A Civil Law Tradition
Art. 1519. Impossible, illegal or immoral conditions. In all dispositions inter vivos and morris causa impossible conditions, those which are contrary to the laws or to morals, are reputed not written.
Art. 1495. Amount of forced portion and disposable portion. 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. Nevertheless, if the fraction that would otherwise be used to calculate the legitime is greater than the fraction of the decedent’s estate to which the forced heir would succeed by intestacy, then the legitime shall be calculated by using the fraction of an intestate successor.
Art. 1493. Forced heirs; representation of forced heirs. A. Forced 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 or descendants 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.
B. When 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 decedent’s death.
C. However, 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 or her person or administering his or her estate at the time of the decedent’s death, regardless of the age of the descendant of the first degree at the time of the decedent’s death.
D. For purposes of this Article, a person is twenty-three years of age or younger until he attains the age of twenty-four years.
E. 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 documentation, an inherited, incurable disease or condition that may render them incapable of caring for their persons or administering their estates in the future.
Art. 1494. Forced heir entitled to legitime; exception. A forced heir may not be deprived of the portion of the decedent’s estate reserved to him by law, called the legitime, unless the decedent has just cause to disinherit him
Art. 1581. Persons incompetent to be witnesses. A 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 or unable to read cannot be a witness to a notarial testament under Article 1579.
Art. 1582. Effect of witness or notary as legatee. The 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.
Art. 1582.1. Persons prohibited from witnessing; effect. A 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 the spouse of a legatee does not invalidate the testament; however, a legacy to a witness’ spouse is invalid, if the witness is the spouse of the legatee at the time of the execution of the testament. If the legacy is invalid under the provisions of this Article, and if the legatee would be an heir in intestacy, the legatee may receive the lesser of his intestate share or legacy in the testament. Any testamentary terms or restrictions placed on the legacy shall remain in effect.
Art. 1470. Persons capable of giving or receiving. All persons have capacity to make and receive donations inter vivos and mortis causa, except as expressly provided by law.
Art. 1472. Capacity to receive, time for existence. Capacity 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 death of the testator.
Art. 1474. Unborn children, capacity to receive. To 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.
Art. 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 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. Legacies can be particular, general, or universal. C.C. art. 1584. Even though technically a particular legacy is any legacy that is not a general or universal legacy (C.C. art. 1587), it is easiest to understand it as a legacy of a specific thing or things. A legacy is general when it is expressed as a proportion or a fraction of an estate after disposition of particular legacies. C. C. art. 1586. An example would be “1/2 of all the property I own at my death.” A legacy is universal when it is all of an estate or the balance of the estate after disposition of particular legacies. C. C. art. 1585. An example would be “I bequeath my entire estate to …. ”
Art. 1584. Kinds of testamentary dispositions. Testamentary dispositions are particular, general, or universal.
Art. 1585. Universal legacy. A 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.
Art. 1586. General legacy. A general legacy is a disposition by which the testator bequeaths a fraction or a certain proportion of the estate, or a·fraction or certain proportion of the balance of the estate that remains after particular legacies. 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.
Art. 1587. Particular legacy. A legacy that is neither general nor universal is a particular legacy. Determining what happens to a legacy when it lapses (accretion), as well as preference of payments and reductions for rights of creditors, depends on whether the legacy iis particular, general, or universal. See generally C.C. arts. 1423, 1590, 1599.
Art. 1423. Decedent’s debts charged ratably. Debts of the decedent are charged ratably to property that is the object of general or universal legacies and to property that devolves by intestacy, valued as of the date of death. When such property does not suffice, the debts remaining are charged in the following order: (1) Ratably to the fruits and products of property that is the object of general or universal legacies and of property that devolves by intestacy; and (2) Ratably to the fruits and products of property that is the object of particular legacies, and then ratably to such property.
Art. 1590. Testamentary accretion. Testamentary accretion takes place when a legacy lapses. Accretion takes place according to the testament, or, in the absence of a governing testamentary provision, according to the following Articles.
