SUCCESSIONS – FALL 2002



SUCCESSIONS – FALL 2002

PROFESSOR LORIO

TWO: INTESTATE SUCCESSION

871 Meaning of succession. Succession is the transmission of the estate of the deceased to his successors. The successors thus have the right to take possession of the estate of the deceased after complying with applicable provisions of law.

872 Meaning of estate. The estate of a deceased means the property, rights, and obligations that a person leaves after his death, whether the property exceeds, the charges or the charges exceed the property, or whether he has only left charges without any property. The estate includes not only the rights and obligations of the deceased as they exist at the time of death, but all that has accrued thereto since death, and the new charges to which it becomes subject. Funeral costs is a post death charge to the estate.

873 Kinds of succession. There are two kinds or succession: testate and intestate

874 Testate succession. Testate succession results from the will of the deceased, contained in a testament executed in a form prescribe by law. This kind of succession is covered under the title of donation inter vivos and mortis causa.

875 Intestate succession. Intestate succession results from provisions of law in favor of certain person, in default of testate successors. Intestate succession is the subject of the present title.

876 Kinds of successors.

Testate successors, also called legatees.

Intestate successors, also called heirs.

La. C.C. 880-901

I. Devolution of Separate Property:

La. C.C. 880, 888, 891-896

7 Classes of heirs:

1. Descendents (La. C.C. 888)

2. Brothers, Sisters take Naked Ownership, Parents take Usufruct, joint and successive (La. C.C. 891)

3. Parents in the absence of brothers and sisters (La. C.C. 892)

4. Brothers and sisters in the absence of parents (La. C.C. 892)

5. Surviving Spouse (La. C.C. 894)

6. Ascendants more remote than parents (La. C.C. 895)

7. Collaterals more remote than siblings (La. C.C. 896)

Higher class excludes all lower classes

Within a class, nearness of relation is defined by degree

Direct line – count down or up, excluding starting point

Collateral line – count up to common ancestor and back down, excluding the starting point

Ascendants of the same degree divide the estate, the estate goes ½ to maternal side and ½ to paternal side

If siblings are born from different unions, the property is divided equally between the maternal and paternal lines, children of the same union take from both sides.

Relation by affinity – marriage, only non-blood or adoptive relation to collect

Blood relatives of adopted child cannot inherit, adopted child may inherit from blood relatives (La. C.C. 214)

II. Representation: La. C.C. 881-887

3 ways to be called to a succession

1. In your own right

2. Representation – step into the degree of another

3. Transmission – when someone dies before accepting or renouncing a succession

Descendents of pre-deceased heirs step into the shoes of heir. This goes on ad infinitum. This only applies to descendents of descendents and descendents of siblings.

SUCCESSION OF THE MISSES MORGAN

• Children of pre-deceased brother had renounced his estate and his debts to sisters

• When sisters died they wanted to collect on estate

• Debt was not a function of being an heir, so the debt does not need to transfer

DESTRAHAN v. DESTRAHAN

• Grandchildren did not have to collate the grandfather’s gifts to their deceased father.

• You can accept a succession under benefit of inventory.

1227 Collation, definition –

The 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 his share or otherwise on order that such property may be divided together with the other effects of the succession.

SUCCESSION OF MEYER

• Father’s will stated son had to pay back debt. Son pre-deceased him.

• Since it was defined as a debt, children did not have to pay back. Had it been defined as giftt, children may have had to collate.

• Look at the quality of the transaction

887 Representation of decedent whose succession was renounced –

One who has renounce his right to succeed to another may still enjoy the right of representation with respect to that other.

964 Accretion upon renunciation in intestate successions –

The rights of an intestate successor who renounces accrete to those persons who would have succeeded to them if the successor had predeceased the decedent.

III. Transmission: La. C.C. 937

937 Transmission of rights of successor –

the rights of a successor are transmitted to his own successors at his death, whether or not he accepted the rights, and whether or not he knew that the rights accrued to him.

SUCCESSION OF DUBOS

• Half blood relations of nearer degree succeed and transmit rights to the exclusion of more distant relations.

IV. Devolution of Community Property: La. C.C. 888-890

888-Descendants succeed to the prop of their ascendants. They take in equal portions and by heads if they are in the same degree. They take by roots if all or some of them succeed by representation.

889-If the deceased leaves no descendants, his surviving spouse succeeds to his share of the comm. prop.

890-If the deceased spouse is survived by descendants, the surviving spouse shall have a usuf over the decedent’s share of the comm. prop to the extent that the decedent has not disposed of it by testament. This usufruct terminates when the surviving spouse dies or marries, whichever occurs first.

PALINE v. HEROMAN

• 2 sons renounce inheritance in favor of mother

• After mother died, son tried to sell property, Heroman refused to accept as merchantable

• Paline won, Surviving spouse got property

• Dissent (Lorio) said children of dead brother should have inherited in their own right

• No longer controlling (unless person died in 1998)

NOW

964 Accretion upon renunciation in intestate successions –

The rights of an intestate successor who renounces accrete to those persons who would have succeeded to them if the successor had predeceased the decedent.

