LA BAR EXAM CODE II: DONATIONS Flashcards
(36 cards)
IV. What are the general rules for donations a.k.a. what types of donations are there?
There are two kinds of donations: donations inter vivos (between living persons) and donations mortis causa (upon death). Property can acquired or disposed of gratuitously only by these forms. Additionally, a donation is generally valid only if: (i) capacity to give and receive exists; (ii) no vices of consent exist; (iii) the requisite formalities are followed; and (iv) substantive limits are not violated (e.g., reprobated dispositions and donations omnium bonorum).
What is capacity?
The capacity to donate inter vivos must exist when the donor makes the donation. The capacity to donate mortis causa must exist when the testator executes the testament. Everyone is presumed to have the capacity to be a donor.
What are the capacity requirements for a donor?
The capacity requirements for a donor are age (over 16), satisfied mental condition, and not an interdict.
What are the capacity requirements for a donee to receive?
A donee must be in existence at the time of the donation for donations inter vivos or at the time of the testator’s death for donations mortis causa.
What are the vices of consent? Three types?
A donation that is the product of fraud or duress is null. Likewise, a donation is null when 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.
What is the violation of a substantive limit by reprobated disposition?
Conditions made in a donation inter vivos or donation mortis causa that are impossible, immoral, or contrary to law are void (e.g., prohibiting marriage, denying a basic civil right).
What is a prohibited substitution and how does it differ from a vulgar substitution?
A prohibited donation is a disposition to a first donee to preserve a thing and deliver it at his death to a second donee. A vulgar substitution is a valid donation that provides that in the event the first donee cannot take the gift, a second donee will take.
Remember: “To A, but at his death, to B” is prohibited, but “usufruct to A, naked ownership to B” is permitted.
What is the violation of a substantive limit by donation omnium bonorum?
Disposing of one’s property in its entirety through inter vivos donations is a donation omnium bonorum. When this happens, the donation is void.
V. For dispositions mortis causa, what are the requisite formalities?
A disposition mortis causa is valid only when made in the form of a testament (a will) authorized by law.
Recall non-probate assets that are jointly held and pass by law.
A testament has no effect unless it is probated in accordance with the Code.
There are only two forms of testaments in Louisiana olographic and notarial.
An ologrpahic testament is one entirely written, dated, and signed in the handwriting of the testator. It is subject to no other requirements as to form. Watch for a preprinted will form - if material portions are in testator’s handwriting, then it is validly olographic.
To probate the will, two witnesses must identify the testator’s handwriting.
A notarial will is self-proving, provided these formalities are followed: (i) the testator must declare in the presence of the notary and two competent witnesses that the document is his will; (ii) the testator must sign each page and at the end of the will (if witnesses are not present when the testator signs, the testament is void); (iii) the will must be dated anywhere on it; (iv) and there must be an attestation clause (declaration that all formalities met) signed by the notary and two witnesses in the presence of the testator and each other.
What do we need to know about competency of witnesses to testaments?
Generally, a person cannot be a witness to a testament if he is insane, blind, or unable to sign his name. A person under the age of 16 also cannot be a witness.
What do we need to know about executors?
The designation of an executor (or other succession representative), trustee, or attorney handling the estate is not a bequest.
If a testator names an attorney in his testament, it is merely a suggestion.
An executor selects assets to satisfy bequests made by quantum or value, and can allocate a legacy among charities and/or choose the charities.
What is a legacy, and what are three types of testamentary dispositions?
When classifying legacies based on their magnitude, there are three types of testamentary dispositions: particular legacies, general legacies, and universal legacies.
What is a universal legacy?
The testator gives to one or to several persons the whole of the property, or the “balance,” or “residue” of all of the property left after particular legacies.
What is a general legacy?
A general legacy is (i) a legacy of a fraction or a certain proportion of the estate / balance of the estate that remains after particular legacies are discharged; or (ii) a disposition of all or a fraction of specifically one of the categories of property; i.e., “one-half of all my movable property.”
What is a particular legacy?
All other bequests not general or universal are particular. (“All of my separate and immovable property”)
What is the difference between a joint or separate legacy?
It is separate when the testator assigns shares. It is joint when the testator does not assign shares. Ex., “to A and B” = joint; ex., “share and share alike / share equally” is separate.
How are legacies interpreted?
The intent of the testator controls the interpretation of his testament. If the language ascertaining the testator’s intent is not clear, the Code provides rules of construction.
Why might a legacy lapse, and what is the effect of lapse?
There are seven reasons a legacy may lapse:
(i) predeceased legatee
(ii) incapable legatee
(iii) suspensive condition on legatee not fulfilled
(iv) unworthy legatee
(v) renounced legacy
(vi) declared invalid
(vii) declared null (e.g., fraud duress, undue influence).
PISCURDIDN. Pig Injects Silly Chuck Under Rose’s Desk in Dog’s Nest.
Testamentary accretion takes place when any legacy lapses. Accretion takes place in order: (i) according to the testament; (ii) for lapsed legacies of children/siblings of decedent, accretes in favor of his descendants by roots who were in existence at time of decedent’s death (most favored class rule); (iii) lapsed joint legacy accretes ratably in favor of other joints; (iv) lapsed particular or general legacy accretes in favor of successor who, under the testament, would have received the thing if the legacy were never made; (v) a lapsed legacy not disposed by this point devolves by intestacy - look for this if no universal legatee.
How is a legacy extinguished?
A legacy is extinguished when the property that is the object of the legacy is lost, destroyed, or extinguished before the death of the testator. In certain instances, the legacy is not extinguished . . .
How may a dispositions mortis causa testament be revoked or modified?
A testator may revoke his will at any time. 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.
Revocation of the entire testament may be done by physical destruction, revocation clause in a new will, authentic act, or revocation by signed writing.
What is important to recall about revocation of the entire testament by physical destruction?
When an entire testament is revoked, it results in either intestacy or revival of an earlier testament that was not destroyed. If a will is revoked by destruction, the destruction must be complete and total either by the testator or by someone at the testator’s discretion. The accidental destruction of a will does not revoke it–even if the testator later decides he wants to revoke it–because the intent to revoke must be present at the time of the physical act of destruction.
How are revoked legacies or testamentary provisions handled?
Revoked legacies are treated as if they were not written. The rest of the will be valid. A legacy or other testamentary disposition 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.
What is important about the interpretation of legacies?
The intent of the testator controls the interpretation of his testament. If the language ascertaining the testator’s intent is not clear, follow the rules of construction in the Code.
A disposition is to be interpreted in a sense in which it can have effect. A disposition is effective if it can be ascertained what object the testator intended to give. Testamentary dispositions are to be interpreted to refer to the property owned by the testator at death. When a testament contains contradictory provisions, the one written last prevails. A legacy to a creditor is not applied toward the satisfaction of the debt unless the testator clearly indicates otherwise.
VI. What is the doctrine of forced heirship, and how does the forced portion work?
Descendants of the first degree 23 years of age or younger are forced heirs as are descendants of any age who are incapable of taking care of their persons or administering their estate. Forced errors are entitled to a portion of the decedent’s estate. The forced portion is a portion of the estate reserved for all forced heirs collectively. The forced portion is generally 1/4 if there is one forced heir, and 1/2 if there are two or more forced heirs.
