SUCCESSIONS, DONATIONS & TRUSTS

LAW 5073

Course Overview Outline

I. SUCCESSIONS

Unit 1. Intestate Succession

Unit 2. Children and Surviving Spouse

Unit 3. Absent Persons

Unit 4. Opening of Successions

Unit 5. Loss of Succession Rights

Unit 6. Acceptance and Renunciation

II. DONATIONS

Unit 7. General Dispositions

Unit 8. Capacity to Give and to Receive

Unit 9. Forced Heirship

Unit 10. Dispositions Reprobated by Law

Unit 11. Donations Inter Vivos

Unit 12. Donations Mortis Causa

Unit 13. Interpretation of Legacies

III. TRUSTS

Unit 14. Trusts

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 SUCCESSIONS, DONATIONS & TRUSTS
LAW 5073

Unit 1 Intestate Succession

Detailed Outline

A. Introduction and Terminology

1. Basic Terminology
a. SuccessionSuccession is the transmission of the estate of the
deceased to his successors. (La. Civ. Code art. 880)
b. De cujasDe cujas is another term for deceased. De cujas is a
French term meaning from whom, as in from whom succession
rights flow.
c. EstateThe estate of the deceased means the property, rights, and
obligations that a person leaves after his death. (La. Civ. Code art.
881) Note that the estate includes the entire patrimony, i.e., rights
and liabilities.
2. Types of Succession
a. Testate SuccessionTestate succession results from a will or
testament. (La. Civ. Code art. 874) Testate successors are also
known as legatees. (La. Civ. Code art. 876)
b. Intestate SuccessionIntestate succession occurs by operation of
law in the absence of a valid will. (La. Civ. Code art. 875)
Intestate successors are also known as heirs. (La. Civ. Code art.
876)

B. The Theory and Purpose of Intestacy Law

1. Presumed Will TheoryThe rules of intestate succession should distribute
property in a manner that approximates as closely as possible the will or
desire of a typical decedent. Question: How would lawmakers know what
distribution of property would closest approximate the will of a typical
decedent?
2. Natural Duty TheoryThe rules of intestate succession should distribute
property in a manner that accomplishes societal values. Question: What
societal values can or should be accomplished through the law of intestate
succession?
3. Conflicts Between TheoriesHypothetical: X dies survived by his wife,
his son and daughter, his brother, his mother and father, his mistress, and
his child born out of wedlock. Who should inherit according to a
presumed will theory? Who should inherit according to a natural duty
theory? Does Louisianas intestacy law follow a presumed will or a
natural duty theory?

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C. General Rules of Intestacy
1. Who Inherits?Relations and the Surviving Spouse
a. Blood RelationsQuestion: Do step-relatives inherit? Why or
why not?
b. Adopted Relations
i. Full AdoptionChild is filiated to adoptive parent for all
purposes. Biological parent loses right to inherit from
child; child can still inherit from biological parent. (La. Civ.
Code art. 199)
ii. Exception: Partial (Step-parent) AdoptionWhen adoptive
parent is married to biological parent (step-parent
adoption), biological parent does not lose right to inherit
from child. (La. Civ. Code art. 199, La. Child. Code art.
1256; RS 9:461)
c. Surviving Spouse Not Judicially SeparatedJudicial separation
no longer occurs in most marriages after the enactment in 1990 of
no-fault divorce. Judicial separation is still a possibility in
covenant marriages.
2. In What Order?Preference
a. Terminology
i. ClassesHeirs are divided into classes. Higher-ranking
class excludes lower-ranking class. (La. Civ. Code art. 899)
Order of classes depends upon classification of property as
community or separate (non-community).
ii. DegreesA degree is equal to a generation. Heirs closest
in degree to the decedent exclude heirs further in degree.
(La. Civ. Code art. 900) Note: The exception to this rule is
representation, discussed below.
(a) The Direct LineThose who descend from one
another. Includes ascendants and descendants. (La.
Civ. Code art. 901)
(b) The Collateral LineThose who descend from a
common ancestor. Includes collaterals. (La. Civ.
Code art. 901)
b. Order and Proportions of Inheritance
i. Separate Property
(a) DescendantsDescendants succeed by heads. (La.
Civ. Code art. 888)
(b) Siblings and their Descendants
(i) General RuleSiblings succeed by heads.
The parents, if living, receive a joint and
successive usufruct. (La. Civ. Code arts.
891, 892)
(ii) Half SiblingsIf there are half siblings, the
estate is divided equally between the
maternal and paternal lines; siblings in each

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 line succeed by heads. (La. Civ. Code art.
893)
(c) ParentsParents succeed by heads. (La. Civ. Code
art. 891, 892)
(d) Surviving Spouse (La. Civ. Code art. 894)
(e) Other AscendantsIf there are other ascendants in
both the maternal and paternal lines, the estate is
divided by lines, and ascendants in each line
succeed by heads. If there are ascendants in one
line only, they succeed by heads to the entire estate.
(La. Civ. Code art. 895)
(f) Other CollateralsOther collaterals succeed by
heads. (La. Civ. Code art. 896)
ii. Community PropertyIn order to possess community
property at the time of death, the decedent must have a
surviving spouse. Devolution of the succession depends on
whether the decedent was also survived by descendants.
(a) DescendantsDescendants succeed by heads,
subject to a usufruct in favor of the surviving
spouse. (La. Civ. Code arts. 888, 890) The 890
usufruct terminates at the death or remarriage of
the surviving spouse, at which time the descendants
become full owners of the property.
(b) Surviving SpouseIf there are no descendants, the
surviving spouse inherits in full ownership. (La.
Civ. Code art. 889).
c. Comparison to Tort LawLa. Civ. Code arts. 2315.1 and 2315.2
provide for a special hierarchy of beneficiaries that receive the
right to bring survival and wrongful death actions resulting from
the death of a tort victim. (The four classes of beneficiaries are:
Surviving Spouse and/or Children; Parents; Siblings;
Grandparents). The right to bring the survival and wrongful death
actions does not devolve according to the law of successions.
However, once one of the named beneficiaries acquires the right to
sue, that right is part of the beneficiarys patrimony and is
heritable.
3. IllustrationsIn Class Problems
Work the problems appearing on the Intestate Succession Basics In-Class
Problems Handout (available on Moodle). Note: these problems replace
the problems that appear in the book on page 4. Be prepared to discuss
these problems in class.

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D. Ways to Succeed (Modes of Succession)There are three ways to succeed:
(1) In ones own right; (2) by representation; and (3) by transmission.
1. In One's Own RightSuccession occurs in the successors own right
when it occurs by virtue of the successors own class and degree.
Succession in ones own right is covered above in Part (C).
2. By Transmission
a. DefinitionSuccession occurs by transmission when a successor
dies after the decedent. At that moment, the successors rights to
the decedents estate are transmitted to the successors own heirs
and legatees. (La. Civ. Code art. 937)
b. IllustrationSuccession of Dubos
Read this case carefully and come to class prepared to discuss the
following questions:
(i) This case was decided under pre-revision law. Would
the same result occur today?
(ii) How does transmission differ from representation?
(iii) Would the result of this case be different if Rene Girot
had died on March 1, 1980?
3. By RepresentationSuccession occurs by representation when the
successor is placed in the shoes of another successor.
a. Definition and PurposeSuccession is a fiction of the law, the
effect of which is to put the representative in the place, degree, and
rights of the person represented. (La. Civ. Code art. 881) When a
successor has predeceased the decedent, representation allows
the descendants of the successor to represent him and inherit
in his place.
b. Rules and Application
i. When Representation Takes PlaceRepresentation does
not take place in all cases involving predeceased
successors. It must be specifically authorized by statute.
(a) Descending LineRepresentation takes place ad
infinitum in the descending line. (La. Civ. Code art.
882)
(b) Ascending LineRepresentation is not permitted in
the ascending line. (La. Civ. Code art. 883)
(c) Collateral LineRepresentation takes place in the
collateral line only in favor of the descendants of
the brothers and sisters of the deceased.
Representation is not permitted for other
collaterals. (La. Civ. Code art. 884)
ii. When Representation is Permitted
(a) General RuleRepresentation takes place only
when the person represented has predeceased the
decedent. (La. Civ. Code art. 886)

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 (b) ExceptionsThere are two exceptions to this rule,
which we call quasi-representation. We will
study these later in the semester.
(i) Unworthiness (La. Civ. Code art. 946)
(ii) Renunciation (La. Civ. Code art. 964)
(c) Effect of RenunciationRenunciation of
succession rights is discussed later in this course.
But, take note of La. Civ. Code art. 887, which
allows a person who has renounced the succession
of his ancestor to represent that ancestor in the
succession of another person. We will come back to
this rule later in the semester.
iii. Partition of PropertyPartition is made by roots. (La. Civ.
Code art. 885). This will be illustrated in class.
c. Rights of the Representative
i. General RuleThe representative is in the place,
degree, and rights of the person represented. (La. Civ.
Code art. 881) Therefore, the representative receives
the same rights as the predeceased successor.
ii. Exception?In Succession of Morgan, the Louisiana
Supreme Court held that representatives of a predeceased
successor did not have to repay a debt owed by the
predeceased successor to the decedent. This holding is
questionable. Do you see why? It is generally agreed that
open issues of law remain regarding the treatment of debts.
d. IllustrationsIn Class Problems
Work the Problems appearing in Samuel et al., at pp. 1314. Be
prepared to discuss these problems in class.

E. The Anomalous Succession

1. DescriptionThe anomalous succession, also known as the legal return,
is the devolution of assets donated to the decedent by an ascendant outside
of the normal scheme for intestate succession. It is described in La. Civ.
Code arts. 897 and 898. It is often tested on the bar exam.
2. Prerequisites
a. Immovable Donated by Ascendant
b. Decedent Lacks Posterity
c. Property Found in the Succession
- In Succession of Christensen, it was held that property is not
found in the succession when the decedent has disposed of it by
will. Do you understand why? See La. Civ. Code art. 934.
3. EffectsIf the prerequisites are met the property returns to the ascendant
who donated it. The item returns to the ascendant burdened with any
mortgage placed on it by the decedent. If the decedent has sold the item
and has not yet received the price, the ascendant inherits the right to the
price.

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F. Vacant SuccessionsIn the absence of heirs the estate devolves to the state. (La.
Civ. Code arts. 902, 1095)

Unit 2 Child and Surviving Spouse

Filiation Outline

Read La. Civ. Code arts. 178-198, 3502; La. RS 9:391.1; 9:406; 9:396; 9:397.2;
9:5630

A. Filiation The rules of filiation are used to establish the legal relation required
for a potential successor to inherit from the decedent. Filiation is the legal
relationship between a child and his parent. (La. Civ. Code art. 178) Filiation is
established by proof of maternity or paternity or by adoption. (La. Civ. Code art.
179)
1. Maternity (La. Civ. Code art. 184)The mother is the person who gives
birth to the child.
a. Burden of ProofPreponderance of the evidence that the child
was born to a particular woman.
b. Types of ProofMaternity can be established by all types of
evidence, including testimonial, documentary (e.g., birth
certificate), and scientific (e.g., DNA or blood testing). The
testimony of the mother alone may be sufficient evidence provided
she is credible. (See La. Civ. Code art. 184, cmt. b)
c. Prescriptive PeriodNone. La. Civ. Code art. 184, cmt. a makes
clear that maternity can be proved at any time.

2. Paternity
Note: Paternity is established either through one of several presumptions
or, in the absence of a presumption, through a judicial action.
a. Presumptions of PaternityThere are three circumstances giving
rise to the presumption of paternity: (1) the child is born during
marriage or within 300 days of the termination of the marriage; (2)
the father acknowledges the child and marries the mother
subsequent to the childs birth; (3) the father acknowledges the
child without marrying the mother subsequent to the childs birth.
These three presumptions are discussed below, as is a presumed
fathers right to rebut the presumptions of paternity.
i. Child Born During Marriage
(a) General Rules
(i) PresumptionThe husband of the mother is
presumed to be the father of a child born
during the marriage or within three hundred
days from the date of the termination of the
marriage. (La. Civ. Code art. 185)

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(ii) DisavowalThe presumed father can
disavow paternity if he believes he is not the
biological father of the child.
a. Burden of ProofThe husband may
disavow paternity of the child by
clear and convincing evidence that
he is not the father. (La. Civ. Code
art. 187)
b. Types of ProofAll types of
evidence, including testimonial,
documentary, and scientific
evidence, may be introduced.
However, the testimony of the father
alone is not sufficient to disavow
paternity. (La. Civ. Code art. 187)
c. Time Limitations (La. Civ. Code art.
189)
i. General RuleOne year
liberative prescription
commencing from the day the
husband learns or should
have learned of the birth of
the child.
ii. ExceptionIf the husband
lived separate and apart from
the mother continuously
during the three hundred days
immediately preceding the
birth of the child, this
prescription does not
commence to run until the
husband is notified in writing
that a party in interest has
asserted that the husband is
the father of the child.
d. Disavowal by Successors (La. Civ.
Code art. 190)If the husband dies,
the husbands successors may bring
an action to disavow the paternity of
the husband. They have an interest
in doing so if their succession rights
are affected by the filiation of the
presumed child. The time limitation
for successors to bring the action to
disavow is a one year liberative
prescription. The date upon which

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 this period begins to run depends
upon whether prescription
commenced to run against the
husband during his lifetime.
i. If prescription has
commenced to run against
the husbandOne year
prescription commences from
the date of the husbands
death.
ii. if prescription has not
commenced to run against
the husbandOne year
prescription commences from
the date the successor is
notified in writing that a
party in interest has asserted
that the husband is the father
of the child.
e. Limitation on DisavowalNote that
the husband of the mother may not
disavow a child born to his wife as a
result of assisted conception to
which he consented, even if the child
is not his biological child. (La. Civ.
Code art. 188)
(iii) Complication: Dual Presumptions of
Paternity (La. Civ. Code art. 186)This
occurs when a child is born within three
hundred days of the termination of the
marriage between H1 and W, but W
remarries H2 prior to the birth of the child.
In this situation, two men are presumed to
be the father of the child: H1 because the
child was born within three hundred days of
the termination of the marriage of W and
H1, and H2 because the child was born
during the marriage of W and H2.
a. Initial PresumptionH1 is presumed
to be the father of the child. H1 is
permitted to disavow the child in the
manner described above.
b. Effect of H1s Successful Disavowal
If H1 successfully disavows the
child, then H2 is presumed to be the
father of the child. H2 or his

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 successor may bring an action to
disavow the child in the manner
described above. This action must
be brought within a peremptive
period of one year from the day that
the judgment of disavowal obtained
by H1 is final and definitive.
(iii) Contestation by MotherThe mother is
permitted to contest the paternity of a man
presumed to be the father of her child. To
do this, the mother must not only
successfully contest the paternity of the
presumed father, she must also prove the
paternity of her current husband. (La. Civ.
Code art. 191, 194)
a. Prerequisites (La. Civ. Code art. 191)

i. Marriage to Alleged Father

The mother must be married
to the man she is asserting to
be the father of the child.
ii. Acknowledgment by Alleged
FatherThe alleged father
must have acknowledge the
child either in an authentic
act or by signing the birth
certificate.
b. Burden of ProofThe mother must
prove by clear and convincing
evidence both that her former
husband is not the father and that her
present husband is the father. (La.
Civ. Code art. 192)
c. Types of ProofAll types of
evidence, including testimonial,
documentary, and scientific, can be
used. However, the testimony of the
mother alone is not sufficient to
contest paternity. (La. Civ. Code art.
192)
d. Time LimitationsThe mothers
action must be brought both within
180 days (6 months) of the
termination of her marriage to H1
and within 2 years of the birth of the

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 child. This period is peremptive.
(La. Civ. Code art. 193)
ii. Acknowledgment Plus Subsequent Marriage (La. Civ. Code
art. 195) If the child was not born during marriage or
within three hundred days of marriage, then the father may
establish a presumption of filiation by acknowledging the
child and marrying the mother.
a. Prerequisites
i. Child not filiated to another manThe child
must not be filiated to any other man by way
of presumption or judicial action.
ii. Acknowledgment in proper formThe
alleged father must acknowledge the child
by authentic act or signing the birth
certificate. Informal acknowledgment is not
sufficient. The mother must concur in the
fathers acknowledgment.
iii. Alleged Fathers Marriage to MotherThe
alleged father must marry the mother.
b. EffectThe husband is presumed to be the father of
the child, just as though the child was born during
the marriage of the mother and the father.
c. DisavowalIf the husband later learns that the
child is not his own, he may bring an action to
disavow paternity in the manner described above.
The fathers disavowal action is subject to a
peremptive period of 180 days (6 months). The
peremptive period commences to run from the later
of the day of the marriage or the acknowledgment.
The Code does not specifically state whether this
presumption may be rebutted by successors of the
father. It is widely believed that the action is
heritable.
iii. Acknowledgment Without Subsequent Marriage (La. Civ.
Code art. 196). If the child was not born during marriage
or within three hundred days of marriage, then the father
may establish a presumption of filiation by acknowledging
the child even if he does not marry the mother. Note that if
the father does not marry the mother, the presumption
operates only in favor of the child. This means that the
father cannot inherit from the child in the event of the
childs death, but the child may inherit from the father in
the event of the fathers death.
a. Prerequisites
i. Child not filiated to another man

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 ii. Acknowledgment in proper form
Authentic act or birth certificate
b. EffectThe acknowledgment creates a
presumption of paternity that runs in favor of the
child only, except for purposes of custody,
visitation, and child support.
c. DisavowalIf the husband later learns that the
child is not his own, he may rebut the presumption
of paternity.
i. The Louisiana Supreme Court has held that
absent a biological relationship, an avowal is
null. Absolute nullity should be
imprescriptible. See Succession of Robinson,
654 So. 2d 682 (La. 1995). Also, La. Civ.
Code art. 196, cmt. d indicates that the
presumption can be rebutted by any person
at any time.
ii. However, La RS 9:406 imposes time
limitations on the right to revoke an
authentic act of acknowledgment.
La. RS 9:406(A)A person who executed
an authentic act of acknowledgment may,
without cause, revoke it within 60 days of
execution of the authentic act of
acknowledgment.
La. RS 9:406(B)A person who executed
an authentic act of acknowledgment may
petition the court to revoke the
acknowledgment upon proof, by clear and
convincing evidence, that such act was
induced by fraud, duress, material mistake
of fact or error, or that the person is not the
biological parent of the child. This action
must be brought within a two year period
commencing with the execution of the
authentic act of acknowledgment.

b. Judicial Actions to Establish PaternityIn the absence of a

presumption, both the father and the child have the right to bring
an action to judicially establish paternity.
i. Childs Paternity Action (La. Civ. Code art. 197)
a. Dual PaternityThe child may institute an action to
prove paternity even if he is presumed to be the
child of another man.

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 b. Burden of ProofThe burden of proof varies
depending on whether the father is dead or alive.
i. While father is alivePreponderance of the
evidence.
ii. After death of the fatherClear and
convincing evidence.
c. Types of ProofAll types of evidence, including
testimonial, documentary, and scientific, are
relevant to establish paternity. Note that in judicial
actions to establish paternity, the court may order
blood tests under RS 9:396(A). A report indicating
by a 99.9% probability that the alleged father is the
father of the child creates a rebuttable presumption
of paternity. La. RS 9:397.3(B)(2)(b). The
Louisiana Supreme Court held in Sudwischer v.
Estate of Hoffpauir (in text) that constitutionally-
guaranteed privacy interests do not prevent a
successor from compelling blood tests from
relatives of the alleged father when the father is
deceased.
d. Time LimitationsFor purposes of succession only,
the childs paternity action is subject to a
peremptive period of one year. In all other cases,
there is no time limitation within which the child
must bring the filiation action.
Note: This is a change and improvement in our law.
Under prior law, the child had to bring the
paternity action within 19 years of the childs birth
or one year from the date of the fathers death,
whichever occurred first. Louisiana courts have
held repeatedly that although La. Civ. Code art. 197
applies retroactively, it cannot apply retroactively to
revive a claim previously barred by the prior
prescriptive period. See Succession of McKay (in
text).
e. Assertion by SuccessorsAlthough the Code does
not specifically so state, it is widely believed that
the action is not strictly personal, meaning that
successors of a deceased child have the right to
bring an action to filiate to the alleged father for
purposes of succession.
ii. Fathers Avowal Action (La. Civ. Code art. 198)
a. Dual PaternityThe father may institute an action
to prove his paternity even if the child is filiated to
another man.

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b. Burden of ProofThe burden of proof is a
preponderance of the evidence.
c. Types of ProofSame as Childs Paternity Action.
d. Time LimitationsThe time limitations depend
upon whether the child is alive or dead, and whether
he is presumed to be the child of another man.
i. While Child is Alive
-Child not presumed to be the child of
another manfather is permitted to filiate at
any time.
-Child presumed to be the child of another
manfather must bring the action within a
peremptive period of one year from the date
of the childs birth unless the mother
deceived the father regarding his paternity,
in which case the action must be instituted
within one year from the day the father
knew or should have known of his paternity,
or within ten years of the birth of the child,
whichever comes first.
ii. After Death of Child
-Action must be instituted within peremptive
period of one year of the date of death.
In Udomeh v. Joseph, 103 So. 3d 343
(La. 2013) (not in text), the Court
considered whether the alleged father
who brings a wrongful death/survival
action as a result of his alleged childs
death must bring an avowal action
within one year of death or merely file
the wrongful death/survival action
within one year of death. The court held
that Article 198 properly applies to
determine who is a father or mother
under Articles 2315.1 and 2315.2.
However, in that case, although the
alleged father had not specifically
alleged avowal of his son in his petition,
the court concluded that he had alleged
sufficient facts under Louisianas fact-
pleading system to state a claim for
avowal.
e. Avowal by SuccessorsThe fathers paternity
action is strictly personal, meaning that successors
of the father cannot bring an action to filiate to the
child after the fathers death.

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 iii. Additional Time LimitationsTwo additional time
limitations may be relevant to actions to establish paternity
in the context of a succession.
a. La. Civ. Code art. 3502An action for the
recognition of a right of inheritance and recovery of
the whole or part of a succession is subject to a
liberative prescription of thirty years. This
prescription commences to run from the day of the
opening of the succession.
b. La. RS 9:5630Provides for a two year liberative
prescription on an action by a successor who is not
recognized in the judgment of possession to recover
immovable property formerly owned by the
decedent against a third person who has acquired
the immovable by onerous title from a person
recognized as an heir or legatee of the deceased in
the judgment of possession.
3. Posthumous ConceptionA special statute governs posthumous
conception, which occurs when a child is conceived after the death of the
decedent using assisted conception technology.
a. La. RS 9:391.1 provides:
A. Notwithstanding the provisions of any law to the contrary, any
child conceived after the death of a decedent, who specifically
authorized in writing his surviving spouse to use his gametes, shall
be deemed the child of such decedent with all rights, including the
capacity to inherit from the decedent, as the child would have had
if the child had been in existence at the time of the death of the
deceased parent, provided the child was born to the surviving
spouse, using the gametes of the decedent, within three years of the
death of the decedent.
B. Any heir or legatee of the decedent whose interest in the
succession of the decedent will be reduced by the birth of a child
conceived as provided in Subsection A of this Section shall have
one year from the birth of such child within which to bring an
action to disavow paternity.
b. Explanation
i. Prerequisites
a. Couple must be married at death
b. Decedent must have authorized the surviving
spouse in writing to use his or her gametes after
death.
c. Child must be born to surviving spouse within three
years of death of decedent.
ii. EffectChild is deemed to be the child of the decedent.

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 Unit 2 The Child Born of and Outside of the Marriage
and the Surviving Spouse
Detailed Outline

A. Filiation
See the Filation Outlne for Detailed Information about the law of filiation.

B. The Surviving Spouse

1. Definition: Who is a Surviving Spouse?
a. True Spouse
i. DefinitionA true spouse is a party to a valid marriage.
The requirements for a valid marriage are listed in La. Civ.
Code art. 87. They are: (1) the absence of a legal
impediment; (2) a marriage ceremony; (3) the free consent
of the parties to take each other as husband and wife,
expressed at the ceremony.
(a) Absence of Legal ImpedimentLegal impediments
include:
(i) Existing Marriage (La. Civ. Code art. 88)
(ii) Same Sex (La. Civ. Code art. 89)
(iii) Impediments of Relationship (La. Civ. Code
art. 90)
(b) Marriage CeremonyMarriage ceremony requires
(i) Officant (La. Civ. Code art. 91)
(ii) Physical presence of Parties (La. Civ. Code
art. 91); Marriage by procuration is
prohibited (La. Civ. Code art. 92)
(c) Free consent of the partiesConsent is not free
when given:
(i) under duress (La. Civ. Code art. 93)
(ii) by a person incapable of discernment (La.
Civ. Code art. 93 & comments)
ii. Civil Effects of Marriage
(a) Filiation of children
(b) Inheritance rights
(c) Community property rights
(d) Alimony/spousal support rights
(e) Right to marital portion
b. Putative Spouse DoctrineThe civil effects of marriage flow in
favor of a putative spouse even though the requirements for a
valid marriage have not been met.
i. Relatively Null Marriages

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 (a) DefinitionA marriage is relatively null when the
consent of one of the parties to marry is not freely
given. (La. Civ. Code art. 95)
(b) EffectsA relatively null marriage produces civil
effects until it is declared null. (La. Civ. Code art.
97)
ii. Absolutely Null Marriages
(a) DefinitionA marriage is absolutely null when
contracted without a marriage ceremony, by
procuration, or in violation of an impediment. (La.
Civ. Code art. 94)
(b) Effects (La. Civ. Code art. 96)
(i) Effect to Spouses
a. General RuleAn absolutely null
marriage produces civil effects in
favor of a party who contracted in
good faith for as long as that party
remains in good faith.

b. Same Sex ExceptionA purported

marriage between parties of the same
sex does not produce any civil
effects.
c. Bigamous Spouse ExceptionWhen
the cause of the nullity is one partys
prior undissolved marriage, the civil
effects continue in favor of the other
party, regardless of whether the latter
remains in good faith, until the
marriage is pronounced null or the
latter party contracts a valid
marriage.
(ii) Effect to ChildrenA marriage contracted
by a party in good faith produces civil
effects in favor of a child of the parties.
(c) Operation of the Putative Spouse Doctrine
(i) Good Faith, GenerallyThe operation of
the putative spouse doctrine depends on
whether one or both spouses are in good
faith regarding the validity of the marriage.
The comments to La. Civ. Code art. 96
describe good faith more fully:
a. Good faith is a question of fact and is
an honest and reasonable belief that
there exists no legal impediment to a
marriage.

17
 b. Good faith is presumed, except that a
bigamous spouse bears the burden of
proving that he contracted his second
marriage in good faith.

(ii) Bigamous Spouse in Bad FaithPatton v.

Cities of Philadelphia and New Orleans [not
in text].
a. FactsH married W1 then
abandoned her and their children.
Having never divorced W1, H
marries W2 and has children with
her. H dies. The question of how to
distribute his estate, consisting of
community property, was brought
before the court.
b. Holding/ReasoningThe court
divided the community equally
between the legal wife and the
putative wife. None of the
community was allocated to H,
therefore the children inherited
nothing.
(iii) Bigamous Spouse in Good FaithPrince v.
Hopson
Read this case carefully and be prepared to
discuss the questions below in class.
a. FactsH married W1 and had one
child. H later filed for divorce. A
preliminary default was entered but a
final judgment was never rendered.
Both H and W1 believed their
divorce was final. H then married
W2. W2 purchased a piece of
immovable property during her
marriage to H. This property was
classified as community property. H
died. Who owns the immovable
purchased by W2?
b. Holding/ReasoningThe court
allocated of the community
property to H due to his good faith.
That devolved to his child by
intestacy. The court next allocated

18
 of the remaining (or of the total)
each to W1 and W2.
(iv) CritiqueQuestions: What is the rationale
for the rule announced in Patton? In Prince?
Are these rules fair? Can you think of a
better solution to the problems presented by
the simultaneous existence of both putative
and true spouses? What important
questions are left unanswered by these
cases?
c. Divorce
i. Effect of Judgment of DivorceA judgment of divorce
terminates the marriage.
ii. Prosecution of Divorce Action after Death of Spouse
Carefully read Draper v. Draper, the note on LaRocca v.
LaRocca, and Succession of Ricks. Be prepared to discuss
the following questions in class:
(a) Is the divorce action moot once one of the parties to
the marriage dies? Why or why not? Are there
ever any exceptions to the general rule? If so, what
are they?
(b) One of the three assigned cases was wrongly
decided. Which one was it? What is the flaw in the
courts reasoning?

2. The 890 Usufruct (a.k.a. The Legal Usufruct)When the decedent is

survived by both descendants and a surviving spouse, the surviving spouse
receives a usufruct over the decedents half of the community property,
which terminates when the surviving spouse either dies or remarries. (La.
Civ. Code art. 890)
a. Prerequisite: Not Disposed of by TestamentThis usufruct arises
in the absence of a will disposing of the community. If the
decedent has disposed of the usufruct or full ownership of his half
of the community property, the surviving spouse is not entitled to
the 890 usufruct.
b. Features of the Legal Usufruct
i. ScopeThe usufruct affects community property only.
ii. DurationUsufruct usually terminates at the death of the
usufructuary. (La. Civ. Code art. 607) But the 890 usufruct
terminates at the earlier of death or remarriage.
iii. SecurityGenerally, the usufructuary is required to
provide securing ensuring he will manage the property as a
prudent administrator. (La. Civ. Code art. 571) However,
the surviving spouse is not required to post security unless
(1) the naked owner is not a child of the usufructuary (i.e.,

19
 a step-child) OR (2) the naked owner, although a child of
the usufructuary, is a forced heir. (La. Civ. Code art. 573)
(a) Questions? What exactly is security? See La. RS
9:1202. What amount of security is owed? See La.
Civ. Code art. 572. Why does the law require
security when the naked owner is a forced heir? A
step-child?
c. Distinction from the 1499 Usufruct (a.k.a. The Testamentary
Usufruct)A usufruct may also be left to the surviving spouse by
testament. (La. Civ. Code Art. 1499)
i. Features of Testamentary Usufruct
(a) ScopeThe usufruct may affect community or
separate property.
(b) DurationThe usufruct lasts for the lifetime of the
usufructuary unless a shorter time is specified in the
will.
(c) Security (La. Civ. Code art. 1514)As a general
rule, a surviving spouse named as testamentary
usufructuary is not required to post security.
However, a forced heir may request security when
the usufruct affects the legitime if: (1) the forced
heir is not a child of the usufructuary OR (2) the
usufruct affects separate property. In addition, (3)
security is owed if the testator requests security in
the will.
ii. Confirmation of the Legal UsufructHypothetical: H dies
testate possessed only of community property. In his will,
H leaves his entire estate to his son S, subject to a usufruct
in favor of his wife W. Several years after Hs death, W
remarries. S seeks to have the usufruct terminated because
of the remarriage. W argues that the usufruct does not
terminate at her death. Who is correct? [Notethese are
the facts of Succession of Chauvin.]
(a) Old LawA usufruct over community property
created by testament is considered mere
confirmation of the 890 usufruct, subject to the
attendant rules regarding duration and scope.
(Succession of Chauvin)
(b) New LawRead La. Civ. Code art. 1499. What
does this article suggest are the features of a
usufruct left in a will?
(c) NoteThe comments to Article 1499 state that
Article 1499 legislatively overrules Succession of
Chauvin. Professor A.N. Yiannopoulos takes issue
with this sweeping statement, and argues that the
doctrine of confirmation may still exist in some

20
 circumstances. Specifically, he argues that if the
decedent gave by a will to the surviving spouse a
usufruct under Article 890, then this usufruct,
though testamentary in nature, would nonetheless
be governed by the rules for legal usufructs. (See
Editors Notes accompanying La. Civ. Code arts.
1499 and 1514, also reproduced in your text). We
will discuss another circumstance in which the
doctrine of confirmation may be alive and well later
in the semester.

***Note: If you require a refresher on the basic law of governing usufruct, you may
download and review the Usufruct Primer, available on Moodle**

USUFRUCT COMPARISON CHART

890 Usufruct 1499 Usufruct
(a.k.a. Legal Usufruct) (a.k.a. Testamentary Usufruct)
Creation Arises by operation of law when Arises by virtue of a will when the
decedent dies possessed of decedent leaves a usufruct of community
community property, the usufruct or property, separate property, or both to the
full ownership of which is not surviving spouse. Can burden the
disposed of by testament. legitime of a forced heir.

Scope Community property. Community and/or separate property.

Duration Terminates at remarriage or death. Terminates at death unless testament says

otherwise.

Security Security is dispensed with unless: Security is dispensed with unless:

(1) the naked owner is a stepchild of (1)the usufruct burdens the legitime of a
the usufructuary; OR forced heir AND the forced heir is a
(2) the naked owner is a forced heir. stepchild of the usufructuary OR
(2)the usufruct burdens the legitime of a
forced heir AND affects separate property
OR
(3)the testator requests security in the
will.

d. La. RS 9:1426 Usufruct over PensionsAssume that while H and

W were married, H earned a pension through his place of
employment. Assume further that the pension is classified as
community property under Louisiana law. H retires and the couple
begins collecting retirement benefits. Assume further that W dies
testate, having bequeathed full ownership of her entire estate to her
sister. Must H now share his pension benefits with Ws sister?
Read carefully RS 9:1426. How does this provision protect the
employee spouse?

21
 e. Federal Preemptionin Boggs v. Boggs, 520 U.S. 833 (1997), the
United States Supreme Court held that ERISA preempts state
community property law as to pensions governed by ERISA when
the marriage terminates by death. Thus, neither Article 890 nor RS
9:1426 is applicable to ERISA pensions.

3. The Marital Portion

a. DefinitionThe marital portion is a charge on the succession of
the deceased spouse. (La. Civ. Code art. 2433) It is not an
inheritance but is a charge or obligation owed to the surviving
spouse in some circumstances.
PurposeQuestion: What is the purpose of the marital portion?
See comments to La. Civ. Code. Art. 2432.
b. Rules and Application
i. Prerequisites
(a) Deceased Spouse "Rich in Comparison" to the
Surviving Spouse (La. Civ. Code art. 2432)
(i) Question: Read carefully the comments to
La. Civ. Code art 2432 and Succession of
Mullin v. Mullin. How does the court
determine whether the deceased spouse died
rich in comparison to the surviving
spouse?
(ii) Hypothetical: W dies survived by her H,
possessed only of separate property with a
net value of $5M. H is possessed of
property with a net value of $500,000. Is H
entitled to the marital portion? Does it
affect your answer if H has recently
completed his training as a neurosurgeon?

(b) Spouses Not Separated Through Fault of Surviving

SpouseCourts apply the same standards for
fault applied when determining whether a spouse
is entitled to permanent alimony per La. Civ. Code
art. 112. See Succession of Warner.
ii. Calculating the Marital Portion
(a) Quantum (La. Civ. Code art. 2434)
(i) General Rulesthe quantum of the marital
portion depends upon the number of
children surviving the decedent. However,
in all cases it is capped at $1M.

22
 No children of the succession
3 or fewer of the succession in
children usufruct
4 or more A childs share of the
children succession in usufruct (to
calculate, include
surviving spouse as a
child, e.g., if there are 4
children the marital
portion is 1/5 in usufruct.

(ii) Special Issues of Usufruct

a. TerminationThe usufruct
terminates at the death of the
usufructuary. (La. Civ. Code art.
607)
b. SecuritySecurity is dispensed with
unless the naked owner is a child of
the decedent but not a child of the
usufructuary (La. Civ. Code art.
573(D)).
c. ValuationNote: In Mullin v.
Mullin, the court applied a present-
value discount to the usufruct. This
is WRONG, as noted in Norsworthy
v. Norsworthy. Do not reduce the
value of the usufruct.
(b) DeductionsAny legacy left to the surviving
spouse and any payments due to the surviving
spouse as a result of the decedents death (i.e., life
insurance, social security, and pension plan
payments) must be deducted. (La. Civ. Code art.
2435) This prevents double dipping. Note: If the
surviving spouse renounces succession rights, the
value of those rights must still be deducted. See
Succession of Lichtentag, cited in Succession of
Mullin v. Mullin.
iii. Periodic AllowanceIf an administration is pending, the
spouse may claim a periodic allowance or advance on the
marital portion. (La. Civ. Code art. 2437) See Norsworthy

23
 v. Norsworthy for an illustration of a claim for the periodic
allowance.
iv. Limitation on RenunciationThe spouses cannot limit or
renounce the marital portion either before or during their
marriage. (La. Civ. Code art. 2330)
v. HeritabilityThe right to claim the marital portion is
personal and nonheritable. But, if the surviving spouse
demands the marital portion, then dies, the claim to the
marital portion becomes a patrimonial asset that devolves
to her successors. (La. Civ. Code art. 2436 & cmt. b)
vi. PrescriptionThe right to claim the marital portion
prescribes three years from the decedents death. (La. Civ.
Code art. 2436)

Usufruct Primer

Resources
LA. CIV. CODE arts. 535-629 (Book II, Title III, Chapter 2. Usufruct)
3 LA. CIV. L. TREATISE, Personal Servitudes

I. Dismemberments of Ownership, Generally

A. Rights of OwnershipLa. Civ. Code art. 477(A) describes three rights of
ownership: The owner of a thing may use, enjoy, and dispose of it within
the limits and under the conditions established by law. Thus, the three
rights of ownership are:
1. Use, or usus
2. Enjoyment, the right to the fruits of the thing, or fructus
3. Disposition, the right to sell, donate, or otherwise transfer the
property (including by reason of death), or abusus
B. Dismemberments of Ownership
1. DefinitionThe rights of ownership may be dismembered or
divided among different people. None of these individuals are then
considered owner, because none of them possess all of the rights
of ownership simultaneously.
2. EstablishmentDismemberment of ownership can occur either by
juridical act (such as contract or will) or by operation of law. For
example, the 890 usufruct is a legal usufruct created by operation
of the law of intestacy, whereas the 1499 usufruct is a testamentary
usufruct created by a juridical actthe testament.
3. TypesExamples of dismemberments of ownership include
usufruct, habitation, and rights of use.

II. Notion and Kinds of Usufruct

A. DefinitionLa. Civ. Code art. 535 defines usufruct: Usufruct is a real
right of limited duration on the property of another. The features of the
right vary with the nature of the things subject to it as consumables and

24
nonconsumables. This definition contains a number of terms that warrant
additional explanation.
1. Real rightAs a dismemberment of ownership, usufruct is a real
right. The person with the right of usufructthe usufructuary
has the rights of usus and fructus. As a general rule, the right of
abusus is held by the naked owner. However, as discussed more
fully below, the usufructuary may possess some elements of
abusus, but any right of abusus is subject to the rights of the naked
owner.
2. Limited durationUsufruct is defined as a real right of limited
duration. Unlike ownership, which lasts in perpetuity in the
absence of acquisitive prescription, usufruct must terminate at
some point. A usufruct can terminate in a number of ways:
a. The default ruleThe default rule is that usufruct
terminates at the death of the usufructuary. (La. Civ. Code
art. 607)
b. ExceptionsUsufruct always terminates no later than
death. But sometimes it can terminate earlier than death:
i. Usufruct created by juridical act (Conventional
Usufruct)If the usufruct is created by juridical
act, such as a will, the maker of the act can specify
that the usufruct will terminate sometime before the
death of the usufructuary.
ii. Usufruct created by operation of law (Legal
Usufruct)Sometimes the law provides that the
usufruct terminates before the death of the
usufructuary. For example, the 890 usufruct
terminates at the earlier of the death or the
remarriage of the surviving spouse.
3. Consumables and NonconsumablesThe features of the usufruct
vary depending on whether the property is consumable or
nonconsumable. Note: this distinction is not the same as the
distinction between movables and immovables.
a. Consumable thingsLa. Civ. Code art. 536 defines
consumable things: Consumable things are those that
cannot be used without being expended or consumed, or
without their substance being changed, such as money,
harvested agricultural products, stocks of merchandise,
foodstuffs, and beverages. [Note: this list merely contains
examples of consumable things. Additional examples can
be found in the caselaw interpreting this provision.]
b. Nonconsumable thingsLa. Civ. Code art. 537 defines
nonconsumable things: Nonconsumable things are those
that may be enjoyed without alteration of their substance,
although their substance may be diminished or deteriorated
naturally by time or by the use to which they are applied,

25
 such as lands, houses, shares of stock, animals, furniture,
and vehicles. [Note: this list merely contains examples of
nonconsumable things. Additional examples can be found
in the caselaw interpreting this provision.]