JACOB v. FALGOUT

Used in Paline dissent, which is now the law

V. Putative Marriage: La. C.C. 96

Putative Marriage is a null marriage when one party is in good faith

96 Civil effects of absolutely null marriage; putative marriage –

An absolutely null marriage nevertheless produces civil effects in favor of a party who contracted it in good faith for as long as that party remains in good faith.

When the cause of the nullity is one party’s 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. - Meant to give the woman some time

A marriage contracted by a party in good faith produces civil effects in favor of a child of the parties.

A purported marriage between parties of the same sex does not produce any civil effects.

PRINCE v. HOPSON

• Good faith putative marriage

• Child got ½ community property (father’s share), each wife got ¼, (wife’s share)

• Even though 2nd wife bought property during regime, it was considered community property

897 Ascendant’s right to inherit immovables donated to descendant –

Ascendants, to the exclusion of all others, inherit the immovables given by them to their children or their descendants of a more remote degree who died without posterity, when these objects are found in the succession.

If these objects have been alienated, and the price is yet due in whole orin part, the ascendants have the right to receive the price. The also succeed to the right of reversion on the happening of any event which the child or descendant may have inserted as a conditionin his favor in disposing of those objects.

898 Reversion of property subject to encumbrances and succession debts

Ascendants inheriting the things mentioned in the preceding article, which they have given their children or descendants who die without issue, take them subject to all the mortgages which the donee may have imposed on them during his life.

Also ascendants exercising the right of reversion are bound to contribute to the payment of the debts of the succession, in proportion to the value of the objects given.

Must have 4 prerequisites:

1. Need immovable

2. Must be given by an ascendant to a descendent

3. One getting object must be without posterity (descendents)

4. Property must be “found in the succession”

1. Right of Reversion Art 897-898

a. Ascendants who have donated immovable property to their descendants will inherit that immovable property to the exclusion of all others, at the death of the donee if the donee dies without posterity (descendents) and the object is found in the succession of the donee. Art 897

b. Four prerequisites must be satisfied

i. The donation must be from an ascendant to a descendant.

ii. The donation must be immovable property

iii. The donee must die without poseterity (descendents)

iv. The property must be found in the succession of the donee.

VI. Usufruct of the Surviving Spouse: La. C.C. 890, 1499, 1514

Legitime – each child’s portion of estate (does it have to be intestate?)

Forced Portion –

Disposable Portion –

890 Usufruct of surviving spouse –

If the deceased spouse is survived by descendants, the surviving spouse shall have a usufruct over the decedent’s share of the community property to the extent that the decedent has not disposed of it by testament. This usufruct terminates when the surviving spouse dies or remarries, whichever occurs first.

(Sanctioned usufruct)

1499 Usufruct to surviving spouse –

The decedent may grant a usufruct to the surviving spouse over all or part of his property, including the forced portion, and may grant the usufructuary the power to dispose of noncomsumables as provided in the law of usufruct. The usufruct shall be for life unless expressly designated for a shorter period.

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 property 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.

1514 Usufruct of surviving spouse affecting ligitime; security –

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 spouse’s usufruct over the legitime affects separate property.

* Legal UF – not considered a burden on forced portion or legitime

FORCED HEIRS

Forced portion – guarantied part of the estate (art 1493)

From 1870 1 child 1/3 guaranteed

2 children ½ guaranteed

3 or more 2/3 guaranteed

In 1980

1 child ¼ guaranteed

2 or more ½ guaranteed

In 1990s

Forced heirship ends when child is 24 and healthy

FORSTALL V. FORSTALL

• Will left wife everything, kids nothing

• Wife claimed disposable portion and usufruct over disposable portion

• Court said no usufruct because husband left a will, 916 does not apply

SUCCESSION OF MOORE

• Will left disposable portion and usufruct of forced portion to wife

• Court ruled this was OK, distinguished by affirming the usufruct and not ignoring forced heirship

• Court now says that since he didn’t deprive wife of usufruct in will, she won’t be deprived of it. Court looked at the intention of the donation. Now called the adversity test

WINSBERG v. WINSBERG

• Store owner willed wife all community property. Forced heirship reduced it to 1/3. Son’s wife sued for fruits of property.

• Court overruled Forstall, you have to affirmatively deny usufruct for wife not to receive it.

• This is not an impingement on the legitime because…

SUCCESSION OF CHAUVIN

• Husband willed ownership to son subject to wife’s usufruct. Wife remarried.

• Court said this was a confirmation of 916 usufruct, so the rules of 916 must be followed.

• Wife is allowed the benefits of 916, not taxes, so security.

• Tate concurrence – favors “hybrid”, at remarriage becomes testamentary which means wife keeps disposable portion

SUCCESSION OF WALDRON

• Husband gave wife disposable portion and usufruct for life over all

• If testamentary, then usufruct is not 916, so no tax or security benefits and wife can’t impinge on legitime.

