this but the condition may not last forever if you say it shall never be divided, the entire condition will be treated as if it is not there; you cant get around this by adding a very long time limit either o The testator or donor can order that the division not occur for a certain time or until the happening of a certain condition, but the time cannot exceed 5 years. o If ascendant orders that no partition shall be made among minor children/grandchildren during their minority, this shall be observed until the oldest reaches majority at which time they can partition o CC article expressly says this applies to DMC but probably applies to DIV also 3) Limits on the Assertion of Rights (Penal Clauses): o Penal Clause: Resolutory condition that if the donee attacks the donation itself or the donation to another donee, the attacker will get less or nothing o Most often penal clauses are designed to disincentivize people from asserting forced heirship rights; not all of these are prohibited o Ask: what right is at issue? If rights of public interest/order i.e. forced heirship rights or the right to complain for defect of form then the penal clause is null o DH 60 the father gives son a usufruct and a penal clause since this is invalid as a right of public order the FH can assert FH rights and keep the usufruct o Succession of Wagner: o Clause: All property goes to wife, but if son protests, wife gets all the disposable portion o The testator is trying to give 100% ownership of the property to the wife. He cannot do this because he has to give a FHship percentage to the kids. Therefore, he uses this penal clause as a threat to prevent the kids from challenging the full ownership given to the wife. o Held: Valid But this violates the FHship rule of public order! See discussion below about lawfulness of the disposition as grounds for

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invalidating a penal clause. But the court finds that the penal clause is valid because the FH will get his forced portion even if he objects to the donation. o Essentially the court found that this is okay: telling the FH he does not get extra goodies from the disposable portion if he asserts FHship rights, and if he asserts FHship, then he only gets the forced portion. o Therefore, this case holds that the forced heir can be required to make a choice between the forced portion and what the decedent wills. Statement of rule o Inconsistent and incoherent in Louisiana. Sometimes enforced and sometimes not. o But the validity of penal clauses determination should be focused on: o The legality of the disposition that is supposedly immunized from attack. If the disposition is unlawful, e.g., because of the condition placed upon the donating, then the penal clause is invalid. (But see Wagner, supra, that greatly limits the category of illegal conditions.) To determine whether the condition is legal, look at the nature of the condition. If it touches a rule of public order, then the condition is unlawful, and thus the penal clause is unlawful.

Sanctions: o General rule: If a condition is considered null, only the condition is void and the rest of the donation remains o Exception: jurisprudential and doctrinal exceptions where we strike down the whole donation and not just the condition o Condition for Leverage: When the determinative and impulsive cause for making the donation is simply to get the donee to behave in a manner consistent w/ a condition the whole donation is null basically, this is saying that in cases where someone doesnt really want to give a gift but is only doing so for the purpose of manipulation; example is where someone is making a donation on a condition that is illegal or impossible this will be on exam say determinative and impulsive cause this makes there entire donation null Ask: Would he have made the donation even if you told him of the problem w/ the donation? If yes then not manipulation if no than manipulation o Condition for Love: If the determinative and impulsive cause for making the donation is for something other than manipulation (i.e. love and affection) then only the condition is null Limitation on Power to control donees disposition and property: prohibition of certain substitutions: Definitions: substitution and fideicommissum Substitution o The donation is made with a proviso that at a certain time or upon the occurrence of a certain event, one donee will be substituted for another. o The first donee is the institute; the second donee is the substitute. Prohibition o A disposition that is not in trust by which a thing is donated in full ownership to a first donee (institute aka greve), with a charge to preserve the thing and deliver it

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to a second donee (substitute aka appele) at the death of the institute, is null with regard to both the institute and the substitute. o Three requirements to trigger the prohibition: (1) Double liberality (2) Duty to conserve & render (3) Successorial order o We may find that a substitution meets all 3 requirements for being a prohibited substitution, but it may be possible to interpret it another way so we allow it b/c cts are bias towards honoring juridical acts and wants to honor the will of the donor o Substitutions = entire donation is absolutely null Prerequisites for Prohibition: 1) Double Liberality o Defined: To be prohibited, the substitution must contain a grant of full ownership first to one person and then to another; Ex/ testator leaves full ownership of property to his daughter but when she dies, she has to pass on the property to someone else. o The following are NOT double liberalities: o Joint Legacy gift given to at least 2 people w/ understanding that if both are alive when testament takes effect, they will become co-owners. If one dies before the testament takes effect the other joint legatee gets full ownership. This is okay b/c it was not owned by one then the other; if legacy takes effect then one dies this is also not prohibited b/c ownership has already vested o Donation dividing usufruct from naked ownership - not double liberality b/c neither usufruct nor naked ownership constitutes full ownership; donating by using the term for his sole use and ownership could be interpreted in terms of a usufruct (usus and fructus) or of a full ownership if you interpret this as a usufruct then not DL o Donation of Successive Usufructs Leave give of usufruct to A and say that upon As death it goes to B and upon Bs death it goes to C; not full ownership so it is ok o Vulgar Substitutions Vulgar = common; I want to give this to A but if A cant take it b/c A predeceases me or is ineligible then I want to give it to B; this is not double liberality b/c ownership never vested in A; A is being passed over o Double Conditions Legacies I give gift to A on a certain condition (suspensive or resolutory) but if the condition fails I give it to B; the most common condition is the donee survive the donor by a specific period of time otherwise the donation goes to B: Resolutory condition: This would mean that when testator dies, A immediately becomes the owner but if A dies within specified period of time then you resolve the gift and to A and give it to B and in doing so say that it was fictitiously owned by B from the beginning Suspensive condition: Ex/ I leave farm to A, but only if she survives me for a year. If not, farm goes to B Who owns the property in an intervening year? dead guy cant own; in the intervening time the succession will be intestate and intestate successors will own unless the condition is fulfilled in which case A ownership will retroactively vest in A meaning we say that she owned from the beginning Note that if the condition was for someone to outlive you for a very long time this might not be ok bc during the interim time the intestate successors own the property and due the condition there is a significant restraint on their alienability it is an

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implied condition restricting alienability; a period of up to 6 months is ok under CC 1521; longer than that and ct must decide b/c might be against public policy taking it out of commerce Resolutory and suspensive conditions are governed by a principal of retroactivity in which the happening of a condition effectively wipes out the first donees ownership consequently the only vesting of ownership is in the second donee o Inefficacious substitution **** Will be on exam***** There will be a prohibited substitution which later becomes null Ex/ Testament that says that A will get full ownership and must not dispose of the property and when he dies B will become the full owner obviously this is double liberality however, if B dies before the testator dies, the prohibited substitution is saved, the legacy lapses; the same would happen if A decided to attack the substitution on the ground of undue influence 2) Duty to Conserve and Render: o The institute must have had 2 duties imposed upon him: 1) Duty to Conserve takes away abusus meaning that the institute must keep the thing in his patrimony during his lifetime 2) Duty to Render institute must eventually turn the donation over to the substitute o Duties dont have to be stated, they can be inferred although general rule was that cts prefer a saving interpretation, the specific rule is that ct will infer the duty to conserve if logical o Implications that flow from these duties: Prohibition on Alienation: Saying that you cant sell it is only the duty to conserve; it doesnt say anything about rendering the donation to someone else Residuary legacy: There is a duty to render only if you are forced to leave something; a testament that says that I give everything to you w/ the condition that upon your death you leave of whatever is left to our stepson. This is the duty to render but not the duty to conserve b/c you dont have to have anything left you could use it all up (abusus) Precatory legacy (fidicommissum w/o duty to render): this is when testator says I will leave something to A but I would really like it if when A dies she leaves it to B; there is no legal duty to conserve or render, possibly a moral duty Fideicommissum w/ power of selection: Testator says, I will give this to you if when you die you will give this so someone else and you can pick who; there is an implied duty to conserve; duty to render must be particularized by the donor if donor doesnt specify to whom then no prohibited substitution; if you say something like you must leave it to A, B, or C, Trahan thinks that this might be particular enough 3) Successorial Order o Time of rendering must be tied to time of death of the institute; this is why we have a problem w/ substitutions the donor is trying to control part of the institutes succession o If you says Im going to give this to my wife but I want it to go to my son when he reaches majority, this is ok

VI. Regimes Applicable to Particular Types of Donations

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A. Donation Inter Vivos: Form Requirements for an offer of donation (act of donation): o General: Authentic Act otherwise the DIV is absolutely null Also applies to donations which are disguised as sales It is possible for the donor to cure the defect w/o starting over and making a new authentic act o Exception: For a corporeal movable (including cash and certified checks b/c they are as good as cash), manual delivery from donor to donee is a proper donation By donor himself to donee himself By donor through representative to donee himself o Mandatary can do anything principal authorizes him to do; if mandatary withdraws money from bank on behalf of principal, the mandatary must have been authorized to do so bank is also a mandatary of the principal o You can also appoint your donee as your mandatary; once the donee picks money up from bank there is an effective delivery (again 2 mandataries) By donor himself to representative of donee o If donor deposits donation into the donees bank account, this is ok b/c the bank is the mandatary for the donee; this works for tutor also By donor through representative to representative of donee o Someone cant be your mandatary if you didnt appoint them; you can be a mandatary for both parties By donor himself to both himself and donee o Ex/ A opens acct in the name of A and B, deposits $100 into account and B withdraws it Is it a manual gift of money to B? According to Succession of Miller, it is sufficient that the will of the donor to give [intent] and actual possession of the movable property by the donee [or representative] operate simultaneously. This means that when B withdraws it, it is irrevocable and there has been a manual gift; if B hasnt withdrawn it then donee is not in possession and it is not irrevocable so it is not valid *Scope: corporeal immovables only this includes cash and certified checks Corporeal Immovables includes: checks, bonds, and promissory notes CC 1550: Corporeal immovables that is investment property may be donated in writing signed by donor that evidences donative intent and directs the transfer of the property to the donee or his account or for his benefit. Completion of the transfer to the donee or his account or for his benefit shall constitute acceptance of the donation. Special rules for DIV that are negotiable instruments: o A negotiable instrument is not the first issuance (making a check/bond and giving it to a payee) but an instrument becomes negotiable when it is transferred to a 3P Since the first issuance is not governed by these special rules, it requires an authentic act (that is if you want to transfer it immediately) or you wait for it to be cashed the donation becomes effective then) Instrument is bearer paper payable to bear (dont have to indorse) Instrument is order paper indorse and deliver

