Donations

Question 1

What is a donation?

Answer 1

A gratuitous contract where a person (donor) divests themselves of a thing for the benefit of another (donee), who accepts it.

Question 2

Classifications of Donations?

Answer 2

1) Donation Inter Vivos:
Takes effect during the donor’s lifetime and is irrevocable once accepted.

2) Donation Mortis Causa:
Takes effect upon the donor’s death, is governed by rules of testaments, and is revocable at any time before death.

Question 3

Donations and Form (Olagraphic)

Answer 3

Donations can be in 2 different forms…

Olagraphic Form Requires

A) Entirely handwritten in hand of the testator. Court may disregard pre-printed text and only consider language in the testator’s handwriting.

B) Signed at the end and may include language after the testator’s signature depending on the court’s discretion. The signature can appear anywhere.

C) Must be dated. Should be month, day, year - but even an uncertain date is valid if “reasonably ascertainable” by extrinsic evidence.

Question 4

Donations and Form (Notarial)

Answer 4

Any form of writing - typed, printed, or handwritten

Signed on each page at the end.

Dated (anywhere, anyone, anytime)

MUST HAVE ATTESTATION CLAUSE –>
Declares that the document is the testator’s last will
and testament. Declares that all formalities have been met, and it’s signed by notary and 2 witnesses in the presence of the testator and each other.

Question 5

Donations – Capacity to donate?

Answer 5

Must have capacity to alienate property at the time the donation is made.

Minors (under age of 16) cannot make either an inter vivos or mortis causa donation, except to his spouse or children.

A minor between the ages of 16 and 18 MAY execute a will, but CANNOT make inter vivos donations, except to his spouse or children

Interdicts lack full capacity –> must be able to
comprehend generally the nature and consequences of the disposition that he is making

A person challenging capacity to donate, must prove by clear and convincing evidence that the donor did not have capacity at the time the DIV was made or the testament was executed

Question 6

Donatations – Capacity to receive a donation?

Answer 6

Generally you must have capacity to receive.

LA law says you cannot donate something today to someone who has not yet been conceived.

For (donations mortis causa) –> The person receiving must exist at the time of the donor’s (testator’s) death, not at the time the will is written.
Example: You can leave something in your will to a grandchild who is conceived but not yet born at your death, as long as they are born alive later.

Louisiana law makes an exception for unborn children if… the child is in utero (conceived) at the time of the donor’s death and the child is later born alive.

Question 7

Donations – Conditions

Answer 7

A donation may be made subject to a condition that either suspends or resolves the donation, but not all conditions are valid.

Question 8

Different types of conditions

Answer 8

1) Reprobated Conditions
A condition that is impossible, immoral, or contrary to public policy renders the donation absolutely null.

Example: “I donate my watch to Bob if he never marries” → null (violates public policy favoring marriage)

Effect: The entire donation fails.

2) Suspensive Conditions
A donation may be made conditional upon an uncertain future event, in which case the donation is suspended until the condition is fulfilled.

Example: “Bob gets my watch if he graduates from college.”

Effect: Donation becomes effective only upon the happening of the event.

Question 9

Substitutions in Donations

Answer 9

A donation that seeks to transfer ownership to one person (the institute) with the duty to preserve and later transfer it to a second person (the substitute) is a prohibited substitution and is absolutely null.

Elements:
The donation is not made in trust.
The donation gives ownership to the first donee (institute).
The first donee has a duty to preserve the thing.
The first donee is required to deliver it to a second donee (substitute) upon their death.

Question 10

Donations – Vulgar Substitution

Answer 10

Where the donor names a backup donee in case the first donee cannot or does not accept — is valid under Louisiana law.

Question 11

Exception for Vulgar Substitution Rule

Answer 11

“Legitime” refers to the portion of a deceased person’s estate that is reserved for their compulsory heirs.

A survivorship condition is valid for up to six months after the donor’s death when applied to the legitime of a forced heir.

Question 12

Renunciation

Answer 12

To renounce validly…

The decedent must be dead.

The successor must know that the decedent has died, and that they have rights in the succession.

The renunciation must be express (clearly stated), and in writing.
renouncing successor is treated as if they predeceased the decedent.

Their share lapses and passes to other heirs (via accretion), or as otherwise directed in a will.

Question 13

Donations – Form Requirements

Answer 13

Donation Inter Vivos:
Must be made by authentic act (notarized with two witnesses), unless manual gift.