• Court moved to Tate concurrence of “hybrid”

LEGISLATION SINCE WALDRON

1. Decedent is allowed to give usufruct for life without impingement. (1975)

2. Decedent is allowed to give usufruct over separate property.

3. Decedent can give a usufruct to a spouse that is not the parent of the child. (security required)

COMMUNITY PROPERTY CHARTS

FORSTALL

Will Court

[pic][pic][pic][pic]

Wife Kids Wife Kids

MOORE

Will Court

[pic][pic][pic][pic]

Wife Kids Wife Kids

WINSBURG

Will Court

[pic][pic][pic][pic]

Wife Kids Wife Kids

916

[pic][pic]

Wife Kids

CHAUVIN

Will At remarriage

[pic][pic][pic][pic]

2nd husband Kids 2nd husband Kids

WALDRON

Will At remarriage

[pic][pic][pic][pic]

Wife Kids Wife Kids

VII. Provision for Usufruct over Pensions: La. R.S. 9:1426

If a recurring payment is community property and one spouse dies, the surviving spouse shall enjoy a legal usufruct over any portion of the continuing recurring payment which was the deceased spouse’s share of their community property, provided the source of benefit is due to payments made by or on behalf of the survivor.

This shall be treated as a legal usufruct and is not an impingement upon the legitime and a naked owner shall not have a right to demand security.

THREE: ILLEGITIMATE CHILDREN

La. C.C. 198-211

198 Legitimation by subsequent marriage of parents –

Illegitimate children are legitimated by the subsequent marriage of their father and mother, whenever the latter have formally or informally acknowledged them as their children, either before or after the marriage.

199 Rights of children legitimated by subsequent marriage –

Children legitimated by a subsequent marriage are legitimate.

200 Legitimation by notorial act –

A father or mother shall have the power to legitimate his or her illegitimate children by an act passed before a notary and 2 witnesses, declaring that it is the intention of the parent making the declaration to legitimate such child or children.

201 Legitimation of deceased children –

Legitimation may even be extended to deceased children who have left issue, and in that case it inures to the benefit of such issue.

203 Methods of making acknowledgement; legal effect –

A. Declaration in authentic form or registered on birth or baptism certificate

B. 1. Declaration is legal finding of paternity

2. Registration is presumption of paternity (may be rebutted by preponderance of evidence)

205 Acknowledgement by father alone –

The acknowledgement made by the father without the concurrence or consent of the mother, shall have effect only with respect to the father.

206 Rescission of notarial act; with and without cause –

A. A person who executed a notarial act of acknowledgement may, without cause rescind it before the earlier of:

1. 60 days of signing, in a judicial hearing for the purpose of rescinding the acknowledgement

2. A judicial hearing relating to the child, wherein the affiant is a party to the proceeding

B. At any time, a the signer may petition the court to void such acknowledgement only upon proof, by clear and convincing evidence, that the act was induced by

Fraud,

Duress, or

Material mistake of fact, or

The person is not the biological parent of the child.

Except for good cause shown, the court shall not suspend any legal responsibilities or obligation, during the pendency of this proceeding.

207 Contestation of claims of acknowledged children –

Every claim, set up by illegitimate child may be contested by those who have any interest therein.

208 Requirement to prove filiation –

In order to establish filiation, a child who does not enjoy legitimate filitation or who has not been filiated by the initiative of the parent by legitimation or by acknowledgement under art 203 must institute a proceeding under art 209.

209 Proof of filiation –

A. A child not entitled to legitimate filiation nor filiated by the initialbive of he parent by legitimation or by acknowledgement under art. 203 must prove filiation as to an alleged living parent by a preponderance if the evidenced in a civil proceeding instituted by the child or on his behalf within the time limit provided in this article.

B. A child not entitled to legitimate filiation nor filiated by the initiative of the parent by legitimation or by acknowledgement under art. 203 must prove filiation as to an alleged deceased parent by clear and convincing evidence in a civil proceeding instituted by the child or on his behalf within the time limit provided in this article.

C. the proceeding required by this article must be brought within one year of the death of the alleged parent or within nineteen years of the child’s birth, whichever first occurs. This time limitation shall run against all persons, including minors and interdicts. If the proceeding is not timely instituted, the child may not thereafter establish his filiation, except for the sole purpose of establishing the right to recover under art. 2315. A proceeding for that purpose may be brought within 1 year of the death of the alleged parent and may be cumulated with the action to recover damages.

D. The right to bring this proceeding is heritable.

211 Proof of paternity in case of rape –

In case of rape, whenever the time of such rape shall agree with the time of conception, the ravisher may, at the suit of the parties concerned, be declared to be the father of the child.

These articles apply to illegitimates if

a. The requisite formalities necessary to make them heirs have been satisfied.

i. Legitimation art 179

ii. formal acknowledgment art 198

1. notary public

2. registry of birth or baptism-signed by M or D.

iii. judgment of filiation art 209

3. brought on behalf of child or by the child to prove the child is an heir.

4. If the parent is dead need higher standard of evidence.

5. This must be done within 19 yrs of child’s birth or within one year of parents death whichever comes first.

b. Marriage alone cannot legitimate a child, must be formal acknowledgement

SUCCESSION OF BROWN

To find is constitutional there must be permissible state interests:

1. promotion of legitimate family relationships

2. the possibilities which the father could have exercised to insure the illegitimates a part of the succession

3. the orderly disposition of property at death

SUCCESSION OF VIOLA ALEXANDER CLIVENS

Made Brown effective from ratification of Constitution in 1975

FOUR: ABSENT PERSONS

La. C.C. 47-59

47 Curator of an absent person’s property –

An absent person is one who has no representative in this state and whose whereabaouts are not known and cannot be ascertained by diligent effort.