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 A Certificate of Deposit (CD) is not a negotiable instrument Shares of Stock: Gratuitous stock transfers are made the same way as onerous ones Can donate a stock in 2 ways: 1) Indorsement: must indorse and deliver 2) Assignment: Assignment of rights in a stock certificate draw up an act of assignment (doesnt have to be an authentic act) can be an act under private signature o Transfers to Minors: o Uniform Transfer to Minors Act: makes it easy for parents to donate to kids; all that is needed is an act under private signature o More direct, if father wants to buy land for daughter, they can mention this act in the act of sale Form Requirements for Acceptance of a Donation: Remember, w/ DIV is only binding on donor/produces effects from the day it is accepted! o General Rule: Acceptance must be in authentic form; it can be in the same document as the offer or in a separate writing (a posteriori) that is in authentic form o Used to have to get express acceptance, now we dont o Exception: If donor delivers corporeal moveable to donee there is tactic acceptance o Acceptance: o To determine when the moment of acceptance is, look to contracts and the mailbox rule o When donation and acceptance are in the same act effective upon last signature o When in separate acts effective when donee signs the act of acceptance apparently doesnt have to tell donor about it! o Recordation: Not necessary if movable; necessary in immovable for it to be effective against 3P Sanction: Art. 1845 A DIV null for lack of proper form may be confirmed o Only a relative nullity may be confirmed! But there is a spectrum of nullity. At one end there is absolute nullity (dont need a judgment declaring the nullity, no prescriptive period, anyone can get it declared null, cant be confirmed or ratified). At the other end is a pure relative nullity (need a judgment declaring nullity, only the protected person can invoke the nullity, prescriptive period, can confirm it). o The nullity for not following the DIV form has only one characteristic of relative nullityit can be confirmed. But in every other regard, it is an absolute nullity: o Anyone can complain of it o No prescription o Dont need a declaration of nullity o Revocation: Allows donor to take the donated things back into his patrimony; donations are irrevocable at whim but not irrevocable for cause o Causes Pseudo Cause: Non-occurrence of a suspensive condition donee was never owner; this is resolved of right meaning no need to go to court True Causes: Occurrence of a Resolutory condition if the condition occurs the donor gets the property back Ingratitude: 4 ways: o Donee attempted to murder donor: dont need conviction just prove by a preponderance of the evidence

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Donee guilty of cruel treatment of donor: intent + physical mistreatment o Donee guilty of crimes against donor: intentional offenses against person/property defined by criminal law o Donee guilty of committing grievous injuries to donor: intent + works, behavior, or even attitudes that damage his sentiments, honor, to reputation Potential grounds: adultery, slanderous charges, a seizure levied by the donee against the donor of whom donee is a creditor, in a proper case the refusal to consent to the revocation Issue: bringing a serious and shaky charge against the donor is probably grievous injury but what about a serious wellfounded claim dont know! Porter v. Porter: suggested what makes a difference is not the nature of the claim/obligation but the factual merits of the claim (no groundless claims); donor wanted to revoke, donees didnt, donor got crazy/mean and they filed suit against him for breach of contract which ct found no ground for ingratitude b/c donees justified b/c provoked by outrageous acts of donor Failure to Fulfill Charges: If a suspensive condition fails, donor doesnt have to go to ct to get a declaration of dissolution it is automatic Onerous donations where the donee had an obligation to fulfill (if charge not fulfilled donation revoked); potestative is where the donee agrees that condition will only be met if donee does something a judicial declaration of dissolution is needed Exception: o Donations to charities: condition/charges that becomes impractical or impossible of fulfillment: Cy-pres Doctrine Any donation that is charitable [made to an institution that provides charitable services or services to the public] needs to have a reverter clause if the donor will be allowed to revoke on the grounds of nonfulfillment of a charge. Where it becomes impractical, impossible, or illegal to comply literally with the charges due to a change in circumstances, the charitable donee [a charitable organization, e.g. Red Cross or educational institution] may obtain judicial approval for administering the subject matter of the donation in a different way from what the parties had in mind, though the order will require the donee to administer the donation in a way that will most effectively accomplish the original purpose of the donation. o Donation to religious institutions: conditions/charges after lapse of 10 years from date of donation donee may ignore the charge and dispose of the donation in any way he wants o CC got rid of legal and conventionl returns b/c they are really just revocation based on performance of a Resolutory condition Effect of Revocation for cause: it is an action to recover a thing given o What is the proper remedy? Return of the actual thing given or the value of the thing o

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Ingratitude: return the thing given unless cant do that in which case return the value of the thing; determine the value of the thing based on the day the revocation was filed Donors heirs may sue to revoke a DIV for ingratitude: Donor has a prescription period of 1 year from time he knew or should have known of ingratitude if donor dies, he heirs have the remainder of that year to sue; if the donor did not know of the ingratitude, heirs have 1 year from death; if donor started an action then died, heirs can pursue it Action can be brought against donee or his successors it is not strictly personal o Where donee has neither alienated nor encumbered the thing: return of the thing; where he has alienated/encumbered review hypos DH 87.1 and CC 1559 Revocation for ingratitude does not affect an alienation, lease, or encumbrance made by the donee prior to the filing of the action to revoke. Donee pays donor for lost value If alienation, lease, or encumbrance is made after the filing of the action and the thing given is movable, it is effective against the donor only when it is an onerous transaction made in GF by the transferee, lessee, or creditor. Donee pays for lost value, otherwise alienation/encumbrance falls and donor recovers the thing If alienation, lease, or encumbrance is made after the filing of the action and the thing given is immovable, the effect of the action to revoke is governed by the law of registry. Where act of donation and lis pendens were filed by the donor at time of the alienation/encumbrance, the alienation/encumbrance falls and donor recovers the thing Otherwise, alienation/encumbrance stands and the donee pays donor for lost value. Effect of Failure to Fulfill Charges: Potestative Condition o Plaintiff: donor/successors o Defendants: donee/successors An action to dissolve a donation for failure to fulfill the conditions or perform the charges imposed on the donee prescribes in 5 years, commencing the day the donee fails to perform the charges or fulfill his obligation or ceases to do so. If donee has neither alienated nor encumbered the thing, donee must return Where the donee has alienated or encumbered the thing: (Here we dont worry about whether or not the action was filed at the time) Donated thing was a movable: If alienation/encumbrance was onerous and transferee was in GF then alienation/encumbrance stands and donee pays donor for lost value otherwise encumbrance falls and donor recovers the thing Where thing donated was an immovable: look to laws of registry (is donation recorded?) o Shall return free of alienation/encumbrances created by donee; if cant then return w/ alienation/encumbrances and donee pays lost value Effect of Occurrence of a Resolutory condition o Donor must get a judgment that the donation been dissolved o

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Retroactivity: the donation is deemed to have never happened; as if donatum never left donors property but it is subject to the rights of a 3P in immovables look to laws of registry but not movables

B. Donation Mortis Causa: o Only way to make a DMC is a testament; remember, revocable during donors lifetime (any agreement w/ legatee not to revoke contract is unenforceable) o Special requirements: o Formal requirements common to all types of testaments: 1) Written act no oral testaments in LA 2) Personal may not be executed by mandatary/proxy and only one person can execute a testament in the same instrument 2 types of form requirements: Olographic and Notarial 1) Olographic testament: CC1575 * Failure to comply = absolute nullity o Entirely written, dated, and signed in the handwriting of the testator and testator only! Entirely (handwritten) by testator o Cant be typed; Succession of Burke: Testator wrote in portions to typed will ct upheld only those portions; Trahan says bc it must be entirely handwritten by testator the whole thing is null o Aided production sometimes excluded Testator must contribute to movement of the hand; case where he was shaky - wanted to be steadied, might be ok o Alien handwriting w/o testators consent: ignore alien writing o Alien handwriting w/ testators consent: whole thing invalid Exceptions: *Dividing line may not always be clear If alien writing deals w/ something other than date, signature or disposition then testament is not invalidated Letterhead is ok; act of witness (signatures of witnesses) is ok Testator making someone else fix mistakes (i.e. he transposed the address of his house, etc.) but this does not create a new disposition or alter the existing disposition; ask is it merely clerical or is it interpretative? Since we allow parole evidence to interpret the testators intent in certain cases and this is merely helping us understand his intent Dated by Testator: Must be day, month, and year o Concerned b/c later testament preempts earlier one and b/c of capacity o There must be something that constitutes a date that is handwritten in the document that was done by the testator himself! Video of you w/ time mark making the testament doesnt count o Date can appear on any page and in any place but it has to be there! o The date is sufficiently indicated if the day, month, and year are reasonably ascertainable from information in the testament, as clarified by extrinsic evidence, if necessary (check answers to DH 94.2 & 97.3) o Christmas Day/Mardi Gras 2011 would be ok o Saying, Im writing this then killing myself arguable that this isnt enough no jurisprudence; it isnt enough in France o 3/9/00 could mean March 9th or September 3rd so defender of testament would be able to admit extrinsic evidence if no extrinsic evidence is available it will fall