B. Features
1. Usufruct of Nonconsumable thingsLa. Civ. Code art. 539
describes the features of a usufruct of nonconsumable thingsIf
the things subject to the usufruct are nonconsumables, the
usufructuary has the right to possess them and to derive the utility,
profits, and 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.
a. Usufructuary is prudent administrator
i. RuleThe usufructuary is bound to use the things
as a prudent administrator. He may enjoy the usus
and the fructus of the things subject to the usufruct,
but, as a rule, not the abusus. He must deliver the
things to the naked owner at the termination of the
usufruct.
ii. Definition of prudent administratorThe
minimum care to which the usufructuary must
conform is the diligence that an attentive and
careful man commonly exercises in the
management of his own affairs. (This definition is
drawn from doctrine.)
b. Usufructuarys limited right of abususAs a general rule,
the usufructuary lacks the right of abusus. However, this
rule is subject to a number of exceptions. Read La. Civ.
Code art. 568-568.3.
i. When right exists
(a) Certain Corporeal MovablesThe
usufructuary may dispose of certain
corporeal movables that are gradually and
substantially impaired by use, wear, or
decay, such as equipment, appliances, and
vehicles, provided that he acts as a prudent
administrator.
(b) Express GrantThe usufructuary may
dispose of other nonconsumables if the right
is expressly granted to him. If the
usufructuary is granted the right to dispose
of the nonconsumable, this includes the right
to lease, alienate, and encumber the thing. It
does not include the right to donate the

26
 thing, unless that right is also expressly
granted.
ii. Usufructuarys obligations
(a) DonationThe usufructuary is obligated to
pay the naked owner at the termination of
the usufruct the value of the thing as of the
time of donation.
(b) Alienation other than by donationThe
usufruct attaches to any money or other
property received by the usufructuary. The
property received is classified as
nonconsumable or consumable according to
the Code, and the features of the usufruct are
thereby established.
a. Special Note: If the value of the
property received by the
usufructuary is less than the value of
the thing alienated (values being
measured at the time of alienation),
the usufructuary is bound to pay the
difference to the naked owner at the
termination of the usufruct.
(c) LeaseIf the term of the lease extends
beyond the termination of the usufruct, the
usufructuary is accountable to the naked
owner for any diminution in value caused by
the lease.
(d) EncumbrancesIf, at the termination of the
usufruct, the thing is burdened by an
encumbrance established by the
usufructuary to secure an obligation, the
usufructuary is bound to remove the
encumbrance.
2. Usufruct of Consumable ThingsLa. Civ. Code art. 538 describes
the features of a usufruct of consumable things: If the things
subject to the usufruct are consumables, the usufructuary becomes
owner of them. He may consume, alienate, or encumber them as
he sees fit. At the termination of the usufruct he is bound either to
pay to the naked owner the value that the things had at the
commencement of the usufruct or to deliver to him things of the
same quantity and quality.
a. Usufructuary becomes owner
i. RuleThe key difference between a usufruct of
nonconsumables and a usufruct of consumables is
that with the latter, the usufructuary becomes owner
of the things subject to the usufruct. This is

27
 important because the usufructuary has the right of
abusus, or the right to dispose of the thing.
ii. RationaleThe rationale for this rule is simple:
consumable things are things that by their nature are
meant to be disposed of through use. If the
usufructuary did not have the right of disposition,
the usufruct would be useless.
iii. Imperfect vs. Perfect UsufructThe usufruct
of consumables was once referred to as the
imperfect usufruct and the usufruct of
nonconsumables as the perfect usufruct because
the usufructuarys right of abusus in the usufruct of
consumable things is a deviation from the model
notion of usufruct as a dismemberment of
ownership.
b. Obligation of Usufructuary
i. RuleThe usufructuary is obligated to either (i)
pay to the naked owner the value the things had at
the commencement of the usufruct or (ii) deliver to
the naked owner things of the same quantity and
quality.
(a) Example: H dies leaving an estate that
consists only of community property,
surviving by his wife and his children. The
estate includes some cash. Cash is a
consumable thing. The surviving spouse
receives a usufruct of this cash by virtue of
Article 890. She can spend the cash
however she sees fit during the existence of
her usufruct. At the termination of the
usufruct she must pay the naked owners the
value the cash had at the time the usufruct
commenced.
ii. WrinkleIf the usufruct terminates at the death of
the usufructuary, this obligation becomes an estate
debt.

III. Security
A. Requirement of SecurityLa. Civ. Code art. 571 imposes on the
usufructuary the obligation to give security that he will use the
property subject to the usufruct as a prudent administrator and that
he will faithfully fulfill all of the obligations imposed on him by
law or by the act that established the usufruct unless security is
dispensed with. Thus, security is required by default unless either
the law or the act creating the usufruct says otherwise.

28
B. PurposeSecurity is owed to ensure that if the usufructuary
breaches the obligation to use the property as a prudent
administrator. If he does not, he is answerable for the resulting
loss to the naked owner. (La. Civ. Code art. 576)
C. Amount of SecurityLa. Civ. Code art. 572 states that security
must be in the amount of the total value of the property subject to
the usufruct. However, the same article also provides that [t]he
court may increase or reduce the amount of security, on proper
showing, but the amount shall not be less than the value of the
movables subject to the usufruct. Thus, the court has some
discretion in setting the amount of the security. The focus is on the
protection of the naked owner.
D. Types of SecurityArticle 572 does not indicate what types of
security may be ordered by the court. The inference is that any
type of security is permissible.
1. Security owed by surviving spouseThe revised statutes
make clear that when the usufructuary is a surviving
spouse, the court may order the execution of notes,
mortgages, or other documents as it deems necessary or
may impose a mortgage or lien on community or separate
property, movable or immovable, as security. (La. RS
9:1202). In other words, this revised statute explicitly
provides that any type of security is permissible.
E. Dispensation with SecurityThe Louisiana Civil Code dispenses
with security in a number of situations. (La. Civ. Code art. 573) All
of these exceptions to the general rule requiring security occur in
circumstances of family relationship. Security is dispensed with
when:
1. The usufruct is established under Articles 223 (parental
usufruct) or 3252 (spouse in necessitous circumstances).
2. The usufruct is established under Article 890 unless (a) the
naked owner is not the child of the usufructuary or (b) the
naked owner is a forced heir, to the extent of the legitime.
3. The usufruct is established under Article 891 unless the
naked owner is not a child of the usufructuary.
4. The usufruct is established under Article 2434 (marital
portion) unless the naked owner is a child of the decedent
but not a child of the usufructuary.
5. The usufruct is established by a seller or donor of the
property under a reservation of rights.

29
 Unit 4 Opening of Successions
Detailed Outline

A. Commencement of Succession
1. Commencement at DeathSuccession commences at the death of a
person. (La. Civ. Code art. 934)
a. Death, Generally
i. Doctor's CertificationIn the usual case, death is
announced by a physician. (La. RS 9:111)
(a) General RuleThe physician must certify that the
person has experienced an irreversible cessation of
spontaneous respiratory and circulatory functions.
(b) Exception for Life SupportIf artificial life support
prevents the physician from making such a
certification, then the physician must certify that the
person has experienced an irreversible total
cessation of brain function.
ii. Judicial Declaration of DeathIn the absence of a
certification of death, death may be established by judicial
declaration. See Detailed Outline 3 Absent Persons for a
full discussion of judicial declarations of death.
b. Simultaneous DeathThis occurs when heirs who are reciprocally
entitled to inherit from one another die together in circumstances
where it cannot be determined who died first.
i. Illustration of the ProblemH and W die together in a
plane crash. H and W have no descendants. W is
survived by her sister, S; H is survived by his brother, B. H
and W are possessed only of community property. Who
inherits from H? Who inherits from W?
ii. Solutions
(a) Old LawUnder prior law, the Louisiana Civil
Code provided for commorientes presumptions
(presumptions of simultaneous death). Based upon
the relative ages of the reciprocal heirs, one would
be presumed to have survived the other.
i. IllustrationContinuing the hypothetical
above: assume W survived H. Who inherits
Hs estate? Who inherits Ws estate?
(b) New Law

30
 i. In GeneralArticle 31 applies. One who
claims a succession right has accrued to
another person has to prove such person
existed at the time when the right accrued.
How, under Article 31, would the problem of
H and Ws death be resolved? Who inherits
Hs half of the community? Ws half?
ii. Life InsuranceAccording to special
statute, when the insured and beneficiary die
simultaneously, the insured is presumed to
survive the beneficiary. (La. RS 22:911)
Do you see why?

2. Transfer of Ownership and Transmission

a. Transfer of OwnershipImmediately at the death of the
decedent, universal successors acquire ownership of the estate and
particular successors acquire ownership of the things bequeathed to
them. (La. Civ. Code art. 935)
i. Universal successors include heirs, universal legatees, and
general legatees. (La. Civ. Code art. 3506)
ii. Particular successors include particular legatees. (La. Civ.
Code art. 3506)
b. TransmissionBecause a successor acquires ownership of the
decedents estate immediately, the successors rights to that estate
are transmitted to his own successors at his death, whether or not
he accepted those rights, and whether or not he knew that the rights
accrued to him. (La. Civ. Code art. 937)
3. SeizinSuccessors are also said to be seized of the property rights and
actions of the deceased at the moment of death. The term seizin
originates from the French phrase, le mort saisit le vif, meaning the dead
give seizin to the living. Thus seizin is a term that encompasses the
rights bestowed upon the successors at the moment of the decedents
death.
a. Qualities of SeizinTraditionally, seizin has been regarded as a
right to possession, carrying with it two important qualities.
(i) The Right to Exercise the Rights and Obligations of the
Decedent from the Moment of DeathThe exercise of the
rights of ownership and possession vary depending upon
whether those rights are personal or real, and whether a
succession representative has been appointed.
(a) Personal Rights
i. General RuleOnly universal successors,
and not particular successors, may represent
the decedent with respect to personal rights
and obligations. (La. Civ. Code art. 935)

31
 ii. Effect of Appointment of Succession
RepresentativeOnce a succession
representative is appointed, the succession
representative is the proper party to
represent the decedent with respect to
personal rights and obligations (La. Civ.
Code art. 935, La. Code Civ. Proc. Arts. 685,
734).
(b) Property Rights (La. Civ. Code art. 938)
i. General RuleA successor may exercise
rights of ownership with respect to his
interest in a thing of the estate as well as his
interest in the estate as a whole.
ii. Effect of Appointment of Succession
RepresentativeOnce a succession
representative is appointed, if a successor
exercises his rights of ownership, they are
subordinate to the administration of the
estate.
(ii) Continuity of PossessionThe successors continue the
possession of the decedent. Note, however, that while
universal successors are required to continue the possession
of the decedent, the particular successor may commence a
new possession for the purposes of acquisitive prescription.
(La. Civ. Code art. 936)
b. Seizin Distinct from OwnershipSeizin is not ownershipbut
the legal investiture of one class of heirs with possession of the
succession upon the death of the deceased, enabling the heirs who
acquire seizing, from the instant of death, to bring all the actions
which the deceased could have brought. Baten v. Taylor, (LASC
1978). This distinction is largely academic, but has occasionally
proven useful to explain those situations when a person has
attributes of seizin but not ownership, such a succession
representative.
c. Successors with SeizinNote that under prior law, not all
successors were seized. Instead, seizin was imposed on three
classes of heirs in order of preference: forced heirs, universal
legatees, and legitimate heirs. Particular successors never acquired
seizin of the things bequeathed to them. In contrast, under present
law, all successors acquire seizin, though the qualities of seizin
vary between universal and particular successors. Present law also
explicitly recognizes the seizin of the succession representative
over that of the heirs once the succession representative has been
qualified and an administration has begun.

B. Judicial Opening of Succession

32
1. Necessity of Probate ProceedingsBecause succession occurs
automatically at the death of the decedent, no procedure is required to
transfer the estate of the deceased to the successors. However, it may
be desirable for a number of practical reasons to judicially open the
succession and conduct succession proceedings.
2. Louisiana Probate Procedure: An Overview
a. Simple Possession Without AdministrationA simple procedure
by which the successors may petition for possession of the estate
without the need for an administration. This procedure involves
the following four documents. Carefully review the Succession
Procedure Handout on Moodle, and consider the questions below.
i. Petition for PossessionWho are the petitioners? What,
exactly, are the petitioners seeking in this document?
ii. Affidavit of Death, Domicile, HeirshipWhy is this
document attached to the Petition for Possession? Why do
the affiants swear to the decedents domicile? Why do the
affiants swear to the identity of the closest living relatives?
Why do the affiants swear that all surviving children are
older than 24 and capable of caring for themselves? How
many affiants does the law require?
iii. Descriptive ListWhy does this document show both
assets and liabilities? Why does this document show date
of death values of assets?
iv. Judgment of PossessionWho issues this document?
What is the effect of this document?
b. Formal AdministrationAdministration is a more formal
procedure that involves the appointment of a succession
representative, or a person responsible for ensuring that the debts
of the decedent are paid and assets are properly distributed to the
successors. Administration is necessary as a practical matter when
the decedent dies with significant debt and few liquid assets.
i. Qualification of the Succession Representative
(a) Succession RepresentativeThe person responsible
for ensuring that the debts of the decedent are paid
and assets are properly distributed to the successors.
In intestate successions, this person is the
administrator. In testate successions, this person is
the executor.
(b) Fiduciary of the EstateThe succession
representative is a fiduciary and must act as a
prudent administrator. Thus, this person must
meet certain qualifications (e.g., not a felon or
person of bad moral character).
(c) PreferenceThe Code of Civil Procedure
establishes a hierarchy of preference: surviving
spouse, heirs and legatees, nominees of the spouse

33
 and successors, and creditors. The court must
choose the best qualified.
ii. Compilation of the Inventory/Descriptive ListSame as in
procedure for simple possession.
iii. Collection, Preservation, and Management of AssetsThe
succession representative has seizin and thus the power
to collect, preserve, and manage assets. (See La. Code Civ.
Proc. Arts. 3211, 3196, 685, 734)
iv. Payment of Estate Debts and ChargesThe succession
representative is responsible for paying estate debts and
ensuring all creditors are properly paid.
v. Closing the SuccessionOnce creditors are paid, the
succession representative petitions to put the successors in
possession, and a judgment of possession is rendered.

C. Application of Fundamental Concepts: Illustrations

1. Jones v. McDonald's CorporationRead this case carefully and consider
the following questions: Was the plaintiff required to judicially open the
succession of her father and obtain a judgment of possession prior to
filing suit? Why or why not? What is the significance of the documents
attached to her petition (marriage license, birth certificates death
certificates)? What was the significance of the plaintiffs acceptance of
the succession? Does acceptance have the same significance under
current law?
2. Knighten v. RuffinRead this case carefully and consider the following
questions: Was the plaintiff successful in recovering her share of the
immovable property in question? Why or why not? What protections
exist for a third party purchaser (such as Ruffin) in a case like this?
Consider, for example, the effect of RS 9:5630, which was not in effect at
the time the plaintiff filed suit. What was the effect of the Judgment of
Possession rendered on February 2, 1965? When can a JOP be amended
or annulled? Note that RS 9:5630 runs from the date of the latest amended
judgment of possession. See Smith v. Jones, 504 So. 2d 570 (La. App. 3
Cir. 1987).
3. Tucker v. KellyIn this case, Zito and Comstack purchased apiece of
immovable property at public auction. The sale was the result of an action
for partition by licitation. Three years after the sale, Zito and Comstock
sought to have the sale rescinded. The trial court dismissed their suit, and
they appealed. On appeal, they argued that the partition sale did not
convey merchantable title to the property. They asserted, among other
things, that there were numerous unopened successions in the chain of
title. Thus, some of the successors against whom the partition was
rendered were never judicially placed in possession of the property. How
does the appellate court address this argument? Must successors be
placed in possession before succession property can be partitioned? How
does the noted case Robinette v. Myers, affect the holding in Tucker?

34
D. Exceptions or Limitations to the General Principles
1. Utility of Succession ProceedingsAs discussed above, although
succession proceedings are not necessary to transfer ownership of the
estate, succession proceedings are sometimes required, or at least
practically desirable.
a. Life Insurance ProceedsToles v. Metropolitan Life Ins. Co.
established that a successor of the decedent cannot claim life
insurance proceeds without (1) establishing that there is no named
beneficiary in the policy and (2) obtaining a judgment of
possession placing the successor in possession of the estate. What
is the purpose of the first requirement? The second? Note that the
court states that a Judgment of Possession provides an insurance
company with complete protection against an unrecognized
heir. Is this true? What if, after distributing policy proceeds to
successors named in a judgment of possession, a previously
unrecognized successor petitions for amendment of the judgment
of possession and demands payment?
b. Special Legislation re Banks, Homesteads, and Corporations
Consider the statutes discussed in Note 2 following Toles v.
Metropolitan Life Ins. Co. (You should actually look these statutes
up and read them.) How do these statutes provide protections to
banks, homesteads, and corporations?
c. Prescription on Probate of TestamentThe judicial opening of
the succession begins the five year liberative prescription against
the right to probate a testament.
i. Judicial opening of the succession is defined as a
substantive act consistent with the purposes of a
succession. Succession of Laviolette, 704 So. 2d 339 (La.
App. 3 Cir. 1997). This includes the filing of a petition for
possession, or the filing of a petition for appointment of a
succession representative.
d. Establishing Clear Chain of TitleRecall that a judgment of
possession need not be filed in the public records to establish the
rights of successors against third parties. However, a judgment of
possession provides third parties with a modicum of certainty
regarding ownership of immovable property. Additionally, the
judgment of possession commences the running of prescription
under RS 9:5630.
2. Rights of Succession RepresentativesAs discussed above, succession
representatives enjoy seizin rights while an administration is pending.
Read carefully Simpson v. Colvin and consider the following questions:
Are the succession representatives seizin rights conditioned upon a
showing of necessity to pay the debts of the decedent? Why or why not?
Consider La. Code Civ. Proc. Arts. 3362 and 3372. How do these
provisions protect the successors?

35
 3. Rights of Successors Pending AdministrationWhat are the rights of the
successors pending an administration?
a. PossessionConsider La. Code Civ. Proc. art. 3211 and Simpson
v. Colvin. How does the appointment of a succession
representative affect the successors right to possession of the
estate?
b. Acts of OwnershipConsider Anding v. Anding and La. Civ. Code
art. 938. What is the difference between the successors exercise
of rights of ownership with respect to a thing of the estate versus
his rights with respect to the estate as a whole? What effect does
the appointment of a succession representative have on the
successors acts of ownership? See also La. Civ. Code art. 2650.
c. Personal Rights and Obligations--Consider La. Civ. Code art. 935
and La. Code Civ. Proc. arts. 685 and 734. How does the
appointment of a succession representative affect the successors
right to enforce the personal rights and obligations of the
decedent?

Unit 5 Loss of Succession Rights

Note: This unit introduces two instances in which a person might not be allowed to
inherit from the decedent. The first, incapacity, pertains to the fact that the successor did
not exist at the time of the death of the decedent. The second, unworthiness, pertains to
situations in which a successor existed at the time of the death of the decedent, but
should not be allowed to inherit for policy reasons.

A. Incapacity
1. Capacity GenerallyIn order to inherit, a successor must exist at the
death of the decedent. (La. Civ. Code art. 939). Note that for purposes of
intestate succession, we are concerned only with the existence of natural
persons, and not juridical persons. Do you see why?

2. Existence
a. Commencement
i. General Rule: Live BirthExistence generally commences
at live birth. (La. Civ. Code art. 25)
ii. Unborn Children
(a) Conceived at Death of DecedentAn unborn child
conceived at the death of the decedent and
thereafter born alive shall be considered to exist at
the death of the decedent. (La. Civ. Code arts. 26,
940)
(i) Proof of ConceptionArticles 185 and 186
may assist in establishing a reasonable
inference regarding the timing of

36
 conception, absent proof to the contrary,
such as expert or lay testimony.
(b) In Vitro FertilizationWhat is the precise meaning
of conception in this article? Compare La. Civ.
Code art. 1474. Is it enough for the ovum to be
fertilized, or must it also be in utero?
(c) Post-Mortem ConceptionConsider La. RS
9.391.1. How does this provision relate to a childs
capacity to inherit?
b. TerminationCapacity to inherit terminates at death (La. Civ.
Code art. 25)
B. Unworthiness
1. Grounds for UnworthinessGenerally, unworthiness involves a criminal
or civil determination that the successor participated in the intentional,
unjustified killing or attempted killing of the decedent. (La. Civ. Code art.
941)
a. Criminal ConvictionA successor shall be declared unworthy if
he is convicted of a crime involving the killing, or attempted
killing, of the decedent.
i. DefensesConsider how criminal defenses may affect the
determination of unworthiness.
b. Civil DeterminationA successor shall be declared unworthy if he
is judicially determined to have participated in the intentional,
unjustified killing, or attempted killing, of the decedent.
i. NegligenceNote that the civil determination must be that
the successor participated in the intentional, unjustified
killing or attempted killing of the decedent.

2. Action to Declare Successor Unworthy

a. Judicial Determination of Grounds for UnworthinessAn action
to declare a successor unworthy is required. (La. Civ. Code art.
941, cmt. (b)). Technically, two separate determinations are
required.
i. Judgment of LiabilityFirst, La. Civ. Code art. 941
requires either a conviction of crime or civil judicial
determination of liability. If this determination has not yet
been made, it can be made in the succession proceedings.
ii. Declaration of UnworthinessSecond, the judge
overseeing the succession proceedings must declare the
successor unworthy.
b. Who May Bring the ActionLa. Civ. Code art. 942: An action to
declare a successor unworthy may be brought only by a person
who would succeed in place of or in concurrence with the
successor to be declared unworthy, or by one who claims through
such a person. See also cmt. (b): A person who successfully
brings an action to declare a successor unworthy must be brought

37
 by someone who is entitled to the share that would have fallen to
the successor whose rights are divested.
c. Affirmative Defenses
i. La. Civ. Code art. 943A successor shall not be declared
unworthy if he proves reconciliation with or forgiveness by
the decedent.
ii. La. Civ. Code art. 941An executive pardon/pardon by
operation of law does not affect unworthiness.
d. PrescriptionLa. Civ. Code art. 944
i. Intestate SuccessionFive years from death of the
decedent
ii. Testate SuccessionFive years from probate of the will
3. Effects of Unworthiness
a. Deprivation of Succession RightsThe successor is deprived of
his right to the succession. (La. Civ. Code art. 945 1)
i. Effect: Quasi-Representation (La. Civ. Code art. 946)
(a) Intestate SuccessionThe succession rights of the
unworthy successor devolve as if he predeceased
the decedent. If the unworthy successor is a
descendant, sibling, or descendant of a sibling of the
decedent, quasi-representation occurs.
(b) Testate SuccessionTestamentary accretion
occurs as if the unworthy successor predeceased the
decedent. As we will see later in the semester,
when the legatee is a descendant, sibling, or
descendant of a sibling of the decedent, quasi-
representation occurs.
b. Additional Prohibitive EffectsThe successor may not serve as an
executor, trustee, attorney, or other fiduciary of the estate. (La. Civ.
Code art. 945 5)
c. Obligations of Unworthy Successor
i. If Successor Has Possession of Decedent's PropertyIf the
successor has possession of the property of the decedent, he
must return it, along with any fruits and products he has
derived from it. He must also account for any impairment
in value caused by his encumbering it or failing to preserve
it as a prudent administrator. (La. Civ. Code art. 945 2)
ii. If Successor Does Not Have Possession of Decedent's
PropertyIf the successor has transferred the property or
lost it due to his fault, then he must account for the value
of the property at the time of the transfer or loss, along with
all fruits and products derived from it. He must also
account for impairment in value caused by encumbering it
or failing to preserve it as a prudent administrator. (La. Civ.
Code art. 945 3)

38
 d. Rights of Third PartiesIf the successor alienated, encumbered, or
leased the property by onerous title, and there is no fraud on the
part of the other party, the transaction is not affected by the
declaration of unworthiness. However, a donation may be
annulled if the donated property is still in the hands of the donee.
(La. Civ. Code art. 945 4)
4. Limits of Declaration of Unworthiness
a. Life Insurance and other Non-probate ItemsSome special
legislation exists extending the declaration of unworthiness to non-
probate items, such as life insurance.
i. 22:901(D): No beneficiary, assignee, or other payee under
any personal insurance contract shall receive from the
insurer any benefits under the contract accruing upon the
death, disablement, or injury of the individual insured when
the beneficiary assignee, or payee is either (a) Held by a
final judgment of a court of competent jurisdiction to be
criminally responsible for the death, disablement, or injury
of the individual insured. (b) Judicially determined to have
participated in the intentional, unjustified killing of the
individual insured.
ii. New Orleans Electrical Pension Fund v. DeRocha, 779 F.
Supp. 845 (E.D. La. 1991) [Not in text]Applying
Louisiana Insurance Code by analogy and federal common
law principles, court found that beneficiary under ERISA
pension who shot and killed employee and was convicted
of manslaughter was not entitled to recover pension
benefits.
b. Killing of Other IndividualsThe unworthiness declaration only
applies when the slayer kills or attempts to kill the decedent. The
killing of other individuals, including the spouse or relatives of the
decedent, does not preclude the slayer from inheriting.
c. Termination of Life SupportCarefully read Perrier v. Bistes.
What is the reasoning of the majority? Of the dissent? Which side
do you agree with, and why?
i. Living WillsLouisianas Natural Death Act, RS
40:1299.58.1 et seq, provides for living wills.
(a) GenerallyThe Act permits an adult person to
make a written declaration directing the withholding
or withdrawing of life sustaining procedures in the
event that they person has a terminal and
irreversible condition. The document generally
prevents an opponent from seeking an injunction
preventing the withdrawal of treatment and protects
the healthcare professionals involved in the action.
(b) Teri Schiavo AmendmentA recent amendment
makes clear that invasive administration of food

39
 and hydration is a life-sustaining procedure that
may be withdrawn.
(c) Declaration by Family MemberWhen a terminal
patient is unable to communicate and has failed to
make a declaration, certain individuals may do so
(tutor/curator, spouse, adult child, parent, other
relatives).

Unit 6-Acceptance and Renunciation

Detailed Outline

A. Acceptance and Renunciation, Generally

1. Right to Accept or RenounceAcceptance of succession rights is not
required by law. (La. Civ. Code art. 947)
a. Partial AcceptancePartial acceptance is allowed, as a successor
may accept some succession rights and renounce others. (La. Civ.
Code art. 947)
b. Acceptance by MinorsMinors are deemed to accept
succession rights, establishing a nearly irrebuttable presumption of
acceptance. The legal representative of the minor may renounce
on behalf of the minor, but court approval is required. (La. Civ.
Code art. 948)

2. Timing of Acceptance or Renunciation

a. Death as PrerequisiteA person may not accept or renounce rights
to succeed before the death of the decedent. (La. Civ. Code art.
949) What is the policy reason for this rule?
b. Falling of Succession Not a PrerequisitePrior law stated that an
heir could not accept a succession before it had fallen to him.
How does this timing differ from the opening of the succession?
Note that revised La. Civ. Code art. 949 does not reproduce this
rule.
c. Knowledge of SuccessorAcceptance or renunciation is valid
only if he knows (i) of the death of the decedent; and (ii) of his
rights as a successor (but it is not necessary that he know the extent
of those rights or the nature of his relationship to the decedent).
(La. Civ. Code art. 950). What are the policy reasons for these
requirements?
d. Effect of Premature Acceptance or RenunciationA premature
acceptance or renunciation is absolutely null. (La. Civ. Code art.
951)

3. Effect of Subsequent DevelopmentsLa. Civ. Code art. 952

a. General Rules

40
 i. IntestacyAn acceptance or renunciation of rights to
succeed by intestacy is null if a testament is subsequently
probated or given the effect of probate.
ii. TestacyAn Acceptance or renunciation of rights to
succeed in a testate succession is null if the probate of the
testament is subsequently annulled or the rights are altered,
amended, or revoked by a subsequent testament or codicil.
b. RationaleWhat is the policy reason for these rules?
c. ComplicationRead carefully the text of Article 952 and the
comments thereto. Is it necessary for the subsequently discovered
or annulled testament to alter the rights of the successors in order
for a previous acceptance/renunciation to be annulled?

4. Conditional LegaciesA legacy that is subject to a suspensive condition

may be accepted or renounced either before or after the fulfillment of the
condition. (La. Civ. Code art. 953)

6. RetroactivityAcceptance and renunciation are considered as having

occurred from the moment of the death of the decedent. (La. Civ. Code
art. 954) What is the purpose for this rule?

7. Successor CreditorA successor may assert a claim that he has as a

creditor of the estate whether he accepts or renounces his succession
rights. (La. Civ. Code art. 956)

B. Acceptance
1. Methods of AcceptanceAcceptance is either formal or informal.
(La. Civ. Code art. 957)
a. Formal AcceptanceSuccessor expressly accepts in writing or
assumes the quality of successor in a judicial proceeding.
b. Informal AcceptanceSuccessor does some act that clearly
implies the intention to accept.
i. Knowledge of SuccessorActs of the successor
concerning property that he does not know belongs to the
estate do not imply an intention to accept. (La. Civ. Code
art. 958)
ii. Acts of AdministrationAn act of ownership that can be
done only as a successor implies acceptance, but an act that
is merely administrative, custodial, or preservative does not
imply acceptance. (La. Civ. Code art. 959)
c. Significance of Prior LawUnder prior law, acceptance was either
express or tacit. Although the Revision changed the
nomenclature, there was no intent to change the substance of the
law. Thus, cases interpreting the prior law are still relevant today.
i. Illustrative Case: Succession of MenendezAlthough
appearing in a judicial proceeding as an heir constitutes

41
 express (today, formal) acceptance, instituting
succession proceedings that are exploratory in nature does
not. Thus, the institution of proceedings to search for the
last will and testament, execution of an inventory,
traversing the inventory, and opposing the final accounting
does not constitute acceptance, either formal or informal.

2. Effects of Acceptance
a. Prior LawUnder prior law, the effects of acceptance depended
upon whether acceptance was unconditional or made with
benefit of inventory.
i. Simple or Unconditional AcceptanceResulted in the
successor becoming personally liable for all of the debts of
the decedent. If the inheritance was less than the debts, the
successor was required to pay debts out of his own assets.
ii. Acceptance with Benefit of InventoryResulted in
successor only being liable for the decedents debts to the
extent of the property inherited. An inventory of the
decedents assets was compiled to protect creditors.
b. Current LawCurrent law eliminates simple or unconditional
acceptance and acceptance with benefit of inventory. Instead,
there is only one type of acceptance. Although acceptance
obligates the successor to pay estate debts (La. Civ. Code art. 961),
the successors liability is limited. Only universal successors are
liable for estate debts, and only up to the amount of property
received. (La. Civ. Code art. 1416). For this reason, acceptance is
presumed. (La. Civ. Code art. 962)
i. Note that La. Civ. Code art. 962 states that for good cause,
the successor may be compelled to accept or renounce.
What is good cause? Who has the right to compel the
successors acceptance or renunciation? See La. Civ.
Code art. 962, cmts. (a), (b), and (c).

C. Renunciation
1. FormalitiesRenunciation must be express and in writing. (La. Civ.
Code art. 963). What is the purpose of this rule?

2. EffectsGenerally, the renouncing successor is treated as if he

predeceased the decedent.
a. Intestate SuccessionThe rights of the intestate successor accrete
to those persons who would have succeeded to them if the
successor had predeceased the decedent. (La. Civ. Code art. 964)

42
 i. Quasi-RepresentationIf the renouncing successor is the
descendant, sibling, or descendant of a sibling of the
decedent, representation can occur.
b. Testate SuccessionsIn the absence of a governing testamentary
disposition, the rights of a testate successor who renounces accrete
to those persons who would have succeeded to them if the legatee
had predeceased the decedent. (La. Civ. Code art. 965)
i. Quasi-RepresentationAs we will see, if the legatee is a
descendant, sibling, or child of a sibling of the decedent,
representation can occur.
c. Acceptance/Renunciation of AccretionA successor who
renounces succession rights must separately accept or renounce
any accretion that may fall to him as a result of another successors
renunciation. (La. Civ. Code art. 966)

3. Conditional RenunciationMoore v. Smith addresses conditional

renunciation, but was decided under prior law, pursuant to which
conditional renunciation was expressly prohibited. Does the current law
address conditional renunciation? Would the result of Moore v. Smith be
the same today? Consider La. Civ. Code art. 1976.

4. Donative RenunciationA renunciation shall be deemed to be an

acceptance to the extent that it causes the renounced rights to devolve in a
manner other than that provided by law or by the testament if the decedent
died testate. (La. Civ. Code art. 960)
a. Classification as AcceptanceWhen exactly is a renunciation
considered to be an acceptance? What are the consequences of
this classification?
b. Classification as DonationNote that when a renunciation is
considered an acceptance, it is also considered a donation. What
are the consequences of this classification?
c. Illustrative Case: Aurienne v. Mt. OlivetNote that this case was
decided under the old law. Article 960 codifies the portion of the
case announcing the basis for distinguishing between true and
donative renunciation.

D. Prescription
1. Prior LawUnder prior law, a thirty year liberative prescription applied to
the right to accept or renounce rights to a succession. This prescription
could only be asserted by a co-heir who accepted the succession (and not
by a stranger to the succession who asserted rights to property).

2. Current LawNo prescription applies to acceptance or renunciation.

Instead, other provisions are relevant to the right of a successor to claim
succession rights.

43
 a. La. Civ. Code art. 962Acceptance is presumed.
b. La. Civ. Code art. 3502An action for the recognition of a right
of inheritance and recovery of the whole or a part of a succession
is subject to a liberative prescription of thirty years. This
prescription commences to run from the day of the opening of the
succession.
c. La. Civ. Code art. 3478Acquisitive prescription by co-owner
requires overt and unambiguous acts sufficient to give notice to
[the other] co-owner that he intends to possess the property for
himself.
d. La. Civ. Code art. 1305When one successor has enjoyed the
whole or part of succession property separately for thirty years
without interruption, that successor can oppose partition.

E. Acceptance by Creditor
1. Limitation on Ability of Successor to RenounceLa. Civ. Code art. 967:
A creditor of a successor may, with judicial authorization, accept
succession rights in the successors name if the successor has renounced
them in whole or in part to the prejudice of his creditors rights. In such a
case, the renunciation may be annulled in favor of the creditor to the
extent of his claim against the successor, but it remains effective against
the successor.
a. BasisThis article is related to La. Civ. Code arts. 2044 (oblique
action) and 2036 (revocatory action).
b. Ranking Among CreditorsNo express provision is included for a
determination of the rights among various creditors of different
ranks, but see La. Civ. Code art. 967, cmt. (a).
c. PrescriptionNote that La. Civ. Code art. 2041 places a one/three-
year prescription on the revocatory action. The article provides
that the creditor must bring the action within one year from the
time he learned or should have learned of the act, or the result of
the failure to act, that he seeks to annul, but never three years from
the date of that act or result. Should this provision apply to the
creditors acceptance by analogy?

2. Judicial Gloss
a. Succession of NeuhauserRead this case carefully and consider
the following questions: According to this case, what showing
must a creditor make in order to invoke the protections of Article
967? Note that later cases have followed the approach of
Neuhauser.

Unit 7 - General Dispositions (General Principles of the law of Donations)

Detailed Outline

A. Donations, Generally

44
1. Types of DonationsLa. Civ. Code art. 1467 provides, Property can
neither be acquired nor disposed of gratuitously except by donations inter
vivos or mortis causa, made in one of the forms hereafter established.
Thus, Louisiana law recognizes only two forms of donation: the donation
inter vivos and the donation mortis causa.
a. Donation Inter VivosA donation inter vivos is a contract by
which a person, called the donor, gratuitously divests himself, at
present and irrevocably, of a thing given in favor of another, called
the donee, who accepts it. (La. Civ. Code art. 1468)
i. Substantive Requirements
(a) ContractWhat is the significance of the
classification of a donation inter vivos as a
contract?
(b) Present, Irrevocable DivestitureWhat is meant by
at present? what is meant by irrevocably?
ii. Formal Requirements
(a) In GeneralA donation inter vivos must be made
by authentic act. (La. Civ. Code art. 1541)
(b) Manual Gift ExceptionA corporeal movable may
be donated by delivery of the thing to the donee.
(La. Civ. Code art. 1543)
b. Donation Mortis CausaA donation mortis causa is an act to take
effect at the death of the donor by which he disposes of the whole
or a part of his property. A donation mortis causa is revocable
during the lifetime of the donor. (La. Civ. Code art. 1469)
i. Substantive Requirements
(a) ActWhy does Art. 1469 use the term act rather
than contract to describe the donation mortis
causa?
(b) At Death, RevocableNote that unlike the
donation inter vivos, the donation mortis causa
takes place at the death of the donor and is
revocable during the donors lifetime.
ii. Formal RequirementsA donation mortis causa must be
made in the form of a valid testament. (La. Civ. Code art.
1570).
c. Donations Causa Mortis and A Cause de MortThese are
donations that have attributes of both donations inter vivos and
donations mortis causa. Specifically, these donations are made at
present in contemplation of death, are made subject to an implied
condition that if the donor does not die as contemplated, the gift is
null, are revocable, and do not require a will. They were
recognized by Roman law, and are recognized in the common law
today. They are not recognized in Louisiana.
d. Illustrations

45
i. Succession of Sinnot v. Hibernia National BankMrs.
Langtry is in the possession of shares of bank stock which
belonged to the decedent. Mrs. Weber, the testamentary
executrix, demands that they be returned. Mrs. Langtry
claims the decedent made a valid gift of the stock shares to
her. What facts support Mrs. Langtrys position that the
stock shares were transferred to her? Was it significant
that the decedent continued collecting the dividends after
handing over physical possession of the shares? Did the
decedent presently and irrevocably divest herself of the
stocks?
ii. Succession of Young
(a) BackgroundThis case deals with bearer bonds.
Most of you will not know what those are because
they have not been widely used in the United States
since the early 1980s.
(i) Bonds, GenerallyBonds, as a general
matter, are long-term, interest-bearing debt
instruments issued by a corporation or a
governmental entity. Usually, the entity
issues bonds to provide for a particular
financial need (like raising funds). A
common example is a United States savings
bond. Many types of bonds are registered to
a particular owner and certain formalities
must be followed to transfer ownership.
(ii) Bearer BondsHowever, bearer bonds are
payable to the person in possession of the
bond, rather than a specific person. The
bonds actually state that they are payable to
the bearer. Transfer of possession of the
bond transfers its ownership. In one sense
this is like a check made out to cash.
They provide a good deal of anonymity.
Many bearer bonds have coupons attached
to them. One can clip such a coupon and
redeem it for the annual or semi-annual
interest by presenting it to the bond issuer
for redemption. Coupons are also bearer
instruments. Below is an image of a bearer
bond with coupons attached:

46
47
 (b) Issue in this CaseThe issue in the Young case is
whether Ms. Young made a present and irrevocable
divestiture of the bearer bonds to her former
business partner. Where did Ms. Young keep her
bearer bonds? What acts did Ms. Young take to
transfer the bonds to her business partner? Did she
successfully transfer ownership before her death?
Why or why not?
e. Exceptions to the Usual RulesNote that Louisiana law does
permit some exceptions to the usual substantive requirements.
i. During Marriage
(a) Donations of Property Left at DeathA spouse
may make an inter vivos donation of property that
the donor will leave at his death to his spouse.
This donation is revocable, but does not require a
will. (La. Civ. Code arts. 1746-1750)
(b) Reservation of Right to RevokeA spouse may
reserve the right to revoke a donation made to the
other spouse. (La. Rev. Stat. 9:2351)
ii. Revocable Trusts
(a) Background on Trusts When a person (called the
settlor) establishes a trust he transfers the ownership
of property to a person (called the trustee) who then
administers the property on behalf of the
beneficiary. Like donations, trusts may be either
inter vivos (created during life) or mortis causa
(taking effect at death).
(b) Inter vivos trusts may be revocable or irrevocable.
(La. Rev. Stat. 9:2041). Note: Whether a trust is
revocable or irrevocable has significant
consequences in the federal income, gift, and estate
tax contexts.