Manual Gift: Donation of movable property is valid without authentic act IF there is delivery and intent.

Donation Mortis Causa
Must be made in proper testamentary form (e.g., olographic or notarial will).

Question 14

Donations – Acceptance Inter VIvos

Answer 14

Must be accepted during the donor’s lifetime

Acceptance must 1) be in writing, and 2) accepted in the donor’s lifetime…

UNLESS donor waives express acceptance.

Question 15

Revocation of Donation Inter Vivos

Answer 15

Generally irrevocable, but revocable for…

1) Ingratitude –> Donee attempts to kill donor, cruelty, etc.

Must be brought within one year of knowledge of act.

2) Non-fulfillment of Conditions

Donation Mortis Causa – Always revocable until death (Art. 1469).

Question 16

When can a donation become null?

Answer 16

Null if form not met (e.g., no authentic act for inter vivos donation of immovables).

Null if donation is a product of fraud, duress, or undue influence.
The standard of proof for someone one challenging this is “clear and convincing evidence”.

UNLESS
There was a relationship of confidence (e.g., doctor-patient, attorney-client, minister-parishioner, nurse-patient) at the time the donation was made, then the burden is reduced to “preponderance of the evidence.”

Question 17

Donations of Immovables

Answer 17

Need authentic act: a writing executed before a notary public or other authorized officer, in the presence of two witnesses, and signed by each party, each witness, and the notary.

AND

Must be filed filed for registry
in the conveyance records in the parish in which the
immovable is located to affect third parties. (AKA public records doctrine).

Question 18

Donations – Important exam issues and topics?

Answer 18

Always ask:

Is it inter vivos or mortis causa?
Was the proper form used (authentic act or valid will)?
Was the donor capable?
Was it accepted properly?
Could it be revoked, reduced, or nullified?

Watch out for…
Manual gifts
Form defects
Forced heirship violations

Question 19

In donations law, what authority does an executor have to distribute bequests?

Answer 19

1) Selecting assets to satisfy a bequest by value. –> If a will gives a gift based on a specific value or amount (e.g., “$10,000 worth of property”), the testator can give the executor the authority to choose which assets will be used to satisfy that amount.

2) Authority regarding charitable legacies –> When a gift is made to charity, the testator may allow the executor to choose which charities will receive the gift and/or divide the gift among multiple charities and impose conditions on those charitable gifts, if the will says so.

3) A confirmed executor (someone legally appointed) may give someone else power of attorney to manage the estate on their behalf. This person is called a mandatary.

The mandatary may also appoint a substitute to take over management duties — but only if the original power of attorney specifically allows for substitution.

Question 20

Donations – Classification of Legacies

Answer 20

Legacies = a gift made by will (testament) that takes effect upon the death of the testator.

3 Classifications
1) Universal
2) General
3) Particular

Question 21

7 ways a legacy might lapse?

Answer 21

1) Legatee Predeceased the testator

2) Legatee is incapable of receiving at the time of the testator.

3) The Legacy is subject to a Suspensive condition which can no longer be fulfilled.

4) Unworthiness

5) Renunciation

6) Legacy is Invalid (e.g., legacy to witness, spouse of witness or notary).

7) Legacy is Null (look for vices of consent; prohibited substitution.

Question 22

Accretion

Answer 22

Lapse leads to accretion…
Lapsed or invalid legacies are added to the shares of other successors or transferred to substitute legatees, depending on the type of legacy and the will’s provisions.

Question 23

Applying accretion

Answer 23

When a legacy lapses or is declared null, and no substitute or other provision has been made, accretion kicks in.

Common reasons for lapse: legatee predeceased the testator, legatee renounced the legacy, legacy is declared null, legacy is not accepted.

1) Particular legacy (specific item or asset).

If a particular legacy lapses, it goes to the successor who inherits under intestacy or to the universal/general legatees, unless the will says otherwise.

2) General or Universal legacy

If a general or universal legacy lapses in whole or in part, it accretes to the other general/universal legatees in proportion to their shares.

Question 24

When is a legacy extinct?

Answer 24

When the object of the legacy is lost, destroyed, or extinguished before the death of the testator.

Question 25

What is the effect of an extinct legacy?

Answer 25

When a legacy lapses, the legatee is entitled to any part of the property that remains, uncollected insurance proceeds, and the testator’s right of action against any person liable for the loss.

Question 26

Exceptions concerning extinct legacies.