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One date at beginning, another at the end attempt to show date but it was botched allows defender to enter extrinsic evidence to show the exact date but if it was written over a period of day we dont know exactly what this means Signed by Hand of Testator o The signature of the testator must be there at the time the document was executed (ad initio); but you dont actually have to have the original document just proof that the original document met the requirements at the time the testator executed it o proof = testament of 2 witnesses proving there was a testament, they recognized the handwriting of the testator, and what the testament said Hamilton case had one witness but said that the other witness was the suspicious actions/circumstances of the other party who seem to be the ones who cut off the signature o Best practice is to sign full name but nicknames/aliases/initials will be okay if that is how you are well known o Anything written by testator after signature doesnt make the whole testament invalid and the additional writing may be considered by the ct as part of the testament the ct has full discretion and we dont know exactly what it would consider 2) Notorial Testaments* Need substantial compliance; if not then absolutely null o Common Requirements: 1) 4 people required: o Testator o Notary must reasonably believe person is qualified to be a notary; if notary is also a legacy the testament is valid but the dispositions to the legatee/notary are struck down o 2 witnesses must be sane, sighted, over the age of 15, and able to sign name; if witness is a legatee the testament is not invalid but the disposition to the legatee/notary is invalid Exception: if the witness would be an heir in intestacy, then witness/legatee may receive the lesser of his intestate share or the legacy in the testament 2) Process Requirements: o All redactions must be drawn up in writing; it may be done by anyone (written in crayon by bum on street is ok) o Needs a date dont care who does it or where as long as its on the testament o Presentment and Declaration/Significant of testator: Generally. There must be a presentment to the testator, who must indicate that he knows what the testament is and that he approves of it as his own testament. Best practice: ask the guy if the document is his testament and get him to say yes. The mere fact that he signs the testament does not indicate that the testator has signified that the testament is his. o Exceptions: Succession of Thibodeaux. There is no express acknowledgement by the testator that the testament is his. The testament is saved under the courts doctrine of substantial compliance with the form requirement. Prior to the signing in this case, the parties had been discussing the fact that they were about to sign the testament. From the circumstances, we can infer that the testator knew that he was signing his testament and not an autograph book. o May also be done tacticly if someone (lawyer, secretary, etc.) expressly says to him something to the effect of you are now signing your testament o

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Signature/Mark of Testator o Must sign at the end of the testament and on each separate page that is not the last page o Only nee substantial compliance not absolute compliance if the testator didnt sign on the witness attestation clause this is ok we are concerned w/ the idea that the testator sign on every page that has a disposition o Ct said that we dont need a full signature on every page (could have initials) but it is better to have it (substantial compliance) o Attestation Clause o In presence of testator and each other, the notary and witnesses shall sign the following declaration or one substantially similiary: In our presence the testator has declared or signified that the instrument is his testament and that he signed it at the end and or each other separate page, and in the presence of the testator and each other we have subscribed our names on ____. (attestation that they have witnessed the whole process) o Squiresthe written attestation clause did not state that the witnesses had seen the testator sign on every page; it only stated that they saw him sign (but not on every page). Held: substantial compliance. o Note: substantial compliance applies to all 5 kinds of notarial testaments 3) Requirements unique to different kinds of testaments (1) Standard Notarial Testament: Testator w/o disability: CC 1577 o It is a requirement that the testator be able to read and sign name and is able to physically do both; the rules above apply in full (2) Testator is literate and sighted but physically unable to sign: CC 1578 o Special declaration/signification requirement which indications that testator is able to see, read and write but is physically able to sign his name due to physical infirmity; if totally paralyzed could signify by blinking; doing this requires an additional attestation by the N and 2W sign saying that they witnessed this o The testator fixes his mark at the end of the testament and on each page; Mark may mean a check mark, smiley face, etc if he is unable then someone may assist him/sign name in place - may be the N or 2W (3) Illiterate Testator: CC1579 o Requires a formal reading in testators presence in front of N and 2W; 2Ws must be literate, able to hear, and follow along w/ the reading o After the reading the testator must declare/signify he heard it o Additional attestation which states that it was read and that witnesses followed along o Then testator may sign pages of testament if he can; if not see CC 1577 (4) Testator who can read Braille CC 1580 o No requirement that you are blind! o The testament must be written in Braille; normal CC 1577 rules apply; redactions must be in Braille as well; the attestation doesnt need to say anything about the fact that it was done in Braille but must be written (5) Testators who have been declared deaf but can read sign language, braille, or English written in Latin characters CC 1580.1 o There must be a legal finding by a judge in court that the testator is either physically dead or deaf and blind o Testator must be able to read sign language, braille or visual English o

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Witnesses: must meet the general requirements i.e. know how to sign name and be able to read the language of the testament; in addition at least one of the witnesses must be a certified interpreter for the deaf

Substantive Requirements of a DMC: * Same as apply to all juridical acts 1) Capacity some capacity requirements that apply distinctly do donation see DIV 2) Consent Must be real and freely given o Testator must have belief that the document is going to be a DMC in Succession of Helms, ct denied the plaintiffs motion that a letter to de cujus lawyer saying what he wanted to be in his testament was in fact a valid testament; testator must intend for document to be his testament 3) Cause - real, present, lawful see DIV 4) Object possible, determinable, lawful see DIV Rules on Delegation apply only to DMC o Delegation is giving someone else the power to dispose of your property is it normally prohibited if you die w/o a testate the law of intestacy takes over o Exception #1: A testator may delegate to his executor the authority to allocate specific assets to satisfy a legacy expressed in terms of a value or a quantum, including a fractional share. o Exception #2: The testator may expressly delegate to his executor the authority to allocate a legacy to a charitable legacy. The testator may identify the charitable legacy or he may authorize the executor in his discretion. The testator may also give his executor the authority to impose conditions on those legacies. Probate means to prove the authenticity/validity of the testament o Probate takes place on paper, not in person. It is a very simple process. o Notarial testament, there must be a copy of the testament and an affidavit. o Olographic testament, need two affidavits (and they dont have to be from witnesses). Then judge signs the order if everything looks okay. o Prescription: 5 years from date of opening of succession o BOP: proponent of the probate Action to annul a probated testament: o Prescription: 5 years form date of probate (date judge signed probate order) o BOP: o If brought w/in 3 months of the probate burden on proponent of the probate order to prove authenticity and validity o If brought after 3 months burden is on the person bringing the action to annul to prove inauthenticity and/or invalidity o Note: under the CC, the BOP is always on the attacker for vices of consent and incapacity; this is not the same here, authenticity/validity means that this is the testament signed by that person so these BOP rules only cover authenticity and form Legacies o Classification #1: Classification by number of legacies o Singular = 1 legacy and multiple =2+ Subclassification based on accretion: Legacies to multiple people can be either joint or separate Joint Legacy: legacies are co-owners shares are not assigned

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o I leave my farm to A and B Separate Legacy: testator assigned shares to each legacies o Examples: could say one half to each, share and share alike I leave my farm to A and B in equal portions o I leave immovables to A and B to be divided b/w them equally. Cts encountered this language and found that it may or may not indicate an assignment of shares based off of the testators intent; there is a presumption that it is separate but this is rebuttable look for overwhelming evidence to the contrary o Significance is accretion Lapse is for more than just death anything that renders him incapable of acquiring the property before it enters his hands Accretion w/ respect to joint legacies: means that if property is left to A and B but A dies (legacy lapses) before testator, the property goes to B Upon lapse of a joint legacy, accretion takes places ratably in favor of other legatees Separate legacies: if A lapses B doesnt get the property- general rules of accretion say that it would go to the person who would have received the property if the legacy wasnt made to the lapsed legacy Classification #2: Based on Manitude/scope of the bequest 1) Universal Legacy gives to legatee the possibility that the recipient of the legacy might end up w/ the entirety of the estate; this concept is called contingent vocation of a whole (there can be other gifts to other people, but UL if he could possibly end up w/ the whole thing) o Key: the classification based on wording of the testament and from this, a projection of whether theres a possible circumstance under which the L at issue could get the entire estate. NOT dependent upon what actually happens when the testator dies (e.g., whether or not FHs are actually present when testator dies). o Examples: I give you all property of which I die possessed, You are my only heir/legatee, I give you all of my corporeal and incorporeal things, I give you all of my immovable and immovable things o Issue 1: I give you all of my disposable portion this is still a UL he may say disposable portion if he has his forced heirs in mind however, it is possible that his forced heirs will not be forced heirs at time of testators death or they will renounce in which case the entire estate would be disposable o Issue 2: I give you naked ownership this is not full ownership but when usufruct ends L will be the full owner therefore he is the UL check DH 103.5 o Issue 3: Leaves several particular legacies to people then gives you the residue/remainder this is by definition a UL in the CC particular legacies could be renounced or could lapse which causes accretion to UL o Issue 4: I give you my house and car this is all he owns; it would only be a UL if the writing communicated that this was everything he owed; o Issue 5: I leave all my property to A and B this is a joint universal legacy b/c the whole is left to them together 2) General Legacy o Legacy of a fraction of the whole estate, or fraction of the estate after particular legacies o Example: of my property to A; to B, 1/2 to A and to B, C, D