2. Conditional DonationsThere is no general prohibition on making a

donation subject to a condition. There are, however, several specific
limitations, which we will study later on in the semester.

B. Certificates of Deposit and Bank AccountsCertificates of deposit and bank

accounts are subject to the general rules of the Civil Code regarding gratuitous
transfers. This can cause some difficulty because many banks apply common law
property ownership and transfer rules, which are not recognized in Louisiana, to
certificates and bank accounts.
1. Joint Tenants/Tenants in Common with Right of SurvivorshipSimilar to
Louisianas co-ownership scheme, except that at the death of one of the
co-owners, the surviving co-owner(s) acquire ownership of the decedents
share.

48
 a. Succession of Grigsby v. HamiltonWhat effect does a joint
tenants with right of survivorship designation have in Louisiana?

2. Pay on Death (POD) DesignationsProvides for an automatic, non-

probate transfer of property at the death of the owner.
a. La. Rev. Stat. 6:314Review this statute in your materials.
What is the effect of this statute? See also La. Rev. Stat. 6:315.1.

C. Gratuitous Transfers by Other ContractsThis section of the material covers

gratuitous transfers that are not covered by the Louisiana Civil Code and are
therefore exempt from the general rules governing donations (both as to
formalities and substance). We will study (1) life insurance, (2) annuities, (3)
U.S. Savings Bonds, (4) Retirement accounts and pensions. We will study how
the rules for each vary from the general rules of the Civil Code regarding
formalities, the rights of successors and creditors of the estate, and the rights of
forced heirs. Note: Many of these devices also create exceptions to the general
rules governing community property. These exceptions are often complex and are
better left to the course on Matrimonial Regimes.

Note Regarding Forced HeirshipIn this section of the chapter there are repeated
references to the rights of forced heirs, which we have not yet covered in detail. The
following basic rules regarding forced heirship will help you to understand the content of
this chapter:
1. Who are Forced HeirsLouisiana law requires that a certain portion of
the estate devolve to certain descendants, who are known as forced
heirs. In Louisiana, forced heirs are children under the age of 24 and
children with certain types of disabilities.
2. Forced Portion, Legitime, Disposable PortionThe portion of the estate
to which forced heirs are entitled is called the forced portion. The share
of the forced portion of each individual forced heir is the legitime. The
decedent is free to dispose of the remainder of his estate, called the
disposable portion, as he desires.
3. ReductionLouisiana law expressly prohibits the use of a will to deprive
forced heirs of the forced portion. Thus, if a decedent leaves a will
omitting his forced heirs, the forced heirs may demand reduction of the
donations made by virtue of the will. The effect of reduction is to reduce
the donations made to legatees to the extent necessary to ensure that the
forced heirs receive the forced portion.
4. CollationIn addition to the right of reduction, forced heirs enjoy the
right to demand collation of donations given by the decedent to his
descendants. Collation involves the return of these donations to the
succession so that this property can be evenly distributed among the
descendants. Collation is done in order to ensure equality between the
descendants of the decedent, and has nothing to do with the satisfaction of
the legitime.

49
Life InsuranceLife insurance is a contract between an insurance policy holder and an
insurer, where the insurer promises to pay a designated beneficiary a sum of money (the
benefits or proceeds) upon the death of the insured person. Life insurance contracts
are sui generis, meaning they receive unique treatment under Louisiana law.
a. FormalitiesThe law governing the formalities for donations does
not apply to life insurance contracts. (La. Rev. Stat. 22:915,
formerly 22:1521). Instead, the beneficiary designation controls.

50
 b. Claims of Successors and Creditors (La. Rev. Stat. 22:912(A),
formerly 22:647).
(i) SuccessorsProceeds paid pursuant to the policy cannot
be claimed by successors of the insured. Exception: If the
policy names the estate as the beneficiary, then the
proceeds are payable to satisfy legacies of cash to the
legatees or inure to the benefit of intestate successors.
(ii) CreditorsProceeds cannot be claimed by creditors of the
insured or creditors of the beneficiary (at least for debts in
existence at the time the beneficiary receives the funds).
c. Claims of Forced HeirsLife insurance proceeds are exempt from
the claims of forced heirs.
(i) ReductionThe proceeds are not used to calculate the
value of the forced portion and are not subject to reduction
by forced heirs. However, if a forced heir is named as a
beneficiary, proceeds are imputed against the forced heirs
claim to his legitime. (La. Rev. Stat. 22:912(A), La. Civ.
Code art. 1505(C)).
(ii) CollationLouisiana jurisprudence has held that life
insurance proceeds are not subject to collation. Vinson v.
Vinson, 29 So. 701 (1901).

2. AnnuitiesAnnuities are contractual investment vehicles. The purchaser

of an annuity (annuitant) makes payments (usually a lump sum payment)
to an annuity company. In return, the annuity company makes periodic
payments to the annuitant for the duration of his or her life. The Internal
Revenue Code treats this arrangement favorably and allows tax-free
growth of the initial investment. Many annuities provide for a death
benefit which often represents accumulated but undistributed earnings.
The death benefit is paid to a designated beneficiary in much the same
way the proceeds of a life insurance policy are paid out to the designated
beneficiary.
a. FormalitiesThe law governing the formalities of donations does
not apply to annuities. (La. Rev. Stat. 22:912(B), formerly
22:647). Instead, the beneficiary designation in the contract
controls. A beneficiary designation appears on the next page.

51
b. Claims of Successors and Creditors (La. Rev. Stat. 22:912(B),
formerly 22:647).
(i) SuccessorsDeath benefits paid pursuant to the annuity
cannot be claimed by successors of the insured. Exception:
If the annuity names the estate as the beneficiary, then the
death benefits are payable to satisfy legacies of cash to the
legatees or inure to the benefit of intestate successors.

52
 (ii) CreditorsDeath benefits cannot be claimed by creditors
of the insured or creditors of the beneficiary (at least for
debts in existence at the time the beneficiary receives the
funds).
c. Claims of Forced Heirs
(i) ReductionAnnuities are not exempt from the claims of
forced heirs. La. Rev. Stat. 22:915(B) provides
specifically for the saving of the rights of forced heirs.
Therefore, we use the value of annuities to determine the
value of the forced portion and they are subject to
reduction.
(ii) CollationHowever, the Louisiana Supreme Court has
indicated that annuities are not subject to collation. We will
discuss the reasons why this may be the case later in the
semester.

1. U.S. Savings BondsU.S. Savings Bonds share some features with bearer
bonds, discussed above. However, unlike bearer bonds, savings bonds are
typically registered in someones name. There are three basic modes of
title registration:
(i) Single Name RegistrationThe bond is registered in the name of
one individual.

53
 (ii) Co-Owner BondsThe bond is registered in the name of multiple
co-owners, and funds are payable to both co-owners during their
lifetimes. At the death of the first co-owner, the other become the
full owner. This is similar to joint tenancy with right of
survivorship.

(iii) Beneficiary BondsThe bond is payable to the owner of the bond

during his lifetime. At the death of the owner, the bond is payable
to a named beneficiary. This is similar to a pay on death (POD)
bank account.

For more information, visit www.treasurydirect.gov. Also, note that as of January 1,

2012, Savings Bonds are no longer available in paper form but are purchased and
maintained electronically only.

54
a. FormalitiesFederal treasury regulations govern the formalities
required for making a donation by US Savings Bond. In Winsberg
v. Winsberg, the Louisiana Supreme Court held, we are confronted
with the fact that the US Savings Bond plan establishes an
additional method of disposing of propertysuperimposed by
Federal law and which is to be considered effective
notwithstanding that it not in the form prescribed by our Code.
b/c. Claims of Successors, Creditors, and Forced Heirs
i. Winsberg v. Winsberg (La. 1952)The court held that
although federal law preempts state law with respect to
formalities, federal law does not preempt substantive state
law. (Thus, in that case, the court held that an old rule, now
repealed, providing that the subsequent birth of a child
revoked a will, applied to bond beneficiary designations).
ii. Free v. Bland (U.S. 1962)Husband bought bonds using
community property, naming H and W as co-owners. W
died, and H claimed full ownership of the bonds by virtue
of the co-ownership designation. Ws successors argued
that because bonds were community property, W was
entitled to her half despite the bond designation, and that
they (the children) inherited Ws half of the bonds. The US
Supreme Court held that federal law preempted state
community property law. The Court noted, however, that
federal regulations are not intended to be a shield for
fraud.
iii. Yiatchos v. Yiatchos (U.S. 1964)The court addressed the
meaning of fraud. H purchased bonds with community
property but named his brother as the death beneficiary.
When H died, B claimed to be full owner, but W claimed
ownership of half of the proceeds according to state
community property law. The Court held that if, under
Washington community property law, W owned a present
half interest in the community asset, then the POD
designation was a fraud on her rights. The Court
remanded for a determination of Washington law.
iv. Succession of Guerre (La. 4th Cir. 1967)Decedent
acquired approximately $40,000 in savings bonds with co-
owner designations naming people other than decedents
forced heirs. The forced heirs brought an action for
reduction. How did the court use the United States
Supreme Court jurisprudence discussed above to resolve
the dispute in this case? After Guerre, do non-forced heir
successors or creditors have any right to savings bonds
purchased by the decedent? Do forced heirs have any right

55
 to the bonds? Note that at the end of the opinion the court
orders the executor to amend the descriptive list of
assets to delete the US Savings Bonds. Why is this
significant?
v. Ridgeway v. Ridgeway (U.S. 1981)This federal
preemption case did not involve US Savings Bonds, but did
address the proper interpretation of Free and Yiatchos. In
Ridgway, the Court rejected an argument based on the
Yiatchos fraud exception, holding that the exception is only
applicable when vested property rights under state law
are involved. Commentators have argued that Ridgeway
undermines Guerre. Do you see why?
vi. Osterland v. Gates (La. 1981)This case involves the right
of a forced heir to claim collation of U.S. Savings Bonds.
How does the court rule, and why?

4. Pension and Retirement PlansMany pensions and retirement plans

contain beneficiary designations comparable to life insurance policies.
a. FormalitiesPension and retirement plan beneficiary designations
are not subject to the formality requirements for donations. See
T.L. James and Co., Inc. v. Montgomery; La. Rev. Stat.
9:2442(A); 9:2449(B).
b. Claims of Successors and CreditorsPension and retirement plan
death benefits pass outside of the estate and are not subject to the
claims of creditors or successors other than the named
beneficiaries. See T.L. James and Co., Inc. v. Montgomery; La.
Rev. Stat. 9:2442(A); 9:2449(B).
c. Claims of Forced Heirs
(i) Reduction
(a) Old Law: T.L. James and Co., Inc. v. Montgomery
The court held that although the named
beneficiary receives his full ownership of the funds
passing to him by the beneficiary designation, he
does so with the obligation to account to any forced
heir or surviving spouse with a community interest.
(b) New Law: How does La. Civ. Code art. 1505(D)
affect the holding of T.L. James & Co.?
(ii) CollationThere are no reported cases discussing whether
a descendant could be required to collate
retirement/pension death benefits. However, reasoning by
analogy from the right of reduction, what is the appropriate
rule for collation?

56
DEVICE FORMALITY CLAIMS OF FORCED HEIRS FORCED
SUCCESSORS & CLAIMS FOR HEIRS
CREDITORS REDUCTION CLAIMS FOR
COLLATION
Insurance Exempt from Exempt from Exempt from Exempt from
Policies formalities. claims of claims for claims for
LA RS 22:915 successors and reduction. collation. Vinson
creditors. LA CC 1505C v. Vinson.
LA RS 22:912A

Annuity Exempt from Exempt from Subject to claims Exempt from

Contracts formalities. claims of for reduction. claims for
LA RS 22:912B successors and LA CC 1505 collation.
creditors. LA RS 22:912B Succession of
LA RS 22:912B Fakier

US Savings Exempt from Exempt from Subject to claims Exempt from

Bonds formalities. claims of for reduction. claims for
Winsberg v. Winsberg successors and Succession of collation.
creditors. Guerre; but see Osterland v.
Succession of Ridgeway v. Gates
Guerre Ridgeway
Retirement Exempt from Exempt from Exempt from Probably exempt
Accounts formalities. claims of claims for from collation.
and TL James v. successors and reduction. No decisions on
Pensions Montgomery creditors. LA CC 1505D this issue.
LA RS 9:2449(A) TL James v.
LA RS 9:2449(B) Montgomery
LA RS 9:2449(A)
LA RS 9:2449(B)
DONATIVE DEVICES CHART

57
 Unit 8 - Capacity to Give and to Receive
Detailed Outline

A. Incapacity to Receive
1. Timing of Capacity
a. General RuleCapacity to receive a donation inter vivos must
exist at the time the donee accepts the donation. Capacity to
receive a donation mortis causa must exist at the time of the death
of the decedent. (La. Civ. Code art. 1471)
b. Conditional DonationsWhen a donation depends on the
fulfillment of a suspensive condition, the donee must have capacity
to receive at the time the condition is fulfilled. (La. Civ. Code art.
1473)

2. Requirement: ExistenceLa. Civ. Code art. 1470 states that [a]ll persons
have capacity to make and receive donations inter vivos and mortis causa,
except as expressly provided by law. Thus, In order to receive a
donation, a donee must exist as a person at the pertinent time.
a. Natural Persons
i. Commencement
(a) General RuleExistence commences at live birth.
(La. Civ. Code art. 25)
(i) Illustration: Fisk, Guardian v. Fisk,
ExecutorsDecedent died testate. The will
left his brother usufruct of $100,000 and
naked ownership to the children of another
brother. At the time of the death of the
decedent, only two of the children were
alive. The others were born after decedents
death. Held: Children not yet born at the
time of death are excluded.
a. Note: An alternative solution to this
problem is to leave the property in
trust. So-called class trusts or
dynasty trusts permit the settlor to
create a trust in favor of a class
consisting of some or all of the

58
 children, grandchildren, great
grandchildren, nieces, nephews,
grandnieces, grandnephews, great
grandnieces or great grandnephews,
or any combination thereof, although
some members of the class are not
yet in being at the time of the
creation of the trust, provided at least
one member of the class is then in
being. (La. Rev. Stat. 9:1891)
Would this type of trust work in this
case?
(b) Unborn ChildrenTo be capable of receiving by
donation inter vivos, an unborn child must be in
utero at the time the donation is made. To be
capable of receiving by donation mortis causa, an
unborn child must be in utero at the time of the
death of the testator. In either case, the donation
has effect only if the child is born alive. (La. Civ.
Code art. 1474)
(i) In Vitro Fertilized OvaThis appears to
exclude in vitro fertilized ova.
(ii) Posthumous ConceptionNote, however,
that RS 9:391.1 provides that if a child is
conceived after the death of the decedent
and later born to a surviving spouse who has
written permission from the decedent to use
his gametes, that child is deemed to be the
child of the decedent.
ii. TerminationCapacity terminates at death (La. Civ. Code
art. 25)
b. Juridical Persons
i. Legal RecognitionLa. Civ. Code art. 24 states that a
juridical person is an entity to which the law attributes
personality. Thus, a juridical person is in existence under
Louisiana law if the requirements for the formation of that
juridical person have been met. The requirements for the
formation of juridical persons varies depending upon what
type of juridical person is at issue.
ii. Illustrations
(a) Carr v. HartDecedent died testate. Her will
provided for a residuary legacy to a cemetery
fund. The executrix entered into an agreement
with the City Bank and Trust to accept the legacy,
invest it, and use the proceeds for the purpose of
keeping up the cemetery. Decedents sister attacked

59
 the legacy for lack of a capable donee. What was
the result of this case? What was the rationale for
this decision?
(b) Ermert v. Hartford Ins. Co.Duck hunter
negligently shot his hunting companion, who sued
the hunting association. The issue is whether the
hunting association is a juridical person. According
to this case, what are the requirements for the
existence of a nonprofit unincorporated
association?
(i) See La. Rev. Stat. 12:504(C): An
unincorporated association may be a
beneficiary in trust and has the capacity to
receive donations inter vivos and mortis
causa. An unincorporated association is
defined as an unincorporated organization,
other than one created by a trust, consisting
of two or more members joined by mutual
consent for a common, nonprofit purpose.
However, co-ownership does not by itself
establish an unincorporated association,
even if the co-owners share use of the
property for a nonprofit purpose. See also
La. Rev. Stat. 9:1051 (providing for
unincorporated associations to own
property).
iii. Charitable Donations to Juridical Persons
(a) Old LawLouisiana courts occasionally uphold
charitable donations even when a juridical person is
not in existence at the time of the death of the
decedent. For example, see the discussion of Milne
v. Milnes Executors in your text. How did the court
save the donation in Milne? See also Fink v. Finks
Executors. How did the court save the donation in
Fink?
(b) Modern Law
(i) Power of AppointmentLa. Civ. Code art.
1572 provides that a testator may expressly
delegate to his executor the authority to
allocate a legacy to one or more charities or
trustees of trusts organized for charitable
purposes.
(ii) Charitable TrustsLa. Rev. Stat. 9:2271
provides for the creation of a charitable
trust and permits the trustee to select the
beneficiaries.

60
 3. Effect of Donation to IncapableA donation in favor of a person who is
incapable of receiving is null. (La. Civ. Code art. 1475)

B. Incapacity to GiveDonations are juridical acts, and therefore, a person who

lacks capacity to make a juridical act generally also lacks capacity to make a
donation.
1. Minors
a. General Rules (La. Civ. Code art. 1476)
i. Minor under 16A minor under the age of sixteen years
does not have capacity to make a donation either inter
vivos or mortis causa, except in favor of his children or
spouse.
ii. Minor over 16A minor who has attained the age of
sixteen years has capacity to make a donation, but only
mortis causa. He may make a donation inter vivos in favor
of his spouse or children.
b. Effect of Emancipation (La. Civ. Code arts. 366-368)
i. Judicial EmancipationFull emancipation confers all
effects of majority on the minor. Limited emancipation
confers whatever effects are stipulated in the judgment.
(La. Civ. Code art. 366)
(a) Note: Article 366 states that emancipation confers
all effects of majority on the minor unless
otherwise provided by law. There may be a
conflict hereIs a fully emancipated minor still
subject to the limitations of Article 1476? La. Civ.
Code art. 366 cmt. (c) provides that this Article
clarifies that the laws regulating the conduct of
those under age 18 are not affected by
emancipation. Those laws are generally aimed at
protecting minors (e.g., laws prohibiting sale of
weapons or pornography to minors). La. Civ. Code
art. 366 cmt. (b) states that full judicial
emancipation empowers the minor with capacity to
incur conventional obligations and make
donations.
ii. Emancipation by MarriageA minor is fully emancipated
by marriage. (La. Civ. Code art. 367)
(a) Note: ConflictCmt. (a) provides that Under
former law, a married minor below the age of
sixteen obtained only the power of administration
through marriage. La. Civ. Code art. 367 was

61
 revised in 2008. Article 1476 has not been
subsequently revised. What effect does new article
376 have on article 1476?
iii. Emancipation by Authentic ActEmancipation by
authentic act confers only the effects stipulated in the act.

2. Mental Capacity
a. StandardTo have capacity to make a donation inter vivos or
mortis causa, a person must also be able to comprehend generally
the nature and consequences of the disposition he is making. (La.
Civ. Code art. 1477)
i. Source of the StandardThis standard was codified in
1991. What was the standard prior that time? Where did
Louisiana get the new standard? See La. Civ. Code art.
1477, cmts (a)-(b).
ii. Explication of the Standard
(a) Meaning of Able to Comprehend GenerallyWhat
does it mean that the donor must be able to
comprehend generally the nature and consequences
of the disposition? See La. Civ. Code art. 1477,
cmts. (c), (e).
(b) Meaning of Nature and ConsequencesWhat does
it mean that the donor must be able to comprehend
generally the nature and consequences of the
disposition? See La. Civ. Code art. 1477, cmt. (d).
b. Proof of Incapacity
i. Presumption of CapacityCapacity is presumed to exist.
See Succession of Mithoff, 122 So. 866 (La. 1929) [Not in
text]. You should be aware that this is a very strong
presumption.
ii. Burden of ProofA person who challenges the capacity of
a donor must prove by clear and convincing evidence that
the donor lacked capacity at the time the donor made the
donation inter vivos or executed the testament. (La. Civ.
Code art. 1482).
iii. TimingThe challenger must prove that the donor lacked
capacity at the time the donor made the donation inter
vivos or executed the testament. (La. Civ. Code art. 1482)
iv. Types of ProofWhat types of proof may be relevant to
prove the incapacity of the donor? See La. Civ. Code art.
1477, cmt. (f). According to La. Code Civ. Proc. art. 2904,
will executions may be videotaped. How might videotaping
the execution of the will prove useful in a later dispute
about the testators capacity? How might it backfire?

62
 Most estate planners agree that it is usually a bad idea to
record the execution of the testament. Do you see why?
v. Illustrations
(a) Succession of CooperWhat facts point to the
testators lack of capacity? Were these facts
sufficient to rebut the presumption of capacity?
Who testified regarding the testators capacity?
(i) Practice ConsiderationsNote that the
attorney who drafted the testament and the
witnesses thereto testified regarding the
testators capacity. What obligation does
the attorney/notary preparing and executing
the will have to determine the capacity of
the client? See Louisiana Code of
Professional Responsibility Rule 1.14 and
ACTEC Commentary to Model Rule 1.14.
(ii) Ability to ReadNote that the ability to
read is an element of capacity. Does this
mean that the inability to read will
automatically preclude the ability to make a
donation?
(b) Succession of PardueWhat facts point to the
testators lack of capacity? Were these facts
sufficient to rebut the presumption of capacity?
Who testified regarding the testators capacity?
What is a psychological autopsy, and did the
court find it was admissible in this case?
(i) Lucid Interval DoctrineWhat is the lucid
interval doctrine, and how did it apply in
this case?
(ii) Practice ConsiderationsWhat obligation
did the attorney/notary who prepared and
executed the will have to inquire further into
the circumstances surrounding the wills
execution?
(c) Succession of CrawfordWhat facts point to the
testators lack of capacity? Were these facts
sufficient to rebut the presumption of capacity?
Who testified regarding the testators capacity?
(i) Insane Delusion DoctrineSome common
law jurisdictions recognize a doctrine of
insane delusion. Under this doctrine, if a
particular provision in the will seems to be
the product of an insane delusion (a false
belief which appears to be the product of
mental illness and to which one adheres

63
 against all evidence and reason), then the
provision is invalid. This doctrine exists in
addition to the usual analysis for
testamentary capacity. In light of Crawford,
does Louisiana recognize the doctrine of
insane delusion? Should we? Is there room
in the Civil Code definition of mental
capacity for such a doctrine?
c. Effect of Interdiction
i. Interdiction, GenerallyWhat are the types of interdiction
and how do they differ from one another? What is the
purpose of interdiction? What is the common law
equivalent of interdiction? See La. Civ. Code arts. 389, et
seq.
ii. Effect of Full InterdictionA full interdict lacks capacity
to make or revoke a donation inter vivos or mortis causa.
(La. Civ. Code art. 1482, B)
(a) What is the significance of the inclusion of the term
revoke?
iii. Effect of Limited InterdictionThe effect of limited
interdiction varies depending upon whether the act relates
to property under the authority of the curator. (La. Civ.
Code art. 1482 C)
(a) Property under the authority of the curatorThe
limited interdict lacks capacity to make or revoke a
donation inter vivos and is presumed to lack
capacity to make or revoke a disposition mortis
causa. This presumption is rebutted by a
preponderance of the evidence.
(b) Property not under the authority of the curator
The limited interdict is presumed to have capacity
to make or revoke a donation inter vivos or a
disposition mortis causa. This presumption is
rebutted by a preponderance of the evidence.
v. Timing ConsiderationsA judgment of interdiction has
effects retroactive to the date of the filing of the petition for
interdiction. (La. Civ. Code art. 396)
iv. Illustration: In re Succession of DeshotelWhat
presumptions and burden of proof applied in this case?
How did the court rule on the capacity of the testator?

C. Fraud, Duress, and Undue Influence

1. General Provisions
a. Nullity of Donation
i. A donation inter vivos or mortis causa shall be declared
null upon proof that is the product of fraud or duress. (La.

64
 Civ. Code art. 1478) Why is error not included in this
article?
ii. A donation inter vivos or mortis causa shall be declared
null upon proof that it is the product of influence by the
donee or another person that so impaired the volition of the
donor as to substitute the volition of the donee or other
person for the volition of the donor. (La. Civ. Code art.
1479)

b. Burden of Proof (La. Civ. Code art. 1483)

i. General RuleA person who challenges a donation
because of fraud, duress, or undue influence must prove it
by clear and convincing evidence.
ii. ExceptionHowever, if at the time the donation was made
or the testament was executed, a relationship of confidence
existed between the donor and the wrongdoer and the
wrongdoer was not then related to the donor by affinity,
consanguinity, or adoption, the person who challenges the
donation need only prove the fraud, duress, or undue
influence by a preponderance of the evidence.
iii. AnalysisCompare the standards in La. Civ. Code art.
1483 with the burden of proof for proving fraud and duress
in the obligations context. Why is the rule different here?
Why does art. 1483 draw a distinction between
relationships of confidence with relatives, relationships of
confidence with non-relatives, and other persons? What
are some examples of relationships of confidence with non-
relatives? See La. Civ. Code art. 1483, cmt. (c).
c. Severability of Valid ProvisionIf a donation is declared null
because of fraud, duress, or undue influence, the entire act of
donation or testament does not need to be invalidated. If any
provision in the act of donation or testament is not the product of
fraud, duress, or undue influence, it shall be upheld. (La. Civ. Code
art. 1480)
i. Practice NoteDespite the required application of this
article you should generally include a severability
provision in any juridical act. What is the benefit of
including this type of provision?
(a) Sample Severability ProvisionIf any provision in
this Act is declared unconstitutional, invalid,
unlawful, or incapable of execution, such fact shall
in no way affect the validity of any other provision
in this Act which can be given reasonable effect
without also being declared invalid or incapable of
execution.

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 d. Fiduciary AppointmentsAny person who commits fraud, duress,
or undue influence shall not serve as executor, trustee, attorney or
other fiduciary for the estate pursuant to a designation in the act of
donation or testament or any amendments or codicils thereto. (La.
Civ. Code art. 1481)

2. Nullity due to Fraud and DuressNote: We will not cover in detail nullity
due to fraud and duress. The rules governing nullity of donations for
fraud and duress in the context of conventional obligations apply with full
force to donations, subject to the modifications discussed above.
3. Nullity due to Undue Influence
a. Historical NoteLouisiana at one time did not recognize undue
influence as a ground for nullity of a donation. Why was undue
influence incorporated into the Civil Code? Note that even now
that undue influence is a recognized ground for nullity, courts are
very reluctant to find undue influence has been exercised. Why do
you think that is?
b. StandardA donation shall be declared null upon proof that it
is the product of influence by the donee or another person that so
impaired the volition of the donor as to substitute the volition of
the donee or other person for the volition of the donor. (La. Civ.
Code art. 1479)
i. Relationship to CapacityMental capacity is a predicate to
application of Article 1479. See La. Civ. Code art. 1479,
cmt. (b).
ii. Identifying Undue InfluenceUndue influence is very
difficult to identify. The comments to La. Civ. Code art.
1479 draw upon the common law case law to distinguish
influence that is undue from that which is not undue.
Note that many Louisiana courts quote extensively from
these comments in rendering decisions on the issue of
undue influence. Highlights:
Proof of undue influence is often circumstantial
The character of the gift is not determinative, but
may be evidence of undue influence
Undue influence involves subtle influences, such
as creating resentment toward a natural object of a
testators bounty by false statements
Mere advice, persuasion, or kindness and
assistance, should not constitute influence that
would destroy the free agency of the donor
Undue influence necessarily involves that of the
donee or some other person and not the workings
of the donors own mind.

66
 It seems obvious that the influence has to be
exercised with the object of procuring a particular
gift or bequest
The influence must be operative at the time of the
execution of the donation
A court should distinguish between a willful
deception and an innocent misrepresentation.
There is no intent to create a right to challenge
donations based on mistake alone.
c. Jurisprudence
i. Succession of ReevesDecedent writs a will leaving much
of his property to his second wife and cutting out one of his
10 children. Disinherited child claims undue influence on
the part of the second wife.
(a) Four-Prong TestThe trial court adopts a 4-prong
test. Where did this test come from? What are the
elements and what do they mean? What did the
appellate court have to say about these factors?
Does this test apply in Louisiana now in cases
involving undue influence by spouses? In cases
involving undue influence by persons other than
spouses?
(b) Undue Influence by SpousesThe appellate court
made some pretty sweeping statements about undue
influence by spouses. What were those statements?
Can a spouse ever exert undue influence? Under
what circumstances?
(c) ProofWhat proof of undue influence was
presented by the disinherited child?
(d) DissentWhy does the dissent object to the
majority decision?
(e) CriticismCarefully read the critique of this case
authored by Professor Spaht. Why does she
disagree with the Reeves courts decision? Note
that Louisiana has not adopted the common law
approach to second spouses. Do you think we
should?
ii. Succession of CooperSame case we saw before, but now
examining undue influence claims. What evidence do the
children have to support their undue influence claim? Is it
sufficient?
iii. Succession of LounsberryWhat was the family dynamic
like in this case? Why is the family dynamic important to
the outcome in this case? Michael argued that he was
merely rendering advice and assistance to his father.
Why did the court ultimately find that Michael unduly

67
 influenced his dad? Did Michael have any intent to procure
a gift in this case? Does Michaels intent or lack thereof
affect the outcome of this case? Should it have?
iv. Cupples v. PruittWhat is the burden of proof in this
case? Is there a relationship of confidence? Does it seem
like Ms. Pruitt might have had an undue influence claim
against Cooper and Cupples? If so, what would the burden
of proof be in that case? Is it the same for both men?
v. Succession of TannerThis case involves a bequest made
to the decedents attorney. What is the burden of proof in
this case? Is there any evidence of undue influence?
(a) Practice Considerations
(i) See La. Code of Professional Responsibility
Rule 1.8 and the ACTEC commentary to
Model Rule 1.8. In particular, notice the
annotation pertaining to the New Hampshire
case on page 115 of the ACTEC
commentary. How could this apply to
situations like that raised in the Tanner
case?
(ii) La. Civ. Code art. 1582 and 1582.1. How do
these provisions affect the attorney?
(iii) La. Civ. Code art. 1583 provides that a
designation as succession representative,
trustee, or attorney is not a legacy.
Therefore, the attorney who executes the
will as notary could serve in these
capacities. However, estate planners agree it
is generally a bad idea to serve as the
witness or notary for an instrument
appointment you as a fiduciary. Why?

Unit 9 Forced Heirship

Detailed Outline
Installment 1

A. Forced Heirship, Generally

1. Freedom of DispositionIn Louisiana, a persons freedom to dispose of
his property by gratuitous title is restricted within the limits and under the
conditions established by law. (La. Civ. Code art. 477) Forced heirship
is an example of a limitation on a persons power to dispose of his
property.
2. Who are Forced HeirsUnder current law, forced heirs are generally
children under the age of 24 and children who are disabled.
Grandchildren can also be forced heirs under some circumstances. A
person who meets the statutory definition of forced heir is entitled to the

68
 legitime unless grounds exist for disinherison. A forced heir may also be
denied the legitime if he is declared unworthy to succeed.
3. Forced Portion, Legitime, Disposable PortionThe portion of the estate
to which forced heirs are entitled is called the forced portion. The share
of the forced portion of each individual forced heir is the legitime. The
decedent is free to dispose of the remainder of his estate, called the
disposable portion, as he desires.
4. ReductionIf the decedent disposes of more than the allowable
disposable portion, the forced heirs may demand reduction of
gratuitous dispositions that exceed the forced portion. This includes both
gratuitous dispositions in a will and certain donations inter vivos.
5. CollationIn addition to the right of reduction, forced heirs enjoy the
right to demand collation of the donations given by the decedent to his
descendants. Collation involves the return of these donations to the
succession so that this property can be evenly distributed among the
descendants. Collation is done in order to ensure equality between the
descendants of the decedent, and has nothing to do with the satisfaction of
the legitime.

B. History of Forced Heirship in Louisiana

1. Origins of Forced HeirshipLouisiana is the only state that recognizes
forced heirship. The institution of forced heirship is of both Roman and
Germanic origin, and Louisianas treatment of forced heirship is
influenced by both French and Spanish law.
2. History of Forced Heirship in Louisiana
a. Early HistoryThe Digest of 1808 adopted an amalgam of
Spanish and French law according to which both ascendants and
descendants were considered to be forced heirs. Beginning in
1825, the law of forced heirship underwent several revisions which
resulted in increasing the freedom of testation of the decedent. In
1825, the amount of the disposable portion was increased. In
1870, the usufruct of the surviving spouse was introduced. In
1914, life insurance proceeds were exempted from the claims of
forced heirs. In 1920, legislation was introduced permitting the
legitime to be placed in trust.
b. Constitution of 1921The 1921 Constitution provided that: No
law shall abolish forced heirship. At this point, the law of forced
heirship gains constitutional protection. This constitutional
amendment also restricted the authorization of trusts, which were
viewed with distrust for reasons we will discuss later in the
semester. After the amendment a question remained whether the
legitime could be placed in trust. The Supreme Court answered in
the affirmative in 1952. Later, the Legislature successfully sought
a constitutional amendment making clear that the legitime could be
placed in trust. Academic commentary and jurisprudence agreed
that the constitutional amendment did not prevent the legislature

69
 from defining the parameters of forced heirship provided it did not
abolish forced heirship.
c. Constitution of 1974In the Constitution of 1974 provided that:
No law shall abolish forced heirship. The determination of forced
heirs, the amount of the forced portion, and the grounds for
disinherison shall be provided by law. Trusts may be authorized by
law, and a forced portion may be placed in trust.
d. 1981 RevisionsIn 1981, the law of forced heirship was
substantially revised. Under this legislation, ascendants were no
longer forced heirs. Further, the disposable portion was increased
from one-third of the estate to half of the estate.
e. 1989 and 1990 RevisionsIn 1989, the legislature redefined
forced heirs limiting them to descendants of the first degree under
the age of 23 or those of any age who were interdicted or subject
to being interdicted. (Act 788 of 1989). The Law Institute
drafted legislation updating provisions of the Civil Code, Revised
Statutes, and Code of Civil Procedure to put the new rules into
effect. This legislation also changed the interdiction language to
incapable of taking care of their persons or administering their
estates due to a mental incapacity or physical infirmity. (Act
147 of 1990).
f. Succession of LaugaLandmark case in which the 1989 and 1990
legislation was challenged as unconstitutional. The Supreme Court
held that the limitations imposed on forced heirship through the
legislation amounted to an unconstitutional abolishment of
forced heirship, because the fundamental policies and purposes of
forced heirship had been thwarted just as if forced heirship had
been repealed altogether. These policies and purposes included:
Equality among children
Dispersion of wealth
Family solidarity
Reduction in litigation
g. 1995 Constitutional AmendmentIn 1995, the Legislature
proposed a constitutional amendment designed to make the same
changes as those made in Acts 788 (1989) and 147 (1990). The
amendment passed.
h. 1995 LegislationThereafter, the Legislature passed Act 1180 of
1995, which implemented legislation putting the amendment into
effect. The effective date of this legislation was January 1, 1996.
3. Policies of Modern Forced HeirshipConsider the purposes of and
policies served by forced heirship that were articulated by the Court in
Lauga. Does the modern version of forced heirship serve the same
purposes and policies? Why or why not?

C. Identification of Forced HeirsLa. Civ. Code art. 1493 defines forced heirs.
Read the article and all of the comments thereto carefully before class.

70
1. Forced Heirs in their Own RightDescendants are forced heirs in their
own right in two circumstances.
a. Forced Heir due to AgeForced heirs are descendants of the first
degree who, at the time of the death of the decedent, are twenty-
three years of age or younger. (La. Civ. Code art. 1493 (A)).
i. Definition of Twenty-three Years of Age of
YoungerFor purposes of this article, a person is
twenty-three years of age or younger until he attains the age
of twenty-four years. (La. Civ. Code art. 1493(D)).
ii. Note that Act 147 of 1990, which was struck down by
Lauga, used the language attained the age of twenty-three
years. The 1995 Constitutional amendment used the
language twenty-three years of age or younger. Does
Paragraph (D) of Article 1493 go beyond the
Constitutional definition? Carefully read comment (b) to
Article 1493.
iii. Why did the legislature choose the age of twenty-three
years or younger to define forced heirship? Why is the age
not simply the age of majority? What does this choice
reflect about the modern view of parental responsibility
towards their children?
b. Forced Heir due to DisabilityForced heirs aredescendants of
the first degree of any age who, because of mental incapacity or
physical infirmity, are permanently incapable of taking care of
their persons or administering their estates at the time of the death
of the decedent. (La. Civ. Code art. 1493 (A)).
i. Note that the 1995 Constitutional amendment states that the
legislature may include certain disabled persons as forced
heirs. As you can see, the legislature took advantage of this
authorization.
ii. Note that the legislature chose to include incapable
descendants within the classification of forced heirs
considering the potential economic impact of eliminating
incapable descendants from the category of forced heirs
and anticipated taxpayer indignation about bearing the cost
of care for such children so that the parent could dispose of
his own property after he died to other people or
organizations. (Drawn from Legislative committee
meetings) How does this statement of purpose contribute
to your understanding of the policies behind forced
heirship?
ii. StandardRecall that an earlier permutation of this law
required that the descendant be interdicted or subject to
being interdicted. How does the language that appears in
Article 1493 differ from the standard(s) for interdiction?
See comment (c) to La. Civ. Code art. 1493.

71
 iii. PermanenceThe descendant must be permanently
incapable.
(a) Duration vs. ExtentRead carefully Succession of
Martinez. Must a descendant be severely
incapable to be a forced heir? Note that the
Legislature directed the Law Institute to revise the
official comments to Article 1493 in 1998. How
does the change in the commentary affect your
understanding of the term permanent?

Comment (c) (1995): More Comment (c) (1998): More

important, the Legislature added the important, the Legislature added the
word permanently before the word word permanently before the word
incapable for the express purpose incapable for the express purpose
of emphasizing that a temporary of emphasizing that a temporary
incapacity or infirmity, even if severe, incapacity or infirmity, even if severe,
should not apply. The legislature should not apply. The legislature
thereby expressly manifested its thereby expressly manifested its
intent that the rule making disabled intent that the rule making disabled
children of any age forced heirs children of any age forced heirs
should only apply to seriously should only apply to seriously
handicapped individuals. The handicapped individuals. The
legislature requested specifically that legislature requested specifically that
these comments be written to explain these comments be written to explain
that it is the purpose of adding the that it is the purpose of adding the
word permanently to more word permanently to more
effectively express the public policy effectively express the public policy
intended, namely, to protect children intended, namely, to protect children
who are over the age of 23 as forced who are over the age of 23 as forced
heirs if, and only if they are severely heirs if, and only if they are severely
disabled. disabled.