48 Powers, rights, and duties of curator –

The curator has power of administration and disposition over the property of the absent person as provided by legislation.

When the absent person is a spouse in community, the curatorship is limited to his separate property.

49 Legal capacity of absent person –

The establishment of the curatorship does not deprive the absent person of his capacity to make juridical acts. Nevertheless, his acts of disposition of immovable property are not effective towards 3rd persons and the curator unless filed for registry in the public records of the parish in which the immovable property is located.

50 Termination of curatorship of right –

The curatorship of the property of the absent person terminates of right when he appoints a person to represent him in this state, when his whereabouts become known, or when he dies.

51 Termination by judgment of declaration of death –

The curatorship of the property of the absent person also terminates when a judgment of declaration of death is rendered.

When an absent person has known heirs and is presumed dead, it shall be the duty of the curator to initiate proceedings for a declaration of death.

IN RE BOYD

1) Absent Person

a) one who has no representative in this state and whose whereabouts are not known and cannot be ascertained by diligent effort. Art 47

b) If this person owns property, either movable or immovable, in this state, the ct. upon petition of any interested party and upon a showing of necessity, may appoint a curator to manage such property. Art 47

1. The Curator

a. Has the power to administer and alienate the property. Art 48

b. When the absent person is a spouse in community, the curatorship is limited to separate property Art 48

2. Legal Capacity of Absent Person

a. The absent person retains his full legal capacity, although any acts disposing of immovable property would be ineffective toward third persons unless registered in the parish of the immovable property. Art 49

b. For movables, an act would be ineffective toward third persons unless the property were delivered.

3. Termination of Curatorship of Right art 52

a. The curatorship of the property of the absent person’s property terminates of right,

i. when he appoints a person to represent him in this state,

ii. when his whereabouts become known,

iii. or when he dies.

4. Termination by Judgment of Declaration of Death Art 51

a. The curatorship of the property of the absent person also terminates when a judgment of declaration of death is rendered.

b. When an absent person has no known heirs an dis presumed dead, it shall be the duty of the curator to initiate proceedings for a declaration of death.

5. Effects of Termination of Curatorship Art 52

a. Upon termination of the curatorship, the curator is bound to account for his management and to restore the property to the formerly absent person to his successors.

6. Validity of acts of Curator After Termination of Curatorship Art 53

a. When the curator acquires knowledge of the termination of his curatorship, he is bound to file a notice in the curatorship proceeding that his authority to manage the property of the formerly absent person has ceased.

b. Acts of administration or disposition made by the curator after the curatorship has terminated are valid toward third persons unless notice of the termination of the curatorship has been filed in the curatorship proceeding.

7. Absent Person: Declaration of Death Art 54

a. One who has been an absent person for five years is presumed dead

b. Upon petition by an interested party, the court shall render judgment declaring the death of the absent person and shall determine the date on which the absence commenced and the date of death

8. Effect of Declaration of Death Art 55

a. The succession of the person declared dead shall be opened as of the date of death fixed in the judgment, and his estate shall devolve in accordance with the law of successions.

9. New Evidence as to time of death Art 56

a. If there is new clear and convincing evidence establishing a date of death other than that determined in the judgment of declaration of death, the judgment shall be amended accordingly

b. Persons previously recognized as successors are bound to restore the estate to the new successors but may keep the fruits they have gathered.

10. Reappearance of Absent Person; Recovery of his property Art 57

a. If a person who has been declared dead reappears, he shall be entailed to recover his property that still exists in the condition in which it is found from those who took it as his successors or from their transferors by gratuitous title.

b. He may also recover the next proceeds of things alienated and for the diminution of the value of things that has resulted from their encumbrance.

11. Succession Rights of Person Presumed Dead or Declared Dead Art 58

a. A person who is presumed to be dead or who has been declared dead at a time a succession would have been opened in his favor cannot be a successor.

b. The estate of the deceased devolves as if that person were dead at the time of the opening of the succession.

12. Reappearance of Absent Person; Recovery of his inheritance Art 59

a. If the person who is presumed to be dead or who has been declared dead reappears, he shall be entitled to recover his inheritance in the condition in which it is found from those who succeeded in his default and from their transferees by gratuitous title

FIVE: COMMENCEMENT OF SUCCESSION

La. C.C. 934-938

934 Commencement of succession –

Succession occurs at the death of a person.

935 Acquisition of ownership; seizin –

Immediately at the death of the decedent, universal successors acquire ownership of the estate and particular successors acquire ownership of the things bequeathed to them.

Prior to the qualification of a succession representative only a universal successor may represent the decedent with respect to the heritable rights and obligations of the decedent.

936. Continuation of the possession of decedent –

The possession of the decedent is transferred to his successors, whether testate or intestate, and if testate, whether particular, general, or universal legatees.

A universal successor continues the possession of the decedent with all its advantages and defects, and with no alteration in the nature of the possession.