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Issue: 1/2 to A, then residue to B this is not universal b/c the above-stated rule about UL deals w/ situation in which the residue is given to a legatee after a particular legacy, this is a general legacy if the first legacy is general the residuum will = general Legacy of all or a fraction of any one of several specifically enumerated categories of property: movable/immovable, corporeal/incorporeal, separate/community o Example: all my movable effects, land and other immovables, i.e my immovable property to A, separate property and incorporeal property, separate property to A and incorporeal property to B these are total categories that may practically overlap but they are still considered GL; o Not: consumables only the 6 above categories, so this is a particular legacy by default; corporeal movables you have to dispose of the entire thing is a subsection which excludes incorporeal movables or corporeal immovables o Doubtful Cases: o Gifts of the whole (the whole or the residue) to multiple legatees: Is it a Universal Legacy or a General Legacy? Arises w/ residual legacies: If gives particular legacies then residue to you universal If gives general legacies then residue to you - general Criterion of distinction when there is an apparent disposition of a whole is the legacy joint or separate If Joint legacy universal If Separate legacy general o This is due to rules of accretion 3) Particular Legacy o Default category legacy that is neither UL or GL o Testator must own the thing, the thing must be determinate or at least determinable o Examples: I give you my car testator has one car o Issue 1: I give you my car testator has 3 cars so which car? Can look to extrinsic evidence to determine testators intent, if you discover then it is particular, if it cant be discerned whether a greater or lesser quantity was intended, go w/ the lesser if you cant determine what the object is then the it is unenforceable o Issue 2: I leave all of my immovables in LA he has other immovables in other states so this is not general by category (other immovables will be given to other legatees); it is not a fraction either b/c you must state the actual numerical form for it to be a general; nonnumeric modified = particular legacy o

Why does this distinction matter? o Seizin: this is provisional administrative authority which refers to the person who looks after the de cujus property before an administrator is appointed who has seizing depends on the type of successor a person is o Powers of seizing (1) Representation and (2) Possession o Immediately at the death of de cujus the universal successor acquires ownership of the estate and the particular successor acquires ownership of the things bequeathed to him; universal successor may represent the decedent w/ respect to heritable rights and obligations

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Note that a universal successor is a universal legatee or a general legatee; a particular legatee is a particular successor and he cant have seizing rights o Why is this important? UL and UG tack his possession of the property onto the de cujus possession A particular successor must start his own possession Liability: ****Immediate transfer of goods upon death results in personal liability for all legacies if you dont want the succession renounce it and you cant be liable! o Payment of estate debts: universal successors are liable in personam for the debts of the de cujus (creditor can come after not only property but also them personally); meanwhile particular successor are only liable in rem (creditor can only come after the property itself) o Universal successors liable in pro rata shares equal to the fraction they received (they are jointly liable); successor cant be compelled to pay more for the debt than received in assets (there is a cap) the amt received is determined at the time it was received Ex/ each universal successor received of $240; debt = $60; creditor can only get $30 from each; if debt =$300, gets only $120 from each and loses the rest o Payment of Particular Legacies: Payment owed to a particular legacy universal successors are jointly & personally bound to discharge unpaid particular legacy, each in proportion to the part of the estate he receives Ex/ Bequest says I leave $40 to A and there are 2 universal successors, each owes A $20 A cant go after one of them for the full $40 universal successors each get $100 o Particular legatee: Not responsible for estate debt but estate debt attributable to identifiable property is charged to that property Interpretation #1: Charge refers to the estate administrator in the sense that he is responsible for selling the burdened asset to pay the debt off Interpretation #2: Particular legatee is only liable in rem (meaning creditor has a security right in the asset)? CC 93 seems to suggest that if particular successor takes the thing after the appointment of a succession representative, the thing is burdened by the creditors security interest See DH 107.3a-b Preference of Payment o If testator hasnt declared a preference of payment look to following rules; this is dealing w/ the problem of the de cujus not having enough property left to satisfy all the legacies he left o Rule #1: Particular legacies discharged first o Rule #2: Where there are multiple particular legacies: o Discharge the particular things first o Then the groups of things second o Lastly, discharge the money but first discharge those expressly declared to be remunerative (to compensate) then to all others ratably o Lapse of Legacies: for some reason the legacy wont be executed (exhaustive list) 1) Incapacity to receive: o Legatee predeceased the testator o Legatee incapable of receiving at the death of the testator not yet in existence (zygote must be in utero at time of death)

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2) Legacy subject to a suspensive condition and the condition can no longer be fulfilled or the legatee dies before fulfillment before fulfillment of the condition 3) Legatee is declared Unworthiness 4) The legacy is renounced, but only to the extent of the renunciation 5) Legacy is declared invalid which here means an absolute nullity o Ex/ Prohibited substitution normally absolute nullities dont need judicial declarations but you cant have a lapse w/o a judicial declaration 6) Legacy declared null here means relatively null; for example this may be done due to fraud, duress, undue influence Effect of a Lapse: The legacy becomes ineffective as to the legatee Accretion can take place we know that it can take place if written in a testament but it can also take place by law Accretion by operation of law: o Principal Rules: Particular and General Legacies when a PL or a GL lapses accretion takes place in favor of the successor who, under the testament, would have received it if the legacy had not been made rule easily forgotten! Universal Legacies Legacies that lapse and arent disposed of under preceding articles, accrete ratably to the universal legatees. When a general legacy is phrased as a residual/balance of the estate w/o specifying that it is the remaining fraction/certain portion of the estate after the other general legacies, even though that is its effect, it is treated as a universal legacy for purposes of accretion under this article Joint Legacies When legacy of a JC lapses, accretion takes place ratably in favor of the other JLs: look for assignment of shares Exception: (Art. 1593) The exception for JL and PL/GL. It is an anti-lapse rule. 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 legatees interest in the legacy lapses, accretion takes place in favor of his descendants by roots who were in existence at the time of the decedents death. The provisions of this Article shall not apply to a legacy that is declared invalid or is declared null for fraud, duress, or undue influence Review DH 110.7-12 (outline pg. 97-98) o Prerequisite #1: Familial relationship between legatee and testator: legatee is child, sibling, or descendant of child or sibling of the testator. (child descendants; siblings privileged collaterals) o Prerequisite #3: Legatee must leave descendants o Prerequisite #2: Cause of lapsesome cause other than invalidity/nullity (absolute nullity or relative nullity involving vices of consent) Residual Rule: o Any portion that is not disposed under the forgoing rules devolves by intestacy Review DH 110.13 (outline pg. 98-100) Extinction of Legacies: Extinction means that the object of the legacy has been destroyed either physically or juridically; this is not a lapse (people lapse not things); not accretion b/c there is nothing there to accrete

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To be extinguished, the legacy must be lost, extinguished or destroyed before testators death Legatee is entitled to property that remains and uncollected insurance attributable to the loss as well as the testators rights of action against anyone liable for loss/extinction/destruction Legacy of a certain object is not extinguished when the original object of the legacy has been transformed into a similar object w/o act of testator If object of legacy has been condemned/expropriated prior to testators death, legatee is entitled to any uncollected award and to succeed to any right of action o Principals of Real Subrogation we dont know if the above list from CC 1597 is exhaustive if not, then may be able to apply principals of real subrogation; o This deals w/ physical and legal destruction (including prescription)

Revocation: Testator can revoke at anytime; right of revocation cant be renounced Thing given then called back Revoked by law: Only way a testament is revoked by law is when a testator and legatee were married, the testament was created then they got a divorce; there must have been no reconciliation; testator can provide for the contrary Revoked by Will: o Can expressly revoke by Testator by: Declaring it in a form prescribed for testaments (olographic or notarial) or authentic act Identifies and clearly revokes testament by a writing that is entirely written and signed by testator in his own handwriting Clearly revoking the provision/legacy by a signed writing on the testament o Can tacticly revoke by: Destroying testament/ordering its destruction Make a subsequent incompatible testamentary disposition or provision Make a subsequent DIV that is the object of the legacy Divorced from legatee after testament executed General revocation revokes the entire testament includes: o Destruction of the testament by testator/mandatary Issue 1: Only works well when 1 document; often there are multiple so may have intended to destroy or may have intended to deceive; Succession of Talbot: there is a rebuttable presumption that he wanted to revoke consider (1) Did T know there were multiples? (2) Did he have access to them so that he could have destroyed them too? (3) Was it destroyed by accident? trying to determine if he intended to render the testament ineffective if he was trying to trick then he didnt want to revoke Issue 2: What is meant by destroys? Write all over testament scratching names out is this destruction? More leeway with this law than we used to so we dont know where the line is but it was probably intended to revoke o Revocation in Testamentary Form: Valid form olographic, notarial Intent must intend that testament is revoked and that the document you are writing is intended to have the effect of that revocation If olographic testament, dont need olographic revocation; if notarial testament dont need notarial testament; also a probate is not needed You can revoke without having a new testament (dispositive provisions) Make testament; properly revoke; destroy revocation what happens? The testament is no longer revoked o Revocation by authentic act:

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Revocation entirely handwritten and signed (olographic form w/o date) If you just say I revoke my prior testament this may not be enough to identify what you are talking about no case law Particular revocation revokes part of the testament o Declaration of revocation testament provisions in testamentary form o Subsequent incompatible testamentary form Ex/ T1 gives universal legacy to X; T2 gives particular legacy to Y; T2 trumps, Y gets his particular legacy and the rest goes to X not intent to leave X w/ nothing it is not totally incompatible w/ T1 Issue 1: T1 gives X full ownership of land; T2 gives same land to X and children in a trust until they all die; Succession of Reeves says that this is compatible b/c you should let trust expire and give land to Xs intestate successors b/c would be part of Xs patrimony Trahan sees incompatibility and that testator seems to have changed his mind if so, when the trust ended the land was fall to the intestate successors dont know for sure Issue 2: T1 leaves $5000 to X, boat to Y, house to Z, and the rest to U; T2 leave $2000 to X; If there is a revocation he will get $2000 - CC1613 says that if you cant determine if the greater or lesser amt was intended, then go w/ the lesser but this rule only applies to interpretation of legacies not revocation Succession of Reeves says that it is a subsequent compatible addition - culmination is presumed w/ successive legacies of a fungible item under this, X will get $7000 testament shall be given effect to every part the law will permit dont know for sure Issue 3: T1 is the same as issue 2; T1 says $2500 to X, $2500 and boat to Y, house to Z, the rest to U Succession of Rolling: This more easily rebuts the presumption of culmination b/c it gives he same legacy in a different way T1 incompatible w/ T2; tried to determine testators intent including the fact that she wrote the second one reciting the formal parts of a testament; also her use of codicil aware of method for changing portions of testament w/o affecting the remainder of the bequests Issue 4: Does the revocation need to be substantively valid? Succession of Ryan: T2 contained a prohibited substitution, and was therefore null. However, the testator clearly intended to revoke T1 because the provisions were incompatible. Even though the new testament was substantively invalid, it revoked the prior testament. o Result is that the thing purported to be disposed of goes intestate b/c T2 is invalid Issue 5: T1 gives book to X; T2 gives same book to Y; expressly revokes T2 via olographic form: CC1609: T2 revokes T1; but revoking the revocatory action resurrects T1 o Alienation of a thing earmarked for legacy Occurs when testator makes subsequent DIV of the thing that is the object of the legacy; if testator reacquire the thing, there is no revocation Questions: o