(b) Temporary RemissionDoes permanent

necessarily mean consistent? What if a
descendant experiences temporary remission from
the disability? What does comment (c) suggest?
How should the court look upon a person whose
disability is mitigated by medication?

iv. Potential IncapacityIn 2003, La. Civ. Code art. 1493 was
amended to add paragraph (E), which states For purposes
of this article permanently incapable of taking care of their
persons or administering their estates at the time of the
death of the decedent shall include descendants who, at the
time of death of the decedent, have, according to medical

72
 documentation, an inherited, incurable disease or condition
that may render them incapable of caring for their persons
or administering their estates in the future.
(a) EffectAlthough Paragraph (A) appears to require
that a forced heir actually be incapable at the time
of the death of the decedent, Paragraph (E) provides
that, in certain circumstances, a forced heir need
only show that he or she may be incapable at some
time in the future.
(b) Requirements
(i) InheritedThe disease or condition must be
inherited. What is the purpose of this
requirement? How do we know when a
condition is inherited? Is inherited the same
as genetic?
(ii) IncurableThe disease or condition must be
incurable. What is the purpose of this
requirement? How do we know when a
condition is incurable?
(iii) Medical DocumentationMedical
documentation is required. Read paragraph
(E) carefully. Does the provision require
that the medical documentation exist at the
time of the death of the decedent, or simply
that the disease or condition exist at the
death of the decedent?
(c) ScopeWhat diseases or conditions fall within the
ambit of this provision? Alcoholism? Drug Abuse?
HIV/AIDS? Diabetes? High Blood Pressure?
Arthritis?
(d) PurposeWhat is the purpose of this rule? Does it
further the purposes of forced heirship, or frustrate
it? What are the potential problems with this
provision?
(e) Constitutional AuthorizationDoes the 1995
Constitutional amendment authorize this definition
of forced heirship?
v. Illustration: Succession of ArdoinMary Sailors, daughter
of Jeanette Ardoin, files a petition for reduction alleging
that she is a forced heir. Mary suffers from bipolar
disorder. What evidence does Mary offer regarding her
condition? Does she qualify as a forced heir under
Paragraph (A) of 1493? Paragraph (E)? Of what import is
it that Mary takes medication for her condition? Of what
import is it that Mary has refused to take her medication?
Of what import is it that Mary uses alcohol and drugs?

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 (a) Note that since Ardoin, two more cases have found
persons with bipolar disorder to be forced heirs.

2. Forced Heirs by RepresentationDescendants may be forced heirs by

representation in two circumstances.
a. Forced Heir due to Age of Predeceased ParentWhen a
descendant of the first degree predeceases the decedent,
representation takes place for purposes of forced heirship only if
the descendant of the first degree would have been twenty-three
years of age or younger at the time of the decedents death. (La.
Civ. Code art. 1493 (B)).
i. NOTEThe age of the predeceased child is the relevant
inquiry, not the age of the person succeeding by
representation.
b. Forced Heir due to Disability of RepresentativeHowever,
when a descendant of the first degree predeceases the decedent,
representation takes place in favor of any child of the descendant
of the first degree, if the child of the descendant of the first degree,
because of mental incapacity or physical infirmity, is permanently
incapable of taking care of his person or administering his or her
estate at the time of the decedents death, regardless of the age of
the descendant of the first degree at the time of the decedents
death.
i. NOTEThe relevant inquiry is whether the
representative is disabled, not whether the predeceased
parent is disabled. This definition applies regardless of
anybodys age.
c. Constitutionality and Other ProblemsDoes the 1995
Constitutional amendment authorize the inclusion of
grandchildren within the definition of forced heirship? Read
carefully comments (d) and (e) to Article 1493. Is this really
representation as we have understood it in the past? Why or
why not? Also, note that comment (e) indicates that grandchildren
must be severely disabled in order to qualify as forced heirs
under Paragraph (C).

Unit 9 Forced Heirship

Detailed Outline
Installment 2

C. Rights of Forced Heirs, GenerallyForced heirs have two rights: (1) the right
to demand reduction of excessive donations; and (2) the right to demand collation.
1. ReductionThe most significant right of the forced heir is the right to his
or her legitime. If the forced heir does not receive his or her legitime by

74
 intestacy or in the will, the forced heir may demand reduction of excessive
donations, both mortis causa and inter vivos.
a. La. Civ. Code art. 1494A forced heir may not be deprived of
the portion of the decedents estate reserved to him by law, called
the legitime, unless the decedent has just cause to disinherit him.
2. CollationAnother right of the forced heir is the right to demand
collation. Collation involves the returning of donations received by a
descendant during the lifetime of the decedent to the mass of succession so
that the property may be divided equally among all descendants called to
the succession.
a. La. Civ. Code art. 1235The right to demand collation is
confined to descendants of the first degree who qualify as forced
heirs.
3. Note About TerminologyLouisiana courts often refer to the
mathematical calculation that is used to determine which donations must
be reduced as fictitious collation and to collation as actual collation.
This is inaccurate and very annoying! The calculation of the active mass
has nothing to do with actual collation. Be careful of this trap!

D. Forced Portion, Disposable Portion, and Legitime

1. Determination of the Disposable Portion, Forced Portion, and Legitime
a. Disposable Portion and Forced PortionLa. Civ. Code art. 1495:
Donations inter vivos and mortis causa may not exceed three-
fourths of the property of the donor if he leaves, at his death, one
forced heir, and one-half if he leaves, at his death, two or more
forced heirs. The portion reserved for the forced heirs is called the
forced portion and the remainder is called the disposable portion.
i. Fractions

1 forced heir
2 or more forced heirs

ii. Number to Which the Fraction AppliesThe fraction

required by Article 1495 is applied to the active mass of the
succession not the estate. Calculation of the Active Mass
is covered below in Part E of this outline.

iii. Disposable Portion in Absence of Forced Heirs

(a) General RuleLa. Civ. Code art. 1497: If there is
no forced heir, donations inter vivos and mortis
causa may be made to the whole amount of the
property of the donor, saving the reservation made
hereafter. In other words, if there are no forced
heirs, then the entirety of the estate is disposable.
(b) ExceptionProhibition on Donation Omnium
BonorumLa. Civ. Code art. 1498 prohibits a

75
 donation omnium bonorum, or donation of the
entirety of her property. We will discuss this
prohibition at the end of this unit.

b. Legitime
i. General RuleLa. Civ. Code art. 1494, comment (b): The
legitime of a child is determined by dividing the forced
portion by the number of qualified children living or
represented at the death of the decedent.
(a) Illustration--X dies survived by A, B, and C. A and
B are forced heirs. C is not a forced heir. What is
the fraction of the forced portion? What is the
fraction of each legitime?
ii. RepresentationLa. Civ. Code art. 1494, comment (b):
When descendants other than the child himself are
involved, the legitime of these more remote descendants is
determined by reference to the child they represent. Thus,
when a predeceased child is represented by his
descendants, the legitime of each descendant is determined
by dividing the legitime of the child who is being
represented among the descendants who represent him.
(a) Illustration 1X dies survived by his child B, and F
& G, the children of his predeceased child A. B is
not a forced heir. A would not yet have been 24 at
the time of Xs death. What is the fraction of the
forced portion? What is the fraction of each
legitime?
(b) Illustration 2X dies survived by his child B, and F
& G, the children of his predeceased child A. B is
not a forced heir. Although A would have been 24
at the time of Xs death, F and G are both FH due to
disability. What is the fraction of the forced
portion? What is the fraction of each legitime?
(c) Illustration 3X dies survived by his child B, and F
& G, the children of his predeceased child A. F is
the only FH due to disability. What is the fraction
of the forced portion? What is the fraction of the
legitime?
iii. The Greenlaw RuleLa. Civ. Code art. 1495 2:
Nevertheless, if the fraction that would otherwise be used
to calculate the legitime is greater than the fraction of the
decedents estate to which the forced heir would succeed by
intestacy, then the legitime shall be calculated by using the
fraction of an intestate successor.

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 (a) PurposeThis rule ensures unity between intestacy
and forced heirship. If a decedent dies intestate the
disposition of his estate under the default intestacy
rules should automatically satisfy the forced
heirship requirements. Critique: Now that all
children are not forced heirs, does this rule make
sense? Is equality the purpose of forced heirship?
How does this rule work against the current
purposes of forced heirship?
(b) IllustrationX dies survived by his five children: A,
B, C, D & E. A is the only forced heir. What is the
fraction of the forced portion? What is the fraction
of the legitime?
iv. Greenlaw Rule Plus RepresentationX dies survived by B,
C, D, E, and F &G, the children of his predeceased child A.
The only forced heir is F (physically disabled). What is the
fraction of the forced portion? What is the fraction of the
legitime?
v. Legitime in Cases of Judicial Divestment, Disinherison, or
Renunciation of Succession RightsLa. Civ. Code art.
1500 states: When a forced heir renounces his legitime, is
declared unworthy, or is disinherited, his legitime becomes
disposable and the forced portion is reduced accordingly.
The legitime of each remaining forced heir is not affected.
(a) Illustration--X dies survived by A, B, and C. A, B,
and C are forced heirs. The active mass is worth
$120,000. The forced portion is $60K. Each
legitime is $20K. A renounces. As legitime
becomes disposable. The disposable portion
therefore becomes $80K. The legitimes of B and C
are still $20K each.
(b) Critique of CommentNote that the comment to
Article 1500 states that when a forced heir
renounces his legitime, the decedents forced
portion is determined by the number of other forced
heirs of the decedent living or represented. This
comment appears to direct you to recalculate the
legitime based upon the number of forced heirs
remaining. This is clearly contrary to the plain
language of Article 1500, which states that the
legitime of each remaining forced heir is not
affected.

2. Permissible Burdens on the Legitime

77
a. General RuleThe default position is that the forced heir must
receive the legitime in full ownership. However, there are very
significant exceptions to this rule.
i. La. Civ. Code art. 1496: No charges, conditions, or
burdens may be imposed on the legitime except those
expressly authorized by law, such as a usufruct in favor of
the surviving spouse or the placing of the legitime in trust.
ii. Preference for Ownership InterestThe comment to
Article 1496 points out that the article retains the
fundamental principle of prior law, that a forced heir is
entitled to his legitime in full ownership. The extension of
the principle is found in La. Civ. Code art. 1502:
Nevertheless, the legitime may not be satisfied in whole or
in part by a usufruct or an income interest in trust.
iii. Illustration: Succession of WilliamsDecedent leaves her
estate to her grandchildren subject to a usufruct for life in
favor of her child. She additionally grants a right of
habitation to a third person. The child complained that she
was entitled to her legitime in full ownership.
(a) IssueCan the legitime be satisfied by a usufruct
interest? The grandchildren argue that the value of
the usufruct exceeds the value of the legitime. Does
this matter? To what is the plaintiff ultimately
entitled? Note that the holding of this case is now
codified in Article 1502. What is the justification
for the rule?
(b) Right of HabitationWhat is a right of habitation?
See La. Civ. Code arts. 630 & 637. How does
habitation compare to usufruct? Is a right of
habitation in favor of a third person a permissible
burden on the legitime? Does your answer change
if the right of habitation is left to the surviving
spouse?
iv. Illustration: Succession of TurnellDecedent left two sets
of grandchildren as forced heirs. He left sufficient property
to satisfy the forced portion, but placed restrictions on the
sale of that property. Is this a permissible burden on the
legitime? Why or why not? What was the decedent trying
to accomplish here?
(a) DesignationNote that La. Civ. Code art. 1302
allows a testator to direct which assets of the estate
will be used to satisfy the legitime of forced heirs.
(b) Prohibition on PartitionNote also that La. Civ.
Code arts. 1300 and 1301 allow the testator to
prohibit partition for up to five years or during

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 minority of children or grandchildren. Do these
rules extend to the legitime?
b. Permissible Burden: Usufruct of the Surviving SpouseLa. Civ.
Code art. 1502 makes clear that the usufruct of the surviving
spouse is a permissible burden.
i. Testamentary UsufructLa. Civ. Code art. 1499: The
decedent may grant a usufruct to the surviving spouse over
all or a part of his property, including the forced portion,
and may grant the usufructary the power to dispose of
nonconsumables as provided in the law of usufruct. The
usufruct shall be for life unless expressly designated for a
shorter period, and shall not require security except as
expressly declared by the decedent or as permitted where
the legitime is affected. A usufruct over the legitime in
favor of the surviving spouse is a permissible burden that
does not impinge upon the legitime, whether it affects
community or separate property, whether it is for life or a
shorter period, whether or not the forced heir is a
descendant of the surviving spouse, and whether or not the
usufructuary has the power to dispose of nonconsumables.
ii. Security owedLa. Civ. Code art. 1514: A forced heir
may request security when a usufruct in favor of a
surviving spouse affects his legitime and he is not a child of
the surviving spouse. A forced heir may also request
security to the extent that a surviving spouses usufruct
over the legitime affects separate property. The court may
order the execution of notes, mortgages, or other
documents as it deems necessary, or may impose a
mortgage or lien on either community property or separate
property, movable or immovable, as security.
iii. Comparison to 890 UsufructReview your notes regarding
the 890 usufruct and be sure you understand how the two
usufructs differ from one another.

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 USUFRUCT COMPARISON CHART
890 Usufruct 1499 Usufruct
(a.k.a. Legal Usufruct) (a.k.a. Testamentary Usufruct)
Creation Arises by operation of law when Arises by virtue of a will when the
decedent dies possessed of decedent leaves a usufruct of
community property, the usufruct community property, separate property,
or full ownership of which is not or both to the surviving spouse. Can
disposed of by testament. burden the legitime of a forced heir.

Scope Community property. Community and/or separate property.

Duration Terminates at remarriage or death. Terminates at death unless testament

says otherwise.

Security Security is dispensed with unless: Security is dispensed with unless:

(1) the naked owner is a stepchild (4)the testator requests it in the will;
of the usufructuary; OR OR
(2) the naked owner is a forced (5)the usufruct burdens the legitime of
heir. a forced heir AND the forced heir is a
stepchild of the usufructuary OR
(6)the usufruct burdens the legitime of
a forced heir AND affects separate
property.
Nonconsumables Note that the power to dispose of The testator may grant the usufructuary
nonconsumables is limited under the power to dispose of
Article 568. nonconsumables. Note that this means
the usufructuary may have the power to
sell or even donate nonconsumable
property that comprises the legitime.

iv. Critique of the Stepparent UsufructProfessor Katherine

Spaht argues that the stepparent usufruct is inconsistent
with purposes of forced heirship. How, if at all, does the
stepparent usufruct frustrate the policies of forced heirship,
especially when a forced heir is an incapable?
c. Permissible Burden: Usufruct in Trust
i. Trusts, GenerallySee La. Civil Law of Trusts Treatise
1.2, 11.1-11.6.
(a) Trust DefinedLa. Rev. Stat. 9:1731A trust
is the relationship resulting from the transfer of title

80
 to property to a person to be administered by him as
a fiduciary for the benefit of another.
(b) Parties to a Trust
(i) SettlorLa. Rev. Stat. 9:1761A settlor
is a person who creates a trust. A person
who subsequently transfers property to the
trustee of an existing trust is not a settlor.
(ii) TrusteeLa. Rev. Stat. 9:1781A
trustee is a person to whom title to the trust
property is transferred to be administered by
him as a fiduciary.
a. Generally, the trustee is under an
obligation to make the assets
productive. That is, the trustee
should administer the assets in a
manner so that they produce income.
(iii) BeneficiaryLa. Rev. Stat. 9:1801A
beneficiary is a person for whose benefit the
trust is created.
a. Multiple beneficiaries allowedLa.
Rev. Stat. 9:1805There may be one
beneficiary or two or more beneficiaries
as to income or principal or both.
(c) Types of BeneficiariesA beneficiary may be
designated as either a beneficiary of income, a
beneficiary of principal, or both.
(i) Income BeneficiaryThis is roughly
analogous to being designated as a
usufructuary. It is like being entitled to the
fruits of the property, and in some cases the
use of the property. However, the right to
fruits and use may be more limited than in
usufruct or subject to substantial control by
the trustee.
a. Rules GoverningLa. Rev. Stat.
9:1961-1965 describe the nature of
the income beneficiarys interest in
the trust. The default position is that
the income beneficiary should
receive all of the income in the trust
every six months. However, the
settlor has great discretion to modify
that rule and may even grant the
trustee the discretion to withhold or
distribute income.

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 b. Invasion of PrincipalThe settlor
may grant the trustee the ability to
invade principal for the benefit of
the income beneficiary. This means
that the settlor may be able to
distribute a portion of the principal in
trust to the income beneficiary and
thereby deplete the amount of the
property the principal beneficiary is
entitled to.
NOTE: If the income
beneficiary and the principal
beneficiary are not the same
person, then the discretion to
invade principal must be
limited by ascertainable
standards.
c. TerminationWhen an income
interest in the trust terminates
(typically at the death of the income
beneficiary) the income beneficiary
has nothing to bequeath to others. In
this sense, it is comparable to
usufruct.
(ii) Principal BeneficiaryThis is roughly
analogous to being designated as a naked
owner to property. The principal
beneficiary is entitled to the corpus of the
trustmeaning the actual property in the
trust. However, that interest is subject to the
income interest. Accordingly, the principal
beneficiarylike the naked owner
basically lacks the ability to enjoy the fruits
or use of the property until the income
interest terminates.
a. Rules GoverningLa. Rev. Stat.
9:1971-1979.
b. TerminationWhen the trust
terminates the principal beneficiary
receives the property in the trust in
full ownership. If the principal
beneficiary dies before the
designated date for termination of
the trust, his interest in the principal
vests in his heirs and legatees,
subject to the trust.

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ii. Legitime in TrustLa. Civ. Code art. 1502 makes clear
that the legitime can be satisfied in trust.
(a) RequirementsThe requirements governing the
placement of the legitime in trust appear in La. Rev.
Stat. 9:1841. This statute provides: The legitime
or any portion thereof may be placed in trust
provided:
(1) The trustee after taking into account all of
the other income and support to be received
by forced heir during the year shall
distribute to the forced heir, or to the legal
guardian of the forced heir, funds from the
net income in trust sufficient for the health,
maintenance, support, and education of the
forced heir.
NoteThis provision assumes that the
forced heir is both income and principal
beneficiary. The reason is that except in
the case detailed in 1844 of the Trust
Code (discussed below), the legitime can
only be satisfied by giving the forced
heir both an income and principal
interest in the trust.
EffectThe operation of this provision
is to limit the ability of the settlor to give
the trustee the broad discretion to
withhold or distribute income as he sees
fit. If the legitime is in trust, the
provision requires distribution of a
certain amount of income. Why does the
statute require distribution of a sufficient
amount for the health, maintenance,
support, and education of the forced
heir?
(2) The forced heirs interest is subject to no
charges or conditions except as provided.
The most important condition allowed
for our purposes is the one permitted by
1844, discussed below.
In general, other charges and
prohibitions are not allowed, because
otherwise the rule against burdens on the
legitime would be violated.
(3) Except as permitted by R.S. 9:1844, the
term of the trust, as it affects the legitime,
does not exceed the life of the forced heir.

83
 NoteThe effect of this provision is that
the corpus of the trust must be
distributed to the forced heirs legatees
or beneficiaries at his death. Like a
naked ownership interest, the principal
beneficiary has the ability to bequeath
the property.
(4) The principal shall be delivered to the
forced heir or his heirs, legatees, or
assignees free of trust, upon the termination
of the portion of the trust that affects his
legitime.
(b) La. Rev. Stat. 1844: Income Interest or Usufruct
of Surviving SpouseThe legitime in trust may be
burdened with an income interest or with a usufruct
in favor of the surviving spouse to the same extent
and for the same term that a usufruct of the same
property could be stipulated in favor of the same
person for a like period."
NoteJust as with usufruct, only a surviving
spouse may be granted an income interest
burdening a forced heirs principal interest in
trust.
Invasion of the PrincipalThe ability of the
trustee to invade principal for the benefit of an
income beneficiary is limited by the following
statute when the legitime is placed in trust:
o La. Rev. Stat. 9:1847: A trustee may not
pay principal to an income beneficiary if the
payment would deprive another beneficiary
of all or a part of his legitime,
notwithstanding any contrary provision.

LEGITIME IN TRUST OVERVIEW

1. FH must be both income and principal beneficiary. Exception: Surviving Spouse may be
income beneficiary.
2. FH must be paid enough income during the year sufficient for health, maintenance, support,
and education of the forced heir.
3. FHs interest can be subject to no charges or conditions. Exception: Usufruct or income
interest in favor of Surviving Spouse.
4. Term of the trust cannot exceed the life of FH.
5. Principal shall be delivered to the FH or his heirs, legatees, or assigns free of trust upon
termination of the trust.

84
 Unit 9 Forced Heirship
Detailed Outline
Installment 3

E. Calculating the Active Mass and the Legitime

1. Active Mass DefinedThe active mass is the number from which we
determine the value of the forced portion and the disposable portion of the
decedents estate. This calculation is described in La. Civ. Code art. 1505.
a. La. Civ. Code art. 1505 A & Ban aggregate is formed of all
property belonging to the donor or testator at the time of his death;
to that is fictitiously added the property disposed of by donation
inter vivos within three years of the date of the donors death,
according to its value at the time of donation[then] the sums due
by the estate are deducted from this aggregate amount.
i. Literal ReadingA literal reading of the statute tells you to
use the following formula:

Active Mass = (Property at Death) + (Donations IV w/n 3 Years)

Debts

85
ii. Critique of Literal ReadingEverybody agrees that the
statute is wrong because it does not properly consider
the role of creditors. In most cases it does not matter, but
in the case of an insolvent estate it does matter. The
Correct Formula is as follows:

Active Mass = (Property at Death) Debts + (Donations IV w/n 3

Years)

(a) IllustrationX dies with $30K in assets, $40 K in

debts, and $20 in donations inter vivos.
(i) Incorrect Formula

30 Assets
+ 20 Donations
50
- 40 Debts
10 Active Mass

It appears as though the legitime must be calculated

using an active mass of 10K. However, this
formula incorrectly assumes that creditors have a
right to inter vivos donations of the decedent.

(ii) Correct Formula

30 Assets
- 40 Debts
-10 *The estate is insolvent. Creditors are
paid pro rata. We should assume that the
net estate is zero and add donations.

0 Net Estate
+ 20 Donations
20 Active Mass

Here it is clear that the legitime must be calculated

using an active mass of $20K.

86
 2. Calculating the LegitimeThere are 5 steps to follow when calculating
the legitime of a forced heir.

5 STEPS FOR CALCULATING THE LEGITIME

Step 1 Determine the Aggregate Value of Property at Death
Step 2 Subtract Sums Due by the Estate
Step 3 Add Donations Inter Vivos Made Within Three Years of Death
Step 4 Calculate the Disposable and Forced Portions
Step 5 Calculate the Legitime

Step 1: Determine the Aggregate Value of Property at DeathThe first

step is to determine the aggregate value of the property of the decedent as
of the date of the decedents death.

a. Property Included
i. General RuleIf the decedent is domiciled in Louisiana
and all of his property is located in Louisiana, include all
movable and immovable property, corporeal and
incorporeal.
ii. Conflicts of Law Provisions
(a) MovablesLa. Civ. Code art. 3532: Except as
otherwise provided in this Title, testate and intestate
succession to movables is governed by the law of
the state in which the deceased was domiciled at the
time of death.
(i) ExplanationIf the decedent dies domiciled
in Louisiana with forced heirs, then the
active mass includes all movable property,
whether situated in Louisiana or not. If the
decedent dies domiciled outside of
Louisiana with forced heirs, then the active
mass does not include the movable property
of the decedent.

(b) Immovables
(i) Located in LouisianaLa. Civ. Code art.
3533: Except as otherwise provided in this
Title, testate and intestate succession to
immovables situated in this state is governed

87
 by the law of this state. The forced heirship
law of this state does not apply if the
deceased was domiciled outside of this state
at the time of death and he left no forced
heirs domiciled in this state at the time of his
death.
(a) ExplanationLouisiana immovables
are included in the active mass of the
decedent but not if both the decedent
and his forced heirs are domiciled
outside of Louisiana.
(ii) Located Outside of LouisianaLa. Civ.
Code art. 3534: Except as otherwise
provided in this Title, testate and intestate
succession to immovable situated in another
state is governed by the law that would be
applied by the courts of that state. If the
deceased died domiciled in this state and left
at least one forced heir in this state, the
value of those immovables shall be included
in calculating the disposable portion and in
satisfying the legitime.
(a) ExplanationImmovables located
outside of Louisiana are not
included unless the decedent died
domiciled in Louisiana and at least
one forced heir is domiciled in
Louisiana.
b. ValuationThe property must be valued as of the date of death.
Use the fair market value of the asset.

c. ExclusionsRecall from Chapter 1 (General Dispositions) that we

do not include any of the following items as assets of the estate

Life Insurance
Annuities
US Savings Bonds
Retirement Accounts and Pensions

Step 2: Subtract Sums Due by the EstateThe second step is to

subtract the sums due by the estate to arrive at the net estate.
a. Sums due by estate definedLa. Civ. Code art. 1415 defines
estate debts as debts of the decedent and administration
expenses.

88
 i. Debts of the decedentObligations of the decedent or
those that arise as a result of his death, such as the cost of
his funeral and burial.
ii. Administration ExpensesObligations incurred in the
collection, preservation, management, and distribution of
the estate of the decedent.

b. ExamplesThe most common debts of the estate include the

following:
Debts of the decedent
Burial Costs
Attorneys Fees & Executors Fees
Fees of CPAs, appraisers, and other experts
Costs of insurance, storing, cleaning, marketing assets for sale,
etc.
NOTE: If the estate is insolvent, zero out the net estate. You should never
begin step 3 with a negative number.

Illustration30K (Assets) 40K (Debts) = (-10 K)

*The estate is insolvent. Creditors are paid pro rata. We should assume that
the net estate is zero.

Step 3: Add Donations Inter Vivos Made During Last Three Years

a. Donations IncludedThe donations must have been completed within

three years of the death of the decedent. Older donations are NOT
included.

b. ValuationThe donations are valued at the time of donation, not the time
of death.

c. ExclusionsCertain donations and gratuitous transfers are specifically

excluded from this calculation, either by La. Civ. Code art. 1505, other
special statute, jurisprudence, or federal preemption.

Life InsuranceLa. Civ. Code art. 1505C: Neither the premiums paid for
insurance on the life of the donor nor the proceeds paid pursuant to such
coverage shall be included in the above calculation.
Retirement Accounts/PensionsLa. Civ. Code art. 1505D: Employer and
employee contributions under any plan of deferred compensationand
any benefits payable by reason of death, disability, retirement, or
termination of employment under any such plans, shall not be included in
the above calculation, nor shall any of such contributions or benefits be
subject to the claims of forced heirs.

89
 Remunerative DonationsLa. Civ. Code art. 1510: The value of a
remunerative donation is not included in the calculation of the forced
portion, and the donation may not be reduced, unless the value of the
remunerated services is less than two-thirds the value of the property
donated at the time of the donation, in which event the gratuitous portion
is included in the calculation and is subject to reduction.
Onerous DonationsLa. Civ. Code art. 1511: The value of an onerous
donation is not included in the calculation of the forced portion, and the
donation may not be reduced, unless the value of the charge is less than
two-thirds the value of the property donated at the time of the donation, in
which event the gratuitous portion is included in the calculation and is
subject to reduction.
Donations During Marriage to Former SpouseLa. Rev. Stat. 9:2373:
No donation inter vivos made by a person to his or her spouse of a
previous marriage which was made during the existence of such marriage
shall be subject to provisions of Civil Code Articles 1502 through 1518,
nor shall the property transferred by such donation be fictitiously added to
the aggregate of all property belonging to the donor.
d. But Remember to Include
AnnuitiesAnnuities, unlike life insurance, are subject to the claims of
forced heirs. See La. Rev. Stat. 22:915(B).
US Savings BondsThe current Louisiana jurisprudence suggests that
savings bonds should included in this calculation. See Succession of
Guerre. However, this authority has been called into question by recent
US Supreme Court jurisprudence. See Ridgeway v. Ridgeway.

NOTE: At this point you have calculated the active mass of the succession.
Illustration$0 (Net Estate) + $20K (Donations) = $20K (Active Mass)

Step 4: Determine the Disposable and Forced Portions

a. See Section D(1)(a) of this Outline. Recall that if there is one forced heir,
the forced portion is . If there are two or more forced heirs, the forced
portion is .
1 forced heir
2 or more forced heirs

b. Apply the appropriate fraction to the active mass.

Illustration 1$20K (Active Mass) x = $5K Forced Portion
Illustration 2$20K (Active Mass) x = $10K Forced Portion

90
Step 5: Determine the Legitime of Individual Forced Heirs

a. See Section D(1)(b) of this Outline. Recall that generally the forced
portion is divided by the number of forced heirs. However, special rules
apply if there are forced heirs by representation, if the Greenlaw rule
applies, and if a forced heir renounces the legitime or is declared unworthy
or is disinherited.
b. Apply the appropriate fraction to the active mass.
Illustration$10K (forced portion) / 2 (forced heirs) = $5K legitime

91
F. Satisfaction of the LegitimeThere are 3 steps to satisfaction of the legitime.

3 STEPS FOR SATISFYING THE LEGITIME

Step 1 Impute Property Received
Step 2 Distribute Available Assets
Step 3 Reduce Excessive Donations

Step 1: Imputation of Property Received

a. Imputation, GenerallyThe receipt of certain assets by the forced heir is

imputed toward satisfaction of the legitime.
Property received by intestacy
Property received by the testament to the extent it may satisfy the
legitime (i.e., not in usufruct only or naked ownership burdened by
usufruct of someone other than surviving spouse, or subject to any
other charges or conditions)
Proceeds of insurance policies payable to forced heir (La. Civ. Code
art. 1505C)
Proceeds of retirement plans or pensions payable to forced heir (La.
Civ. Code art. 1505D)
b. Defensive CollationIt is generally understood that donations inter vivos
received by a forced heir within three years of the death of the decedent
that would normally be subject to collation should also be imputed to the
legitime of the forced heir. This concept is known as defensive
collation. See Succession of Hendrick, 430 So. 2d 734 (La. App. 2 Cir.
1983) [Not in text]. Later in this unit, we will discuss in detail which gifts
are subject to collation. For now, just keep in mind that donations inter
vivos made to the forced heir within three years of the death of the
decedent are generally imputed.
i. IllustrationDonor makes a gift to his forced heir of $10,000 two
years prior to his (the donors) death. After the decedents death it
is determined that the legitime of the forced heir is $25,000. The
$10,000 donation must be imputed to the forced heirs legitime.
Thus, only $15,000 remains to be satisfied.

Step 2: Distribute Available Assets

a. Distribution of Available AssetsAssuming that any imputation owed is

insufficient to satisfy the legitime of a forced heir, the legitime is satisfied
from assets remaining in the succession
b. Available AssetsAvailable assets are assets from the net estate that are
not subject to donations mortis causa.

92
Step 3: Reduction of Excessive Donations

a. Reduction, Generally
i. La. Civ. Code art. 1503A donation inter vivos or mortis causa
that impinges upon the legitime of a forced heir is not null but
merely reducible to the extent necessary to eliminate the
impingement.
ii. IllustrationDecedent writes a will leaving the entirety of his
property to his spouse. Decedent has one forced heir. The will is
not null in the entirety. Rather, the child can cause the bequest to
the wife to be reduced in order to satisfy his legitime.
b. Right to Bring ActionLa. Civ. Code art. 1504An action to reduce
excessive donations may be brought only after the death of the donor, and
then only by a forced heir, the heirs or legatees of a forced heir, or an
assignee of any of them who has made an express conventional
assignment, made after the death of the decedent, of the right to bring the
action.
i. Who May BringOnly forced heirs, their heirs or legatees, or
express conventional assignees may bring the action for reduction.
(a) Succession of Henican, 248 So. 2d 385 (La. App. 4 Cir.
1971) [Not in text]Held that creditors of a forced heir
cannot bring an action demanding reduction of excessive
donations made by the decedent.
(b) Succession of Hurd, 489 So. 2d 1209 (La. App. 1 Cir. 1986)
[Not in text]Held that a trustee in bankruptcy has the
right to demand collation even though the right is personal
to the forced heir. A trustee in bankruptcy should also have
the right to demand reduction.
ii. TimingThe action to reduce excessive donations may be brought
only after the death of the donor.
c. Prescription
i. Time PeriodLa. Civ. Code art. 3497: The following actions are
subject to a liberative prescription of five years: An action for
the reduction of an excessive donation.
ii. CommencementPrescription commences at the date of the
decedent in intestate successions and at the date of the probate of
the will in testate successions. See Succession of Kilpatrick in text.
d. Reduction of DonationsIf after the remaining assets of the succession
are distributed, forced heirs still have not received property sufficient to
satisfy their legitimes, donations must be reduced.
i. Reduction only to extent necessaryLa. Civ. Code art. 1503: A
donation, inter vivos or mortis causa, that impinges upon the
legitime of a forced heir is not null but is merely reducible to the
extent necessary to eliminate the impingement.

93
ii. Order of ReductionDonations mortis causa are reduced first, and
an order of preference applies. Next, donations inter vivos are
reduced, beginning with the most recent to the decedents death.
(a) Donations Mortis CausaLa Civ. Code art. 1507:
Donations inter vivos may not be reduced until the value
of all the property comprised in donations mortis causa is
exhausted. The testator may expressly declare in the
testament that a legacy shall be paid in preference to others,
in which case the preferred legacy shall not be reduced
until the other legacies are exhausted.
(i) According to Testators IntentThe testator may
direct the order in which donations mortis causa are
reduced.
(ii) In the Absence of Testators IntentIn the absence
of the testators intent, mortis causa donations are
reduced in the following order
a. Universal and General Legacies
b. Particular Legacies of Money
c. Particular Legacies of Groups/Collections of
Things
d. Particular Legacies of Specific Things
*Note, this order for reduction is derived from La.
Civ. Code arts. 1600-1603, which express the
preference for payment of legacies. We reduce
excessive donations beginning with the least
preferred legacies.
(iii) Illustration: The decedent dies testate leaving a
forced heir who is not named in the will. The will
disposes of the estate as follows: (1) First edition of
To Kill a Mockingbird to A; (2) book collection to
B; (2) $10,000 to C; (3) $10,000 to D, (5) and the
remainder of the estate to E. In what order are
these legacies reduced?
(b) Donations Inter VivosDonations inter vivos are then
reduced beginning with the most recent to the decedents
death.
(i) In GeneralLa. Civ. Code art. 1508: When the
property of the estate is not sufficient to satisfy the
forced portion, a forced heir may recover the
amount needed to satisfy his legitime from the
donees of inter vivos donations made within three
years of the date of the decedents death, beginning
with the most recent donation and proceeding
successively to the most remote.
(ii) Insolvency of the DoneeLa. Civ. Code art. 1509:
When a donee from whom recovery is due is

94
 insolvent, the forced heir may claim his legitime
from the donee of the next preceding donation and
so on to the donee of the most remote donation. A
donee who pays the share of an insolvent donee is
subrogated to the rights of the forced heir against
the insolvent donee.
(iii) Donations Exempted From ReductionThe same
donations that were not included in the active mass
calculation are exempt from reduction. Note the
special rules for remunerative and onerous
donations in La. Civ. Code arts. 1510 and 1511.
(iv) Retention of FruitsLa. Civ. Code art. 1512: The
fruits and products of property donated inter vivos
belong to the donee except for those that accrue
after written demand for reduction is made on him.
(v) Method of Reduction (In Kind or by Contribution)
La. Civ. Code art. 1513: The action for
reduction of excessive donations may be brought
only against the donee or his successors by
gratuitous title in accordance with the order of their
donations, beginning with the most recent donation.
When the donated property is still owned by the
donee or the successors, reduction takes place in
kind or by contribution to the payment of the
legitime, at the election of the donee or his
successors, who are accountable for any diminution
in value of the property attributable to their fault or
neglect and for any charges or encumbrances
imposed upon the property after the donation.
When the property given is no longer owned by the
donee or his successors by gratuitous title, the
donee and the successors must contribute to the
payment of the legitime. A donee or his successor
who contributes to payment of the legitime is
required to do so only to the extent of the value of
the donated property at the time the donee received
it.
a. Against Whom Action May be Brought
Donee or his successors by gratuitous title.
If the property has been alienated by
onerous title, third party acquirers are
protected (but the donee/successor by
gratuitous title who sold the property must
contribute to the legitime).
b. When Donee/Successor Still Owns Property
Reduction can occur in kind or by

95
 contribution to the legitime (value of the
property at the time the donee received it).
The donee/successor elects the method of
reduction. If reduction occurs in kind, then
the donee/successor is accountable for
diminution in value resulting from fault or
encumbrance
c. When Donee/Successor Does Not Own
PropertyReduction can occur by
contribution only (value of the property at
the time the donee received it).
e. Reduction of Legacy to Surviving Spouse
i. IllustrationH dies testate survived by one forced heir. H leaves
his entire estate to his surviving spouse, W. To what extent is this
legacy reduced? Does the forced heir receive (a) the legitime in
full ownership; (b) the legitime in naked ownership only, subject to
a usufruct in favor of the surviving spouse? If (b), what are the
features of this usufruct? Has the legal usufruct been
confirmed, or is this a testamentary usufruct?
ii. AuthorityLa. Civ. Code art. 1503: A donation inter vivos or
mortis causa that impinges upon the legitime of a forced heir is not
null but is merely reducible to the extent necessary to eliminate the
impingement.
iii. Solutions
a. Solution 1 (Professor Nathan)Read carefully comment
(b) to La. Civ. Code art. 1503, authored by Professor Max
Nathan. What is the solution advocated by this comment?
b. Solutions 2 and 3 (Professor Yiannopoulos)Read
carefully the Editors Note to La. Civ. Code art. 1503.
What solutions does Professor Yiannopoulos suggest?

Problems, pp. 332

Unit 9 Forced Heirship

Detailed Outline
Installment 4
G. Collation
1. Collation, Generally
a. Definition Collation involves the return of donations given by
the decedent to his descendants to the mass of the succession so
that they can be divided equally among the descendants who are
called to the succession.
i. La. Civ. Code art. 1227The collation of goods is the
supposed or real return to the mass of the succession which
an heir makes of property which he received in advance of

96
 his share or otherwise, in order that such property may
divided together with the other effects of the succession.
ii. La. Civ. Code art. 1228A. Children or grandchildren,
coming to the succession of their fathers, mothers, or other
ascendants, must collate what they have received from
them by donation inter vivos, directly or indirectly, and
cannot claim the legacies made to them by such ascendants
unless the donations and legacies have been made to them
expressly as an advantage over their coheirs and besides
their portion. B. This rule takes place whether the children
or their descendants succeed to their ascendants as legal or
testamentary heirs.
b. RationaleThe rationale for collation is two-fold, as explained by
La. Civ. Code art. 1229, and based upon two interrelated
presumptions:
i. Equality Among ChildrenCollation is based on the
presumption that the decedent intends to treat his children
equally.
ii. Advance on InheritanceAll gifts given to a descendant
are considered an advance on the descendants inheritance.
Thus, the mere fact that the decedent gave a gift to one
descendant but not another does not in and of itself rebut
the presumption of equality.
c. CritiqueDoes collation conform to modern societal norms and
expectations about the distribution of property at death?

2. Presumption and DispensationThe default position in the law is that

collation takes place if the decedent does nothing. Thus, collation is
always presumed (La. Civ. Code art. 1230). However, the decedent may
dispense with collation. (La. Civ. Code art. 1231).
a. Methods of Dispensing with Collation
i. La. Civ. Code art. 1232The Code specifies that collation
can be dispensed with in the instrument giving the gift, by a
later act passed before a notary and two witnesses, or in the
donors last will and testament.
ii. Jurisprudential Gloss: Jurisprudence suggests that when a
manual gift is given, the dispensation from collation can be
established through the facts and circumstances of the
case so long as they evidence strong and convincing
proof of an intent to dispense with collation. (See
Succession of Gomez; Succession of Fakier; Succession of
Skye)
b. Language RequiredThe donor must formally express[] his will
that what he gave was an advantage or extra part. (La. Civ.
Code art. 1231). This declaration may be made in other
equivalent terms, provided they indicate, an in unequivocal

97
manner, that such was the will of the donor. (La. Civ. Code art.
1233).
i. Jordan v. Filmore (La. 1929)
(a) FactsTestator died survived by her daughter and
her granddaughter (child of a predeceased
daughter). In the will, she left everything to her
daughter, excluding her granddaughter entirely.
Granddaughter sued for collation, which would give
her of the decedents estate. Daughter argued that
granddaughter was not entitled to collation, but only
to reduction, and thus was entitled to of the
estate.
(b) HoldingDid the will, which did not mention
collation but which merely left the entire estate to
the daughter, dispense with collation of the
universal legacy?
(c) DictaJustice ONeill concludes that legacies can
never be subject to collation. What is the rationale
for this conclusion?
(i) NoteSome courts have followed this
approach while other courts have criticized
this approach.
ii. Succession of Fakier (La. 1988)
(a) FactsFlossie Fakier died survived by two
daughters Patricia and Mary, and the children of
her predeceased son George. During her lifetime
Flossie gave her daughter Patricia a ring valued at
$10,000. She also named her daughters as
beneficiaries of an annuity. The will left the forced
portion to Georges children and the disposable
portion to her two daughters. Georges children
demand collation of the ring and the annuities.
(b) Holding re AnnuitiesAre the annuities subject to
collation? Why or why not?
(c) Holding re RingDid the will, which bequeathed
the disposable portion to Mary and Patricia,
dispense with collation of the ring? What, under
this case, is required to dispense with collation of
inter vivos donations in a will? Is the holding in
this case consistent with Jordan v. Filmore? Why or
why not? Scholars have criticized the holding in
this case. Do you see why?
iii. Succession of Odom (La. App. 1 Cir. 2000)
(a) FactsTestator transferred most of his property to
an inter vivos trust for his four children, and his will
transferred the remaining property to the same

98
 children. Another child from a prior marriage was
not mentioned in the trust or the will. She
demanded collation of the trust and the estate.
(b) HoldingThe will dispensed with collation of both
the inter vivos trust and the legacies in the will.
Whenever a decedent by his will shows that he did
not intend for a forced heir to share in the
disposable portion, that heir cannot claim collation
of any advantages. The decedent's actual intention
overrides the presumed intention to benefit all the
heirs equally. Is the holding in this case consistent
with Jordan v. Filmore? Is it consistent with
Succession of Fakier?
iv. Take AwayIs the mere fact that a descendant is left out of
the will entirely or bequeathed only the disposable
portion enough to dispense with collation of inter vivos
gifts? Or is more required?