Art. 1591. Accretion of particular and general legacies. When 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.
Art. 1592. Accretion among joint legatees. When 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.
Art. 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.
Art. 1594. [Reserved].
Art. 1595. Accretion to universal legatee. All legacies that lapse, and are not disposed of under the preceding Articles, accrete ratably to the universal legatees.When a general legacy is phrased as a residue or balance of the estate without specifying that 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.
Art. 1596. Accretion to intestate successors. Any portion of the estate not disposed of under the foregoing rules devolves by intestacy.
Art. 1597. Loss, extinction, or destruction of property given. A. A legacy is extinguished to the extent that property forming all or part of the legacy is lost, extinguished, or destroyed before the death of the testator. However, the legatee is entitled to any part of the property that remains and to any uncollected insurance proceeds attributable to the loss, extinction, or destruction, and to the testator’s right of action against any person liable for the loss, extinction, or destruction.
B. A 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.
C. If the object of the legacy has been condemned or expropriated prior to the testator’s death, the legatee is entitled to any uncollected award and to succeed to any right of action concerning the condemnation or expropriation.
Art. 1598. Right of legatees to fruits and products. All legacies, whether particular, general, or universal, include the 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 succession. Nevertheless, the legatee of a specified amount of money is entitled to interest on it, at a reasonable rate, beginning one year after the testator’s 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 other modification with regard to payment of interest as the court deems appropriate. If, however, the legacy is subject to a usufruct for life of a surviving spouse or is held in trust subject to an income interest for life, to or 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.
Art. 1599. Payment of legacies, preference of payment. If the testator has not expressly declared a preference in the payment of legacies, the preference shall be governed by the following Articles.
Art. 1600. Particular legacies. preference of payment. A particular legacy must be discharged in preference to all others.
Art. 1601. Preference of payment among particular legacies. If 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 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.
Art. 1602. Discharge of an unsatisfied particular legacy. Intestate successors and general and universal legatees are personally bound to discharge an unpaid particular legacy; each in proportion to the part of the estate that he receives.
Art. 1603. [Reserved]·
Art. 1604. Discharge of legacies, limitation of liability. In all the foregoing instances, a successor who is obligated to discharge a legacy is personally liable for his failure to do so only to the extent of the value of the property of the estate that he receives, valued as of the time of receipt. He is not personally liable to other successors by way of contribution or reimbursement for any greater amount.
Art. 1579. Notarial testament; testator unable to read. When a testator does not know how to read, or is physically impaired to the extent that he cannot read, whether or not he is able to sign his name, the procedure for execution of a notarial testament is as follows:
(1) The written testament must be read aloud in the presence of the testator, the notary, and two competent witnesses. The witnesses, and the notary if he is not the person who reads the testament aloud, must follow the reading on copies of the testament. After the reading, the testator must declare or signify to them that he heard the reading, and that the instrument is his testament. If he knows how, and is able to do so, the testator must: sign his name at the end of the testament and on each other separate page of the instrument.
(2) In the presence of the testator and each other, the notary and witnesses must sign the following declaration, or one substantially similar: “This testament has been read aloud in our presence and in the presence of the testator, such reading having been followed on copies of the testament by the witnesses[, and the notary if he is not the person who reads it aloud,] and in our presence the testator declared or signified that he heard the reading, and that the instrument is his testament, and that he signed his name at the end of the testament and on each other separate page; and in the presence of the testator and each other, we have subscribed our names this __ day of___,___.”
(3) If the testator does not know how to sign his name or is unable to sign because of a physical infirmity, he must so declare or signify and then affix his mark, or cause it to be affixed, where his signature would otherwise be required; and if he is unable to affix his mark he may direct another person to assist him in affixing’ a mark or to sign his name in his place. The other person may be one of the witnesses or the notary. In this instance, the required declaration must be modified to recite in addition that the testator declared or signified that he did not know how to sign his name or was unable to do so because of a physical infirmity; and that he affixed, or caused to be affixed, his mark or name at the end of the testament and on each other separate Page.