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Simulation contract by mutual agreement, doesnt express true intent of parties o Absolute simulation parties intend that contract shall produce no effects; no intention to transfer ownership does this change anything Issue: No effects ownership doesnt change; but do we assume that he did this as a trick so property wouldnt go to person designed in testament? We dont know if this is revocation! In class, Trahan said -1608(3) should probably be written to say a subsequent VALID disposition of a thing o Relative simulation parties agree contract will produce effects that are different from those stated in the contract o If the DIV is relatively null (could be for lack of capacity, lack of proper form, etc.) then there is no subsequent transfer and the donation is not revoked (we think what if the intention was clearly to revoke?) Signed writing on the testament itself which clearly revokes Acceptable: draw line through successors name and bequest and signs testament; circle and write the word revoked and signs; you dont have to use word revoke can use anything to indicate intention to revoke but looking for trouble Requirements: indication of revocation and signature; this is a relaxation of the old requirement which used to need olographic form Post-Testamentary Divorce Must have made testament when married, then got divorced; if the reconcile the testament takes effect again Divorced testator can provide for the contrary if he wants to CC 1610.1: Same grounds that authorize an action for revocation of a DIV authorize action for revocation of DMC including failure to fulfill suspensive condition, legal/conventional return, ingratitude, failure to fulfill charges Revocation for ingratitude: Testator can revoke for these reasons at any time (freely revocable); intestate successors can revoke on these grounds if testator didnt revoke if the testator was aware of the ingratitude, etc. the prescription period runs for 1 year from date testator was made aware; if testator didnt know, prescription runs from the date successors were made aware a revocation for ingratitude is strictly personal and cant be brought against wrongdoers successors (can only be brought against wrongdoer) o

Withdrawal of a revocation: o CC1609: Revocation of a testament/testamentary provision [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 testators death If you tear up the first testament there is no way that you can revive it! Effect of a rebuttable by testators intent you want to know the literal interpretation CC 1609 cmt: Testatament revoked by a subsequent testament: T1 is revoked by T2 then T2 is revoked T1 is revived (becomes effective again) These rules apply to revocations that are undated but signed writing Interpretation: o Testators intent controls; a saving construction is preferred (want to interpret so as to give the provisions effect)

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Uncertainty: CC 1613: if identification of an object is unclear in a testament, the disposition is effective if it can be ascertained that object the testator intended to give. If it cant be ascertained whether whether greater or lesser quantity was intended go w/ lesser Trahan doesnt like this and tired of talking about this X given 100 shares in T1 then 50 in T2: CC1613 indicates that X would get 50 shares; jurisprudence says cumulative = 150 Property Acquired after testament included: Interpretative rule of time: If you say I leave all my property to X then you buy a house and die house goes to X until you give a clear indication to the contrary.

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PART II: SUCCESSIONS: General Principals: Principal 1: Opening of a succession: o Procedural successor/creditor goes to ct o Substantive moment of the de cujus death* What we are interested in! Actual Death: Irreversible cessation of spontaneous respiration and circulatory functions; life support if we cant tell whether respiration/circulation has ceased look for irreversal cessation of brain function Options for proof: Documentary or testimonial: o Official death certificate signed by attending physician/coroner o Affidavit of 2 people w/ knowledge; filed on record o If affidavit and evidence is permitted ct may require further evidence Presumed Death: 1) Disappearance upon exposure to great peril refers to disappearance in circumstances in which death seems certain (highly probably), death is established w/o dead body o Proof: Preponderance of the evidence; must have circumstances in which death is highly likely Need calamity (disaster which could cause immediate death) and contemporaneous disappearance Bennet case: sick guy disappears this is not enough, need calamity but (might have been able to use absent person) 2) Missing in Action Active member of armed forces, reported missing, armed service to which he was attached accepts the presumption of death o Proof (of predicate facts): certified copy of official certificate of armed service to which he was attached indicating service accepted presumption of death 3) Absent Person Absent for 5 years; has to representative, whereabouts are unknown and cannot be ascertained by diligent effort (call hospital, hire PI, etc.) Fixing/Reversing the Opening date (for everything but absent person): o Actual date of death is determined by the ct: day of death, calamity, MIA ct has considerable discretion; with presumed deaths we are guessing at when the de cuju died what if we discover the actual date of death later? Dont know; o If dead guys shows up: Death from exposure to great peril dont know; no mechanism MIA: prescription: 30 years: successors must return property itself if encumbered, gets damages for diminished value; if transferred property gets value plus damages for diminished value; in addition, the successor must return the annual revenues of the property w/in 5 years 2/3; b/w 57year ; 7+ nothing Fixing/Reversing the Opening date for an absent person: o Actual date of death initially determined by ct based on whatever info you have; if later there is clear and convincing evidence establishing a different date of death the initial judgment will be amended and the people recognized as successors in respect to the initial date are bound to restore the estate to the new successors (but may keep the fruit during the time of his possession) - if the property was already alienated by the initial successor then we assume he shall give the new successor the value o If dead guys shows up again- he gets his property back in the condition in which it is found from successors or from 3P that successor made transfer to- if encumbered can get diminished value from successors; however, if alienated just

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get net proceeds + diminished value; if in GF, the successors can keep the fruits and the rights to improvements placed on immovables: there is no prescription period Order of Opening: Commorients o When we have 2 people that are first in line to inherit from each other but they die together so we cant tell who dies first Approach #1: Rules based on characteristics pertinent to survivability: assume child died 1st, if of age younger one survived longer; woman died lst this is the approach in most civil law jurisdictions Approach #2: In LA, we use independent devolution meaning that for each person we assume he died last - if husband and wife both die: (1) For Hs succession assume he survived his wife so he doesnt lose his half of the community property and it flows to his successors; (2) for Ws succession assumed she survived her husband, she doesnt lose her half to it goes to her successors

Principal 2: Aptitude to succeed: Must be capable and worthy Issue #1: Incapacity: Must have come into existence and not gone out of existence Coming into existence: Means that person was born before de cujus dies or was conceived before de cujus dies (provided he is born later) Conceived here only means fertilization which is different from DMC/DIV which says that you must be in utero meaning that fertilized egg was implanted this is a disconnect; could say that no capacity for donations but capacity for intestate successions? Could call this specific legislation that trumps the general (and we allow capacity of successor for mere fertilization) Determination of time of conception: o R.S. Post-Humously Conceived Child: (1) fertilized after fathers death (2) implanted into womb of widow (3) w/ written permission of the father (4) born w/in 3 years of fathers death Clinic has record of when conception took place o General presumptions of paternity: law of filiation Husband of mother presumed to be father of child born w/in 300 days of termination of mothers marriage (includes death of husband and divorce); assumption that child was conceived in that marriage so even if mother remarried within the 300 days the first husband is the father 300 days is approximately 10 months! Not Going out of Existence: Actual Death, presumed death, or declared dead Person presumed to be dead at the time of the opening of the succession if he returns later he can recover his inheritance (in the condition in which it is found) from those who succeeded in his default; this includes net proceeds for alienated things and the diminution of value of things encumbered Effect of Incapacity: If someone does not have capacity, transmission occurs meaning that the succession would pass you over and go to the next successor Issues w/ representation: not possible seizing Procedure: Dont need a judicial ruling of incapacity can do it yourself but it can be challenged in which case the BOP is a preponderance of the evidence

Issue #2: Unworthiness to succeed

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Drafters took out definition but is analogous to the concept of disinhersion where a FH is able to be disinherited from his share The only cause of unworthiness is a due of a judicial determination of successful/attempted intentional, unjustified killing of deceased o Action must be brought in the succession proceedings of the decedent; requires a conviction or judicial pronouncement o Prescription: intestate 5 years from death; testate 5 years from probate Must be by intent negligent killing is not intentional; conviction of manslaughter (strangles when angry) does require intent this is general intent means that all that is required is that a reasonable person would expect death to flow as a result of this action but the CC doesnt address whether we need specific or general intent; Perrier case mother in coma at hospital took her off of life support to prevent her from executing another will one LA ct said that this was not intent but it was a close call and we arent really sure; acting under advice of doctor but not total cessation of brain function? What about self-defense intentional but justified Need a conviction (criminal proceeding) or judicial determination (may be in the very action that seeks to declare him unworthy or can be in a collateral civil action i.e. wrongful death suit) Affirmative Defense of reconciliation: o Proof of reconciliation with or forgiveness by the de cujus Only for attempted murder b/c dead men dont forgive Express could be a letter of forgiveness Tacit behavior that indicates reconciliation; failure to disinherit does not mean that reconciliation is presumed you have to show that de cujus knew you tried to kill him and knew you would inherit but didnt disinherit Proof: o Need a judicial declaration of unworthiness cant just run w/ idea of unworthiness on your own; a conviction by itself will not be sufficient you also need to get the judicial declaration of unworthiness in a succession proceeding o Standing to suit: not just anyone can bring this action against a successor, it may only be brought by a person who would succeed in his place or in concurrence w/ the successor that is potentially being declared unworthy basically the person w/ a financial interest in the issue next in line or may be getting larger share Effects of Unworthiness: o Unworthy party totally loses stake in devolution of the estate Intestate: unworthy successor act as if he predeceased de cujus Testate: unworthy heir look to rules of accretion o He must turn over possession to worthy heirs and must all turn over all fruits collected from goods in his possession If it was donated to successor you can get it back from donee or donees successor If is was transferred onerously and 3P was in GF (no fraud) the transaction remains in tact and you can seek recourse against the unworthy party Characteristics: o Retroactively one declared unworthy, you are retroactively considered to have never been entitled to be a successor