3. Things Subject to and Not Subject to CollationGenerally, all gifts and

advantages are subject to collation, unless the law provides for an
exemption from collation.
a. Expenditures
i. Expenditures Subject to Collation: La. Civ. Code art. 1243
Collation is due for what has been expended by the
mother and father to procure an establishment of their
descendant coming to their succession, or for the payment
of his debts.
ii. Expenditures Not Subject to Collation: La. Civ. Code art.
1244Neither the expenses of board, support, education
and apprenticeship are subject to collation, nor are marriage
presents which do not exceed the disposable portion.
(a) Board, Support, Education, ApprenticeshipThis
exception is tied to the parents obligation to
support the child during minority. Thus, the
expenditures of this type which are made during
minority are exempted. Expenditures made after
the child attains the age of 18 are generally not
exempted, unless they are made pursuant to the
parents alimentary obligation to provide for a child
in necessitous circumstances. (See La. Civ. Code
arts. 227 and 229).
(b) Marriage PresentsThere is room here for great
disparity in the treatment of children.

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b. Gifts Given by Parents Own Hands
i. La. Civ. Code art. 1245: The same rule is established with
respect to things given by a father, mother, or other
ascendant, by their own hands, to one of their children for
his pleasure or other use.
ii. Application to Manual GiftsDoes this article provide an
exemption for all manual gifts? Why or why not? (See
Succession of Gomez & Succession of Fakier).
c. Arms-Length Transactions
i. La. Civ. Code art. 1246The heir is not bound to collate
the he has made from contracts with his ascendants to
whom he succeeds unless the contracts, at the time of their
being made, gave the heir some indirect advantage.
ii. La. Civ. Code art. 1247Also, no collation is due for a
partnership made without fraud with the deceased, if the
conditions of the partnership are proved by an authentic
act.
d. Simulations and Sales at Low Prices
i. Definition of SimulationA simulation is a transaction that
the parties intend to have either no effects or effects
different from the ones recited. (See La. Civ. Code arts.
2025, et seq.)
ii. Absolute Simulations
(a) Definition and EffectA simulation is absolute
when the parties intend that their contract shall
produce no effects between them. That simulation,
therefore, can have no effects between the parties.
(b) ExampleX owns real estate worth $100,000. She
wants to remain owner but wishes for her child to
manage the property for her. She executes an act
purporting to sell the property to her child, but
this is done merely for show.
(c) CollationNo collation is due by the child.
Because the transaction produced no effects it was
not a true gift or advantage to the child. However,
successors can move to set aside the simulated
transaction (through a so-called action for
declaration of simulation) to show that the property
never left the patrimony of the decedent.
(i) Proof of SimulationGenerally, an absolute
simulation may be proven by parol
evidence. However, a counterletter is
required to prove that an act purporting to
transfer immovable property is an absolute
simulation, except when a simulation is
presumed, as necessary to protect the rights

100
 of forced heirs, or as necessary to protect
creditors. (See C.C. 1849).
iii. Relative Simulations
(a) Definition and EffectA simulation is relative
when the parties intend that their contract shall
produce effects between them though different from
those recited in their contract. A relative simulation
produces between the parties the effects they
intended when all the requirements for those effects
have been met.
(b) ExampleX owns real estate worth $100,000. She
wants to donate it to her daughter but does not want
her other children to know about the donation. She
therefore executes an act purporting to sell the
property to her daughter. Daughter does not pay the
price recited in the act of sale.
(c) CollationCollation is due, provided the heirs can
prove that the parties intended a donation.
(i) Proof of SimulationA relative simulation
can be proven with parol evidence. A
counterletter is not required. (See C.C.
1849).
(d) Note re Intention to Dispense with Collation
Issue: When a donor disguises a donation as a
sale, does this indicate an intent to dispense with
collation? And if it does, can this intent be inferred
from the facts and circumstances since an act of
donation is not executed by the parties? French
commentators are divided on this issue. Louisiana
jurisprudence indicates that a simulation does not an
unequivocal declaration of an intent to dispense
with collation. See Montgomery v. Cheney.
(e) Note re Article 2444Disregard the discussion in
your textbook about Article 2444. This article was
repealed in August of 2012.
iv. Sale at a Low Price
(a) IllustrationX owns a piece of real estate worth
$100,000. She wants to sell it to her daughter, but
does so at a lower price than fair market value (e.g.,
$60,000).
(b) CollationLa. Civ. Code art. 1248 provides, The
advantage which a father bestows on his son,
though in any other manner than by a donation or
legacy, is likewise subject to collation. Thus, when
a father has sold a thing to his son at a very low
price, or has paid for him the price of some

101
 purchase, or has spent money to improve his sons
estate, all of that is subject to collation. Question:
What is a very low price?
f. Other Advantages
i. La. Civ. Code art. 1248 provides: The advantage which a
father bestows on his son, though in any other manner
than by a donation or legacy, is likewise subject to
collation. Thus, when a father has sold a thing to his son at
a very low price, or has paid for him the price of some
purchase, or has spent money to improve his sons estate,
all of that is subject to collation. Thus, in theory, all
advantages are subject to collation.
ii. Limitation: Succession of PiersonDavid lived in his
parents garage apartment rent-free. After his parents
death, his siblings demanded collation of the value of this
advantage. Is this advantage subject to collation? Why or
why not?
g. DebtsIf a descendant owes a debt to the parent, then successors
are entitled to pursue to the descendant as a creditor of the estate.
However, if the descendant is insolvent or judgment-proof, a
question arises as to whether the descendant must collate the value
of the debt (i.e., take less from the succession to make up for the
debt he cannot pay).
i. General RuleThe child must collate the debt.
ii. GrandchildrenLouisiana jurisprudence has held that
when a grandchild is called to the succession, he is not
required to collate the debts of his parent. This is because
the grandchild, even though he is representing his parent, is
not on the hook for his parents debts. See Succession of
Morgan (Volume 1, Chapter 1). This is contrary to the
French approach.
h. Fruits of Property Subject to CollationOnce it is determined that
property must be collated, a question arises as to whether fruits
derived from that property must also be collated.
i. Illustration: Succession of Doll v. DollX donates a tree
farm to his child. Child collects revenues from harvesting
the trees on the tree farm (these are fruits). X dies, and
childs siblings demand collation of the tree farm and the
revenues derived from the tree farm. Must child collate the
revenues?
ii. Jurisprudential RuleBecause no Code provision governs
this question, Louisiana courts have applied the Code
provision governing revocation and dissolution of
donations inter vivos (La. Civ. Code art. 1566). This rule
provides that the donee is bound to restore fruits from the
date of written demand.

102
 (a) NoteThis rule is parallel to the rule set forth in
Article 1512 regarding reduction of fruits.

4. To Whom and By Whom Collation is Due: Article 1235

a. History
i. Before 1990Before 1990, all forced heirs were required
to collate, and all descendants were forced heirs. Thus all
descendants were required to collate and could demand
collation of their siblings. This made sense.
ii. 1990 RevisionsWhen the law of forced heirship was
revised in 1990, the law of collation was not changed. The
article provided that forced heirs were obliged to collate.
As a result, forced heir descendants were required to
collate, but non-forced heir descendants were not required
to collate. This created unfairness.
iii. LSLI and Academic ResponseA recommendation was
made to change the law so that all descendants would again
be required to collate. The rationale for this
recommendation was that collation and reduction serve two
entirely different purposes, and it is not necessary for a
descendant to be a forced heir in order for collation to
apply. The legislature made the requested change.
iv. Effect of Succession of LaugaWhen the Court declared
the 1990 changes to forced heirship unconstitutional, all
legislation relating to those changes was stricken. The old
law sprang back into existence.
v. 1995 RevisionsAfter the Constitutional amendment, the
Legislature replaced the legislation altering the law of
forced heirship. Again, the rule was made that all
descendants would be required to collate.
vi. 1996 RevisionIn 1996, a total repeal of collation was
recommended by the Law Institute. The Legislature
decided instead to leave the law of collation intact, but to
amend Article 1235.
b. Current Law: Who May Demand Collation
i. La. Civ. Code art. 1235The right to demand collation is
confined to descendants of the first degree who qualify as
forced heirs, and only applies with respect to gifts made
within the three years prior to the decedents death, and
valued as of the date of the gift. Any provision of the Civil
Code to the contrary is hereby repealed.
(a) RationaleThe Legislature sought to severely limit
the law of collation by restricting the class of
persons who could demand collation and restricting
the gifts of which collation could be demanded.

103
 (b) CritiqueThis hastily drafted article creates a
number of problems in the law of collation.
(i) Inequality Among DescendantsNote that
forced heirs may demand collation.
However, according to La. Civ. Code art.
1228, all descendants must collate. Thus,
forced heirs may demand collation by non-
forced heirs, but non-forced heirs may not
demand collation by forced heirs. Also, the
three-year time limitation on gifts subject to
collation may create unfairness as well.
(ii) Who BenefitsDoes collation, once
demanded, benefit all descendants called to
the succession? Or does it benefit only the
forced heirs who are entitled to demand
collation?
(iii) GrandchildrenA question exists
regarding whether grandchildren may
demand collation. Competing arguments:
a. Grandchildren Cannot Demand
CollationLa. Civ. Code art. 1235
limits the right to descendants of the
first degree who qualify as forced
heirs. Also, La. Civ. Code art.
1235, cmt. (c) provides: nor is a
grandchild permitted to demand
[collation], even if he qualifies as a
forced heir.
b. Grandchildren Can Demand
CollationHowever, recall that
grandchildren who are forced heirs
are forced heirs by representation.
Thus, it can be argued that
grandchildren are forced heirs of the
first degree, because they are
representing their predeceased
parent.
(iv) Restriction to GiftsDoes the use of the
term gift in La. Civ. Code art. 1235
indicate an intent to restrict collation to
gifts rather than all advantages?
ii. Creditors
(a) ExplanationCreditors of a successor may want to
demand collation on behalf of that successor so that
the successors patrimony is increased.

104
 (b) Civil CodeNote that La. Civ. Code art. 1504
restricts the right of a creditor to demand reduction
on behalf of a forced heir. Creditors may not bring
the action for reduction unless there has been an
express conventional assignment of the right. The
same rule should, arguably, apply to collation.
(c) JurisprudenceThe jurisprudence has attempted to
limit the right of creditors to demand collation on
behalf of the successor. However, when a successor
is in bankruptcy, it has been held that the trustee
may exercise the right to demand collation.
iii. The TestatorNote that the testator may demand collation
in the will. If this occurs, the successors must collate
despite the fact that none of the successors qualify under
La. Civ. Code art. 1235 to demand collation.
(a) Illustration: Succession of Hawsey.

c. Current Law: Who Is Required to Collate

i. DescendantsChildren and grandchildren of the decedent
are required to collate. (La. Civ. Code art. 1228)
ii. Special Rules for Grandchildren (La. Civ. Code arts. 1238-
1241)
(a) Gifts Made to GrandchildWhether the grandchild
has to collate gifts given by the decedent to the
grandchild depends upon whether the gift was given
before the death of the grandchilds parent or after
the death of the grandchilds parent.
(i) Gifts Made Before Death of Parent
Collation is not due. This is because
grandchildren only have to collate gifts that
are a presumed advance on their inheritance.
A gift made to the grandchild prior to the
death of the parent is not an advance on the
inheritance.
(ii) Gifts Made After Death of Parent
Collation is due. This is true regardless of
whether the grandchild is inheriting in her
own right (by virtue of a will) or by
representation.
(b) Gifts Made to ParentWhether the grandchild has
to collate gifts given by the decedent to the parent
depends upon whether he is inheriting in his own
right or by representation.
(i) In his Own RightCollation is Not Due.
(ii) By RepresentationCollation is Due.

105
 (c) Collation of Gifts Made to Grandchild by Parent
Note that a parent is never required to collate gifts
made by the decedent directly to the grandchild.
iii. Avoiding Collation: RenunciationA successor may avoid
the obligation to collate, and keep the gifts he was given, if
he renounces his right to the succession. (See La. Civ.
Code art. 1237).
iv. Illustrations: Problems p. 164-165.
(a) GF donates $10,000 to GC1 two years before his
death, but not to his other two grandchildren. A,
parent of GC1, died prior to the donation. B,
parent of GC2 and GC3, is still alive. GF dies
intestate. Can collation be demanded? If so, by
whom and why?
(b) Same facts as (1), except B predeceased GF. Can
collation be demanded? If so, by whom and why?
(c) Suppose one year before As death, A gives $10,000
to her 35-year old daughter, D1. If D2, As 20-year
old daughter, who received no gifts or advantages
within the three years preceding As death, demands
collation from D1, what, if anything, can D1 do to
avoid collation?

5. Prescription
a. GenerallyThere is no specific code article that provides a
prescriptive rule for collation. However, the jurisprudence has
imposed a 10-year prescriptive period running from the date of the
death of the donor.
i. Succession of WebreThe Louisiana Supreme Court
announced the rules governing prescription of a demand for
collation. Note that there were two dissenting opinions in
this case arguing that the demand for collation is timely so
long as the time permitted for partition (30 yearsLa. Civ.
Code art. 1305) has not elapsed.
b. Effect of Judgment of PossessionThe jurisprudence has held that
once a judgment of possession has been rendered, collation may no
longer be demanded, unless the judgment of possession is rendered
null under La. Civ. Proc. arts. 2002-2004 (judgment rendered
against incompetent, improper service, improper default judgment,
no subject matter jurisdiction, fraud or ill practices). (See
Succession of Delesdernier)
i. Note that this rule has also been criticized as incorrect. Do
you see why?
c. Collation Demanded in WillNote that in Succession of Hawsey,
the court held that the 10 year prescription applicable to collation
did not apply because the collation in that case was called for in

106
 the will and did not proceed according to the dictates of statutory
collation.

6. How Collation is Made

a. MethodsCollation is made in kind or by taking less (La. Civ.
Code art. 1251)
i. Collation in KindThe collation is made in kind, when
the thing which has been given, is delivered up by the
donee to be united to the mass of the succession. (La. Civ.
Code art. 1252)
ii. Collation by Taking LessThe collation is made by
taking less, when the donee diminishes the portion he
inherits, in proportion to the value of the object he has
received, and takes so much less from the surplus of the
effects as is explained in the chapter which treats of
partitions.
b. Movables v. ImmovablesA distinction is made between movable
and immovable property when it comes to how collations are
made. (La. Civ. Code art. 1254)
i. Collation of Immovables (La. Civ. Code arts. 1255-1282)
(a) General RuleIf the donee has possession of the
immovable, then the donee has the option to collate
either in kind or by taking less. (La. Civ. Code art.
1255)
(i) ValuationNote the conflict in the Code!
a. La. Civ. Code art. 1269When the
donee elects to collate by taking less,
he must collate the value which the
immovable property had at the date
of the opening of the succession.
b. La. Civ. Code art. 1235Collation is
valued at the date of the gift. Any
provision of the Civil Code to the
contrary is hereby repealed.
(ii) Potential Repeal of Collation in KindNote
that when a collation occurs in kind, the
donee is necessarily collating the gift
according to its value at the time of
collation. Article 1235 arguably repeals the
entire concept of collation in kind by
requiring collation to be made according to
the value at the time of the date of the gift.
(b) ExceptionIf the donor has imposed the obligation
to make the collation in kind, then it has to be made
in kind unless all the other heirs consent.

107
 ii. Collation of Movables (La. Civ. Code arts. 1283-1288)
(a) General RuleThe donee must collate by taking
less, according to the appraised value at the time of
donation. (La. Civ. Code art. 1283)
(b) Collation of MoneyThe donee can either pay
money to the succession or take less, at his option.
(La. Civ. Code art. 1285)
c. Additional RulesNote that there are a great many additional
detailed rules in the Civil Code addressing the methods of making
collation. Occasionally these detailed rules are tested on the
Louisiana bar examination.

7. Putting it all Together: Reduction and CollationDetermine the proper

distribution of the decedents estate applying principles of both reduction
and collation. Unless otherwise stated, assume that the donor did not
dispense with collation with respect to any inter vivos donation.

1. X dies intestate, leaving three children, A, B, and C, all under age 23. Two
years before his death X makes a donation to A of $400,000. At his death, Xs
net estates equals $80,000.

2. X dies, leaving three children, A, B, and C, all under age 23. Two years
before his death X makes a donation to A of $400,000. At his death, Xs net
estates equals $200,000. X bequeaths $120,000 of his property to his friend,
Z.

3. X dies, leaving two children A and B, both under 23 years of age. On the day
of Xs death, he gives A property worth $150,000. At Xs death, he has a net
estate worth $250,000. X has a will naming A as his universal legatee.

4. X dies in 2006, leaving three children, A, B, and C, all under the age of 23,
and a nephew, N. X leaves a net estate at death of $10,000. In 2005, X made
a $10,000 inter vivos gift to N, and in 2004, X made a $40,000 inter vivos gift
to A.

5. X dies in 2006, leaving a universal legatee, Z, and two children, A and B, both
under the age of 23. The net estate at Xs death is worth $300,000. In 2004, A
received a gift of $125,000, and in 2005, B received a gift of $175,000.

6. X dies in 2006 leaving two children, A and B, both under 23, and a universal
legatee, Z. In 2004, X made an inter vivos donation to A of $150,000 and in
2002, X made an inter vivos donation to B of $150,000. At his death, X had a
net estate of $150,000.

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 Unit 9 Forced Heirship
Detailed Outline
Installment 5

H. Disinherison
1. Grounds for Deprivation of LegitimeThe forced heir may be deprived of
his legitime if he either (a) is declared unworthy to succeed; or (b) he is
disinherited.
a. UnworthinessThe action to declare a forced heir unworthy is
identical to the action for declaration of unworthiness that we
studied earlier in the semester. See Outline for Unit 5, Part B.
b. DisinherisonA forced heir shall be deprived of his legitime if he
is disinherited by the testator, for just cause, in the manner
prescribed in the following articles. (La. Civ. Code art. 1617)

2. Grounds for DisinherisonJust cause must exist for disinherison. The

causes for disinherison are explicitly stated in the Civil Code, La. Civ.
Code arts. 1621 & 1622. These are the only just causes for disinherison,
according to La. Civ. Code art. 1620.
a. Disinherison by Parents (La. Civ. Code art. 1621)A parent may
disinherit a child for one of the following reasons.
i. The child has raised his hand to strike a parent, or has
actually struck a parent; but a mere threat is not sufficient.
ii. The child has been guilty, toward a parent, of cruel
treatment, crime, or grievous injury.
iii. The child has attempted to take the life of a parent.
iv. The child, without any reasonable basis, has accused a
parent of committing a crime for which the law provides
that the punishment could be life imprisonment or death.
v. the child has used any act of violence or coercion to hinder
a parent from making a testament.
vi. the child, being a minor, has married without the consent of
the parent.
vii. the child has been convicted of a crime for which the law
provides that the punishment could be life imprisonment or
death.
viii. The child, after attaining the age of majority and knowing
how to contact the parent, has failed to communicate with
the parent without just cause for a period of two years,
unless the child was on active duty in the military forces of
the United States at the time.
b. Disinherison by Grandparents (La. Civ. Code art. 1622)A
grandparent may disinherit a grandchild for any of the causes set
forth above, except the sixth, whenever the offending act has been
committed against a parent or a grandparent. He may also
disinherit the grandchild for the seventh cause.

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3. TimingThere are issues of timing which dictate the validity of a
disinherison.
a. La. Civ. Code art. 1621(B)for a disinherison to be valid, the
cause must have occurred prior to the execution of the instrument
that disinherits the heir.
b. La. Civ. Code art. 1623A person may be disinherited even
though he was not a presumptive forced heir at the time of the
occurrence of the facts or circumstances alleged to constitute just
cause for his disinherison.
i. Presumptive Forced HeirWhat is a presumptive forced
heir? See La. Civ. Code art. 1623 cmt. (b).

4. FormalitiesGenerally, the disinherison must be in the form of a

testament, must be express, must clearly identify the person disinherited,
and must express the reason, facts, or circumstances that constitute the
cause for the disinherison.
a. La. Civ. Code art. 1618A disinherison must be made in one of
the forms prescribed for testaments.
i. Forms of TestamentsIn Louisiana, a will is either notarial
or olographic. We will study the intricacies of will
formalities later in the semester. Generally, an olographic
will is one that is entirely written, dated, and signed in the
handwriting of the testator. A notarial will must be signed
by two witnesses and notarized, in addition to meeting
other formal requirements.
b. La. Civ. Code art. 1619The disinherison must be made
expressly and for a just cause; otherwise, it is null. The person who
is disinherited must be either identified by name or otherwise
identifiable from the instrument that disinherits him.
c. La. Civ. Code art. 1624The testator shall express in the
instrument the reasons, facts, or circumstances that constitute the
cause for the disinherison; otherwise, it is null.

5. Defenses
a. Proof that Grounds for Disinherison do Not ExistA forced heir
may overcome a disinherison if he successfully proves that the
grounds for disinherison do not exist.
i. La. Civ. Code art. 1624The reason, facts, or
circumstances expressed in the instrument shall be
presumed to be true. The presumption may be rebutted by
a preponderance of the evidence, but the unsupported
testimony of the disinherited heir shall not be sufficient to
overcome the presumption.

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 b. ReconciliationA forced heir may overcome a disinherison if he
successfully proves that, although the grounds for disinherison are
true, he has reconciled with the decedent.
i. La. Civ. Code art. 1635A. A person who is disinherited
may overcome the disinherison by proving reconciliation
with the testator after the occurrence of the reason, facts, or
circumstances expressed in the instrument, provided he
does so by clear and convincing evidence. B. A writing
signed by the testator that clearly and unequivocally
demonstrates reconciliation shall constitute clear and
convincing evidence.
ii. Jurisprudence has held that the requirements for
reconciliation should be read in pari materia with the
reconciliation provisions applicable to unworthiness (La.
Civ. Code art. 943). See Succession of Lissa.
c. Other DefensesA forced heir may overcome a disinherison if he
successfully proves that, although the grounds for disinherison are
true, because of his age or mental capacity he was not capable of
understanding the impropriety of his behavior, or that his behavior
unintentional or justified.
i. La. Civ. Code art. 1626A disinherison shall not be
effective if the person who is disinherited shows that
because of his age or mental capacity he was not capable of
understanding the impropriety of his behavior or if he
shows that the behavior was unintentional or justified under
the circumstances. Proof of this defense must be by a
preponderance of the evidence, but the unsupported
testimony of the disinherited heir shall not be sufficient to
establish this defense.

6. Jurisprudence
a. Succession of Bertaut
i. FactsOn what grounds did the decedent attempt to
disinherit his forced heirs? What did the will state?
ii. HoldingWas the disinherison valid in form? Why or why
not? Were there sufficient grounds present for
disinherison? Why or why not?
b. Succession of Jurisich
i. FactsThe decedent attempted to disinherit his forced
heirs for failure to communicate with him for two years
without just cause. The heirs alleged that the major events
causing their ultimate alienation from the testator were his
marriage to his second wife, Carol, his insistence upon
selling certain property in Lacomb, and his constant
rejection when they tried to contact him.

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 ii. HoldingWere there sufficient grounds for disinherison?
Why or why not? Can this case be reconciled with
Succession of Bertaut?
c. Succession of Gray
i. FactsThe decedent attempted to disinherit his forced
heirs for failure to communicate with him for a period of
two years without just cause. The daughters attempted to
rebut the presumption of truth of the facts set forth in the
will, alleging that they had communicated with their father
during the period in question, or in the alternative that they
had just cause for failure to do so.
ii. HoldingWhat constitutes communication sufficient to
prevent disinherison? How does the court rule regarding
just cause?
d. Succession of Lissa
i. FactsThe decedents attempted to disinherit their daughter
for marrying without their permission. Daughter sought to
prove that despite the disinherison, she and her parents had
reconciled during their lifetimes.
ii. HoldingDid the court find that reconciliation had
occurred between the forced heir and her mother?
Between the forced heir and her father? What facts were
important to the courts holdings?

7. Historical Notes
a. In 1999, the articles on disinherison were accidentally repealed.
They were not replaced until 2001. It is unknown what law applies
to people who died during that time period.
b. Also, note that when the law was revised in 2001, a provision was
enacted stating that if a will was drafted before the effective date of
the new law then: if the disinherison would be valid under the new
law, the new law applies; but if the disinherison would be invalid
under the new law but valid under the old law, then the old law
applies. (La. R.S. 9:2502)

I. Donations Omnium Bonorum

1. Donations Omnium Bonorum, Generally
a. Disposable Portion in Absence of Forced HeirsIf there is no
forced heir, donations inter vivos and mortis causa may be made to
the whole amount of the property of the donor, saving the
reservation made hereafter. (La. Civ. Code art. 1497)
b. Donation Omnium Bonorum, DefinitionThe donation inter
vivos shall in no case divest the donor of all of his property; he
must reserve to himself enough for subsistence. (La. Civ. Code
art. 1498)

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 c. Effect of Donation Omnium BonorumLa. Civ. Code art. 1498
goes on to explain the effect of a donation omnium bonorum:
i. Donation omnium bonorum of movableA donation
omnium bonorum of a movable is null.
ii. Donation omnium bonorum of immovableA donation
omnium bonorum of an immovable is also null, unless the
rights of third parties are at stake.
(a) If the donee has alienated the immovable by
onerous title, the donation is not null but the donee
is bound to return the value the immovable had at
the time the donee received it.
(b) If the donee has created a real right by onerous title
in the immovable, or such a right has been created
by operation of law, the donation is null but the
property remains subject to the real right, and the
donee or his successors by gratuitous title are
accountable for the diminution in value of the
property.

2. Identifying a Donation Omnium BonorumThe donor must reserve to

himself enough for his subsistence. This requirement has been
addressed by the jurisprudence.
a. LaGrange v. Barre
i. FactsDonor gave all of his land and slaves to defendant
under an agreement that the donee and his heirs would take
care of the donor for the rest of his life. The donor now
wants everything back, claiming that the donation was a
prohibited donation omnium bonorum.
ii. HoldingThis was a prohibited donation omnium
bonorum. Explain the courts rationale. What effect did
the fact that the donee had promised to care for the
defendant for the rest of his life have on the courts
determination?
b. Pardue v. Turnage
i. FactsKenneth Turnage gave a large stuff bear and his
household effects to the Lessards when he left for Alaska.
A creditor of Turnage tries to seize the bear, arguing,
among other things, that the donation was a prohibited
donation omnium bonorum.
ii. HoldingA donation omnium bonorum did not occur here.
Explain the courts rationale. What did Turnage retain that
was enough for his subsistence?
c. Bernard v. Noel
i. FactsFrancoise donated all of her property to her
husband in 1880. She died in 1882, survived by no
descendants or ascendants. Her collateral heirs (brothers

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 and sisters) claim the donation of property was a donation
omnium bonorum.
ii. HoldingThis was not a prohibited donation omnium
bonorum. Explain the courts rationale. Can you square
this case with LaGrange v. Barre?
d. LeBourgeois v. Yeutter
i. FactsDonor gave her daughter her real estate, including
her home and some oil producing properties. She reserved
a usufruct to herself. Later, she sought to revoke the
donation on the ground that it was a prohibited donation
omnium bonorum.
ii. HoldingA donation omnium bonorum did not occur here.
Explain the courts rationale. Of what import was it that
several years after the donation was made, the usufruct did
not produce enough income to pay donors living
expenses?

3. Who May Challenge

a. Bernard v. Noel
i. FactsFrancoise donated all of her property to her
husband in 1880. She died in 1882, survived by no
descendants or ascendants. Her collateral heirs (brothers
and sisters) claim the donation of property was a donation
omnium bonorum.
ii. HoldingWho is entitled to bring an action to challenge a
donation omnium bonorum? What kind of nullity is a
donation omnium bonorum?
b. Succession of TurgeauThe court held that the right to challenge a
donation omnium bonorum is of a personal character and only
forced heirs can urge the ground to the extent of their legitime.
Other cases have concurred in this reasoning.

4. PrescriptionIs the donation omnium bonorum absolutely or relatively

null? What is the applicable prescriptive period? See Trahan v. Bertrand
(2007).

Unit 10-Reprobated Dispositions

A. Illegal, Immoral, or Impossible Conditions on Donations

1. General RuleThe donor may impose on the donee any charges or
conditions he pleases, provided they contain nothing contrary to the law or
good morals. (La. Civ. Code art. 1528) This rule applies both to
donations inter vivos and donations mortis causa.
2. Effect of Prohibited ConditionsIn all dispositions inter vivos or mortis
causa, impossible conditions, those which are contrary to the laws or to
good morals, are reputed not written. (La. Civ. Code art. 1519)

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 a. General RuleProhibited conditions are reputed not written.
i. Comparison to Law of ObligationsA suspensive
condition that is unlawful or impossible makes the
obligation null. (La. Civ. Code art. 1769) Why does an
unlawful suspensive condition result in nullity? Why not
an unlawful resolutory condition?
b. Prime and Moving Cause ExceptionRead Succession of
Thompson carefully. What was the prohibited condition in this
case? What was the effect of this illegal condition? Note that the
approach of this case has not been consistently followed.
3. Examples of Prohibited Conditions
a. Statutorily Prohibited ConditionsNote that La. Civ. Code arts.
1529-1533 set forth several conditions prohibited or limited in
donations inter vivos. We will study these provisions in detail in
Unit 11.
b. Jurisprudentially Prohibited Conditions
i. Prohibitions on Marriage
(a) Lebarre v. HopkinsWhat is the condition
complained of in this case? Does the court find the
condition invalid? Why or why not? Do you think
this case would come out the same way if it was
decided today?
(b) Succession of Augustus (1978) [Not in text]
Testator bequeathed house to her husband on the
condition that he never allow his ex-wife into the
house. Husband remarried ex-wife, and sought to
annul the condition in the will. The court found the
condition valid, construing the condition as one
prohibiting access to the house, not a condition
prohibiting marriage.
(b) Succession of RuxtonWhat is the condition
complained of in this case? Does the court find the
condition invalid? Why or why not? Do you think
this case would come out the same way if it was
decided today?

ii. Restrictions on Alienation of Property

(a) Succession of FeitelWhat is the condition
complained of in this case? Does the court find the
condition invalid? Why or why not?
(i) NoteThe court called the condition in this
case precatory language. What is meant
by the phrase precatory language?
(b) La. Civ. Code art. 1299A donor or testator
cannot order that the effects given or bequeathed by
him to two or more persons in common shall never

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 be divided, and such a prohibition would be
considered as if it were not made.
(c) Other Statutory AuthorityRead carefully La. Civ.
Code arts. 1300, 1301, 807; La. Rev. Stat. 9:1112,
and 9:1702. Can you articulate the limits on
permissible prohibitions on alienation of property
placed on donations?
iii. Penalty/In Terrorem Clauses
(a) DefinitionA penalty or in terrorem clause is a
provision in a will that threatens the loss of a
bequest made in the event that the legatee
challenges some aspect of the will.
(b) IllustrationThe testament provides a legacy of
$500 to A and the remainder of the estate to B. The
testament also provides that in the event anyone
challenges the will, they shall receive a bequest of
$1 only. A suspects that B engaged in undue
influence to procure the universal legacy. If A
challenges the bequest to B for undue influence,
can A also challenge the enforceability of the in
terrorem clause?
(c) Uncertain ApproachLouisiana courts repeatedly
state that such provisions are not per se against
public policy.
(i) Succession of GardnerHow does a court
determine whether a penalty clause in a will
is enforceable? (Note that the court cites to
a law review article authored by Wood
Brown and the solution articulated in that
article. What is that solution?) Was the
penalty clause in this case unenforceable?
Why or why not?
(ii) Succession of Kern [Not in Text]Will
provided that if any heir named in the will
challenged the testament, the entire will
would be invalidated and all of the property
would go to the Childrens Hospital. The
court refused to uphold this penal clause
because it penalized all heirs if only one heir
attacked. The court indicated that a panel
clause that penalized only the challenging
legatee might be acceptable.
(d) Common Law ApproachThe common law uses a good
faith probable cause approach. If the successors have good
faith reasons for attacking the will, even if they do not
prevail, the penalty clause falls.

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B. Prohibited Substitutions
1. General ExplanationA substitution is a type of disposition that is
prohibited under Louisiana law. Generally, a substitution is a disposition
of property first to one donee, and then at the death of that donee, to
another donee. The prohibition on substitutions is similar to the common
law rule against perpetuities.
2. La. Civ. Code art. 1520A disposition that is not in trust by which a
thing is donated in full ownership to a first donee, called the institute, with
a charge to preserve the thing and deliver it to a second donee, called the
substitute, at the death of the institute, is null with regard to both the
institute and the substitute.
(a) Policy ConcernsWhat are the policy concerns of the prohibition
against substitutions?
(b) Elements of Prohibited SubstitutionsAll three of the following
elements must be present in order for a prohibited substitution to
exist.
(i) Double Disposition in Full OwnershipTwo donations or
legacies in full ownership of the same property, first to one
beneficiary, and then to the second.
(ii) Charge to Preserve and Render the ThingAn obligation
to preserve the property and render it in its present state to
the substitute.
(iii) Successive OrderThe thing must be given from the
succession of the institute (the first donee) to the substitute
(the second donee).
(c) EffectHow does the effect of a prohibited substitution
articulated in La. Civ. Code art. 1520 compare to the effect of a
prohibited condition articulated in La. Civ. Code art. 1519? What
is the reason for this rule?
3. Permitted Conditions
(a) Default Bequests or Vulgar SubstitutionsThe disposition by
which a third person is called to take a gift or legacy in case the
donee or legatee does not take it is not a prohibited substitution.
(La. Civ. Code art. 1521)
(i) Baten v. TaylorWhat is the condition set forth in the
testament? Is it a prohibited substitution? Why or why not?
(ii) Swart v. LaneWhat is the condition set forth in the
testament? Is it a prohibited substitution? Why or why
not?
(b) Bequest of UsufructThe same shall be observed as to the
disposition inter vivos or mortis causa, by which the usufruct is
given to one, and the naked ownership to another. (La. Civ. Code
art. 1522)

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 (i) Fisk, Guardian v. Fisk, ExecutorsWhat is the bequest
that is challenged in this case? Does the court consider
this to be a prohibited substitution? Why or why not?
(ii) Launey v. BarrouseWhat is the bequest that is
challenged in this case? Does the court consider this to be
a prohibited substitution? Why or why not? Is the
provision legal? Why or why not?
(c) Substitution of the ResiduumThus, if there is delivery to a first
donee who is to deliver it to a second donee, but the first donee is
not obligated to preserve the thing, there is no prohibited
substitution. (La. Civ. Code art. 1520, cmt. (c)).
(i) In re CourtinWhat is the bequest that is challenged in
this case? Is it a prohibited substitution? Why or why not?
(d) Trusts
(i) Succession of StewartHeld that a bequest in trust is not a
prohibited substitution.
(ii) La. Civ. Code art. 1520A disposition that is not in
trust

4. HypotheticalsReview the hypotheticals on pp. 410-411. Determine

whether the disposition in each question is a prohibited substitution or not.

C. Vulgar Substitutions and Short Term Survivorship

1. ExplanationAlthough vulgar substitutions are not prohibited
substitutions, they are still subject to limitations. According to Baten v.
Taylor, what problems do vulgar substitutions pose? (See the excerpt of
this case from Chapter 4 of Volume I, which we skipped earlier in the
semester). Why would a testator want to include a provision like this in a
will?
2. Limitations on Survivorship Clauses (La. Civ. Code art. 1521)
a. In GeneralGenerally a short term survivorship clause may be
placed on a legacy, but only for a stipulated period of not more
than six month following the decedents death.
i. If the clause provides for too lengthy a period of
survivorship, the clause is reputed not written under La.
Civ. Code art. 1519.
b. Forced HeirsThe legitime can be burdened with a short term
survivorship clause, but this is valid only if the forced heir dies
without descendants or he dies with descendants but neither the
forced heir nor the descendants survive the stipulated amount of
time.
i. This rule is designed to prevent de facto disinherison.
Recall that the legitime generally must vest in the forced
heir so that it can, in theory, pass to the forced heirs own
successors.

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 Unit 11Donations Inter Vivos

A. Definition and Substantive Rules

1. DefinitionA donation inter vivos is a contract by which a person, called
the donor, gratuitously divests himself, at present and irrevocably, of the
thing given in favor of another, called the donee, who accepts it. (La. Civ.
Code art. 1468)
2. Donative IntentA donation is a contract that requires gratuitous cause or
donative intent. Determining the true intent of the donor can be
challenging.
a. Illustration: Succession of WagnerWho has the burden of
proving this donation? What is the burden of proof? Would the
placement of the burden be different if the donation was evidenced
by an authentic act? See La. Civ. Code art. 1835.
3. Mixed IntentSometimes the intent of the donor is partially onerous and
partially gratuitous. This is the case in mixed-cause transfers, which are
defined in the Civil Code as onerous and remunerative donations.
a. Onerous DonationThe rules peculiar to donations inter vivos do
not apply to a donation that is burdened with an obligation
imposed on the donee that results in a material advantage to the
donor, unless at the time of the donation the cost of performing the
obligation is less than two-thirds the value of the thing donated.
(La. Civ. Code art. 1526)
b. Remunerative DonationThe rules peculiar to donations inter
vivos do not apply to a donation that is made to recompense for
services rendered that are susceptible of being measured in money
unless at the time of the donation the value of the services is less
than two-thirds of the value of the thing donated. (La. Civ. Code
art. 1527)
4. Rules Relating to Present, Irrevocable DivestitureRecall that a donation
inter vivos involves present and irrevocable divestiture of the thing given.
a. Consider how the following provisions relate to that requirement.
i. La. Civ. Code art. 1529A donation inter vivos can have
as its object only present property of the donor. If it
includes future property, it shall be null with regard to that
property.
ii. La. Civ. Code art. 1530A donation inter vivos is null
when it is made on a condition the fulfillment of which
depends solely on the will of the donor.
iii. La. Civ. Code art. 1531A donation is also null if it is
burdened with an obligation imposed on the donee to pay
debts and charges other than those that exist at the time of
the donation, unless the debts and charges are expressed in
the act of donation.
b. Prohibition on Reservation of Power to DisposeUnder prior law,
if the donor reserved to himself the power to dispose of the

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 property donated, then the donation was absolutely null. (Old
Article 1531) When the donations law was revised in 2009, this
rule was not reproduced because this principle was thought to be
self-evident.
c. Donation with Reservation of UsufructUnder prior law, a donor
was permitted to reserve to himself a usufruct of the thing donated,
or donate the usufruct of a thing to one person and the naked
ownership to another. (Old Article 1533) When the donations law
was revised in 2009, this rule was not reproduced because this
principle was thought to be self-evident.
d. Stipulation of the Right to Return
i. La. Civ. Code art. 1533The donor may stipulate the
right of return of the thing given, either in the case of his
surviving the donee only, or in the case of his surviving the
donee and the descendants of the donee. The right may be
stipulated only for the advantage of the donor.
ii. ExplanationThis rule is a limited exception to the rule
against irrevocability of donations inter vivos. At the death
of the donee or the donee and his heirs, the donated thing
returns to the donor, provided the donor is still living. The
effects of the right of return are set forth in La. Civ. Code
art. 1533.