A particular successor may commence a new possession for purposes of acquisitive prescription.

937. Transmission of rights of successor –

The rights of a successor are transmitted to his own successors at his death, whether or not he accepted the rights, and whether or not he knew that the rights accrued to him.

938. Exercise of succession rights –

a. Prior to the qualification of a succession representative, a successor may exercise rights of ownership with respect to his interests in a thing of the estate as well as his interest in the estate as a whole.

b. If a successor exercises his rights of ownership after the qualification of a succession representative, the effect of that exercise is subordinate to the administration of the estate.

Changed from 2001 code

Commorientes – people who died together and are reciprocal heirs, intestate

Death had to be from same event

Previous method of determining succession from commorientes

1. All who died were under the age of 15, the oldest survived.

2. All who died were older than 60, the youngest survived.

3. Some older and some younger, the younger survived.

4. Some who died were under 15 and some were older than 15, but younger than 60, the latter survived.

5. those who died were 15 or older and younger than 60, the younger survived.

I. Commencement of succession

SUCCESSION OF LANGLES (105 LA 39)

Mother and daughter reciprocal heirs die together on a ship (common disaster)

Daughter’s side wants commorientes

Mother’s side does not want commorientes

New Orleans does not want commorientes to apply because it wants a hospital

The executor wanted New Orleans get the hospital

They have written wills, so how can it be commorientes? Because the wills are reciprocal. Which became the rules of the case

An heir must exist at the time of death (now,establish a trust for the hospital before death)

Commorientes applies to a decedent who dies prior to 1999

Commorientes does not apply to community property

Langles today

939 Existence of successor –

A successor must exist at the death of the decedent.

31 Existence of a person at time of accrual of a right –

One claiming a right that has accrued to another person is bound to prove that such person is bound to prove that such person existed at the time when the right accrued.

II. Seizin – a constructive right of possession bestowed on a successor which grants the successor the legal personality of the decedent.

Work of appellate courts – 1971-1972, successions and donations

Seizen: Rights and Obligations of the Heir Before Acceptance or Renunciation

III. Ownership v. Seizin

TULANE UNIVERSITY v. BOARD OF ASSESSORS

BATEN v. TAYLOR

A Reasoned Seizin and Prohibited Substitutions

IV. Succession Representative v. Seized Successor

SIMPSON v. COLVIN

CATLETT v. CATLETT

V. The Modernizing of Seizin

935 Acquisition of ownership; seizin –

Immediately at the death of the decedent, universal successors acquire ownership of the estate and particular successors acquire ownership of the things bequeathed to them.

Prior to the qualification of a succession representative only a universal successor may represent the decedent with respect to the heritable rights and obligations of the decedent.

936 Continuation of the possession of decedent –

The possession of the decedent is transferred to his sucessors, whether intestate, and if testate, whether particular, general, or universal legatees.

A universal successor continues the possession of the decedent with all its advantages and defects, and with no alteration in the nature of the possession.

A particular successor may commence a new possession for purposes of acquisitive prescription.

3506 General definitions of terms –

(28) The Universal Successor represents the person of the deceased, and succeeds to all his rights and charges

The Particular Successor succeeds only to the rights appertaining to the thing which is sold, ceded or bequeathed to him.

3475 Requisites –

The requisites for the acquisitive prescription of 10 years are: possession for 10 years, good faith, just title, and a thing susceptible of acquisition by prescription.

3480 Good faith –

For purposes of acquisitive prescription, a possessor is in good faith when he reasonably believes, in light of objective considerations, that he is owner of the thing he possesses.

3481 Presumption of good faith –

Good faith is presumed. Neither error of fact nor error of law defeats this presumption. This presumption is rebutted on proof that the possessor knows, or should know, that he is not owner of the thing he possesses.

3482 Good faith at commencement of prescription –

It is sufficient that possession has commenced in good faith; subsequent bad faith does not prevent the accrual of prescription of 10 years.

3483 Just title –

A just title is a juridical act, such as a sale, exchange, or donation, sufficient to transfer ownership or another real right. The act must be written, valid in form, and filed for registry in the conveyance records of the parish in which the immovable is situated.

3486 Immovables; prescription of 30 years –

Ownership and other real rights in immovables may be acquired by the prescription of 30 years without the need of just title or possession in good faith.

The universal successor continues the ancestor’s possession, not really tacking, but rather continuing, the possession begun by the ancestor. The universal successor “stands in the shoes” of the ancestor taking on the character (good or bad faith) of the ancestor.

The particular successor begins a new possession, separate and distinct from that of the ancestor. He, therefore, establishes his own character (good or bad faith). He thus starts a new possession. He does, however, have the right to tack on the time of his ancestor, but not the character.

For purposes of acquisitive prescription, the important point in time for determining the character of possession is the time when the possession begins.

SIX: LOSS OF SUCCESSION RIGHTS (INCAPACITY AND UNWORTHINESS

La. C.C. 939-940

I. Incapacity: La. C.C. 939-940

939 Existence of successor –

A successor must exist at the death of the decedent.

940 Same; unborn child –

An unborn child conceived at the death of the decedent and thereafter born alive shall be considered to exist at the death of the decedent.