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Relatively effects relative to person declared unworthy and to the succession in which the declaration comes this means if you are declared unworthy in your fathers succession but your grandfather later dies you can inherit as a representative of your father

INTESTATE SUCCESSION: Presumed will theory- if you dont say where you wanted your property to go, we presume you wanted it to go to your family; in addition, we presume that you wanted to give it to your closest family Natural duty theory it would be unjust to deprive family of reciprocal right of succession Classification of Heirs: Relations by consanguinity (blood), adoption, or affiliation (marriage) 1) Descendants Direct line below de cujus; consanguinity and adoptive kids, grandkids, no in-laws) 2) Ascendants Direct line above de cujus; consanguinity and adoptive parents, grandparents Privileged ascendants- first degree parents only 3) Collaterals Includes siblings, aunts/uncles, cousins, nieces/nephews; consanguinity and adoptive Privileged ascendants first degree siblings and their descendants (nieces & nephews) 4) Surviving spouse not judicially separated Only category not consanguinity or adoptive; obviously, only deals w/ married people; only separated in covenant marriage; this is the only affinity successor in law of intestacy Modalities of Heirship: to be an intestate successor, you must come to the succession in one of three manners and each has different consequences attached to it Manner #1: intestate successor in your own right o You as successor are in line to inherit You die, stuff goes to kids Descendant of Privileged Collateral is in his own right when he is the person keeping that class alive no descendants or other siblings Manner #2: Representation o In cased of forced heirship the FH represents his parent o CC 882: Reps in direct line of descendants: this places child of FH in the same place, degree, and rights as his FH as a fiction of law (if parent and child die this right goes to grandchild, grandchild dies then goes to great grandchild, etc.) o There is no representation of ascendants Manner #3: Transmission o Piggy-backing; rights of a successor are transmitted to his own successors upon his death (occurs whether you even know that you are a successor to begin w/) Rules of Devolution: Propinquity (Proximity) of Consanguinity Rule #1: Rankings among classes: Higher classes exclude lower classes Rule #2: Ranking w/in classes: People of the same class are ranked by degree; the closer degree excludes the further degree There are two sets of devolution rules one for separate and one for community property Rules of Devolution of Non-community Property Order of classes: *if none are present, the estate belongs to the State

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(1) Descendants full ownership (2) Privileged ascendants (parents) and/or privileged collaterals (siblings or siblings kids) o If only privileged collaterals full ownership (split by head; diff rule for half sib) o If only privileged ascendants full ownership (split by head) o If de cujus leaves one in both classes privileged collaterals get naked ownership and privileged ascendants get usufruct Both parents alive: joint and successive usufruct (indivision) More than one child alive: share in indivision in proportion by head (3) Surviving Spouse not judicially separated full ownership (4) Other (unprivileged) ascendants full ownership (5) Other (unprivileged) collaterals full ownership Descendants: Leave children: 5 kids one from first marriage and another is a stepson stepson not blood/adoption only have 4 descendants each get a 4th (divide by head) Leave 2 kids and 1 grandkid kids each get half Privileged Ascendants and/or privileged collaterals Half siblings divide by maternal and paternal line each line gets half this is further divided by head; See SH 17.2 (pg. 127 outline); the child of the PC is only considered a PC in its own right when there is no descendant and there is no one else of the same degree Surviving Spouse not judicially separated Other Ascendants If you have grandparents on both sides maternal line gets half and paternal line gets half of both grandparents in line are alive each gets half of that (1/4) remember must be in the same degree cant have maternal grandfather and paternal greatgrandfather! If they are not of the same degree you dont do the maternal/paternal division Other Collaterals Most important: Nearest degree will exclude all others Dont split by maternal/paternal line like ascendants or half-siblings; split life fullsiblings by head Rules of Devolution: Community Property Rule #1: Descendants are NOT EXACLY first in line; the surviving spouse not judicially separated is first in line for the usufruct and the descendant(s) are first in line for naked ownership (equal portions by head if same degree; if not by root for representation) Rule #2: If no descendants then SSNJS is the full owner [Rule #3: If the de cujus has disposed of the property by testament the SSNJS will not receive the usufruct doesnt matter in intestacy obviously, but remember that it exists] Remember, if de cujus dies and there is no surviving spouse there is no community property so we dont have to worry about this What would happen if the SSNJS would renounce? Above rule states that the rights of intestate successors who renounce or are declared unworthy if intestate successor renounces we would treat her as if she died before the de cujus if she died there would not be community property

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Complications: Representation: o Fiction of law; effect of which is to put representative in the place, degree, and rights of the persons represented; can assert rights someone else had but for the fact the other successor died before the de cujus o Who can be a representee? Descendants and siblings o Who can be a representative? ONLY descendants of siblings or descendants of descendants (can go all the way down the line of descendants ad infinitum o Requirements for Representee: Representee is dead Representee is alive but renounces representative can represent him through quasi representation Representee is alive but is unworthy the effects are personal to the representee so the representative can represent him through quasi representation o Requirements for Representative: Representative doesnt have to be alive can have a representee, then a representee/representative who dies then a representative who represents that line (that specific branch in the root) Aptitude to accept succession of representee: Must be worthy as to the de cujus; we dont care whether or not you were worthy as to the representee (strictly personal) o Ex/ A grandfather; B father; C son if B is unworthy/renounces, C can still succeed though Bs representation to As succession; the only way C is barred is if he is declared unworthy/renounces As succession o Methods of division: Partition by roots, if root has branches subdivide roots by head, if branches have branches subdivide those o Sometimes get greater rights than ascendant they are representing i.e. if representee is unworthy as to de cujus but representative is not; in Destrehan/Morgan cases ct decided not to collate b/c they said representatives had greater rights they said the relied on French doctrine but French doctrine seems to say that we should collate debts of a representee (representative isnt losing) but the representative should not be responsible for paying his debts Transmission: o This is basically the same thing as representation but the representee has exactly the same rights as the representative o This occurs when the de cujus dies then his successor dies immediately after; the transmittee steps in o Here, the transmittee would have to collate; if the transmitter was unworthy/renounced, the transmittee couldnt transmit o Practically: Rather be representative than come in on your own right (avoid own problems); rather come in on your own right than through transmission (take on someone elses problems) Anomalous Succession: Retour Successoral Happens rarely but occurs when: (1) There was a DIV of an immovable from ascendant to descendant (2) Ascendant is asking for his property back (4) De cujus dies w/o posterity (w/o descendants of his own)

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(5) Object of the donation must still be in the succession or at least part of the price is still owed if ascendant will receive the credit right to collect, this is real subrogation it is only going to apply to sales w/ unpaid prices would also be able to assert de cujus right to reclaim property for de cujus claim of lack of capacity; ascendant would not get insurance right on something that was destroyed b/c it is not a credit right Ascendant will take the donatum subject to all mortgages and servitudes (real rights) the donee may have imposed in his lifetime; this is like a reverter clause which is a legal return (property DIV reverts back to donor if donee predeceases him) If you leave a DMC transferring property to someone - it is considered in the de cujus succession; same thing if you made a DIV in your lifetime Adopted Children: Issue #1: Who can adopted child inherit from? Issue #2: Who inherits from adopted de cujus? Full Adoption: Any kind of adoption other than step-parent Adopted child gets to inherit from adoptive family AND blood family Only adoptive family inherits from adopted de cujus blood does not Partial Adoption: This is where step-parent legally adopts you Ex/ A is born to Mom and Dad; Dad dies, Mom remarries D; D takes legal action to adopt result is that the relationship b/w A and Dad is relinquished and a new one is created b/w A and D Adopted child gets to inherit from relinquishing parents family and non-relinquishing parents family (both biological parents and step-parent) adoptive relations Adopted child died this permits the non-relinquishing parents family and the adoptive step-parents family to inherit however the relinquishing parent cant inherit Illegitimates Old law was harsh on illegitimate kids; now, we were treat them the same as legitimate children but the issue is whether or not they were properly filiated to the de cujus father Presumption #1: Husband of mother is father of child (married) Presumption #2: Child born after end of marriage but w/in 300 days of the end, is presumed to have been conceived during the marriage o All other children illegitimate, at least at first Presumption #3: If first husband/successor obtains a paternity judgment of disavowal the second husband is presumed to be the father. However the second huband/successor may disavowal paternity if he institutes a disavowal action w/in 1 year from the day the first husbands disavowal action is final Disavowal Action: o Proof: BOP on father successor/Clear and Convincing; testimony alone is not enough it shall be corroborated w/ other evidence o Prescription: 1 year from the husband learned/should have learned of the birth of the child BUT if husband lived separate and apart from mother continuously during the 300 days immediately preceding the birth of the child, this prescription period doesnt start until the husband/successor is notified that someone has asserted that the husband is the father of the child o If prescription has started to run and husband dies: his successor w/ an adverse interest may institute an action for disavowal of paternity which is subject to prescription period of 1 year which starts to run on day of husbands death