B. Requirements of Formality
1. General RuleAuthentic Act Required
a. Authentic Act RequiredA donation inter vivos shall be made by
authentic act under the penalty of absolute nullity, unless otherwise
expressly permitted by law. (La. Civ. Code art. 1541)
b. Effect of Failure of Form
i. Absolute NullityA donation inter vivos made in improper
form is an absolute nullity. (La. Civ. Code art. 1541)
ii. ConfirmationHowever, A donation that is null for lack
of proper form may be confirmed by the donor. The
confirmation must be made in the form required for a
donation. The universal successor of the donor may, after
his death, expressly or tacitly confirm such a donation.
(La. Civ. Code art. 1845)
iii. Detrimental Reliance Argument ForeclosedReliance on
a gratuitous promise made without required formalities is
not reasonable. (La. Civ. Code art. 1967)
iv. If Onerous ContractNote that in Moncrief v. Succession
of Armstrong, the plaintiff argued that Mr. Armstrong
promised to give her property not as a donation but as part
of an onerous transaction. If a true contract can be proven
then the formal rules do not apply.
c. Form Required for Authentic Act

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 i. La. Civ. Code art. 1833BTo be an authentic act, the
writing need not be executed at one time or place, or before
the same notary public or in the presence of the same
witnesses, provided that each party who executes it does so
before a notary public or other officer authorized to
perform that function, and in the presence of two witnesses
and each party, each witness, and each notary public signs
it. How is this done correctly?
d. Contents of the Authentic Act
i. Required InformationThe act of donation shall identify
the donor and the donee and describe the thing donated.
These requirements are satisfied if the identities and
description are contained in the act of donation or are
reasonably ascertained from information contained in it, as
clarified by extrinsic evidence, if necessary. (La. Civ.
Code art. 1542) The act should also evidence the donative
intent of the transfer. The use of the terms donate and
donation should suffice.
ii. Recommended Information
(a) Printed Names of the Witnesses and NotaryThe
typed or hand-printed name of each person shall be
placed in a legible form immediately beneath the
signature of each person signing the act. (La. Civ.
Code art. 1833)
(b) Donations Subject to RecordationThese
donations should additionally comply with the
requirements of La. Civ. Code art. 3352:
A. An instrument shall contain the following
information when appropriate for its type and
nature:
(1) The full name, domicile, and permanent
mailing address of the parties;
(2) The marital status of all of the parties who
are individuals, including the full name of
the present spouse or a declaration that the
party is unmarried.
(3) A declaration as to whether there has been a
change in the marital status of any party who
is a transferor of the immovable or interest
or right since he acquired it, and if so, when
and in what manner the change occurred.
(4) The municipal number or postal address of
the property, if it has one.
(5) The last four digits of the social security
number or the taxpayer identification

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 number of the mortgagor, whichever is
applicable.
(6) The notarys identification number or the
attorneys bar role number and the typed,
printed, or stamped name of the notary and
witnesses if the instrument is an authentic
act of, or an authenticated act by, a notary.
B. The recorder shall not refuse to record an
instrument because it does not contain the
information required by this Article. The
omission of that information does not impair
the validity of an instrument or the effect given
to its recordation.
C. The recorder shall only display the last four
digits of the social security numbers listed on
instrument that his office makes available for
viewing on the Internet.
(c) Recitation re Donation Omnium BonorumNote
that Acts of Donation typically include a reference
to the donation omnium bonorum.
(d) Legal Descriptions of Immovable PropertyAll
acts transferring immovable property must should
contain a detailed description of the property in
order for ownership to transfer between the parties.
A postal address alone is not a sufficient legal
description.
e. Sample Act of Donation HandoutAvailable on Moodle.

2. Exceptions to the General Form Requirement

a. Manual Gift ExceptionA significant exception to the authentic
act requirement is the exception for corporeal movables provided
in La. Civ. Code art. 1543: The donation inter vivos of a corporeal
movable may also be made by delivery of the thing to the donee
without any other formality.
b. Certain Incorporeal Movables
i. Negotiable InstrumentsNegotiable instruments include
CDs (unless they are marked nonnegotiable), checks,
promissory notes, and bearer bonds. The commercial laws
provide that the donative transfer of negotiable instruments
is governed by the commercial laws, not by the rules for
donations. According to the commercial laws, delivery or
endorsement plus delivery suffices.
(a) Rules Apply to Transfer by Someone Other Than
the Issuer OnlyNote that the rules apply to
transfer of negotiable instruments only. Thus, the
issuance of a negotiable instrument is not covered

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 by the Commercial laws. See La. Civ. Code art.
1550, comment (c).
(i) Illustration 1A wants to make a donation
to B and writes a check payable to B for
$25. This is the issuance of the check.
Thus, the transfer of $25 from A to B is not
governed by the commercial law. In the
absence of an authentic act, B must cash the
check (reduce the incorporeal movable to a
corporeal movable, i.e., cash) to effectuate
the gift.
(ii) Illustration 2A writes a check to B in the
amount of $25 to repay a loan made by B to
A. (Thus, the initial transfer is onerous, and
no special formality is required). B then
wants to make a gift to C. B endorses the
check and hands it over to C. This is the
transfer of a negotiable instrument, and is
governed by the commercial laws. The
donation is valid.
ii. Stocks and Other SecuritiesThe transfer of stock is also
governed by the commercial laws. We will not study the
rules in detail here, except to know that when stock is
transferred gratuitously according to the relevant
commercial laws, the donation does not require an
authentic act. Note specifically that when stock is
certificated (i.e., evidenced by a certificate), it can be
transferred by endorsement and delivery to the transferee.
When stock is uncertificated, other rules apply.
iii. Civil Code ProvisionLa. Civ. Code art. 1550 recognizes
the rules set forth in the commercial laws, and also
provides an additional exception to the usual form
requirements:
The donation or acceptance of a donation of an
incorporeal movable of the kind that is evidenced by a
certificate, document, instrument, or other writing, and that
is transferrable by endorsement or delivery, may be made
by authentic act or by compliance with the requirements
otherwise applicable to the transfer of that particular kind
of incorporeal movable.
In addition, an incorporeal movable that is invested
property, as the term is defined in Chapter 9 of the
Louisiana Commercial Laws, may also be donated by a
writing signed by the donor that evidences donative intent
and directs the transfer of the property to the donee or his
account or for his benefit. Completion of the transfer to the

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 donee or his account or for his benefit shall constitute
acceptance of the donation.
c. Bank AccountsBank accounts are corporeal movables (a right to
cash) and therefore a donation of a bank account requires an
authentic act. Note that bank accounts are not covered by any
special exception to the form requirements. However, in certain
cases the deposit or withdrawal of cash to or from an account
constitutes a valid manual gift. Some jurisprudential decisions
giving content to these rules appear in your text. You should be
familiar with these cases, and the cases cited within Allen v. Allen.
d. Montet v. LylesWhat was the property allegedly donated in this
case? Was the donation proper as to form? Was donative intent
present? Was the donation valid? Why or why not? See also
Moncrief v. Succession of Armstrong. Why was the donation of
stock fatal in this case?

3. Donations by Mandatory
a. Mandate/Procuration Defined
i. RepresentationA person may represent another person
in legal relations as provided by law or by juridical act.
This is called representation. (La. Civ. Code art. 2985)

ii. Authority of the RepresentativeThe authority of the

representative may be conferred by law, by contract, such
as mandate or partnership, or by the unilateral juridical act
of procuration. (La. Civ. Code art. 2986)
iii. ProcurationA procuration is a unilateral juridical act by
which a person, the principal, confers authority to another
person, the representative, to represent the principal in legal
relations. (La. Civ. Code art. 2987)
iv. MandateA mandate is a contract by which a person, the
principal, confers authority on another person, the
mandatary, to transact one more affairs for the principal.
b. Form Required
i. General RuleThe contract of mandate is not required to
be in any particular form. Nevertheless, when the law
prescribes a certain form for an act, a mandate authorizing
the act must be in that form. (La. Civ. Code art. 2993)
(a) IllustrationA grants B authority to sell his real
estate. The act of mandate must be in writing, since
a sale of real estate must be made in writing.
ii. Specificity Required
(a) In GeneralThe principal may confer on the
mandatary general authority to do whatever is
appropriate under the circumstances. (La. Civ.
Code art. 2994)

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 (b) Express Authority Required
(i) The authority to alienate, acquire,
encumber, or lease a thing must be given
expressly. Neither the property nor its
location need be specifically described.
(La. Civ. Code art. 2995)
(ii) Authority must also be given expressly to:
(1) Make an inter vivos donation, either
outright or to a new or existing trust or other
custodial arrangement. (La. Civ. Code
art. 2997)
(iii) A mandatary who represents the principal
as the other contracting party may not
contract with himself unless he is authorized
by the principal, or, in making such contract,
he is merely fulfilling a duty to the
principal. (La. Civ. Code art. 2998)
iii. Limits of Mandate/ProcurationA testament may not be
executed by a mandatary for the testator. (La. Civ. Code
art. 1571)
iv. Termination of Mandate/ProcurationIn the absence of
contrary agreement, neither the contract nor the authority of
the mandatary is terminated by the principals incapacity,
disability, or other condition that makes an express
revocation of the mandate impossible or impracticable.
(La. Civ. Code art. 3026)
(a) In Louisiana, powers of attorney are durable,
meaning they continue after the principal loses
contractual capacity.
v. Jurisprudence
(a) Rutledge v. Hibernia Bank Corp.Is express
authority to donate required to be in writing? Why
or why not? What is the error in the reasoning in
this case?
(b) Fernandez v. Hebert, 961 So. 2d 404 (La. App. 1
Cir. 2007) [Not in text]Court held that an express
authority to donate need not be in writing. A
donation of stock requires endorsement and delivery
according to the commercial laws, and no writing is
required. Therefore, under La. Civ. Code art. 2993,
a writing is not required for the act of mandate, nor
must the authority to donate or to self-deal appear in
a writing, so long as it is express.

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C. Acceptance of Donations
1. Acceptance RequiredAll contracts require acceptance. Donations are
no different. La. Civ. Code art. 1544 provides, A donation inter vivos is
without effect until it is accepted by the donee.
2. Effect of Acceptance
a. A donation is effective upon acceptance. When the donation is
effective, the ownership or other real right in the thing given is
transferred to the donee. (La. Civ. Code art. 1551)
b. The donee acquires the thing donated subject to all of its charges,
even those that the donor has imposed between the time of the
donation and the time of the acceptance. (La. Civ. Code art.
1549)
3. Timing of AcceptanceAcceptance must be made during the lifetime of
the donor (La. Civ. Code art. 1544) and during the lifetime of the donee
(La. Civ. Code art. 1546). If acceptance occurs after death of either party,
the donation is invalid and the property does not leave the patrimony of
the donor.
4. Form/Manner of AcceptanceAcceptance can be made in the following
ways:
a. In the act of donation (La. Civ. Code art. 1544)
b. In a subsequent writing (La. Civ. Code art. 1544)
i. Note that according to jurisprudence the writing doesnt
really have to be subsequent. See La. Civ. Code art. 1544,
comment (a).
c. For corporeal movables only, by taking possession. (La. Civ. Code
art. 1544)
d. Subsequent alienation or encumbrance of an immovable. (La. Rev.
Stat. 9:2371)
e. For donations whose form is governed by the commercial laws, by
compliance with the commercial laws. (La. Civ. Code art. 1550)
f. For donations of investment property accomplished through a
writing signed by the donor that evidences donative intent and
directs the transfer of 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 constitutes acceptance. (La. Civ. Code art. 1550)
5. Acceptance by Someone Other than Donee
a. MandataryA mandatary may accept a donation on behalf of the
donee. (La. Civ. Code art. 1545) Note that the authority to accept
a donation inter vivos must be made expressly. (La. Civ. Code art.
2996)
b. CreditorA creditor may not accept a donation on behalf of a
donee. (La. Civ. Code art. 1547)
c. Parent or TutorA parent or tutor of a minor may accept on behalf
of the minor, even if the person accepting the donation is also the
donor. (La. Civ. Code art. 1548)

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 6. Jurisprudence
a. Succession of JonesWhat was the alleged flaw in the acceptance
in this case? Does the court consider this alleged flaw to be fatal
to the acceptance? Why or why not?
b. Weidemann v. WeidemannWho had the burden of proof in this
case? Why? The court considered the temporal effect of the new
legislation. The case concerned whether the new rule providing
that an acceptance need not be in an authentic act but only in
writing was retroactive. The court held that the new rules are
procedural. Is this finding correct?

D. Revocation of Donations Inter Vivos

1. General RuleDonations inter vivos are generally irrevocable. However,
donations may be revoked in some circumstances.
a. La. Civ. Code art. 1556A donation inter vivos may be revoked
because of ingratitude of the donee or dissolved for the
nonfulfillment of a suspensive condition or the occurrence of a
resolutory condition. A donation may also be dissolved for the
nonperformance of other conditions or charges.
2. Revocation for Ingratitude
a. GroundsRevocation on account of ingratitude may take place
only in the following cases: (1) If the donee has attempted to take
the life of the donor; or (2) If he has been guilty towards him of
cruel treatment, crimes, or grievous injuries. (La. Civ. Code art.
1557)
i. Erikson v. FellerWhat comprises cruel treatment,
crimes, or grievous injuries? In other words, what types
of activities have past cases found to satisfy this standard?
Did the plaintiff prevail in revoking the donation in this
case? Why or why not?
b. Prescription/Parties (La. Civ. Code art. 1558)
i. An action of revocation for ingratitude shall be brought
within one year from the day the donor knew or should
have known of the act of ingratitude.
ii. If the donor dies before the expiration of that time, the
action for revocation may be brought by the successors of
the donor, but only within the time remaining, or if the
donor died without knowing or having reason to know of
the act, then within one year of the death of the donor.
iii. If the action has already been brought by the donor, his
successors may pursue it.
iv. If the donee is deceased, the action for revocation may be
brought against his successors.
c. Protection for Third Parties (La. Civ. Code art. 1559)

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 i. Acts Prior to Filing of Action to RevokeRevocation for
ingratitude does not affect an alienation, lease, or
encumbrance made by the donee prior to filing of the action
to revoke.
ii. Acts After Filing of Action to Revoke
(a) MovablesOnerous transactions to party made in
good faith are protected.
(b) ImmovablesThird parties are protected by the
public records.
d. Consequences of Successful RevocationIn case of revocation
for ingratitude, the donee shall return the thing given. If he is not
able to return the thing himself, then the donee shall restore the
value of the thing donated, measured as of the time the action to
revoke is filed. (La. Civ. Code art. 1560)
3. Revocation for Failure/Occurrence of Condition
a. Suspensive ConditionIf a donation is subject to a suspensive
condition, the donation is dissolved of right when the condition can
no longer be fulfilled. (La. Civ. Code art. 1562)
b. Resolutory ConditionIf a donation is subject to a resolutory
condition, the occurrence of the condition does not operate a
dissolution of the donation. It may be dissolved only by the
consent of the parties or by judicial decree. (La. Civ. Code art.
1562)
c. Conditions within Control of DoneeIf a donation is made on a
condition that the donee has the power to perform or prevent, or
depends on the performance of a charge by the donee, the
nonfulfillment of the condition or the nonperformance of the
charge does not, of right, operate a dissolution of the donation. It
may be dissolved only by consent of the parties or by judicial
decree. (La. Civ. Code art. 1563)
d. Prescription of ActionAn action to dissolve a donation for
failure to fulfill the conditions or perform the charges imposed on
the donee prescribes in five years, commencing the day the donee
fails to perform the charges or fulfill his obligation or cease to do
so. (La. Civ. Code art. 1564)
e. Effect of Dissolution (La. Civ. Code art. 1565)
i. ImmovablesThe property returns to the donee free of all
alienations, leases, or charges, subject to the law of registry.
If the thing cannot be returned free and clear, the donor can
accept it as is accountable for diminution in value or the
donor can require the donee to restore the value the thing
had a the time the action to dissolve was filed.
ii. MovablesThe property returns to the donee free of all
alienations, leases, or charges, except those that are the
result of an onerous transaction made in good faith.

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 4. Miscellaneous Rules
a. Fruits in the Case of Revocation or DissolutionThe donee is
bound to restore or pay the value of fruits and products from the
date of written demand. (La. Civ. Code art. 1566) Not special rule
for donations dissolved due to donees failure to perform condition
or charge.
b. Donee Unable to Return Thing in Same ConditionIf the donee is
unable to return the thing to the donor in the condition in which he
received it, the donor can elect to take the thing in its present
condition and the donee is liable for the diminution in value. (La.
Civ. Code art. 1567)
5. Charitable DonationsNote that charitable donations are generally
subject to the same rules regarding revocation and dissolution of
donations. Some special rules do apply. The following are some of the
most important special rules.
a. Cy-Pres DoctrineThe doctrine of cy pres permits a charitable
donee to obtain judicial approval for the administration of a
donation in a manner different than that specified in the act of
donation. Judicial approval to change the use of the property is
permitted when circumstances have changed such that it is
impractical or impossible to comply literally with the terms of the
donation. The court will order an administration or use that will
most effectively accomplish as nearly as practicable under existing
conditions the general purpose of the donation. (La. Rev. Stat.
9:2331 et seq)
b. Rules for Religious OrganizationsWhen a church or religious
organization has complied with conditions in donations for ten
years, the church/religious organization is granted quieted and
perfected title, which permits it to sell or alienate/encumber the
property. (La. Rev. Stat. 9:2321-2322).

Unit 12Donations Mortis Causa

Installment1

A. Donations Mortis Causa, General Rules

1. Substantive Requirements
a. Testamentary Intent (Animus Testandi)All testaments require
testamentary intent as a fundamental requirement of validity.
i. Hendry v. Succession of HelmsTestator drafted a document
entirely written, dated, and signed by her. However, court ruled
that the document lacked the requisite animus testandi. Can you
explain why?
ii. Hypothetical: In compliance with instructions and as part of the
ceremonials of initiation in a fraternal organization, X writes: I
hereby leave all I have to my wife (signed) X. The instructions

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 given were as follows: Write now, in good faith, your last will and
testament, precisely as if you were about to die tomorrow. Can
this writing be admitted to probate as a valid will? Why or why
not? Assume the document was properly dated in the hand of the
testator.
iii. Hypothetical: Testator prepares an olograph written, dated, and
signed in the hand of the testator which states simply, All to my
Sister. Can this writing be admitted to probate as a valid will?
iv. Based on Hendry and the hypotheticals above, can you articulate
the basic requirements for animus testandi?
b. No Testaments by Others or With Others (La. Civ. Code art. 1571)
i Testaments may not be made by a mandatary of the testator.
ii. Joint wills are not permitted in Louisiana, although they are
permitted in some states.
c. Dispositions Given to the Choice of Third Persons
i. Article 15721Testamentary dispositions committed to the
choice of a third person are null, except as expressly provided by
law. A testator may delegate to his executor the authority to
allocate specific assets to satisfy a legacy expressed in terms of a
value or quantum, including a fractional share.
(a) The power of the executor to make dispositions is called
the special power of appointment in the common law.
What policies do you think support prohibition of the
special power of appointment in Louisiana?
(b) ExceptionThe testator can give the executor the authority
to allocate assets to satisfy a legacy of a certain value,
quantum, or fractional share. Example: T leaves legacy of
$100,000 worth of property to my daughter, to be satisfied
by my executor as she deems appropriate. The testator
may allocate assets or sell assets and convert to cash to
satisfy the legacy.
(c) Derouen v. Derouen,T left legacy to his son of 15 acres
of his choice. Court held that a legatee is not a third
person to a will and therefore is permitted to select
specific assets to satisfy his own legacy of 15 acres of
property.
ii. Article 15722The testator may expressly delegate to his
executor the authority to allocate a legacy to one or more entities
or trustees of trusts organized for educational, charitable, religious,
or other philanthropic purposes. The entities or trusts may be
designated by the testator or, when authorized to do so, by the
executor in his discretion. In addition, the testator may expressly
delegate to his executor the authority to impose conditions on those
legacies.
(a) Testator may delegate to executor the authority not only to
allocate assets to charities, but also to choose the legatees

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 and to impose conditions on the legacies. Note that this
cannot be done with respect to non-charitable legatees.
2. Formal Requirements
a. Specific Form Required
i. Article 1570A disposition mortis causa may be made only in
the form of a testament authorized by law.
ii. Article 1573The formalities prescribed for the execution of a
testament must be observed or the testament is absolutely null.
iii. Article 1574There are two forms of testaments: olographic and
notarial.
b. Forms of Wills Past and Present
i. The law of testaments was substantially revised in 1999. Prior to
the revision, Louisiana law recognized five distinct forms of
testaments: the olographic will, the statutory will, the mystic will,
the nuncupative will by private act, and the nuncupative will by
public act.
ii. RS 9:2440A testament, testamentary provision, legacy, or other
appointment executed prior to January 1, 1998, and valid under
the law and jurisprudence prior to that date, when executed, is not
invalidated by the passage of Acts 1997, No. 1421.
c. Compliance with One Form Sufficient
i. The testator need only comply with one valid form for the
testament to be valid, and it need not be the form intended by the
testator. See Succession of Morgan.
d. Conflicts of Laws
i. Article 3528A testamentary disposition is valid as to form if it is
in writing and is made in conformity with: (1) the law of this state;
or (2) the law of the state of making at the time of making; or (3)
the law of the state in which the testator was domiciled at the time
of making or at the time of death; or (4) with regard to
immovables, the law that would be applied by the courts of the
state in which the immovable was located.
ii. La. RS 9:2401A will executed outside this state in the manner
prescribed by the law of the place of its execution or by the law of
the testators domicile, at the time of its execution, shall be
deemed to be legally executed and shall have the same force and
effect in this state as if executed in the manner prescribed by the
laws of this state, provided the will is in writing and subscribed by
the testator.

B. Formalities of Wills
1. The Olographic TestamentThe requirements for a valid olographic testament
are spelled out in La. Civ. Code art. 1575. Read that provision carefully.
Generally, an olographic will must be written, dated, and signed in the
handwriting of the testator.
a. Entirely Written in the Handwriting of the Testator

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 i. The will must be entirely written, dated, and signed in the
handwriting of the testator. What is the purpose of this rule?
ii. Will the existence of language not in the handwriting of the
testator affect the validity of the will? If not, what effect is given to
such language, if any? See McMichael v. Heirs of Bankston; CC
1575 comment (b).
b. The Signature
i. The signature of the testator must appear on the testament. What
is the purpose of this rule? Can the testator sign with an alias or a
nickname? See Ripert v. Morina & Succession of Caillouet.
ii. The signature of the testator must appear at the end of the
testament. What is the purpose of this rule? What if the testator
deviates from this rule?
c. The Date
i. The will must be dated in the hand of the testator, but the date can
appear anywhere in the will. What is the purpose of this rule?
Note that other states do not require an olographic will to be dated.
ii. What if the date is ambiguous? Decide whether any of the
following dates are valid: (1) Monday 8, 2010; (2) 10/8/2010; (3)
My 25th Wedding Anniversary; (4) Christmas Day, 2009.
iii. Succession of Ronigerwill dated ten months after the testators
death. What if the date is clearly wrong, as here?
d. Additions and DeletionsAdditions and deletions are valid only if made
in the handwriting of the testator.

2. The Notarial Testament

Article 1576A notarial testament is one that is executed in accordance with the
formalities of Articles 1577 through 1580.1. Read those provisions carefully.
Note that Article 1577 sets forth the basic requirements for a valid notarial
testament. Articles 1578-1580.1 provide special requirements for wills to
be executed by testators who are physically unable to sign (1578), unable
to read (1579), blind (1580), or deaf or deaf and blind (1580.1). We will
not cover these special forms in detail, but you should be aware that the
Civil Code provides for these special circumstances.
Generally, a notarial will must meet the following requirements:
o Written
o Dated
o Signed
o Notary and 2 Witnesses
o Testator Declares This Is His Testament
o Attestation Clause
a. The Writing Requirement
i. CC 1577, comment (d)The instrument must be in writing. The
form of the writing (typewritten, mimeographed, or any other
form) is immaterial. Moreover, there is no requirement that the
testament be written in the English language, or even in Roman

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 characters. So long as it is written in a language that the testator
can read and understand, the protections to assure veracity of the
provisions are satisfied.
ii. In light of the above comment, what is the purpose of the writing
requirement?
b. The Date
i. CC 1577, comment (g)This Article requires that the testament
be dated but intentionally does not specify where the date must
appear, nor does it require that the dating be executed in the
presence of the notary and witnesses or that the dating be made by
the testator. It is common practice to have a typewritten testament
that is already dated, and that testament should be upheld if it is
valid in all other respects. The first paragraph of this Article states
that thetestament shall be prepared in writing and shall be
dated, and the subsequent language (with reference to execution)
intentionally contains no presence of the witnesses or the notary.
Nor is there any requirement that the testator be the one to date
the testament
ii. In light of the above comment, what is the purpose of the date
requirement? In practice, although not required, a notarial will is
usually dated on every page. What is the purpose of such a
practice?
c. The Signature
i. The testator must sign each page and at the end of the document.
Why do we require a signature on each page of the will? Why is
this rule different than the rule for an olographic will?
(a) Successoin of GuerzuragaTestator failed to sign after the
attestation clause. Does this affect the validity of the will?
Why or why not? See also CC 1577, comment (b).
(b) In re HendricksFailure to sign one of the pages in the
will invalidates the entire will. Compare this case to
Succession of Simonson & Succession of Squires. Can
these cases be squared with In re Hendricks?
(c) Note that initials are generally deemed acceptable as
opposed to a more formal signature. See, e.g., Succession
of Armstrong, 636 So. 2d 1109 (La. App. 4 Cir. 1994),
d. The Notary and Witnesses
i. Qualification of the Notary
(a) Notary must meet qualifications set forth in RS 35:191
(Resident of Louisiana, 18 years of age or older, able to
read, write, and speak the English language, no mental
incapacity). Most importantly, notary must be properly
commissioned according to rules set forth in Revised
Statutes.
(b) Prior to 2005, only notaries who were also attorneys
received statewide commissions; other notaries were

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 limited in their powers to individual parishes. Succession
of Wafer addressed the situation where a notary executed a
will in a parish where the notarys commission was
ineffective. Court held that the notary was a de facto
notary and upheld the will on the basis of a three-part test.
Take-away: the parties reasonably believed that the notary
was a valid notary, and therefore were protected. Note: All
notaries commissioned after June 13, 2005 receive state-
wide commissions.
(c) What if a notary who is an attorney is suspended or
disbarred? The notarial commission is revoked by
disbarment. Caselaw is divided as to whether a will
executed by a disbarred or suspended attorney is valid.
Compare Succession of Sampognaro and Succession of
Plauche.
ii. Qualification of Witnesses
(a) Article 1581A person cannot be a witness to any
testament if he is insane, blind, under the age of sixteen, or
unable to sign his name. A person who is competent but
deaf and unable to read cannot be a witness to a notarial
testament under Article 1579.
iii. The Presence Requirement
(a) In re Succession of SmithWitness was not in the room
when the testator executed a notarial will, but was standing
in the doorway. Also, witnesses and notary did not sign the
will in the presence of each other. Is this will valid? Why
or why not?
(b) It is not necessary for the testator to actually read the will at
the time of execution. See CC 1577, comment (f). Note
however that some of the special forms for wills require
reading. See, e.g., CC 1579.
iv. Notary as Legatee, Witness as Legatee, or Spouse of Legatee as
Witness
(a) Article 1582The fact that a witness or the notary is a
legatee does not invalidate the testament. A legacy to a
witness or the notary is invalid, but if the witness would be
an heir in intestacy, the witness may receive the lesser of
his intestate share or the legacy in the testament. What is
the rationale behind this rule? Why is the notary not
protected by the second sentence of this article?
(b) Article 1582.1A person may not be a witness to a
testament if that person is a spouse of a legatee at the time
of the execution of the testament. The fact that a witness is
a spouse of a legatee does not invalidate the testament;
however, a legacy to a witness spouse is invalid, if the
witness spouse of the legatee at the time of the execution of

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 the testament. If the legacy is invalid under the provisions
of this Article, the legatee may receive the lesser of his
intestate share or a legacy in the testament. Any
testamentary terms or restrictions placed on the legacy shall
remain in effect. How does this rule differ from that in
CC 1582?
(c) Article 1583The designation of a succession
representative or a trustee, or an attorney for either of them,
is not a legacy. Although the notary/attorney could
notarize a will in which he is named as trustee or estate
representative, should he?
e. Declared by the Testator to be his Testament
i. In the presence of the notary and the witnesses, the testator must
declare or signify to them that the instrument is his last will and
testament. What is the purpose of this requirement?
ii. CC 1579, comment (c)The testators indication that the
instrument contains his last wishes may be given verbally or in any
other manner that indicates his assent to the provisions. Note that
attorney/notary usually conducts a routine, solemn service to
comply with this requirement.

f. The Attestation Clause

i. The will must contain an attestation clause identical to or
substantially similar to the attestation clause set forth in the Civil
Code. What is the purpose of this requirement?
(a) Succession of SquiresCourt upheld the following
attestation clause: We hereby declare that GEORGE
HEBERT SQUIRES signed the foregoing instrument in our
presence and in the presence of each other, declaring to us
that the foregoing instrument is his Last Will and
Testament, and he requests us to sign the same as
subscribing witnesses thereto which we do now in the
presence of each other and the Testator on this 23 rd day of
September, 1990. Compare this attestation clause to the
model in the Civil Code. Is there a defect in this attestation
clause? Should the court have upheld the will? Note that if
there is a defect in the will, then the witnesses and notary
may not testify as to the missing information. An affidavit
or testimony will not cure the formal defect.
(b) Succession of Diaz (not in text)Court held the following
attestation clause invalid: Signed and declared by Anna
Hamm Diaz, Testatrix above, declares that this is to be her
last will and testament, and in the presence of the
undersigned competent witnesses and herself, she declares
that she read the herein last will and testament and in the
presence of each other they have hereinto subscribed their

135
 names on the 31st day of October, 2006. What is the
defect in this attestation clause? Should the court have
invalidated the will?
(c) Succession of SlayCourt held the following attestation
clause invalid: Signed and witnessed before me this 11
day of January, 1998 [note that this is the phrasing used in
authentic acts]. What is the defect in this attestation
clause? Was the court correct to invalidate the will?
(d) Succession of Dunaway, 92 So. 3d 555 (2012) (not in text)
Testament contained two attestation clauses. The first
read: Signed, sealed, published and declared to be
his[/her] Last Will and Testament by the within named
Testator in the presence of us, who in his[/her] presence
and at his[/her] request, and in the presence of each other,
have hereunto subscribed our names as witnesses this 18
day of Feb., 1999. The court held that Although this
clause sets forth that the testament was signed by the
testator in the presence of the witnesses and declared to be
the testator's last will and testament, this clause fails to state
that the testament was signed by the testator in the presence
of a notary or that the witnesses themselves signed in the
presence of the notary. Therefore, this clause fails to meet
the requirements of La. Civ. Code art. 1577. The second
clause read: The undersigned witnesses being duly sworn,
each declares that the Testator signed this Will consisting of
one page with writing on both sides thereof, at the end
thereof, and on each side thereof, in our presence, and
signified, published and declared in our presence that this
instrument is his/[her] Last Will and Testament, and that at
the request of and in the presence of Tes [t]ator and in the
presence of each other and in the presence of a Notary
Public each has subscribed his/her name to this will as
witness to Testator signing this 18 day of Feb , 1999, and to
the best of his/her knowledge Testator is of lawful age, of
sound mind and under no undue influence. This was
signed by the witnesses but not the notary. In a separate
paragraph, the notary signed after language stating:
Subscribed, sworn and acknowledged before me by the
Testator, [Ira Dunaway, Jr./Wilda Carter Dunaway, ____,
and Janet D. Riley, and Suzonne G. Jenkins, the witnesses
this 18th day of Feb., 1999. The court held the clause
invalid, This clause states that the testator signed the
testament in the presence of the witnesses and declared the
testament to be his last will and testament to the **8
witnesses. It also states that the witnesses signed the
testament in the presence*560 of the notary. However, this

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 clause does not state that the testator signed the will in the
presence of the notary, nor does it state that the testator
specifically declared the testament to be his last will and
testament to the notary or to the notary in the presence of
two witnesses. Therefore, this clause fails to meet the
requirements of La. C.C. art. 1577.

ii. As a rule, the attestation clause must contain a date.

(a) Succession of Holloway, 531 So. 2d 431 (La. 1988) (not in
text)Court held that the ____ day of February, 1984
did not qualify as a valid date, reasoning that the month,
without the day, is no date. See also Succession of
Holbrook --- So. 3d ---, 2013 WL 1786336 (La. App. 1 Cir.
4/26/13), holding invalid an attestation clause containing
the month and the year but not the day of the month.
(b) Succession of Armstrong, 636 So. 2d 1109 (La. App. 4 Cir.
1994)Court upheld attestation clause despite lack of date
in clause, but only because the date was placed just above
and below the attestation clause. Affidavits of witnesses
attesting as to date of execution could not be used to cure
the defect.
(c) Succession of Hebert, 101 So. 3d 131 (La. App. 3 Cir.
2012)Will contained two attestation clausesone for
witnesses and a separate one for notary. The witnesses
attestation clause was undated. Opponents of the will
argued that there should have been one single
witness/notary attestation clause declaring that the witness
and notary signed in the presence of each other, and that it
should have been dated. The court disagreed, finding that
the attestation clauses in the will were substantial similar
to the statutory language.

C. Probate of Testaments
1. Probate RequiredA testament has no effect unless it is probated in accordance
with the procedures and requisites of the Code of Civil Procedure. (La. Civ.
Code art. 1605).
2. The Notarial Testament
a. Notarial testaments are self-proving (which is why the form requirement
must be followed so strictly).
i. Code of Civil Procedure Article 2981A notarial testament
[does] not need to be proved. Upon production of the testament,
the court shall order it filed and executed and this order shall have
the effect of probate.
ii. However, when the proceedings are contradictory, the proponent of
the will bears the burden of proving the authenticity of the

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 testament and its compliance with the formal requirements of law.
See Code of Civil Procedure Article 2903.
iii. After a will has been probated, an action to annul may be brought
by the challenging party. The challenging party has the burden of
proving the invalidity of the will. See Code of Civil Procedure
Article 2932(B).
3. The Olographic Testament
a. Olographic testaments are not self-proving, but require the testimony of
two credible witnesses in order to be given the effect of probate. (La.
Code Civ. Proc. art. 2882)
ii. When the proceedings are contradictory, the proponent of the will bears
the burden of proving the authenticity of the testament and its compliance
with the formal requirements of law. (La. Code Civ. Proc. art. 2903)
iii. After a will has been probated, an action to annul may be brought by the
challenging party. If the will is challenged within three months of probate,
the proponent of the will bears the burden of proving the authenticity of
the will; thereafter, the burden of proving the invalidity of the testament is
with the challenger. (La. Code Civ. Proc. art. 2932(A)).
4. Prescription
a. A will must be probated within five years from the date of the judicial
opening of the succession. (See La. R.S. 9:5643). The judicial opening
is any substantive procedural act consistent with the purposes of
succession.
b. An action to annul a will prescribes five years from the date of probate.
(See La. Civ. Code art. 3497)
5. Jurisprudence
a. Succession of MorganWill was entirely written, dated, and signed by
testator but also witnessed and notarized. The witnesses were also
legatees under the will. Court allowed the will to be probated as a valid
olographic testament. What is the objection of the dissent in this case?
Do you agree or disagree with the dissents reasoning?
b. Hamilton v. KellySignature of will was cut off by someone other than
the testator. Court allowed witnesses to attest to the validity of the will.
Do you agree with the courts probate of this will?

Unit 12Donations Mortis Causa

Installment 2

D. Testamentary DispositionsIn this section of material, we will study: (1) the

classification of legacies and (2) the consequences of classification.
1. Classification of LegaciesAll legacies are classified as either particular,
general, or universal. (La. Civ. Code art. 1584) Legacies to more than
one person are further classified as either joint or separate. (La. Civ. Code
art. 1588)
a. Universal, General, and Particular Legacies

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i. Universal LegaciesA universal legacy is a disposition of
all of the estate, or the balance of the estate that remains
after particular legacies. A universal legacy may be made
jointly for the benefit of more than one legatee without
changing its nature. (La. Civ. Code art. 1585) Examples:
All of my property to A.
All of my property to A and B.
My watch to A and the rest to B.
ii. General LegaciesA general legacy is a disposition by
which the testator bequeaths a fraction or a certain
proportion of the estate, or a fraction or a certain proportion
of a balance of the estate that remains after particular
legacies. (La. Civ. Code art. 15861) Examples:
25% of my property to A.
of my property to A and B.
All of my stocks to A and one-half of the rest to B; one-
half of the rest to C.
In addition, a disposition of property expressly described
by the testator as all, or a fraction or a certain proportion of
one of the following categories of property, is also a
general legacy: separate or community property; movable
or immovable property; or corporeal or incorporeal
property. This list of categories is exclusive. (La. Civ.
Code art. 15862) Examples:
All of my immovable property to A.
of my community property to B.
25% of my incorporeals to C and D.
Note: General Legacies were once known as legacies
under universal title. You will see this language in
the jurisprudence. Do not become confused by this.
iii. Particular LegaciesA legacy that is neither general nor
universal is a particular legacy. (La. Civ. Code art. 1587)
Usually this is a right in a particular thing. Examples:
My watch to A.
My house to B.
iv. Tricky IssuesSometimes determining whether a legacy is
universal, general, or particular can be difficult. Here are
some of the more common tricky issues:
(a) Residual Legacy Following General Legacy. Note
that the definition of the universal legacy includes
the balance of the estate that remains after
particular legacies. (La. Civ. Code art. 1585).
However, the balance of the estate that remains
after general legacies is always a general legacy.
This means that a testament can never contain

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 both a universal and a general legacy at the same
time. Example:
My corporeals to A and the rest to B.
(b) Specific Category Not Named in Article 1586.
Note that the list of specific categories in Article
1586 is exclusive. The naming of a specific
category of property not included within that list
creates a particular bequest. Example:
My consumables to A; the rest to B.
NOTE: Because the bequest to A is particular, the
residual legacy to B is universal in this example.
(c) Overlapping of Categories in Article 1586. In order
for a legacy to be general, it must be of only one
of the categories listed in Article 1586. A legacy
described by two or more categories is a particular
legacy. Example:
My corporeal movables to A.
(d) Legacy of Specific Items Comprising Categories in
Article 1586. When a legacy is made of specific
items within a category listed in Article 1586, that
legacy is particular, even if the property makes up
all of the testators property within that category.
The language used by the testator is important.
Example:
All of my stocks and bonds to A (where stocks
and bonds are Ts only movable property).
(e) Legacy of Single Category of Article 1586
consisting of one item only. Because the language
used is vital, a legacy of a category is a general
legacy even if it only contains one item. Example:
All my movables to A (only movable is car).
(f) Legacy of Single Category of Article 1586
Comprising Entire Estate. Similarly, when T uses a
single category to describe property, this is a
general legacy, even though it may also comprise
the entire estate. Again, the language used by the
testator is important. Example:
All of my movables to A (where T owns only
movables).
(g) Legacy of Multiple Categories in Article 1586
Comprising Entire Estate. However, when a legacy
is made up of categories listed in Article 1586, but
the categories used necessarily include the entirety
of Ts estate, the legacy is universal. Example:
All of my movables and immovables to A.