391.1. Child conceived after death of husband –

A. Notwithstanding the provisions of Civil Code Articles 184 and 185 to the contrary and in addition to the provisions of Civil Code Article 179, 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 legitimate child of such decedent, provided the child was born to the surviving spouse, using the gametes of the decedent, within two 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.

ESTATE OF KOLACY

New Jersey case

Kids conceived after father’s death

Kids were able to get social security

1474 Unborn children, capacity to receive –

to be capable of receiving by donation inter vivos, an unborn 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 R.S. 9:33 human embryos passed in 1996

LA R.S. 9:391.1

would this cover frozen eggs? “born to the surviving spouse” “death of the husband”

II. Unworthiness: La. C.C. 941-946

941 Declaration of unworthiness –

A successor shall be declared unworthy if he is convicted of a crime involving the intentional killing, or attempted killing, of the decedent or is judicially determined to have participated in the intentional, unjustified killing, or attempted killing, of the decedent. An action to declare a successor unworthy shall be brought in the succession proceedings of the decedent.

An executive pardon or pardon by operation of law does not affect the unworthiness of a successor.

This covers insanity, wrongful death, hitmen, and murder-suicide

Usually no jury in succession proceedings, only judge in probate court

Burden of proof

Judicially determined – preponderance of the evidence

Convicted – beyond reasonable doubt

942 Persons who may bring action –

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.

If person who would bring claim is a minor, the court can bring it

943 Reconciliation or forgiveness –

A successor shall not be declared unworthy if he proves reconciliation with or forgiveness by the decedent (Not disinheriting is not a presumption of forgiveness)

944 Prescription –

An action to declare a successor unworthy is subject to a liberative prescription of five years from the death of the decedent as to intestate successors and five years from the probate of the will as to testate successors.

945 Effects of declaration of unworthiness –

A judicial declaration that a person is unworthy has the following consequences:

1) The successor is deprived of his right to the succession to which he had been called.

2) If the successor has possession of any property of the decedent, he must return it, along with all fruits and products he has derived from it. He must also account for an impairment in value caused by his encumbering it or failing to preserve it as a prudent administrator.

3) If the successor no longer has possession because of a transfer or other loss of possession due to his fault, he must account for the value of the property at the time of the transfer or other loss of possession, along with all fruits and products he has derived from it.

He must also account for any impairment in value caused by his encumbering the property or failing to preserve it as a prudent administrator before he lost possession.

4) If the successor has alienated, encumbered, or leased the property by onerous title, and there is no fraud on the part of the other party, the validity of the transaction is not affected by the declaration of unworthiness. But if he has donated the property and it remains in the hands of the donee or the donee's successors by gratuitous title, the donation may be annulled.

5) The successor shall not serve as an executor, trustee, attorney or other fiduciary pursuant to a designation as such in the testament or any codicils thereto. Neither shall he serve as administrator, attorney, or other fiduciary in an intestate succession.

946 Devolution of succession rights of successor declared unworthy –

A. If the decedent died intestate, when a successor is declared unworthy his succession rights devolve as if he had predeceased the decedent; but if the decedent died testate, then the succession rights devolve in accordance with the provisions for testamentary accretion as if the unworthy successor had predeceased the testator.

B. When the succession rights devolve upon a child of the successor who is declared unworthy, the unworthy successor and the other parent of the child cannot claim a legal usufruct upon the property inherited by their child.

Unworthy cannot claim a UF, (nor be an executor)

If he sold fruits to third party, third party is protected.

Kids of the unworthy take through accretion

CALIFORNIA-WESTERN STATES LIFE INSURANCE v. SANFORD

• Man killed estranged wife, tried to commit suicide and failed

• Found insane, then he tried to get life insurance policy

• *Insurance benefits do not go through the estate of the decedent

• Insurance law sec 22:613(d) does not require a conviction

• By allowing judicial determination in article, we allow

o Lower burden of proof

o Murder-suicide

CRAIN v. CRAIN

Children of woman who murdered her parents were unable to collect

They could have inherited in their own right, but there were closer heirs

Former law, now, kids would inherit through accretion

SEVEN: ACCEPTANCE AND RENUNCLATION

La. C.C. 947-967

947 Right of successor to accept or renounce –

A successor is not obligated to accept rights to succeed. He may accept some of those rights and renounce others.

948 Minor successor deemed to accept –

A successor who is a minor is deemed to accept rights to succeed, but his legal representative may renounce on behalf of the minor when expressly authorized by the court. (You don’t want other people screwing over the kids)

949 Death of decedent as prerequisite to acceptance or renunciation –

A person may not accept or renounce rights to succeed before the death of the decedent.

950 Knowledge required of successor as prerequisite to acceptance or renunciation –

An acceptance or renunciation is valid only if the successor knows of the death of the person to be succeeded and knows that he has rights as a successor. It is not necessary that he know the extent of those rights or the nature of his relationship to the decedent.

951 Nullity of premature acceptance or renunciation –

A premature acceptance or renunciation is absolutely null.