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If prescription has NOT started to run and husband dies: successor has a prescription period of 1 year from day successor is notified in writing that a party has asserted that husband was the father Contestation and Establishment Action: o Action taken by the mother that her former husband is not the father and her present husband is the father; it may ONLY be instituted if the present husband has acknowledged the child via authentic act or signing the birth certificate Must get both judgments cant say H1 is not the father and leave it at that; also cant say neither H1 or H2 are the father; kid needs a daddy o Proof: BOP on Mother/Clear and Convincing Evidence/Testimony corroborated w/ other evidence o Prescription: Must begin w/ 2 year of childs birth and 180 days of marriage to second husband Modes of Filiation: CC 195: Kid isnt filiated to a father; man marries mother; man (w/ the concurrence of the mother) acknowledges the child through authentic act or by signing the birth certificate is presumed to be the father of that child. o Allows father to benefit from the child o He may later disavow if he thinks he is not really the father but he only has180 days from marriage or from the acknowledgment (whichever is later) CC 196: Kid isnt filiation to a father; man acknowledges child through authentic act or by signing the birth certificate this creates a presumption that he is this father. This creates a presumption only on behalf of the child [except in custody, visitation and child support cases] and does NOT create a presumption in favor of the father which means that kid can inherit from father but father cant inherit from kid o No benefit to father this is the only case!!!!! o Can revoke w/in 60 days w/o cause or at any time by clear and convincing evidence CC 197: Kid can institute an action to prove paternity even if he is presumed to be someone elses kid by a preponderance of the evidence and can be done at any time o If the alleged father is dead - it must be via clear and convincing evidence and it must be made w/in 1 year of alleged fathers death o Proof: Ct may order parties to submit samples on it on merit; any party whose blood is involved may request it if they have a sward affidavit alleging fact which intend to prove/paternity includes mother, child, putative father and sometimes sibling, co-heirs, etc; we dont want a father to acknowledge if not the biological father that would make the acknowledgment null; biological forced heirs have an important financial interest but it is outweighed; o Allows father to benefit from the child CC 198: Avowal Action inverse paternity action; man trying hard to be father o A man may institute an action to prove paternity at any time o In all cases, the action shall be instituted w/in 1 year of the death of a child o Allows father to benefit from the child Exception: If child is presumed to be another mans child the putative father has one year from birth BUT if in bad faith the mother deceives the putative father regarding paternity, the action shall be instituted w/in 1 year from the day the father knew/should have known of his paternity OR w/in 10 years from birth o

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o Whichever comes first Recap: o Child can inherit if: Subsequent marriage + formal acknowledgement Formal Acknowledgment (birth certificate or authentic act: AA doesnt have to be the purpose of the AA itself can be in a testament) Paternity action in which child/rep of child establishes he is the bio child of the father Avowal Action dad takes action to establish paternity o Father can inherit if: Subsequent marriage + formal acknowledgment Paternity action in which child/rep of child establishes he is the bio child of the father Avowal Action dad takes action to establish paternity

Spousal Rights True spouse legally valid marriage Putative Spouse marriage is not a legal marriage; think you are married but you arent Absolutely Null: Prior marriage, same sex, marriage of an ascendant, descendant or collateral w/in the 4th degree o Produces civil effects in favor of the party who contracted in GF; ends when the find out (become in BF) Child that comes from GF marriage is a successor o Exception: if cause of the nullity was prior marriage, the prior wife gets the civil effects (Duped H2/W2 not valid successor); same sex marriage never valid (no successors) Relatively Null Marriage: Vice of consent consent not freely given b/c duress caused marriage to occur, a party was incapable of discernment at the time marriage was contracted (insanity, mental retardation, intoxication and naivete) o Produces civil effects until the marriage is declared null Polygamy Issue: How do we split separate property b/w 2 wives in GF? Equally How do we split community property b/w 2 wives in GF? o Hypo: H1 and W1 buy house and have child (C); they divorce H1 marries W2 they buy a boat; H1 dies House and boat community property; Wives = GF Disposition of the house from the first marriage is easy H1s half of community property is given to C as naked owner and given to W1 as a usufruct Disposition of boat if H1 is in good faith give C naked ownership of H1s share then split the usufruct b/w the wives each wife has a usufruct; if H1 in bad faith C doesnt get any of the community property his half of the boat is split in naked ownership b/w the two wives, again a each analogy from Prince case Spousal Rights: Monogamous cases either w/ 1 spouse or a putative spouse o Surviving Spouse is 3rd in line for separate property o Special rights for community property gets usufruct of over the deceased spouses half and spouses kids get a usufruct over that half (could be step-kids

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of surviving spouse) the kids take the naked ownership in equal portions by heads but if there are no descendants, the wife gets full ownership Child renounces succession right to naked ownership falls to grandchild bc we pretend that the child (representee) predeceased the de cujus o Duration: usufruct terminates when surviving spouse dies/remarries o Usufructs: Real right of limited duration; can be over a consumable (i.e. money) or a non-consumable (land, houses, stock) Usufruct over consumable things: usufructuary becomes owner and may consume alienate or encumber as he sees fit; at termination of ownership he is bound to pay the naked owner the value of the thing he had at the commencement of the usufruct or deliver him the thing in the same quantity/quality Usufruct over non-consumable things: usufructuary has the right to posses them and to derive the utility, profits, advantages, that they may produce under the obligation of preserving their substance; he is bound to use them as a prudent administrator and to deliver them to the naked owner at the termination of the usufruct Kinds of Fruits: Things produced by/derived from another thing w/o diminution of its substance; 2 kinds: natural and civil fruits Natural product of earth/animals Civil revenues derived from a thing by operation of law or by reason of a juridical action i.e. rentals, interest, and certain corporeal distributions (here, we are talking about a civil usufruct) Security: Usufructuary shall give security that he will use property subject to the usufruct as a prudent administrator and will fulfill all obligations imposed on him. Generally, security is not required b/c this is a legal usufruct Exception #1: Naked owner is a FH that is only the child of he de cujus (surviving spouses step-child) Exception #2: Naked owners is a FH and the child of both the spouses the surviving spouse may be compelled to provide security to the extent that a usufruct affects the legitime of a FH Remember, we are still studying the law of intestacy, so this is what happens to community property when the de cujus didnt have a will So, what if he had a will which stated that he wanted to give someone other than his wife his half of the community property. o Issue: I give all of my property to my wife and he has 2 FHs: this obviously is a testament giving away his community property but this gives his wife more rights it would have been better if drafters had said that the surviving spouse shall have a usufruct over the de cujus share of the community property to the extent that the de cujus has not disposed of it adversely to the surviving spouse. Courts have interpreted this to mean that the kids will get the naked ownership and the wife will get the usufruct. [Note: the usufruct is considered a permissible impingement on a FH.] If he had said I leave all of my property to my friend Marcel, this is a disposition adverse to the surviving spouse (she is getting less) so she would not get the usufruct. I leave all my property to the church. Again,

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FH would sue for reduction, church gets property, and wife gets nothing. I leave my property to my child. This is probably also adverse. ****Skipped to Pg. 449: Distribution of the Estate: COLLATION: Principal of equity in which all heirs that received DMC or DIV from the de cujus must return it into the de cujus estate in order to partition the estate equitably b/w all heirs o Supposed (credit) or real return (property) into the mass of succession which an heir makes of property which he received in advance of his share; property is then divided together w/ the other effects of succession o Rationale: Equalizes treatment of heirs and we assume that is what de cujus wanted Who collates? Generally all descendants: o Exception# 1: Descendant who renounces/disinherited/declared unworthy will not have to collate. They will be forced to collate if the remaining amt in the inheritance is not enough for the legitimate portion of the other children including in the succession of the deceased the property which the person would have collated he shall be required to collate up to the sum necessary to complete such legitimate portion Ex/ A and B are 19; de cujus had given A a gift of $100k then died a week later broke; A renounces B is a FH; there would be 2 FHs so the forced portion is of the estate A is forced to collate up to $25k o Exception #2: Descendants who received a gift but are not one of the heirs to the estate dont have to collate. o Exception #3: Descendants who were NOT personally and directly benfitted gratified by the deceased. If grandpa give grandkid $100 then grandkid dies father inherits the gift then grandpa dies; father doesnt have to collate b/c the gift indirectly benefited him If grandpa gives dad a gift then grandpa dies and dad renounces succession the child/representative was not personally gratified by that gift so he doesnt have to collate Exception #1 to Personal Gratification Rule: Any gift made to grandchild during the parents lifetime is not collate-able Exception to Personal Gratification Rule: If grandchild is inheriting in his own right (representee is declared unworthy or renounces quasi representation pretend the representee predeceased the representative: post-unworthiness accretion), he is not obliged to collate the gifts given to his father by his grandfather but he does collate if he is representing his father (remember, dead direct ascendant is necessary for representation to occur). Who has the right to demand collation? o Descendants who are of the first degree (children of de cujus) who qualify as FH FH only include descendants of the first degree under the age of 24 at the de cujus death or are permanently incapable and only applies to gifts made within 3 years prior to the death of the de cujus; representatives of FH may not force collation What can be collated?