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 b. Joint and Separate Legacies
i. GenerallyA legacy to more than one person is either
joint or separate. It is separate when the testator assigns
shares and joint when he does not. Nevertheless, the
testator may make a legacy joint or separate by expressly
designating it as such. (La. Civ. Code art. 1588)
ii. Joint LegaciesA joint legacy does not assign shares.
Example:
All of my estate to A and B.
Note that joint legacies were once called conjoint
legacies. You will see this in the jurisprudence.
iii. Separate LegaciesSeparate legacies assign shares.
Example:
One half of my estate to A, one half of my estate to B.
Note that the joint legacy was once referred to as the
distributive legacy. You will see this language in the
jurisprudence.
Note also that assigning shares always means assigning
fractions or percentages, either of the entire estate,
categories of property, or particular things. Thus, separate
legacies are never universal!
iv. Distinctions Between Joint and Separate Legacies. The
distinction between joint and separate legacies can often be
difficult. The language share and share alike and to be
divided equally among them is especially problematic.
The history of these provisions is discussed below. How
does La. Civ. Code art. 1588 suggest this language ought to
be interpreted? See also comment (b).

2. Consequences of ClassificationClassification of legacies is important

for a number of reasons.
a. Enumeration of Consequences
i. SeizinFirst, recall that only universal successors may
exercise the personal rights and obligations of the decedent.
(La. Civ. Code art. 935) Universal successors are intestate
heirs, universal legatees, and general legatees.
ii. Payment of DebtsAlso, recall that only universal
successors are responsible for the payment of debts. (La.
Civ. Code art. 1416)
iii. Lapse and AccretionAs will be discussed below, the
classification of legacies determines which legatees are
entitled to accretion resulting from lapse.
iv. Distribution of LegaciesIn addition, as will be discussed
below, the classification of legacies determines which
legatees are entitled to preferential distribution in the event

141
 there is insufficient property in the estate to satisfy all
legacies in the testament.
b. Lapse and Accretion
i. When Lapse OccursLa. Civ. Code art. 1589 enumerates
the circumstances under which legacies lapse. These
circumstances are:
The legatee predeceases the testator.
The legatee is incapable of receiving at the death of the
testator.
The legacy is subject to a suspensive condition, and the
condition can no longer be fulfilled or the legatee dies
before fulfillment of the condition.
The legatee is declared unworthy.
The legacy is renounced, but only to the extent of the
renunciation.
The legacy is declared invalid.
The legacy is declared null, as for example, for fraud,
duress, or undue influence.
ii. AccretionWhen a legacy lapses, accretion takes
place. Articles 1590-1596 determine how accretion takes
place. It is useful to follow 6 steps to determine who
receives testamentary accretion.

Step 1: Testamentary Disposition

(a) Article 1590Accretion takes place according to

the testament, or, in the absence of a governing
testamentary provision, according to the following
Articles. Example
My house to A, but if A cannot take, then to B.
(i) The ability of the testator to stipulate his
own regime for testamentary accretion is
one reason to write a will. Failing a
designation in the testament itself, the Civil
Code provides a default regime of
testamentary accretion.
(ii) Special Problems:
o See La. Civ. Code art. 965. In light of
that provision, what would the result be
in the following hypothetical: X makes a
will leaving Blackacre to my sister, but
if she should predecease me, then to my
brothers children. Xs sister
renounces her rights to Xs succession.
Assume that Xs sister has children of

142
 her own. Does the will direct how
accretion should occur in this case?
o See La. Civ. Code art. 946(A). In light
of that provision, what would the result
be in the following hypothetical: X
makes a will leaving Blackacre to my
sister, but if she should predecease me,
then to my brothers children. Xs sister
is declared unworthy. Assume that Xs
sister has children of her own. Does the
will direct how accretion should occur
in this case?

Step 2: Anti-Lapse Rule (a.k.a. Most-Favored Class Rule)

(b) Article 1593If 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.
Example:
X dies survived by his child A, and C, the son of
predeceased child B. In the will, X leaves the
entirety of the estate to A and B. B has
predeceased and therefore cannot take under
1589(1). Under 1593, testamentary accretion
takes place in favor of C, and C receives Bs
share.
(i) This provision imposes a rule similar to
representation in testate successions.
(ii) Note that this rule does not apply when the
legacy is declared invalid or null. What is
the reason for this exclusion?

Step 3: Joint Legacies

(c) Article 1592When a legacy to a joint legatee

lapses, accretion takes place ratably in favor of the
other joint legatees, except as provided in the
following Article. Example:
X bequeaths the entire estate to A, B and C. A
predeceases the decedent, and therefore cannot

143
 take under 1589(1). As share will accrete
ratably to B and C. Thus, As 1/3 is equally
divided between B and C.

Step 4: Non-Joint General and Particular Legacies

(d) Article 1591When a particular or a general

legacy lapses, accretion takes place in favor of the
successor who, under the testament, would have
received the thing if the legacy had not been made.
Example:

X bequeaths his library to A and his copy of

Moby Dick to B. B predeceases the decedent,
and therefore cannot take under 1589(1). Bs
legacy of Moby Dick will accrete to A, who
would have received the copy of Moby Dick
had the volume not been specifically left to B.

X bequeaths Blackacre to A and the rest of his

estate, one-half to B and one-half to C. If the
legacy to A lapses, B and C each receive of
Blackacre.
Step 5: Accretion to Universal Legatees (and certain General
Legatees)

(e) Article 15951All legacies that lapse, and are

not disposed of under the preceding articles, accrete
ratably to the universal legatees. Example:
My house to A, residue to B and C. A
predeceases the decedent, and therefore cannot
take under 1589(1). As Legacy accretes to B
and C, each of whom succeeds to an undivided
share of the house.

(f) Article 15952When a general legacy is phrased

as a residue or balance of the estate without
specifying the residue or balance is the remaining
fraction or a certain portion of the estate after the
other general legacies, even though that is its effect,
it shall be treated as a universal legacy for purposes
of accretion under this article. Example:

Three-fourths of my estate to my husband (H)

and the rest to Tulane. H predeceases the
decedent, and therefore cannot take under

144
 1589(1). Hs legacy accretes to Tulane, even
though Tulane is a general legatee.

(i) NoteIf the will instead provides, Three-

fourths of my estate to my husband (H) and one-
fourth to Tulane, then a different result occurs.
The legacy to Tulane is not phrased as a
residue or balance of the estate. Accretion
therefore does not take place in favor of Tulane.
Must proceed to next step to determine who is
entitled to accretion.

Step 6: Intestate Successors

(g) Article 1596Any portion of the estate not

disposed of under the foregoing rules devolves by
intestacy.

Jurisprudence

(h) Succession of Cottrell (2006)Testators will

included a number of legacies. Three are important
for the disposition of the case:

(1) To Quirk: Residenceand the balance

of my personal belongings I die possessed of
every nature and kind.
(2) To Joubert: 164 acres in Acadia Parish
(3) To Foster: One-half of 60 acres in
Morrow, Louisiana and all jewelry I die
possessed of and any remaining cash after
all debts are paid.

The legacies to Joubert and Foster lapsed.

The administratrixes determined that the lapsed
legacies would go to the nearest living relatives of
the decedent (25 cousins). Quirk filed a rule
arguing that she be named the universal legatee
under the will. The trial court ruled that Quirk was
entitled only to personal items such as furniture,
automobiles, clothes, jewelry, etc. but not bank
accounts or other forms of investments or
immovable property.

145
 Why does Quirk seek to be named the
universal legatee or a general legatee under the
will? What is her argument that the bequest is
universal? What is her alternative argument that
the bequest is general? How does the court
ultimately classify her legacy? Why? Can the term
personal belongings ever be used to create a
universal legacy?

How does interpretation of legacies play a

role in the outcome of this decision? Note the court
utilizes both legislative and jurisprudential rules of
interpretation.
o La. Civ. Code art. 1611: The intent of the
testator controls the interpretation of his testament.
If the language of the testament is clear, its letter is
not to be disregarded under the pretext of pursuing
its spirit
o La. Civ. Code art. 1612: A disposition
should be interpreted in a sense in which it can have
effect, rather than one in which it can have none.
o Words should be given their usual
significance common, popular acceptation.
(Caselaw)

(i) Hopson v. Ratliff (1983)Testator made specific

bequests to her sister and three nieces. Then,
Testator left the remainder of her estate to the same
four legatees. The case involved two of these
legacies:

(1) To my sister Katherine F. Maxfield, I

bequeath the lot adjoining her house and all
of my interest in Katherine Heights # 1 and
#2 including the duplex and all of my
government bonds.

(2) To my sister Katherine F. Maxfield and

to my three niecesI give, devise, and
bequeath all of my property- real, personal
(jewelry) and mixed, of which I possess or
to which I am entitled at the time of my
death. To be divided equally among them.

Under the Law at Time of Decision: What

kind of legacy is (1)? What kind of legacy is

146
 (2)? What happens to legacy (1) when it
lapses? What happens to the portion of
legacy (2) that lapses?

Under Current Law: What kind of legacy is

(1)? What kind of legacy is (2)? What
happens to legacy (1) when it lapses? What
happens to the portion of legacy (2) that
lapses?

c. Lapse Distinguished from Extinction of LegacySometimes a legacy is

extinguished. When this occurs there is no accretion, as there is no
lapse. Rather, Article 1597 sets forth the consequences of extinction.
i. Legatees Entitlement as a Result of Extinction
(a) Article 1597AA legacy is extinguished to the extent that
property forming all or part of the legacy is lost or
extinguished, or destroyed before the death of the testator.
However, the legatee is entitled to any part of the property
that remains and any uncollected insurance proceeds
attributable to the loss, extinction, or destruction and to the
testators right of action against any person liable for the
loss, extinction, or destruction. Example:
X makes a particular legacy of her house and the
immovable property on which it is situated to A. Prior
to Xs death, an arsonist sets fire to the house and burns
it to the ground. A is entitled to whatever remains of
the house and the tract of land, the insurance proceeds,
and the right to sue the arsonist.

(i) Extinction of legacies is distinguished from lapse.

When extinction occurs, in whole or in part, the
legacy cannot be given its full effect because the
property is not available for distribution.
(ii) The legatee is entitled to any part of the property
that remains, any uncollected insurance proceeds,
and any right of action relating to the loss,
extinction, or destruction of the thing (real
subrogation).
(iii) Article 1597, comment (d)Since this Article by its
nature applies only to events that occur prior to the
date of the testators death, and not to events
occurring thereafter, one should be careful not to
confuse the effects of this Article with the results
that occur if there is damage, partial destruction, or
total destruction after the testators death. In those
instances, entirely different issues arise, which may

147
 be governed by other principles of law, such as the
duty of a succession representative to preserve and
maintain property of the estate, and the duty to
insure property pending the administration of the
estate.
ii. Object of Legacy Transformed
(a) Article 1597BA legacy of a certain object is not
extinguished when the object of the legacy has been
transformed into a similar object without an act of the
testator. Example:
X makes a particular legacy of her BellSouth stock to
A. Prior to the testators death BellSouth merges with
AT&T, with AT&T being the successor company. All
of the BellSouth stock is converted into AT&T stock. A
is entitled to the AT&T stock.
Variation: Suppose that X sells the AT&T stock to buy
stock in Google. A is not entitled to the Google stock.
Do you see why? See Article 1597B & Article 1608(3).
iii. Condemned or Expropriated Property
(a) Article 1597CIf the object of the legacy has been
condemned or is expropriated prior to the testators death,
the legatee is entitled to any uncollected award and to
succeed to any right of action concerning the condemnation
or expropriation. Example:
X makes a particular legacy of her house and the
immovable property on which it is satiated to A. Prior
to Xs death, the house and tract are taken by the State
in order to build a levee. A is entitled to collect the
award and to bring any action in connection with the
taking.

d. Priorities in Disbursing BequestsWhen there are insufficient assets

available to satisfy all of the testamentary bequests after payment of
creditors and forced heirs, then legacies are paid out in the order set forth
in Articles 1599-1601. This order is generally:
--Legacies specified as preferred by the testator
--Legacies of specific things
--Legacies of groups or collections of things
--Legacies of cash expressly designated in recompense for services
--Legacies of cash (pro rata)
--General and Universal legacies
NoteYou have seen these rules before. We applied these same rules
in the reverse order when we were dealing with reduction.
i. The Testament GovernsIf the testator has not expressly declared a
preference in the payment of legacies, the preference shall be governed
by the following Articles. (La. Civ. Code art. 1599)

148
 ii. Priority Given to Particular LegaciesIf the property remaining after
payment of the debts and satisfaction of the legitime proves
insufficient to discharge all particular legacies, the legacies of specific
things must be discharged first and then the legacies of groups and
collections of things. Any remaining property must be applied toward
the discharge of legacies of money, to be divided ratably among the
legatees of money in proportion to the amounts of their legacies.
When a legacy of money is expressly declared to be in recompense for
services, it shall be paid in preference to all other legacies of money.
(La. Civ. Code art. 1601)
iii. Universal and General LegaciesA particular legacy must be paid in
preference to all others. (La. Civ. Code art. 1600) By implication all
universal and general legacies are paid last.

e. Miscellaneous Rules Regarding Fruits and ProductsAccounting Among

Legatees
i. Article 15981All legacies, whether particular, general, or
universal, include fruits and products attributable to the object of
the legacy from the date of death, but the right of any legatee to
distribution under this Article is subject to administration of the
estate.
ii. Article 15982Nevertheless, the legatee of a specified amount
of money is entitled to interest on it, at a reasonable rate, beginning
one year after the testators death, but the executor may, by
contradictory proceedings with the legatee and upon good cause
shown, obtain an extension of time for such interest to begin to
accrue and for such interest as the court deems appropriate.
iii. Article 15982If, however, the legacy is subject to a usufruct
for life of the surviving spouse or is held in trust for the benefit of
a surviving spouse, the spouse shall be entitled to interest on the
money from the date of death at a reasonable rate.

Unit 12Donations Mortis Causa

Installment 3

E. Revocation of Testaments and Legacies

1. General Rules
a. Right to RevokeA testator may revoke his testament at any
time. The right of revocation may not be renounced. (La. Civ.
Code art. 1606)
b. Substantive Requirement: Animus RevocandiAll revocations
require an intent to revoke.
i. Succession of SwansonAn olographic will was torn up by
the universal legatee on the assumption that the will was
invalid. The testator gathered up the pieces and pasted

149
 them back together again, reconstructing the will. Has the
will been revoked?
c. Formal Requirements
i. The revised law sets forth specific methods for revocation
of (i) an entire will and (ii) a provision in a will.

2. Revocation of the Entire Will (La. Civ. Code art. 1607)

a. Methods of RevocationRevocation of an entire testament
occurs when the testator does any of the following: (1) Physically
destroys the testament, or has it destroyed at his direction; (2) So
declares in one of the forms prescribed for testaments or in an
authentic act; (3) Identifies and clearly revokes the testament by a
writing that is entirely written and signed by the testator in his own
handwriting.
i. Physical DestructionA will can be revoked by physical
destruction.
(a) Succession of Muh (1883)Testator defaced will
by drawing lines through all but four of the legacies
and the provisions naming the executors and by
covering the signature entirely with ink. Is this a
revocation?
(b) Succession of Hill (1895)Testator publicly stated
that he was dissatisfied with his will and his
intention was to revoke it. It was later found in the
trash can. Is this a revocation?
(c) Succession of Talbot (1988)While at his lawyers
office, Testator destroyed one copy of his will,
which was executed in multiple copies. He did not
destroy a duplicate, which was at his home. Is this
a revocation?
(d) Lost or Missing WillsThe failure to find a will
may give rise to a presumption of destruction. This
presumption can be rebutted.
ii. Revocation by Testament or Authentic ActA will can be
revoked if the testator so declares in the form of a testament
or an authentic act.
(a) Form of a TestamentObviously, a revocation
made in an actual testament is a valid revocation
under this article. In addition, Courts have
generally held that the revocation need only take on
the form of a will and need not actually appear in
a new will with testamentary dispositions.
(i) IllustrationHypothetical 1T makes a
will and deposits the same for safekeeping at
the Louisiana National Bank, which bank
issued him a receipt therefor. Three weeks

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 later, T writes on the back of this receipt the
following: Baton Rouge, La., March 16,
1962. The will and testament described in
the reverse hereof hereby declare void.
(signed) T.
(ii) But see Hollingshead v. Sturgis ( 1869)
Court held that a letter written, dated, and
signed by the testator was not a valid
revocation because it contained no
institution of heir, no dispositions mortis
causa, nor any expression indicating a last
will. Is there another reason that the letter
in this case was not a valid revocation?
(b) Authentic ActUnder prior law, a express
revocation could be made only in the form of a will.
Thus, if a will was invalid as to form, a revocation
contained within the will was likewise invalid.
Under the new law, revocation may also be made by
authentic act.
(i) In re Hendricks (1st Cir. 2009)Notarial
will is invalid due to failure of testator to
sign every single page. However,
instrument contained revocation of prior will
and was notarized and signed by two
witnesses. Is this a revocation by authentic
act?
iii. Signed Writing that Identifies TestamentA will may be
revoked by a writing entirely written and signed by the
testator in his own handwriting. The writing must identify
and clearly revoke the will.
iv. What manner of revocation would you recommend to your
client?
b. Doctrine of Dependent Relative RevocationSome jurisdictions
view the making of a new will and the revocation of an old will as
interrelated acts. If the new will is held invalid, then there is a
rebuttable presumption that the testator would have preferred the
former will over intestacy. This allows for the probate of an
otherwise revoked will. Consider whether this doctrine has been
adopted in Louisiana.
i. Smith v. Shaw (1952)Testator executed an olographic
will. Later, she executed a second will and destroyed the
first. Then, she executed a third will and destroyed the
second. After she died, the third will was declared invalid
when presented for probate. Did the court allow probate of
the earlier olographic will?

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 ii. See also In re Hendricks (1st Cir. 2009)Note that the
dissent argues that the testators intent to revoke was
conditioned upon the validity of the new will.
c. Revocation of RevocationThe revocation of a testament,
legacy, or other testamentary provision that is made in any manner
other than physical destruction of the testament, subsequent inter
vivos disposition, or divorce is not effective if the revocation itself
is revoked prior to the testators death. (La. Civ. Code art. 1609)
i. Succession of Makofsky (La. App. 1960)Testament
destroyed by testator and later taped back together is held
revoked at death despite testators attempt to restore will.
ii. Succession of Dambly (La. 1939)Testator made a will,
then later made a second will in which she revoked the
first. Then, testator destroyed the second will. Court held
that revocation was revoked by destruction; first will is
probated.
iii. Succession of Ledet (1930)Testator made an olographic
will, and later had a child. [Under prior law, the birth of a
child invalidated a prior will.] Testator later confirmed
prior will in a new will. But note: generally Louisiana law
does not allow incorporation by reference of a document
that is not itself a valid will.
3. Revocation of a Legacy or Other Testamentary Provision (La. Civ. Code
art. 1608)
a. Methods of RevocationRevocation of a legacy or other
testamentary provision occurs when the testator: (1) So declares in
one of the forms prescribed for testaments; (2) Makes a subsequent
incompatible testamentary disposition; (3) Makes a subsequent
inter vivos disposition of the thing that is the object of the legacy
and does not reacquire it; (4) Clearly revokes the provision or
legacy by a signed writing on the testament itself; (5) Is divorced
from the legatee after the testament is executed at the time of his
death, unless the testator provides to the contrary. Testamentary
designations or appointments of a spouse are revoked under the
same circumstances.
i. Declaration in Form of TestamentA legacy or other
provision can be revoked in the form of a testament.
ii. Subsequent Incompatible Testamentary DispositionA
legacy or other provision can be revoked by a conflicting,
later executed testamentary disposition. The central
question is whether a new provision is truly incompatible
with the old. If so, then the new provision revokes the old.
If not, then the new and old provisions must be cumulated.
(a) Sarce v. Dunoyers Executor (1837)In a first will,
testator bequeathed specific sums of money to
grandnieces and nephews and made certain

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 emancipated slaves his universal legatees. In a later
will, testator left small legacies to emancipated
slaves, named a new executor and universal legatee,
and entirely omitted nieces and nephews. The will
contained no express revocation clause. Are the
bequests to the nieces and nephews revoked?
(b) Succession of Reeves (1st Cir. 1980)Testator
executed a will in which she left various real estate
to her niece and two nephews. She also made the
three of them residuary legatees. In a codicil, she
modified her prior will by bequeathing all the land
she had formerly left to Charles Julius Cole (one of
her nephews) to a bank in trust. She made Charles
the income beneficiary and his children the income
beneficiaries after his death. She didnt say
anything about the principal interest. Charles and
his children argued that the prior bequest to Charles
was only partially revoked, and that the principal
interest still belongs to Charles. The other residuary
legatees argued that the entire bequest to Charles
was revoked, and that because the principal interest
was undisposed of, it fell to the residuary. How
does the court rule, and why? How do the rules of
interpretation (esp. La. Civ. Code art. 1612) factor
into this decision? See the noted case (Succession
of Rolling). How is this case different from Sarce &
Reeves?
(c) HypotheticalsHow should the following be
resolved?
(i) First will leaves $1000 to A, second will
leaves $500 to A.
(ii) First will leaves $500 to A, second will
leaves $1000 to A.
(iii) First will leaves $500 to A, second will
leaves $500 to A.
(d) Validity of Testamentary DispositionMust the
revoking testamentary disposition be valid in order
to effectively revoke an earlier disposition? See La.
Civ. Code art. 1608, cmt. (c).
(i) Hypothetical 1T executes an olographic
will, valid in form, in which he gives all of
his property to A. He then makes a second
notarial will, also valid in form, whereby he
bequeaths everything he dies possessed to B
who acts as a witness to the will. Is the first
bequest revoked?

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iii. Subsequent Inter Vivos Disposition Without Reacquisition
A legacy or other provision can be revoked if the testator
disposes of the property inter vivos and does not reacquire
it at death. A contrario, if the decedent does reacquire the
property before death, the legacy is not revoked.
(a) Succession of Huguet (1st Cir. 1998)Testator left a
specific bequest to grandson of 180 acres of land in
West Baton Rouge Parish. Decedent and grandson
later formed a partnership. Grandson contributed
$5000 to the partnership and decedent contributed
the land. On the same date, decedent donated to
grandson a 6.55% interest in the partnership.
Several days later, she made an identical donation.
By her death, grandson owned 14% of the
partnership. Was the transfer of land a revocation
of the legacy?
(b) Validity of Testamentary DispositionMust the
revoking testamentary disposition be valid in order
to effectively revoke an earlier disposition? See La.
Civ. Code art. 1608, cmt. (c).
(i) Hypothetical 1T executes a will leaving
house to daughter. Later, T donates house to
son. Donation is not properly accepted by
son in writing. Is legacy revoked?
iv. Signed Writing on TestamentA legacy or other provision
can be revoked by a signed writing on the testament.
(a) Succession of Melancon (discussed in comment (b)
to Article 1608Involved scratch outs
accompanied by a notation in the margin that the
legacies were revoked, along with the testators
signature. Under old law, this was not revocation.
The new rule is designed to overrule this case.
(b) Scratch Outs With or Without SignaturesIs a
mere scratch out of a legacy enough to satisfy the
requirements of La. Civ. Code art. 1608(4)? Note
that under old law, Louisiana courts relied on the
institution of tacit revocation and on CC 1575B to
permit revocation by unsigned scratch out or
erasure in olographic wills. The new law seems to
foreclose this approach. What if the scratch out is
signed?
(c) Cf. Article 1610Any other modifications of a
testament must be made in one of the forms
prescribed for testaments.
(i) Hypothetical, Article 1610 comment (b)
Suppose that a testator executes a will

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 naming A as the executor. Subsequently, he
writes on the testament I hereby revoke the
designation of A as executor and I name and
appoint B as the executor of my estate.
The writing is not dated although it is in the
handwriting of the testator and signed by
him. Is this a valid revocation? Is the
provision naming the new executor valid?
v. DivorceA legacy or other provision, as well as an
appointment of a spouse, can be revoked by divorce of the
spouses. The spouses must be divorced at the time of the
decedents death for the revocation to take effect.
(a) Exceptionthis rule does not apply if the testators
will provides to the contrary.
(b) Succession of Clark (1st Cir. 2009)Testator and
wife were married in 1976 and divorced in 2003.
Testator executed his will in 1995. The will left the
entire estate to wife. Testators son argued that the
will was invalid under La. Civ. Code art. 1608(5).
The court held that this rule was not in effect at the
time the decedent executed his will. The court
relied on Succession of Gonzales to hold that RS
9:2440 governed. Some have argued that these
cases improperly extend RS 9:2440, which was
originally enacted to govern the form of testaments,
not necessarily the substance of testaments.

4. Revocation for CauseThe same causes that authorize an action for the
revocation of a donation inter vivos are sufficient to authorize an action
for revocation of testamentary dispositions. (La. Civ. Code art. 1610.1)
a. Revocation for IngratitudeA donation mortis causa may be
revoked for ingratitude of the donee.
i. Grandchampt v. Administrator of Succession of Billis (La.
1909)Billis donated to Miss Grandchampt 785 acres of
land in contemplation of marriage. Shortly thereafter, Mrs.
Billis donated the same lands back to husband. Bills later
made a will in favor of his illegitimate children and Antoine
Morat. A few days later, Mrs. Billis was found dead,
apparently shot by her husband. It also appeared that Billis
committed suicide. Mrs. Billis had left a will leaving her
husband all of her property. The heirs of Mrs. Billis want
to revoke her will and the donation inter vivos she made to
her husband on the ground of ingratitude. The court does
not permit this because under the old law, the donor could
not proceed against theirs of the donee. See La. Civ. Code
art. 1558. How does this provision change the law?

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b. Dissolution Nonfulfillment of Suspensive Condition, Occurrence
of Resolutory Condition, or Nonperformance of Charges.
i. Howard v. Administrators of Tulane Educational Fund (La.
2008)Court held that successors of donor not only have
the right to dissolve donations for failure to comply with
charges/conditions, but they also have a right to enforce
compliance with charges and conditions.
ii. Cy-Pres Doctrine
(a) La. Rev. Stat. 9:2331In any case in which
circumstances have changed since the execution or
probate of a will containing a trust or conditional
bequest for charitable, educational or eleemosynary
purposes, or since the death of the donor who
during his lifetime established a trust or made a
conditional donation for any of such purposes, and
the change in circumstances is such as to render
impractical, impossible or illegal a literal
compliance with the terms thereof, the district court
having jurisdiction of the succession of the testator
or of the domicile of the donee (and in the parish of
Orleans, the civil district court) may, upon petition
of a trustee, or of the person or corporation having
custody or possession of the property subject to said
trust, conditional bequest or donation or of any heir,
legatee or donee who in the absence or invalidity of
such trust, conditional bequest or donation would
have been entitled to any part of the property
contained therein, in accordance with the procedure
hereinafter set forth, enter a judgment directing that
such charitable trust, devise or conditional bequest
or donation shall be administered or expended in
such manner (either generally or specifically
defined) as, in the judgment of said court, will most
effectively accomplish as nearly as practicable
under existing conditions the general purpose of the
trust, will or donation, without regard to and free
from any specific restriction, limitation or direction
contained therein.
(b) La. Rev. Stat. 9:2334The said district court shall
thereupon enter a judgment in the premises and may
direct that such trusts or devises or conditional
bequests or donations shall be administered or
expended in such a manner or manners as will most
effectively accomplish, as nearly as practicable
under existing conditions, the general purpose of
such trust, devise, conditional bequest or donation,

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 without regard to and free from any specific
restriction, limitation or direction contained therein;
provided, however, that in the absence of a clearly
expressed intention to the contrary no such trust,
devise, conditional bequest or donation inter vivos
for charitable, educational or eleemosynary
purposes shall be invalid because the specific
method provided by the testator or donor for the
accomplishment of the general purpose indicated by
him is or becomes, for any reason, impractical,
impossible or unlawful; provided, further, that in the
event that the heirs, legatees or donees who in the
absence or invalidity of said trust, devise,
conditional bequest or donation would be entitled to
the property contained therein shall have made
recommendations as to the use or expenditure of the
property subject to such trust, devise, conditional
bequest or donation inter vivos, then and in such
event the court, in determining the manner or
manners which will most effectively accomplish the
general purpose of such trust, devise, conditional
bequest or donation inter vivos, shall give
preference to the recommendations of such heirs,
legatees or donees.

Unit 13 Interpretation of Legacies

A. Rules for Interpretation of Legacies

1. Intent of the Testator Controls
a. Article 1611(A)The intent of the testator controls the interpretation of
his testament. If the language of the testament is clear, its letter is not to
be disregarded under the pretext of pursuing its spirit. The following rules
for interpretation apply only when the testators intent cannot be
ascertained from the language of the testament. In applying these rules,
the court may be aided by any competent evidence.
i. May oral declarations of intent be used to clarify ambiguous
language in a testament? The language any competent evidence
is arguably broader than that used in the predecessor article (all
circumstances which may aid in the discovery of the testators
intention). Under the old law, oral statements of the testator could
not be used in the interpretation of ambiguous legacies.
b. Article 1611(B)When a testament uses a term the legal effect of which
has been changed after the date of execution of the testament, the court
may consider the law in effect at the time the testament was executed to
ascertain the testators intent in the interpretation of a legacy or other
testamentary provision.

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 i. Succession of CollettDecedents will, written in 1988, left his
wife the disposable portion and his three children the forced
portion of his estate. When decedent died in 2007, his children
were no longer classified as forced heirs. How did the court
resolve the ambiguity in this case? What is the relationship
between Article 870 and Article 1611?
(a) Note: the court references RS 9:2501 (now repealed) which
allowed for the application of the pre-revision law of forced
heirship in certain circumstances. In 2001, RS 9:2501 was
repealed and replaced with Articles 870(B) and 1611(B).
ii. Compare Succession of SoileauDecedent left the disposable
portion of her property to her cousin. To her daughter, she left
all of the remainder of the property of which I die possessedin
accordance with the intestate laws of the State of Louisiana. How
would you resolve the ambiguity in this case?

2. Preference for Interpretation that Gives Effect

a. Article 1612A disposition should be interpreted in a sense in which it
can have effect, rather than in one in which it can have none.
i. Note: We saw the application of this article earlier in the semester
when we discussed the interpretation of legacies that may contain
prohibited substitutions.
3. Mistaken in Identification of Object Bequeathed
a. Article 1613If the identification of an object given is unclear or
erroneous, the disposition is nonetheless effective if it can be ascertained
what object the testator intended to give. If it cannot be ascertained
whether a greater or lesser quantity was intended, it must be decided for
the lesser.
i. Example: Testator bequeaths usufruct of homeplace to X. Court
determined that the legacy included a usufruct of the house and
fenced yard, and did not include a usufruct of the 114 contiguous
acres of real estate that surrounded the house and yard. Succession
of Cardone, 271 So. 2d 338 (La. App. 1973)(not in book).
4. Interpretation as to After-Acquired Property
a. Article 1614Absent a clear expression of a contrary intention,
testamentary dispositions shall be interpreted to refer to the property that
the testator owns at his death.
i. Example 1: X bequeaths all my stock in IBM to A. At the time
of the execution of the testament, X owned 100 shares. At the time
of his death, X owns 200 shares. A is entitled to all 200 shares.
ii. Example 2: X bequeaths my car to A. At the time of the
execution of the testament, X owns a 1989 Corolla. At the time of
his death, X owns a Rolls Royce. A is entitled to the Rolls Royce.
iii. Note: This is a change in the law. Under prior law, a bequest of
property couched in terms of present or past, or silent as to time,
only extended to property owned at the execution of the testament.

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(a) Example: Succession of Gurganus Testator left a will
leaving what I own, my clothes and my piano.
Court held that the will referred only to property owned by
decedent at the time of the execution of the will.
(i) Note: As a threshold issue court considers whether
the will is conditional. Testators will began I
Louise G. Gautheir if anything should happen that I
would not return. Is this will conditional? Why or
why not?

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5. Contradictory Provisions
a. Article 1615When a testament contains contradictory provisions, the
one last written prevails. Nonetheless, when the testament contains a
legacy of a collection or a group of objects and also a legacy of some or all
of the same objects, the legacy of some or all of the objects prevails.
i. HypotheticalT bequeaths her collection of china to X, and her
china teapot to Y. Who receives the china teapot?
ii. NoteWhen legacies are made in two different wills, the issue is
one of revocation, not interpretation. If two legacies are made to
the same person in two different wills, and the legacies are not
inconsistent, then the legatee is entitled to both. See Succession of
Reeves (Chapter 6).
6. Legacy to Creditor
a. Article 1616A legacy to a creditor is not applied toward satisfaction of
the debt unless the testator clearly so indicates.
i. See also Article 956A successor may assert a claim that he has
as a creditor of the estate whether he accepts or renounces his
succession rights.
7. Additional Jurisprudential Presumptions
a. In the absence of a contrary expression, the law presumes that when a
will is executed the testator intends to dispose of his entire estate. See,
e.g., Succession of Cater, 332 So. 2d 439 (La. 1976).

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 Unit 14Of Trusts
Installment 1

A. TrustsAn Overview
1. Trust DefinedThe trust is a relationship resulting from the transfer of title to
property to a person (trustee) to be administered by him as a fiduciary for the
benefit of another. (RS 9:1731)
a. NoteThe trust is not a legal entity or a juridical person, but instead is a
relationship between three persons: the settlor, the trustee, and the
beneficiary.
b. ExampleS transfers 1,000 shares of stock to T as trustee to pay the
income to Ss spouse W for her life, and upon Ws death, to transfer the
trust property free of trust to Ss brother B.
2. Authorization of TrustsLouisiana did not allow private trusts until very
recently, because they were alien to the civil law and because they can violate the
prohibition against prohibited substitutions. The 1938 Trust Estates Law
introduced private trusts into Louisiana, but after that time the acceptance of trusts
was tenuous. The Louisiana Trust Code of 1964 significantly modernized trust
law. Currently, trusts are well-accepted in Louisiana law and are used for many
purposes, one of which is estate planning.
a. RS 9:1722Express private trusts are hereby authorized subject to the
rules prescribed in this Code.
b. RS 9:1723A disposition authorized by this Code may be made in trust
although it would contain a prohibited substitution if it were made free of
trust.
i. See also Article 1520A disposition that is not in trust by which
a thing is donated in full ownership to a first donee, called the
institute, with a charge to preserve the thing and deliver it to a
second donee, called the substitute, at the death of the institute, is
null with regard to both the institute and the substitute.
3. Types of TrustsTrusts can be classified as inter vivos or testamentary, and as
onerous or gratuitous. In this class we are concerned primarily with gratuitous
trusts.
a. Inter Vivos Trusts and Testamentary TrustsA trust is either
testamentary or inter vivos. (RS 9:1732) A trust is testamentary when it
is created by donation mortis causa. (RS 9:1733) All trusts not
testamentary are considered inter vivos, regardless of the time of
creation. (RS 9:1734)
b. Onerous and Gratuitous TrustsA trust may be gratuitous or onerous. It
may be gratuitous as to one beneficiary and onerous as to another. (RS
9:1735) Again, we are really only concerned with gratuitous trusts in this
course.
4. Conditions and Dispositions Permitted
a. ConditionsA trust or a disposition in trust may be subject to any
conditions not forbidden in this Code and not against public order or good
morals. (RS 9:1736)

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 b. DispositionsA settlor may dispose of property in trust to the same
extent that he may dispose of that property free of trust and to any other
extent authorized in this Code. A trust containing a prohibited
substitution is valid. (RS 9:1737)

B. Creation of the Trust

1. Technical Language is not RequiredNo particular language is required to
create a trust, but it must clearly appear that the creation of a trust is intended. A
trust instrument shall be given an interpretation that will sustain the effectiveness
of its provisions if the trust instrument is susceptible of such an interpretation.
(RS 9:1753)
2. Substantive Requirements
i. Intent to Create a TrustThe trust instrument must evidence intent to
transfer property to a trustee for the benefit of a beneficiary.
a. Succession of PayneThe testator prepared an Oklahoma
statutory will and then an olographic will. He took his wifes life,
then his own. His children came forward seeking to probate the
statutory will and filed a rule to show cause why the olographic
will should not be declared invalid on the ground that it contained
a prohibited substitution. The beneficiaries named in the
olographic will asserted that the will is valid and created a trust.
The disputed language was:
Scense [sic] this is a divorce involved [sic] I leave of the
community to Henry K. Payne to be divided equally Between My
twin Granddaughters when they Become 21 years of age.
Is this a prohibited substitution? NO, b/c no successive order and
no double disposition.
Does this language create a trust? YES!
Why? According to the court, what are the required elements of a
trust?
Intent to create trust
Property
And a beneficiary
Were these requirements satisfied here? Yes!
ii. Designation of BeneficiaryA beneficiary must be designated in the
trust instrument, except as otherwise provided in this Code. The
designation is sufficient if the identity of the beneficiary is objectively
ascertainable solely from standards stated in the trust instrument. (RS
9:1802)
iii. Identification of Trust PropertyCreation of a trust requires the transfer
of title to property. (RS 9:1731) Thus, the identification of trust property
is required. In a testamentary trust, this can be done generally, such as by
a universal legacy.

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3. Form Required to Create a Trust
a. In GeneralAt a minimum, there must be a written trust instrument.
i. RS 9:1725(8)Trust Instrument means the written document
creating the trust and all amendments and modifications thereof.

b. Testamentary TrustsA testamentary trust may be created only in one

of the forms prescribed by the laws regulating donations mortis causa.
(RS 9:1751)
c. Inter Vivos TrustsAn inter vivos trust may be created only by
authentic act or act under private signature executed in the presence of
witnesses and duly acknowledged by the settlor or by the affidavit of one
of the attesting witnesses. (RS 9:1752)
i. Francois v. Tufts This case illustrates how an inter vivos trust is
properly created. Mr. Francois (the settlor) executed an inter vivos
trust in which he placed $1M worth of municipal bonds. He was
named the income and principal beneficiary during his lifetime.
His nieces and nephews were named the principal beneficiaries at
death. In this case, the trust instrument was signed by the settlor
and the trustee on October 6, 1982. It was not notarized until
sometime between January and August of the following year. In
addition, one of the attesting witnesses executed an affidavit
acknowledging her witnessing at the signing of the trust
instrument. Is this instrument an authentic act?No. Why or why
not?Not everyone signed together. Is it valid under RS 9:1752?
Yes, meets requirements of trust code. Formal requirements
lessened for an inter vivos trust.
4. Acceptance by the Trustee
i. Necessity of AcceptanceA trust must be accepted by a trustee,
eventually. However, acceptance by the trustee is not required to take
place at any particular time as long as it occurs eventually. And even if the
trustee named in the trust never accepts, thats okay. The court can
appoint another trustee in this case. (See RS 9:1821-1824)
ii. FormalitiesThe trustee may accept the trust in the trust instrument or in
a separate instrument. (RS 9:1755)
5. Foreign TrustsForeign trusts are recognized in Louisiana so long as they are in
writing and subscribed by the settlor.
a. RS 9:2262.4A trust instrument executed outside this state in the
manner prescribed by law, and in conformity with, the law of the place of
its execution, or the law of the settlors domicile, at the time of its
execution shall be deemed to be legally executed and shall have the same
force and effect in this state as if executed in the manner prescribed by the
laws of this state, provided the trust instrument is in writing and
subscribed by the settlor.