952 Probate or annulment of testament after acceptance or renunciation of succession –

An acceptance or renunciation of rights to succeed by intestacy is null if a testament is subsequently probated. An acceptance or renunciation of rights to succeed is a testate succession is null if the probate of the testament is of the testament is subsequently annulled or the rights are altered, amended, or revoked by a subsequent testament or codicil.

953 Legacy subject to a suspensive condition –

A legacy that is subject to a suspensive condition may be accepted or renounce either before or after the fulfillment of the condition.

954 Retroactive effects of acceptance and renunciation –

To the extent that he accepts rights to succeed, a successor is considered as having succeeded to those rights at the moment of death of the decedent. To the extent that a successor renounces rights to succeed, he is considered never to have had them.

956 Claims of successor who is a creditor of the estate –

A successor may assert a claim that he has as a creditor of the estate whether he accepts or renounces his succession rights.

I. Acceptance: La. C.C. 957-962

957 Formal or informal acceptance –

Acceptance may be either formal or informal. It is formal when the successor expressly accepts in writing or assumes the quality of successor in a judicial proceeding. It is informal when the successor does some act that clearly implies his intention to accept.

958 Informal acceptance; use or disposition of property –

Acts of the successor concerning property that he does not know belongs to the estate do not imply an intention to accept.

959 Informal acceptance; act of ownership –

An 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.

960 Donative renunciation deemed acceptance –

A renunciation shall be deemed to be an acceptance to the extent that is causes the renounce rights to devolve in a manner other than that provided by law or by the testament if the decedent died testate.

961 Effect of acceptance –

Acceptance obligates the successor to pay estate debts in accordance with the provisions of this title and other applicable laws.

962 Presumption of acceptance –

In the absence of a renunciation, a successor is presumed to accept succession rights. Nonetheless, for good cause the successor may be compelled to accept or renounce.

BRADLEY v. UNION NATIONAL LIFE INSURANCE COMPANY

Daughter took mom’s possessions – informal acceptance

If this were a succession in debt, she would have to pay her portion of the debt

New code would not make her liable

LA R.S. 9:1421 now repealed, article 1416

1416 Liability of universal successors to creditors for debts of estate –

Universal successors are liable to the creditors of the estate for the payment of the estate debts in proportion to the part which each has in the succession, but each is liable only to the extent of the value of the property [and its fruits and products] received by him, valued as of the time of receipt.

A creditor has no action for payment of an estate debt against a universal successor who has not received property of the estate or its fruits and products.

REED v. TAYLOR

By moving in to grandmother’s house (father lived their prior) son informally accepted father’s succession.

How could Albert have protected himself? (if dad didn’t move in house)

Formally renounce dad, open gm judicially

SUCCESSION OF MENENDEZ

Admitting being a child and heir, acts opening a succession, are not informally accepting a succession

Descriptive list – not a formal inventory

McCLELLAND v. CLAY

“Open concubinage and clandestine concubinage” case

Paying court costs is not acceptance

life insurance is not part of estate

paying funeral expenses out of pocket – “act of piety”

1415 Estate debts; administrative expenses –

Estate debts are debts of the decedent and administration expenses. Debts of the decedent are obligations of the decedent or those that arise as a result of his death, such as the cost of his funeral and burial. Administration expenses are obligations incurred in the collection, preservation, management, and distribution of the estate of the decedent.

II. Attempted Renunciation Deemed Acceptance: La. C. C. 960

960 Donative renunciation deemed acceptance –

A renunciation shall be deemed to be an acceptance to the extent that is causes the renounce rights to devolve in a manner other than that provided by law or by the testament if the decedent died testate.

X has three kids, A,B,C

• A renounces, B and C split, true renunciation

• A renounces in favor of B, acceptance

• You do not have to have renunciation in authentic form

o But if not, it may not be a valid donation, worst of both worlds

• If A gets something to renounce (a deal made) acceptance

AURIENNE, v. MT. OLIVET

UNITED STATES v. BRUNEIELD

Renunciation needs to be in writing, but not authentic form

The 1997 Successions and Donations Revision - A Critique in Honor of A. N. Yiannopoulos

1416 Liability of universal successors to creditors for debts of estate –

Universal successors are liable to the creditors of the estate for the payment of the estate debts in proportion to the part which each has in the succession, but each is liable only to the extent of the value of the property [and its fruits and products] received by him, valued as of the time of receipt.

A creditor has no action for payment of an estate debt against a universal successor who has not received property of the estate or its fruits and products.

III. Renunciation: La. C.C. 963-967

963 Requirement of formality –

Renunciation must be express and in writing.

964 Accretion upon renunciation in intestate succession –

The rights of an intestate successor who renounces accrete to those persons who would have succeeded to them if the successor had predeceased the decedent.

965 Accretion upon renunciation in testate successions –

In the absence of a governing testamentary disposition, the rights of a testate successor who renounces accrete to those of his descendants by roots who were in existence at the time of the decedent’s death, but if none exist, in accordance with the rules for lapsed legacies.

(This was the 2001 version – a renunciation by non-family member in will would go to that non-family member’s child.)