Answer 26

1) Legacy of a certain object is not extinguished when the object has been transformed into a similar object without an act of the testator. 2) If the object of the legacy has been condemned or expropriated prior to the testator’s death, the legacy is not extinguished. INSTEAD, the legatee is entitled to any uncollected award and also any right of action that the testator may have had concerning the condemnation or expropriation.

Question 27

Priorities when disbursing bequests

Answer 27

The law says first look to the testament for an express declaration as to preference in payment of legacies. If the will doesn't address priorities, then "particular" legacies have preference and are paid first.

Question 28

When the succession is not sufficient to discharge all bequests, and the testator has not expressed a preference, the order of disposition becomes what?

Answer 28

Bequests to legatees of specific things are satisfied first; Legatees of groups and collections of things are next in line; Miscellaneous

Question 29

Rules for Interpreting Legacies

Answer 29

Intent of testator controls must be able to ascertain what object the testator intended to give also if quantity is unsure go with lesser option no longer a presumption that the testament speaks as of the time it is executed. When a testament contains contradictory provisions, the one written last prevails legacy to a creditor is not applied toward the satisfaction of the debt unless the testator clearly indicates otherwise.

Question 30

Revocation

Answer 30

A testator may revoke his will at any time (i.e., testaments are “ambulatory,” always revocable). A revocation may be express or tacit, and it may be total or partial. A testator may not renounce the right to revoke his will, nor may he agree to exercise the right under certain conditions.

Question 31

If testament is revoked, what is the result?

Answer 31

Either intestacy or revival of an earlier testament that was not destroyed.

Question 32

Revocation by destruction

Answer 32

Physical destruction: testator physically destroys the testament, or has it destroyed at his direction. If will is revoked by destruction, the destruction must be complete and total. When the original of the will cannot be found after a testator’s death, a presumption arises that the testator destroyed the original will with the intent to revoke it. Such a presumption applies only if the testament at issue was readily accessible to the decedent prior to his death. Multiple Originals: Destruction of one of the multiple originals of the same testament gives rise to a presumption that the testament is revoked. Lost original will: clear and convincing proof that the will was destroyed without the direction, consent, or permission of the testator would be sufficient to overcome the presumption that the testator revoked the will by destroying it.

Question 33

Revocation by clause in a new will

Answer 33

The testator may revoke his will by declaring his revocation in one of the forms prescribed for testaments

Question 34

Revocation by authentic act

Answer 34

A testament can also be revoked by authentic act. [La. Civ. Code art. 1607(2)]. An authentic act is a writing executed before a notary public or other officer authorized to perform that function, in the presence of two witnesses, and signed by each party who executed it, by each witness, and by each notary public before whom it was executed.

Question 35

Revocation by signed writing

Answer 35

Can occur in a writing entirely written and signed by the testator that identifies the testament to be revoked and clearly expresses the intent to revoke.

Question 36

Revocation of a Legacy or Testamentary Provision

Answer 36

A legacy or other testamentary provision may be revoked by: ● (i) So declaring in one of the forms prescribed for testaments; ● (ii) Making a subsequent incompatible testamentary disposition; ● (iii) Making a subsequent inter vivos disposition of the thing and not reacquiring it; but alienations of cash do not revoke a bequest; ● (iv) Making a signed writing on the testament itself (need not be dated); or ● (v) Divorce after execution of the testament and before the death of the testator, unless the testator provides to the contrary. Testamentary designations or appointments of a spouse (e.g., executor, trustee, etc.) are likewise revoked under the same circumstances. Revoked legacies are treated as though they were not written.

Question 37

Other modifications of a legacy

Answer 37

Any other modification of a legacy or other testamentary provision (e.g., changing executors or trustees) must be in the form of a testament. Destruction or revocation of a second testament automatically revives the first testament unless the first testament was destroyed. [La. Civ. Code art. 1609] The same rule applies if the second testament is invalid instead of destroyed or revoked. a. No "Dependent Relative Revocation" Louisiana does not recognize the doctrine of "dependent relative revocation." If the first testament is destroyed, and the second testament turns out to be invalid, the first testament is nonetheless revoked and does not "revive." b. Effect of Revoking the Revocation The revocation itself must not be revoked in order to be effective.

Question 38

Modifications -- Effect of subsequent children

Answer 38

The birth, adoption, etc., of a child no longer revokes a testament. However, the after-born child is a forced heir until age 24, so birth of a child may clearly affect the testamentary disposition of assets