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Evident Donations: Purely gratuitous, onerous and remunerative that (that qualifies as gratuitous) Ex/ Dad about to die, gives me land subject to condition that I care for him until death land worth $100; caring for him worth $10; I have to collate $90 Disguised Donations The sale of immovable by parent to child may be attacked by the FH as a donation in disguise if those heirs can prove that no price was paid or that the price paid was less than of the value of the immovable at the time of the sale. Simulation: mutual agreement where contract terms dont express parties true intentions and the true intent is expressed in a separate writing called a coverletter Relative simulation: intended to produce effects just not the ones which are expressed in the contract Various other gratuities and advantages including: That which has been expended by parent to procure establishment of the descendant- this is basically spending money on the childs behalf ex/ would be if parents helped you start a business, but we think it also covers personal expenses; includes paying for your school The de cujus payments of descendants debts Sale of property from de cujus to descendant at a very low discount What is a discount/very low? If the cost is the actual price we treat it as a disguised donation but if it is more than we treat it as a sale at a low price? For purposes of donations, it doesnt matter which one it is they are both collateable Lesion: Type of sale at a very low price successor can demand that the sale is rescinded via lesion when the object of the sale was an immovable, the price was less than 50% the fair market value, and the successor brings action w/in 1 year of sale (if multiple successors they can each bring an action for their respective shares) 2/3 rule of gratuitous donations? Whether it is a sale or a donation matters for purposes of form, capacity, and consent Ex/ if not made in authentic act then it is valid for a sale but null for a donation; if unduly influenced then null for donation and valid for sale b/c it is not a vice of consent for sales All of these may be plausible but Trahan doesnt know how to distinguish the line b/w them all! He has no idea bottom line if you sell something worth $100 to someone for $90, the $5 is collateable If the de cujus has paid for descendants purchase If the de cujus has spend money to improve the descendants estate If the de cujus donated the use of something to his child. Generally the donated use value is not collated if the donated use was temporary or intermitted, customary/normal; if it was not customary and affected the de cujus patrimony (probably not de minimus effects though) then we collate; Ask: does this go beyond just customarily helping out a bit?

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Things you dont collate: Things donated 3 years prior to de cujus death DMC are not subject to collation (LASC ruling); only DIV; therefore collation only takes place if the de cujus is intestate or if there is a mixed succession (where some but not all things will be given away); Ex/ Testate succession in which father leaves daughter a universal legacy over the estate FH son cant force her to collate (universal legacy over the forced portion only?) Manual Gift: Better term is a customary gifts things that are given to kids in normal course of upbringing of small value - dont ever talk about whether something was handed over! This is ridiculous; want to know what is reasonable and modest this may be determined by the family are they insanely wealthy? Trahan rule of thumb over $1000 not manual gift Expenses for board, support and education this is fulfillment of a parental duty of child support; definitely applies until 18 years; beyond this we may look at this differently and will collate Marriage presents which do not exceed the disposable portion Remember that the law of collation is suppletive law! There is an effect by will meaning that you can deny the ability to collate; but collations is presumption absent an express statement remember, we want to look to the intent of the testator; so, how do we exempt collation? It must be a juridical act w/ capacity, consent, etc. free of defects, etc. testamentary form, authentic form, probably olographic too The most difficult issue here is form CC says that you must state that you want to deny collation you must express an unequivocal intention to do so but Trahan is annoyed b/c the court said that if you say I want to give everything to Camille the logic here is that you wanted to deny your other daughter the ability to force Camille to collate (makes sense in terms of intent but it is directly contrary to the CC legislation that says express OR implied as long that the implied intent is really strong) Written: What do you have to say? Clearest Clearest: I dispense child X/all children from collation We also understand I give this to you as an advantage and extra portion to mean collation Must be another equivalent term, provided they indicate in an unequivocal manner the will of the donor Can be in the donation (written), in an authentic act after the donation, or in the testament itself

Trahan wants to say that there are 3 ways to collate: Value Given 1) Take less Here, we borrow the rules for reduction. If A was given $50 then estate was worth $150 and de cujus dies. Total of the estate should be = $200 each gets $100; since A already has $50 he only takes $50 more while B takes the full $100 2) Pay money Here, A given $50, estate worth $10 at death; estate should total = $60; each should get $30; A must directly pay B $20, B keeps the $10 of the estate to equal $30 In-Kind:

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3) Give the actual thing back In kind return Rules for determining which way you collate: o If the thing is a movable you can only take less or pay money; cant give back o If the thing youre given is an immovable you can usually chose except: If the thing youre given is destroyed If it is given to a 3P Donor can dictate the mode of collation! Prescription to demand collation 10 years from death

REDUCTION: STAGE 1: Calculate the Mass of the Estate STEP 1: Determination & Valuation of all assets left at death (look to value at time of death) o Include all assets belonging to testator at his death this means movables and immovables, corporeals and incorporeals (credit rights) under deceaseds control or held in his name or owed to him at death o This includes assets earmarked for legacies, things on loan or on deposit w/ others, and the deceased credit rights against successors (including forced heirs) o But it is more than this it includes assets which seem to have left the testators patrimony but they have not b/c they are absolutely null DIV including: o Absolute simulations (intend for contract to be null), donations or sales in improper form, prohibited substitutions, other transfer that violate rules of public order (illegal conditions); if something is relatively null (if drunk/high when you gave it away) until it is declared null it is valid o Assets that left the deceased patrimony, which can be can be called back into it are considered part of his patrimony if they are in fact called back into it. Includes: o Things that are relatively null DIV; these are effective and treated like a normal donation until the are judicially declared absolutely null (heritable right); normally 5 year prescription from the time the nullity ceased (if incapacity or duress) or discovery of the nullity (if error or fraud) Ex/ person deprived of reason/interdicted/fraud/undue influence/lesionary sale (successors have sezin; can exercise w/in 1 year peremption from sale) Issue: if someone has a thing under a relative nullity and sells to a 3P the 3P must be reimburse the amount he paid; successors will get the thing back but they also must pay o Things that are in a position to be revoked (ingratitude only ) Excluded things: o If de cujus had rights of things that terminated at time of de cujus death ex/ his usufructs o Assets required by the deceased subject to a resolutory term/condition tied to deceaseds death o Assets subject to the right of successorial return: in favor of an ascendant of the deceased o Assets of familial character and of low value such as family heirlooms STEP 2: Deductions of Debts: Now, Total Assets at Death - Debts o Regardless of what CC says that step 2 is to FAB; the only assets left to satisfy the creditors are what the de cujus leaves at death. If not you would be giving creditors a right to go after things the de cujus already gave away (DIV). o What debts are deducted? o Those not subject to modalities, are subject to condition/term (provided condition is fulfilled or the term has arrived), debts to heirs (including forced heirs) and

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legatees, includes taxes owed by deceased, property taxes, student loans, credit card debt and funeral charges! What is not deducted? o The costs of reduction and estate taxes (paid by successors)

STEP 3: Fictitiously Add Back (FAB) this means you must give the thing value look to time of donation! But only FAB those things donated w/in 3 years of de cujus death! o This is fake because it is not a distribution, you arent getting anything back; applies to anyone in the world that you gave something too not just stuff given to your descendants o What is included? o DIV and other advantages (same as collation) made 3 years prior to the death of the donor expenses incurred for establishment for heir, payment of heirs debts, sale of a thing at a very low price to an heir (not if it was a sale at a very low price to someone NOT a child), annuities/insurance bought by de cujus for heir, but NOT Treasury Bills; Note: if FH renounces/exempted by will you still FAB it o Special rules o Remunerative (person decides to pay you for a service you donated) and onerative donations (sale for less) these are not included at all if the person gave value/paid an amount equal to 2/3 FMV; if they did not then only the difference b/w the value/payment given and the FMV of the thing is added back (NOT the difference b/w the value given and 2/3!!!!) o What is not included? o Donors life insurance including the premium and pay out, retirement plan including contributions and pay out o Certain gratuities exempted by law (also exempted from collation): manual/customary gifts, expenses for support or education of a child, and Federal T-Bills basically, follow the laws on collation here o But if donor exempted by will, you MUST FAB it! It is fake anyway! Exempted by law dont FAB it Exempted by will FAB it STEP 4: Division of the active mass between the disposable and forced parts o Simply multiply the (Quotient) x (the Mass of the estate) o 1 FH: Forced portion is ; 2+: Forced portion is then divide by head (if representative then root to branches) o If there are 3 forced heirs, the forced portion is ; if one renounces, his portion leaves the forced portion and enters the disposable portion (reducing the forced portion); the forced portion becomes 1/3 and the disposable portion becomes 2/3

Reduction STAGE 2: Imputation: Satisfaction of the Legitime o Stage 1 just tells us how much the FHs are owed o Now we want to determine how to get them what the are owed; we only look to reduction if whatever is left free by the deceased (unalienated property) or is donated to the FH via a DMC does not satisfy that amount STEP 1: Application of free assets inherited by intestacy o First thing to impute: Look to Law of Succession o Intestacy - Descendants are the first in line to inherit. Does it satisfy the legitime?

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o Testacy FH may have been given a DMC. Does it satisfy the legitime? STEP 2: Imputation o Second thing to impute: o Any DIV or gratuity that was FAB-ed will now be credited to the FH o Third thing to impute: o Life insurance and retirement benefits (so probably annuities) o Remember, dont impute things exempted from collation by will b/c it should be considered an extra portion STEP 3: Reduction o FH, FH representatives, FH transferees (assignment of creditors) can force reduction against anyone who received an DIV 3 years prior to death o Order: o First thing to reduce: Legacies: All DMC (in a testament a testator can expressly state an order of preference and the preferred legacy will not be reduced until all other legacies exhausted) Legacies are proportionately reduced to the amount given so if the testator left $10 to A and $40 to B and C the FH is owed $20 we know that A has 1/5 of the total, $20 x 1/5 = $4, and that B had 4/5 of the total, $20 x 4/5 = $16 this is the total that C is owed. If C was actually owed $50, A and B would be left with nothing o Only if the legitime is still not satisfied do we look at inter vivos donations and gratuities General rule: Reverse temporal reduction start w/ most recent and work your way backwards Exceptions: Skip insolvent donees but a donee who pays the share of an insolvent donee is subrogated to the rights of the FH against the insolvent donee (get money back from him later); Also skip DIV that have integrally imputed to a legitime (meaning if things were imputed to a FH to satisfy his portion of the legitime dont take it back from him if another FH is still owed something skip it and proceed to the next DIV) however, if the imputation satisfied one FHs portion (this is considered the principal imputation) and there was a surplus/excess, that amount may be imputed to the FH still in need (subsidiary imputation) There is also an exception if the FH has been given an extra portion can seek reduction of that amount

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