965 Accretion upon renunciation in testate successions –

In the absence of a governing testamentary disposition, the rights of a testate successor who renounces accrete to those persons who would have … if the legatee had predeceased the decedent

It depends on who the legatee is (if a friend, or if a sister)

Look at art 1593 (diff version)

1593. Exception to rule of testamentary accretion –

If a legatee, joint or otherwise, is a child or sibling of the testator, or a descendant of a child or sibling of the testator, then to the extent that the legatee's interest in the legacy lapses, accretion takes place in favor of his descendants by roots who were in existence at the time of the decedent's 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.

1593 – if a legatee, joint or . is child or sibling of testator, or decendent of … then tho the extent that the interest … acctetion takes place.l.

threw out (other then by representation)

Child or sibling, or their descendents, accretion takes place in their descendents

966 Acceptance or renunciation of accretion –

A person to whom succession rights accrete may accept or renounce all or part of the accretion. The acceptance or renunciation of the accretion need not be consistent with his acceptance or renunciation of other succession rights.

(changed)

Until 1986, you could not accept part and renounce part

In ’97, it became clear that you can renounce your portion and then get by accretion someone else’s portion

967 Acceptance of succession by creditor –

A creditor of the successor may, with judicial authorization, accept succession rights in the successor’s name if the successor has renounced them in whole or in part to the prejudice of his creditor’s rights. 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.

IV. Accretion of Rights upon Renunciation: La. C.C. 964-966

SUCCESSION OF WILLIAMS

Sister (married to attorney) renounced brother’s succession (to go to his kids) in violation of law

She wasn’t able to change her mind

The 1997 Successions and Donations Revision - A Critique in Honor of A.N. Yiannopoulos

V. Creditor's Acceptance of Succession: La. C.C. 967

967 Acceptance of succession by creditor –

A creditor of the successor may, with judicial authorization, accept succession rights in the successor’s name if the successor has renounced them in whole or in part to the prejudice of his creditor’s rights. 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.

SUCCESSION OF NEURAUSER

Creditor couldn’t prove renunciation was a fraud, said all he had to prove was prejudice

Creditor tried to reopen succession

Although article doesn’t say fraud, Court required it (Obligaitons law, French law)

SUCCESSION OF'WAGNER

Intestate succession

Former wife is creditor seeking alimony and child’s medical bills

Tries to renounce his dad’s succession in his own will

Child support prescription

CHAPTER 8: COLLATION

La. C.C. 1227-1288

Introduction

The Chaos and Confusion of modern Collation: A Critical Look Into an Institution of Louisiana Succession Law

Forced Heirship Changes: The Regrettable "Revolution” Completed

Intent of Donor to Dispense with Collation: La. C.C. 1230-1233

JORDAN v. FILMORE

SUCCESSION OF IEGGINS

SUCCESSION OF ODUM

SUCCESSION OF FAKIER

Some Aspects of Collation

Who May Demand Collation and from Whom: La. C.C. 1235, La. C.C. 1228, 1238

La. C. C. 1235, 1228, 1238

1235. Persons entitled to demand collation –

The 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 decedent's death, and valued as of the date of the gift. Any provision of the Civil Code to the contrary is hereby repealed.

1228. Collation by descendants –

A. 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 they 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 as testamentary heirs.

1238. Grandchildren; collation of donations made by grandparent after death of parent –

A. To make descendants liable to collation, as prescribed in the preceding Articles, they must appear in the quality of heirs to the succession of the ascendants from whom they immediately have received the gift or legacy.

B. Therefore, grandchildren, to whom a gift was made or a legacy left by their grandfather or grandmother, after the death of their father or mother, are obliged to collate, when they are called to the inheritance of the grandfather or grandmother, jointly with the other grandchildren, or by representation with their uncles or aunts, brothers or sisters of their father or mother, because it is presumed that their grandfather or grandmother had intended to make the gift, or leave the legacy by anticipation.

SUCCESSION OF HURD

The New Forced Heirship Law, Its' lmplementing Legislation, and Major Substantive Policy Changes of the Louisiana State Law Institute's Proposed Comprehensive Revision of the Successions and Donations Laws

SUCCESSION OF SIMMS

Avoiding collation through renunciation: La. C.C. 1237

1237 Renouncing heir’s right to donation not exceeding disposable portion –

If children, or other lawful descendants holding property or legacies subject to be collated, should renounce the succession of the ascendant, from whom they have received such property, they may retain the gift, or claim the legacy to them made, without being subject to any collation.

If, however, the remaining amount of the inheritance should not be sufficient for the legitimate portion of the other children, including in the succession of the deceased the property which the person renouncing would have collated, had he become heir, he shall then be obliged to collate up to the sum necessary to complete such legitimate portion.

GRANDCHAMPS V. DELPEUCH

Property Subject to Collation: La. C.C. 1243-1250

SUCCESSION OF PIERSON

SUCCESSION OF HOFFPAUIR

SUCCESSION OF MOORE v. MOORE

SUCCESSION OF GOMEZ

SUCCESSION OF SKYE

Collation of the Manual Gift

When Collation May Occur

SUCCESSION OF DELESDERNIER

SUCCESSION OF WEBRE

SOME ASPECTS OF COLLATION

How collations are made: LA C.C. 1251-1288

BALLIO v. BALLIO

Collation of fruits

SUCCESSION OF DOLL v. DOLL

................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download