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C. Trust Property
1. General RuleProperty susceptible of private ownership, and any interest in
such property, may be transferred in trust. (RS 9:1771)
2. Life Insurance TrustsLife insurance trusts are governed by RS 9:1881: A
settlor may create an inter vivos or testamentary trust upon the proceeds of life
insurance.
a. Reasons ForLife insurance may be placed in trusts to achieve a number
of estate planning objectives, most significantly tax savings objectives that
are beyond the scope of this course. For this course, you should simply
know that life insurance can be placed and trust and the form required.
b. Types and Form Required
i. Inter Vivos Life Insurance Trust If a policy of life insurance is
payable to a named beneficiary of the policy as trustee, the trust is
an inter vivos trust and the instrument creating the trust shall be in
the form required for an inter vivos trust. The trust is an inter
vivos trusts although the settlor reserves incidents of ownership
with respect to the policy, although the settlor reserves the power
to revoke or modify the trust, and although the trustee has no
active duties to perform until the death of the settlor. (RS 9:1881)
ii. Testamentary Life Insurance TrustIf the policy of life insurance
is payable either to the settlor or to his succession or his succession
representative, or to a testamentary trustee, the trust is testamentary
and the instrument creating the trust shall be in the form required
for a testamentary trust. (RS 9:1881)
3. Additions to Trust Property
a. General RuleA settlor or any other person may make additions of
property to an existing trust by donation inter vivos or mortis causa, with
the approval of the trustee. The right to make additions may be restricted
or denied by the trust instrument. (RS 9:1931)
i. Reasons ForAs pointed on in the text on page 619, some
testators elect to utilize a pour-over-will, either in order to
maintain privacy or to simply take advantage of a preexisting inter
vivos trust. What is a reason why a person would want to add
property to an existing testamentary trust created by someone
other than the donor?
ii. Existing TrustRS 9:1931 permits the making of donations to
an existing trust. A question arises whether a trust, in order to
exist, must be funded. The UPC (Uniform Probate Code) does
not require pour into inter vivos trusts to be funded. But the
Louisiana law does not address this issue specifically. What does
RS 98:1731 suggest is required in Louisiana? Note that in
practice, inter vivos trusts are often nominally funded with $100.
b. Form Required for AdditionsAn addition of property to an existing
trust must be made and accepted in the form required for such a donation
free of trust. (RS 9:1932)

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 c. Rights of Person who Adds PropertyA person who adds property to an
existing trust cannot acquire the rights of a settlor by virtue of the transfer,
but the addition is subject to the general law of donations. (RS 9:1933)
d. Modification, Termination, Rescission, or Revocation of Trust to Which
Property AddedA trust may be modified, terminated, rescinded, or
revoked as provided by law or the trust instrument, without the consent of
a person who has added property to the trust, even though the property that
has been added is affected. (RS 9:1934)
e. Effective Date of Addition
i. Inter Vivos DonationAn addition of property to an existing
trust by donation inter vivos is effective upon an acceptance by the
trustee. (RS 9:1935)
ii. Mortis Causa DonationAn addition of property to an existing
trust by donation mortis causa is effective at the moment of the
donors death. (RS 9:1936)
4. Marital Portion in TrustThe marital portion can be placed in trust. RS 9:1851-
54 provides a scheme for doing this.
a. General RequirementsRS 9:1851 provides: The marital portion
whether in full property or usufruct only, or any portion thereof, may be
placed in trust, if:
(1) The net income accruing to the surviving spouse therefrom is payable
to the surviving spouse not less than once a year;
(2) The surviving spouses interest is subject to no charges or conditions,
except that the trust instrument may place restrictions upon the alienation
of the marital portion in trust; and (= spend thrift trust)
(3) The term of the trust, as it affects the marital portion, does not exceed
the life of the surviving spouse.
b. Marital Portion in Full PropertyAn unconditional principal and income
interest in trust, with income payable not less than annually for the life of
the beneficiary, satisfies the marital portion to the same extent as would
the full ownership not in trust of the same property; however, during the
term of the trust, the trustee may pay principal from the trust property for
support, maintenance, education, medical expenses, or welfare of the
beneficiary and, upon termination of the portion of the trust that affects the
marital portion, the principal shall be delivered to the surviving spouse or
his heirs, legatees, or assigns free of trust. (RS 9:1852)
c. Marital Portion in UsufructA usufruct in trust, or an unconditional
income interest in trust, without an interest in principal, payable not less
than annually for a term or for the life of the beneficiary satisfies the
marital portion to the same extent as would a usufruct not in trust on the
same property for the same term. (RS 9:1853)
d. Effect of Improper StipulationA provision of a trust instrument
that is incompatible with the provisions of this Subpart shall be
reformed to comply herewith. (RS 9:1854)

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5. Legitime in TrustAs you already know, the legitime can be placed in trust.
a. General RequirementsRS 9:1841 provides: The legitime or any
portion thereof may be placed in trust provided:
(1) The trustee after taking into account all of the other income and
support to be received by the forced heir during the year shall distribute to
the forced heir, or to the legal guardian of the forced heir, funds from the
net income in trust sufficient for the health, maintenance, support, and
education of the forced heir.
(2) The forced heirs interest is subject to no other other charges or
conditions except as provided in RS 9:1843,1 1844,2 1891 through 19063
and Subpart B of Part III4 of this Chapter.
(3) Except as permitted by RS 9:1844, the term of the trust, as it affects
the legitime, does not exceed the life of the forced heir.
(4) The principal shall be delivered to the forced heir or his heirs, legatees,
or assignees free of trust, upon the termination of the portion of the trust
that affects the legitime.
b. Permissible BurdensThe following are permissible burdens on the
legitime:
i. Restrictions on Alienation (RS 9:1842)
ii. Usufruct or Income Interest of Surviving Spouse (RS 9:1843)
iii. Class Trust (authorized in RS 9:1841, discussed in 9:1891)
iv. Shifting Principal Interests (authorized in RS 9:1841, discussed
9:1973)
c. Note on Supplemental Needs TrustPrior to 1999 the trust code provided
that the net income of the legitime in trust must be paid to a forced heir at
least once a year. In 1999 this provision was amended to allow the parent
of a disabled forced heir to place the legitime in trust in such a way that
the forced heirs interest in the trust will not disqualify him from receiving
Medicaid or other government benefits. The trust income will supplement
Medicaid or government benefits. This is called a supplemental needs
trust.
d. Effect of Improper StipulationA provision of a trust instrument that is
incompatible with the provisions of this Subpart shall be reformed to
comply herewith. (RS 9:1842)
6. Community Property in TrustSpecial rules permit spouses who place
community property in trust to specify that at the termination of the community
the trust shall be divided and to specify the rules to which each share of the trust
will be subject. This permits the spouses to plan for termination of the

1
RS 9:1843 permits the establishment of a spendthrift trust.
2
RS 9:1844 permits the legitime to be burdened with an income interest or usufruct in favor of the
surviving spouse.
3
RS 9:1891 et seq. permits the creation of a class trust.
4
Subpart B of Part III of the Trust Code addresses permissible shifting interests in principal. This is
discussed below, but in brief, shifting interests is only allowed as to the legitime in trust when the forced
heir beneficiary dies (a) intestate and (b) without descendants. If the forced heir dies intestate and with
descendants or testate, regardless of whether he has descendants or not, any provision in the trust
instrument shifting the interest in principal will be disregarded.

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 community without violating the rule of the civil code that prevents advance
partition of the community. (See RS 9:1955)

D. The Settlor
1. DefinitionA settlor is a person who creates a trust. A person who subsequently
transfers property to a trustee of an existing trust is not a settlor. (RS 9:1761)
2. Number of SettlorsThere may be one or more settlors of an inter vivos trust.
(RS 9:1762) Note that there is no parallel rule permitting more than one settlor of
a testamentary trust. Do you know why?
3. CapacityA person having capacity to contract by onerous title may be a settlor
of an onerous inter vivos trust. A person having capacity to contract by gratuitous
title may be a settlor of a gratuitous inter vivos trust. (RS 9:1763) A natural
person having capacity to make a donation mortis causa may be the settlor of a
testamentary trust. (RS 9:1764)
4. CuratorsRS 9:1022-1024 set forth provisions governing the making of
donations by curators on behalf of interdicts. The rules permit donations to
descendants (RS 9:1022), charities (RS 9:1023), and collaterals (RS 9:1024)
under certain defined conditions. These rules also apply to making donations by
way of settling a trust but do not set forth any specific rules regarding trusts as
opposed to other donations.
5. TutorsLa. Code Civ. Proc. art. 4269.1 provides that a court may authorize a
tutor to place some or all of the minors property in trust. The trust instrument
must name the minor as the sole beneficiary of the trust, must name a trustee,
must impose spendthrift restraints (discussed below), and must terminate at the
option of the beneficiary upon attaining the age of majority.
6. Spouse in CommunityThe general rules regarding the management of
community property apply in the context of trusts. See generally, La. Civ. Code
art. 2346, et seq.

E. The Trustee
1. In General
a. DefinitionA trustee is a person to whom title to the trust property is
transferred to be administered by him as a fiduciary. (RS 9:1782)
b. Number of TrusteesThere may be one or more trustees of a trust. (RS
9:1782)
c. Who May be a TrusteeRS 9:1783 provides the exclusive list of
persons/entities who may serve a trustee.

i. In general
(a) Natural PersonsA natural person who is a trustee must be
a natural citizen or resident alien of the US who has full
contractual capacity. Note: the US citizenship requirement
has been recently tested on the Bar Exam.
(b) EntitiesA federally insured depository institution
organized under the laws of Louisiana, any other state, or
the United States or a trust company authorized to exercise

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 trust or fiduciary powers under the laws of Louisiana or of
the United States may also be a trustee.
ii. Charitable TrustsCharitable trusts are subject to some special
rules that are set forth in more detail below. RS 9:1783 provides
that the trustee of a charitable or mixed trust may be [a] nonprofit
corporation or trust for educational, charitable, or religious
purposes that is designated as income or principal beneficiary.
Basically this permits a beneficiary of a charitable trust to also
serve as trustee, permitting it to make charitable donations to serve
its charitable purposes.
d. Jurisdiction over the TrusteeA trustee who accepts a trust established
pursuant to this Code submits to the jurisdiction of the courts of this state.
(RS 9:1784) Note: This rule was recently tested on the Bar Exam.
e. Manner in Which Trustee ChosenRS 9:1785 describes how the
trustee is to be chosen. A trustee, alternative trustee, and/or successor
trustee may be designated in the trust instrument. However, neither the
failure to designate a trustee nor the disqualification of a named trustee
will affect the validity of the trust. In such a case, the court will just
appoint another trustee.
f. Provisional TrusteeRS 9:1786 provides that a court may appoint a
provisional trustee as necessary to preserve, safeguard, and administer
the trust property. This can be done in a summary proceeding. Comment
(b) lists a few situations in which a provisional trustee might be needed: (i)
the trustee has not yet accepted; (ii) if the trustee is temporarily
incapacitated or for any other reason unable to serve; (iii) an action is
pending for the removal of the trustee.
2. The Trustees BondA trustee is a fiduciary, so security may be owed.
a. Individual and Corporate TrusteesAn individual trustee shall furnish
security for the faithful performance of his duties, unless the trust
instrument dispenses with security. A corporate trustee need not furnish
security unless security is required by the trust instrument. The amount
and type of security shall be approved by the proper court if not provided
for in the trust instrument. (RS 9:2171)
b. Security Required by the CourtOn the application of any interested
party, the proper court may compel a trustee to furnish security adequate
to protect the interests of a beneficiary even if the trustee is not otherwise
required to furnish security. (RS 9:2172)
c. Increasing, Diminishing, or Dispensing with Security by the CourtOn
the application of any interested party, the proper court may increase,
diminish, or dispense with the trustees security. (RS 9:2173) These
changes may be necessary due to the fluctuating value of the property over
time. At all times the goal is to protect the interests of the beneficiary.
d. Provisional Trustee; SecurityA provisional trustee shall furnish the
security deemed necessary by the proper court. (RS 9:1787)

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3. Compensation and IndemnityServing as a trustee is a job, so the trustee
naturally gets paid for his labor. He also gets indemnified for expenses he incurs
in his duties as trustee.
a. Compensation
i. General RuleA trustee is entitled to reasonable compensation
from the trust estate for his services as trustee, unless the trust
instrument provides otherwise or unless the trustee waives
compensation. (RS 9:2181)
ii. Effect of Breach of TrustIf a trustee commits a breach of trust,
the proper court in its discretion may deny him all compensation,
allow him a reduced compensation, or allow him full
compensation. (RS 9:2182)
b. Indemnity
i. Indemnity for Expenses Properly IncurredA trustee is entitled
to indemnity from the trust estate for expenses properly incurred
by him in the administration of the trust, unless the trust instrument
provides otherwise. (RS 9:2191)
ii. Indemnity for Expenses Not Properly IncurredDisputes may
arise over whether an expense is properly incurred. Even if not
properly incurred, the trustee is entitled to indemnity if by
making the expense the trustee has conferred a benefit on the trust
estate (unless the trust instrument says otherwise), or unless the
circumstances make it inequitable to deny indemnity. Also if the
beneficiary concurred in the transaction made, then the trustee is
entitled to indemnity. (RS 9:2192)
iii. Liability of BeneficiaryIf the trust estate is not sufficient to
indemnify a trustee for expenses properly incurred by him in the
administration of the trust, a beneficiary shall be personally liable
only if the trustee can show an express or implied contract between
that beneficiary and himself that would entitle the trustee to
indemnity. (RS 9:2193) If the beneficiary is liable, then the
trustee gets a charge on the beneficiarys interest. (RS 9:2194)
iv. Indemnity for Tort LiabilityRS 9:2196 addresses tort liability. It
permits a trustee to be indemnified for tort liability if liability was
incurred in the proper administration of the trust or if the trustee or
his employee was not personally at fault. It also permits a trustee
who committed a tort and thereby increased the value of the trust
to be indemnified to the extent of the increase in value.
c. Resignation and RemovalOnce in office, the trustee generally remains
there until his death, termination of the trust, or some predefined period set
forth in the trust instrument. But, a trustee may also cease to serve due to
resignation or removal.
i. ResignationA trustee may resign at any time by giving written
notice of resignation to each of the beneficiaries or by mailing
written notice to each at his last known mailing address. The trust

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 instrument may provide another method of resignation and notice.
(RS 9:1788)
ii. Removal
(a) In GeneralA trustee shall be removed in accordance
with the provisions of the trust instrument or by the proper
court for sufficient cause. (RS 9:1789) The duties of the
trustee are discussed below. Sufficient cause usually
means that the trustee has breached the trust, but this can be
difficult to prove, a well see below.
(b) Trust PortabilityAdditionally, a corporate trustee
shall be removed upon the petition of a settlor or any
current beneficiary, if the court determines that removal is
in the best interest of the beneficiaries as a whole, another
corporate entity that is qualified to be a trustee has agreed
to serve as the trustee, and the trust instrument does not
forbid such removal. (RS 9:1789)
(i) Note that this provision is designed to allow
removal when the beneficiaries have good reason to
be dissatisfied with the current corporate trustee but
there is not sufficient cause for removal. Good
reason might include the fact that the investments
are performing below average. Or, it may be that a
corporate trustee was originally chosen due to a
personal relationship between the settlor and the
trust officers, which has been altered due to
changing personnel.
(c) Effect of Resignation or RemovalOnce a trustee resigned
or has been removed, he no longer has authority with
respect to trust property. However, he still remains liable
for his administration of the trust property. (RS 9:1790)

F. The Beneficiary
1. Beneficiary DefinedA beneficiary is a person for whose benefit the trust is
created and may be a natural person, corporation, partnership, or other legal entity
having the capacity to receive property. (RS 9:1801) Beneficiaries are either
income beneficiaries or principal beneficiaries, described in greater detail below.
2. The Nature of the Beneficiarys InterestAccording to common law theory, the
creation of a trust divides ownership of the trust property between the trustee, who
has legal title or ownership, and the beneficiary, who has equitable title or
ownership. The Louisiana trust code does not adopt divided ownershipthat is
clear. What is unclear is how, exactly, the interest of the beneficiary ought to be
classified under Louisiana law. There are two options, addressed in the caselaw in
your materials.
One possibility is that the beneficiary is an owner, with the trustees title
amounting essentially to authority along the lines of a civilian tutor or
curator. Older jurisprudence seemed to adopt this view, and characterized

170
 the beneficiarys interest as an incorporeal. A principal beneficiarys
interest was classified as a movable or immovable depending upon the
type of property making up the corpus of the trust. An income
beneficiarys interest was classified as always movable. See, e.g., St.
Charles Land Trust v. St. Amant & In re Howard Marshall Charitable
Remainder Trust.
The other possibility is to treat the trustee as owner of the property, and
the beneficiary as merely having a contractual claim against the trustee to
enforce specific rights. More recent jurisprudence has adopted this view.
See, e.g., Bridges v. Autozone Properties, Inc. The court held that the
trustees title equates with undivided ownership in the civilian sense and
that the beneficiary has no part of the ownership of the trust property
during the term of the trust. Under Louisiana law, title to trust
property vests in the trustee alone, and a beneficiary has no title or
ownership interest in trust property, but only a civilian personal
right vis--vis the trustee, to claim whatever interest in the trust
relationship the settlor has chosen to bestow. The beneficiary,
therefore, is sort of like a third party beneficiary in a stipulation pour
autrui.
3. CapacityA beneficiary must be in being and ascertainable on the date of the
creation of the trust, except as otherwise provided in this Code. An unborn child
is deemed a person in being and unascertainable, if he is born alive. (RS 9:1803)
a. Note: Class Trusts are not subject to this rule.
4. Acceptance PresumedA beneficiary need not accept the benefit conferred on
him; his acceptance is presumed. (RS 9:1808)
a. Note: This rule is comparable to donations mortis causa and differs from
donations inter vivos.
5. Types of Beneficiaries
a. In General
i. Any Combination AllowedThere may be one beneficiary or
two or more beneficiaries as to income or principal or both. There
may be separate beneficiaries of income and principal, or the same
person may be beneficiary of both income and principal, in whole
or in part. (RS 9:1805)
ii. Concurrent BeneficiariesThere may be several concurrent
beneficiaries of income or principal or both. (RS 9:1806)
iii. Successive Income BeneficiariesSeveral beneficiaries may be
designated to enjoy income successively. (RS 9:1807) Note that
there is something analogous to this for principal beneficiaries. It
is called shifting interests in principal, and is described below.
b. Income Beneficiary
i. Income BeneficiaryIncome beneficiary means a beneficiary to
whom income is payable, presently, conditionally, or in the future,
or for whom it is accumulated, or who is entitled to the beneficial
use of principal presently, conditionally, or in the future, for a time
before its distribution. (RS 9:1725(2))

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ii. Term of Beneficial InterestThe income interest lasts for the life
of the beneficiary unless a shorter time is designated in the trust
instrument. The income interest cannot exceed the life of the
beneficiary. (RS 9:1961A)
iii. Conditions PermittedAn income interest can be made subject to
conditions. (RS 9:1961A)
iv. Distribution of IncomeAn income beneficiary can generally
expect to receive distributions of income from the trust. However,
note that the trustee has pretty vast discretion when it comes to
distributing income to the income beneficiaries.
(a) General RuleIn the absence of a contrary
stipulation, income shall be distributed to the
designated beneficiary at least every six months. (RS
9:1962)
(b) Stipulation by SettlorThe settlor may stipulate when
income allocated to a beneficiary shall be distributed to
him. (Recall that this is limited with respect to the
legitime in trust.) (RS 9:1963)
(c) Discretion of the TrusteeThe settlor may stipulate
that the trustee has discretion to determine the time and
frequency of distribution. (RS 9:1964)
(d) Note that at the termination of the interest in income (death
of the income beneficiary or prior stipulated time) any
accumulated incomeincome allocated to a beneficiary
that has not been distributed yet when the income interest
terminatesis distributed to the beneficiary or his
heirs/legatees. (RS 9:1964)
v. Allocation of IncomeA related but distinct concept is allocation
of income. The default position is that all of the income is
allocated to the income beneficiary, which means he is
eventually entitled to it (though distributions may be governed
either by the general rule, the stipulation of the settlor, or the
discretion of the trustee, as described above.) However, some
income may be allocated to the income beneficiary, with the rest
going to the principal.
(a) Allocation by SettlorA settlor may allocate to a
beneficiary of income a portion of income. Any income
not allocated to an income beneficiary shall be allocated to
principal. (RS 9:1961B)
(b) Discretion of the TrusteeExcept as otherwise provided
with respect to the legitime in trust, a settlor may give a
trustee who is not a beneficiary of the trust discretion to
allocate income in different amounts among the income
beneficiaries or to allocate some or all of the income to
principal. The settlor may allow income that is not
allocated by the end of the year in which it is received to

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 remain unallocated by the trustee until a future year. Any
income unallocated when the trust terminates shall be
allocated to principal. (RS 9:1961C) Note: This is
known as sprinkling interests.
(c) Note that at the termination in the interest in income (death
of the income beneficiary or a prior stipulated time) any
income that was supposed to be allocated to a beneficiary
in a given year but was not at the time the income interest
in trust terminates is distributed to the beneficiary or his
heirs/legatees. (RS 9:1964)
vi. Invasion of PrincipalThe Trust Code permits the trustee to
invade principal to pay principal to an income beneficiary.
Authorization to invade principal may be provided by the court or
by the trust instrument.
(i) Authorized by CourtThe proper court may direct or
permit a trustee to pay income or principal from the trust
property for the necessary support, maintenance, education,
medical expenses, or welfare of a beneficiary before the
time he is entitled to the enjoyment of that income or
principal, if the interest of no other beneficiary of the trust
is impaired thereby. (RS 9:2067)
(ii) Authorized by Trust Instrument
(a) General Rules (RS 9:2068A)
(i) PurposesThe trust instrument may direct
or permit a trustee to pay principal to an
income beneficiary for support,
maintenance, education, or medical
expenses, or pursuant to an objective
standard, for any other purpose.
(ii) How ChargedIf not specified in the trust
instrument, the income is charged first
against the principal interest of the income
beneficiary (if the income beneficiary is also
a principal beneficiary) or against the shares
of all principal beneficiaries proportionately.
(b) When Beneficiary is Income and Principal
Beneficiary (RS 9:2068B)The trustee has
complete discretion to invade principal.
(c) Legitime in TrustA trustee may not pay
principal to an income beneficiary if the payment
would deprive another beneficiary of all or a part of
his legitime, notwithstanding any contrary provision
of the trust instrument. (RS 9:1847)
(d) IllustrationSuccession of StewartRead carefully
the provisions of the trust instrument. How does

173
 the court resolve the issue of the validity of
paragraphs (j) and (k)?
vii. Termination of the Income Interest
(a) Timing of TerminationThe income interest terminates at
the death of the income beneficiary or at the expiration of a
term specified by the settlor. (RS 9:1964)
(b) Distribution of Undistributed IncomeWhen the interest
terminates, any income that was allocated to the income
beneficiary and not yet distributed goes to the income
beneficiary or his heirs/legatees. (RS 9:1964)
(c) New Income BeneficiaryWhen the interest terminates,
then the new income beneficiary is determined by RS
9:1965:
(i) The trust instrument may provide for a successor
income beneficiary. In the absence of a provision
in the trust instrument, the following rules apply.
(ii) Income Beneficiary is Sole Income Beneficiary
If the income beneficiary was the sole income
beneficiary, then each principal beneficiary
becomes a beneficiary of income in an amount
proportionate to his interest in principal.
ExampleS creates a trust with IB as
income beneficiary and A, B and C as
principal beneficiaries, in the proportions of
to A and each to B and C. The trust
instrument provides that the trust terminates
upon the death of IB or twenty years from
the creation of the trust, whichever occurs
last. IB dies two years after S. A, B, and C
then become entitled to income in
proportion to their interests for the
remaining 18 years of the trust.
(iii) Income Beneficiary is One of Multiple Income
Beneficiaries
(a) General RuleIf the income beneficiary
was one of several income beneficiaries,
then the other income beneficiaries become
beneficiaries of that interest in proportion to
their interests in the balance of trust income.
ExampleT creates a trust with A, B and C
as income beneficiaries and PB as principal
beneficiary. The trust provides for
termination on the death of the last surviving
income beneficiary. B dies. Bs interest in
income is divided equally between A and C.

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 (a) ExceptionWhen Descendants of Income
Beneficiary are Principal BeneficiariesIf
the income beneficiary who was one of
several income beneficiaries died AND if
descendants of the deceased income
beneficiary are the beneficiaries of an
interest in trust principal or succeed to such
interest upon the death of the income
beneficiary, such descendants shall become
beneficiaries of the deceased beneficiarys
interest in trust income in proportion to the
descendants interests in their portion of
trust principal.
ExampleS creates a trust with A, B and C
as income beneficiaries for the life of the
survivor of them, and upon the termination
of the trust, one half of principal to X, and
one-fourth of principal each to Y and Z. X,
Y and Z are descendants of B. B dies
intestate before A or B. Bs descendants X,
Y and Z who are principal beneficiaries
under the trust are entitled to Bs one-third
interest in income for the duration of the
trust in proportion to their interests in
principal. Thus, X gets 1/6, and Y and Z
each get 1/12.
c. Principal Beneficiary
i. DefinitionPrincipal beneficiary means a beneficiary presently,
conditionally, or ultimately entitled to principal. (RS
9:1725(4)).
ii. AcquisitionA principal beneficiary is entitled to the corpus of
the trust. If the principal beneficiary is not also an income
beneficiary, then his right is really an eventual one, because he is
not going to derive any benefit from the property until a later date.
Nonetheless, the trust code provides that the interest of a
principal beneficiary is acquired immediately upon the
creation of a trust (RS 9:1971)
iii. Treatment of Interest upon Death of Principal Beneficiary
(Know these!)
(a) General RuleAs a general rule, the Trust Code does not
permit successive principal interests. When a principal
beneficiary dies, then his interest vests in his own heirs or
legatees. (RS 9;1972)
(b) ExceptionsHowever, RS 9:1973 permits shifting
interests in principal under certain circumstances.

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 (i) The trust instrument may provide that the interest of
a principal beneficiary who does intestate and
without descendants vests in some other person or
persons.
(ii) Except as to the legitime in trust, the trust
instrument may provide that the interest of a
principal beneficiary who dies without descendants
vests in some other person or persons.
(c) Requirement that Substitute Beneficiary be in Being
and Ascertainable
(i) General RuleGenerally, a substitute beneficiary
must be in being and ascertainable at the date of the
creation of the trust. (RS 9:1975)
(ii) Exceptions
(a) Class Trusts (RS 9:1975)
(b) The trust instrument may provide that the
substitute beneficiaries under RS 9:1973 are
one or more of the settlors descendants who
are in being and ascertainable at the date of
the death of the principal beneficiary. (RS
9:1978)
d. Beneficiaries who Predecease Settlor of Testamentary Trust
i Income BeneficiaryAn income beneficiary who dies before the
settlors death loses his interest; it was only good for the income
beneficiarys life. The income interest fails and the rules of RS
9:1965 apply.
ii. Principal BeneficiaryWhen a principal beneficiary of a
testamentary trust fails to survive the testator, then the normal rules
of a lapsed legacy apply. Note that the trust code contains a
version of the anti-lapse rule.
(a) Anti-Lapse RuleWhen the principal beneficiary is a
descendant, sibling, or descendant of a sibling of the settlor,
and that person does not survive the settlor, the descendants
by roots of the named beneficiary will be principal
beneficiaries in his place, unless the trust instrument
provides otherwise.
e. RefusalA beneficiary, whether of principal or income, may refuse an
interest at any time after the creation of the trust, provided he does so
before accepting any benefit under the trust. A person incapable of
contracting cannot reuse an interest in trust, but his representative may
refuse for him. The refusal is irrevocable. (RS 9;1981) Refusal of an
inter vivos trust must be in authentic form unequivocally disclaiming the
interest. (RS 9:1985) Refusal of a testamentary trust must be made by
renunciation of the settlors succession. (RS 9:1985) A refusal operates
retroactively to the date of the creation of the trust and is considered never
to have been received. (RS 9:1986) Note: Refusal does not trigger the

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 normal rules of accretion. Rather, RS 9:1990 provides special rules
here.
f. Acceptance by Creditor
i. Inter Vivos TrustIf a beneficiary of a gratuitous inter vivos trust
refuses his interest, his creditor cannot accept it in his stead. (RS
9:1982)
ii. Testamentary TrustIf a beneficiary of a testamentary trust
refuses his interest to the prejudice of his creditors rights, the
creditors may accept in his stead to the extent that their rights have
been prejudiced. (RS 9:1983)

G. Multiple RolesA person can serve more than one role in a trust. For example,
the settlor and beneficiary could be the same person.
1. AuthorizationConsider the following two provisions:
RS 9:1783[A trustee may be] (a) A natural personwho may be the
settlor, the beneficiary, or both. So could fill all 3 roles!
RS 9:1804A settlor may be the sole beneficiary of income or principal or
both, or one of several beneficiaries of income or principal or both. = Self
Settled Trust
2. Limitations
a. In GeneralIs not possible for the settlor to be the sole beneficiary and
the sole trustee, for two reasons. First, a trust is a relationship which
requires more than one person by definition. Second, trusts involve
fiduciary duties owed by the trustee to the beneficiary. Thus, if the same
person is both trustee and beneficiary, there must be at least one more
person in at least one of those roles.
b. Testamentary TrustIt is clearly not possible in a testamentary trust for
the settlor to also be beneficiary and/or trustee, because the trust does not
take effect until the settlor is dead. But here also, the second problem
described in (a) will arise if the trustee and beneficiary are the same
individual.

I. Trust AttorneyAlthough the trust attorney is not a party to the trust, he/she is
an important person to mention here.
1. RS 9:2241The trustee shall select an attorney to handle legal matters involving
the trust. The appointment of an attorney in the trust instrument is not binding on
the trustee.
an attorney who advises the trustees

Unit 14Of Trusts

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J. Duties and Powers of the Trustee
1. In GeneralThe nature and extent of the duties and powers of a trustee are
determined from the provisions of the trust instrument, except as otherwise
expressly provided in this Code, and in the absence of any provisions of the trust
instrument, by the provisions of this Part and by law.
2. Duties of the TrusteeThe trustee has a number of duties and responsibilities, but
the most important of these are the duty of loyalty and the duty of prudent
administration.
a. Trustee as Fiduciary/Duty of LoyaltyThe trustee is a fiduciary and owes
the duty of loyalty to the beneficiaries.
i. RS 9:2082A. A trustee shall administer the trust solely in the
interest of the beneficiary. B. When there is more than one
beneficiary, a trustee shall administer the trust impartially, based on
what is fair and reasonable to all of the beneficiaries, except to the
extent that the trust instrument manifests an intention that the
trustee shall favor one or more of the beneficiaries.
(a) The duty of loyalty is also encompassed within a number of
other provisions that require the trustee to account to the
beneficiaries and provide information to them upon request.
Limitations on self-dealing also exist for this reason.
ii. RS 9:2062A provision of the trust instrument that purports to
limit a trustees duty of loyalty to the beneficiary is ineffective,
except to the extent permitted by this Part.
(a) This is the most important duty of the trustee. Although the
trust instrument can limit the duties of the trustee, it cannot
limit the trustees duty of loyalty.
(b) Similarly, the beneficiary may not prospectively limit the
trustees duty of loyalty. See RS 9:2063.
b. Prudent Administration and InvestmentThe trustee must act as a
reasonably prudent person would in all particulars.
a. RS 9:2090(A)A trustee shall administer a trust as a prudent
person would administer it. In satisfying this standard, the trustee
shall exercise reasonable care and skill, considering the purposes,
terms, distribution requirements, and other circumstances of the
trust.
b. RS 9:2090(B)A trustee who has special skills or expertise, or
has held himself out as having special skills or expertise, has a
duty to use those special skills or expertise.
c. Prudent Investor Rule A trustee has an obligation to invest
and manage property as a prudent investor. See RS 9:2127
3. Powers of The TrusteeAs a general rule, the trustee has the authority to
exercise all powers conferred on him by the trust instrument and all powers that
are necessary or appropriate to carry out the purposes of the trust which are not
forbidden by the trust instrument. See RS 9:2111. Some of the more important
powers of the trustee include the following:

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 a. The power to buy, sell, lease, or mortgage trust property. See RS 9:2118-
2120 Note that the settlor can forbid the sale of immovable property, but
not for a period longer than 15 years from the settlors death.
b. The power to borrow funds and obligate the trust. See RS 9:2120
c. The power to compromise, arbitrate, or abandon claims. See RS 9:2121
d. The power to exercise stock powers with respect to stock. See RS 9:2122-
2124
e. The power to make adjustments between income and principal when
doing so would be fair and reasonable to all the beneficiaries. See RS
9:2158 and review comments for examples of when adjustments would be
fair and reasonable
f. The power to invade principal, if authorized by the court or provided for in
the trust instrument. The trustee can be authorized to invade principal
using objective standards set forth in the Code, or, if the income and
principal beneficiary are the same person, can be given the complete
discretion to do so. Note that a trustee may not pay principal to an income
beneficiary if this payment would deprive a forced heir of any part of his
legitime. See RS 9:2067-2068; RS 9:1847.
g. Winding up powers. See RS 9:2069

K. Duration
1. Term Supplied by Trust Instrument
a. General RuleIf the trust instrument supplies a term, then the trust
terminates at that term.
b. Maximum Time LimitsHowever, there are certain maximum time limits
that applyeven if the trust instrument supplies a term, the term cannot be
longer than these limits:
RS 9:1831If the trust instrument stipulates a term and unless earlier
termination is required by the trust instrument, or by the proper court, a
trust shall terminate at:
(1) The death of the last surviving income beneficiary or the
expiration of twenty years from the death of the settlor last to die,
whichever last occurs, if at least one settlor and one income
beneficiary are natural persons. (Max time period!)
(2) The death of the last surviving income beneficiary or the expiration
of twenty years from the creation of the trust, whichever last
occurs, if none of the settlors is a natural person but at least one
income beneficiary is a natural person.
(3) The expiration of twenty years from the death of the settlor last to
die, if at least one settlor is a natural person but none of the income
beneficiaries is a natural person;
(4) The expiration of fifty years from the creation of the trust, if none
of the settlors and none of the income beneficiaries is a natural
person.

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 RS 9:1832A trust instrument that stipulates a longer term than is
permitted shall be enforced as though the maximum allowable term had
been stipulated.
2. Term Not Supplied by the Trust InstrumentIf the trust instrument does not
supply a term, then the law supplies a term.
1. RS 9:1833If the trust instrument stipulates no term, the trust shall
terminate:
(1) Upon the death of the last income beneficiary who is a natural person;
(2) At the end of the term prescribed by RS 9:1831(3) or 9:1831(4), if the
income
beneficiaries do not include a natural person.
3. ExceptionsThese rules do not apply to class trusts or charitable trusts. See RS
9:1834.
1. Class trusts terminate at the death of the last surviving member of the
class.
2. Charitable trusts can be perpetual. See RS 9:2290.

L. Modification, Termination, Revocation and Rescission

1. In GeneralOnce created a trust typically operates according to the terms
provided by the settlor and terminates at the time specified by the trust instrument
or the time specified by law. However, under certain circumstances it is possible
for a trust to be modified, terminated, revoked, or rescinded.
Modification permits the trust to continue on modified terms.
Modification can be done by the settlor or his delegee if the settlor has
expressly reserved the right to modify, or by the court under appropriate
circumstances.
Termination causes the trust property to move forward, the trust property
is distributed as if the trust had terminated naturally. Early termination
can be accomplished by the settlor or his delegtee if the settlor has
expressly reserved the right to terminate, or by the court under appropriate
circumstances.
Revocation brings the trust to an end, and trust property reverts to the
settlor. Trusts are, by default, irrevocable. Revocation either takes place
under the general law of donations or by the settlor or the settlors delegee,
but only when the settlor reserves the right to revoke.
Rescission also ring the trust to an end, and the trust property reverts to the
settlor. Rescission takes place according to the general law of donations.
2. Modification, Revocation, and Termination by the SettlorThe settlor can
reserve to himself the right to modify, revoke and/or terminate the trust. He has to
do this expressly, but it is clear that the right to revoke includes the right to
modify (greater includes the lesser). (See RS 9:2021-2023, 2041).
3. Delegation by the SettlorThe settlor can delegate the right to a third party,
including a trustee, beneficiary, or some other person, the right to terminate a trust
or the right to modify administrative provisions (but not distributive provisions).
(RS 9:2025) He can also delegate the right to revoke. (RS 9:2045)

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4. Modification and Termination by the CourtA court can order the termination or
modification of a trust under certain circumstances under 9:2026 and 2027:
i. If the continuation of the trust would defeat or substantially impair the
purposes of the trust.
ii. Except as provided in the trust instrument, if the trustee has determined
that the market value of the trust is less than $100,000 and in relation to
the cost of administration, the continuation of the trust would defeat the
purpose of the trust. In this case, the court has to distribute the money in
as close a fashion as possible as the settlor intended.
iii. If the purpose for which the trust is created becomes impossible or illegal.
5. Indestructability of TrustsThe consent of all settlors, trustees, and beneficiaries
shall not be effective to terminate the trust or any disposition in trust unless the
trust instrument provides otherwise. (RS 9:2028)

M. Class Trusts, aka Dynasty Trusts

1. In GeneralThe normal rule is that a trust beneficiary must be in being and
ascertainable upon the creation of a trust. The class trust allows for the
inclusion of beneficiaries not yet in being and ascertainable at the time of the
trusts creation. Instead of benefitting specific individuals, the trust beneficiaries
can include all of the settlors children, grandchildren or nieces and
nephews. Class trusts are governed by RS 9:1891-1906.
2. Creation of a Class TrustA settlor may create a class trust as long as one
member of the class is living at the creation of the trust. (RS 9:1891)
3. Authorized ClassesA class trust is authorized for three generations of
descendants of the settlor and three generations of descendants of a sibling of the
settlor. (RS 9:1891)
4. Income and Principal BeneficiariesRS 9:1893 provides that a class can be
income beneficiaries or principal beneficiaries, or both. However, no one other
than the class members can be an income beneficiary if the class is also income
beneficiary, and no one other than the class members can be principal
beneficiaries if the class is also principal beneficiaries.
4. RepresentationIf a person dies before creation of the trust, who would have
been a member of the class if he had not died, his descendants shall be considered
members of the class by representation unless the instrument otherwise provides.
(RS 9:1894)
5. Death of Class MemberIf a class member dies during the term of the trust, his
interest vests in his heirs or legatees, unless the trust instrument provides for
shifting interests in principal (note that these rules are slightly different from the
general rules on shifting interests in principal). (RS 9:1895) This rule applies to
both income and principal. (See comments)
6. Closing of the ClassThe trust instrument may state a date or a method for
defining the date upon which the class will close. Unless the trust instrument
provides otherwise, the class shall close when, because of the definition of the
class, members may no longer be added to it. (RS 9:1896) This is generally
considered to be the death of the progenitors of the class (1st 2 generations).
7. Term of the Trust

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a. A [class] trust shall not terminate before the closing of the class. (RS
9:1897)
b. After the class closes, then special rules apply depending on whether the
class members are income beneficiaries, principal beneficiaries, or both.
(RS 9:1899-1906).

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N. Spendthrift Trusts
1. Alienation of Beneficial Interest, General RuleA beneficiary may transfer or
encumber the whole or any part of his interest unless the trust instrument provides
to the contrary. (RS 9:2001)
2. Restraints Upon AlienationThe trust instrument may provide that the interest
of a beneficiary shall not be subject to voluntary or involuntary alienation by a
beneficiary. A restraint upon voluntary alienation by a beneficiary is valid. But a
restraint upon involuntary alienation by a beneficiary is subject to the limitations
prescribed by this subpart. (RS 9:2002)
3. Rules Regarding Seizing Creditors (RS 9:2004-2006)
a. In GeneralA creditor can generally only seize an interest in income or
principal that is subject to voluntary alienation by a beneficiary.
b. Exception for Self-Settled TrustsUnder RS 9:2004(2), a settlor who
names himself beneficiary of a trust cannot shield his interest from
creditors simply by using a spendthrift provision in the document.
c. Exception for Special ClaimsUnder RS 9:2005, certain claims are
permitted, and thus the interest in principal can be seized, despite the
existence of a non-alienation provision in the trust.
i. Alimony or maintenance of a person whom the beneficiary is
obligated to support.
ii. Necessary services rendered or necessary supplies furnished to the
beneficiary or to a person whom the beneficiary is obligated to
support.
iii. Damages arising from a felony criminal offense committed by the
beneficiary which results in a conviction or a plea of guilt.
d. Note on Tort ClaimsPrior to 2004, the Trust code allowed the victim of
an offense or quasi-offense committed by the beneficiary or by a person
for whose acts the beneficiary is individually responsible to pierce the
shield of a spendthrift trust. That provision was removed in 2004.
4. Spendthrift Trust
a. RS 9:1725(7)Spendthrift trust, when used without other qualifying
words, means a trust under which alienation by a beneficiary of an interest
in income or principal is restricted to the full extent permitted by this
Code.
b. RS 9:2007A declaration in a trust instrument that the interest of a
beneficiary shall held subject to a spendthrift trust is sufficient to
restrain alienation by a beneficiary of the interest to the maximum extent
permitted by this subpart.

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