(4) A person who may execute a testament authorized by either Article 1577 or 1578 may also execute a testament authorized by this Article.
Art. 1580. Notarial testament in braille form. A testator who knows how to and is physically able to read braille, may execute a notarial testament according to the following procedure:
(1) In the presence of a notary and two competent witnesses, the testator must declare or signify that the testament, written in braille, is his testament, and must sign his name at the end of the testament and on each other separate page of the instrument.
(2) In the presence of the testator and each other, the notary and witnesses must sign the following declaration, or one substantially similar: “In our presence the testator has signed this testament at the end and on each other separate page and has declared or signified that it is his testament; and in the presence of the testator and each other we have hereunto subscribed our names this __ day of___,___.”
(3) If the testator is unable to sign his name because of a physical infirmity, he must so declare or signify and then affix,. or cause to be affixed, his mark where his signature would otherwise be required; and if he is unable to affix his mark he may direct another person to assist him in affixing a mark, or to sign his name in his place. The other person may be one of the witnesses or the notary. In this instance, the required declaration must be modified to recite in addition that the testator declared or signified that he was unable to sign his name because of a physical infirmity; and that he affixed, or caused to be affixed, his mark or name at the end of the testament and on each other separate page.
(4) The declaration in the notarial testament in braille form must be in writing, not in braille.
Art. 1580.1. Deaf or deaf and blind notarial testament; form; witnesses. A. A notarial testament may be executed under this Article only by a person who has been legally declared physically deaf or deaf and blind and who is able to read sign language, braille, or visual English.
B. The notarial testament shall be prepared and shall be dated and executed in the following manner.
(1) In the presence of a notary and two competent witnesses, the testator shall declare or signify to them that the instrument is his testament and shall sign his name at the end of the testament and on each other separate page of the instrument.
(2) In the presence of the testator and each other, the notary and the witnesses shall then sign the following declaration, or one substantially similar: “The testator has signed this testament at the end and on each other separate page, and has declared or signified in our presence that this instrument is his testament, and in the presence of the testator and each other we have hereunto subscribed our names this ___ day of ___,___.”
C. If the testator is unable to sign his name because of a physical infirmity, the testament shall be dated and executed in the following manner:
(1) In the presence of a notary and two competent witnesses, the testator shall declare or signify by sign or visual English to them that the instrument is his last testament, that he is unable to sign because of a physical infirmity, and shall then affix his mark at the end of the testament and on each other separate page of the instrument.
(2) In the presence of the testator and each other, the notary and the witnesses shall then sign the following declaration, or one substantially similar: “The testator has declared or signified by sign or visual English that he knows how to sign his name but is unable to sign his name because of a physical infirmity and he has affixed his mark at the end and on each other separate page of this testament. and declared or signified in our presence that this instrument is his testament and in the presence of the testator and each other we have hereunto subscribed our names this ___ day of ___,___.”
D. The attestation clause required by Subparagraphs B(2) and C(2) shall be prepared in writing.
E.(1) A competent witness for the purposes of this Article is a person who meets the qualifications of Articles 1581 and 1582, and who knows how to sign his name and to read the required attestation clause, and is physically able to do both. At least one of the witnesses to the testament shall also meet the qualifications of a certified interpreter for the deaf as provided for in R.S. 46:2361 et seq.
(2) The test tor shall be given the choice of accommodation services afforded by the use of large print, braille, or a tactile interpreter.
Art. 1578. Notarial testament; testator literate and sighted but physically unable to sign. When a testator knows how to sign his name and to read, and is physically able to read but unable to sign his name because of a physical infirmity, the procedure for execution of a notarial testament is as follows:
(1) In the presence of the notary and two competent witnesses, the testator shall declare or signify to them that the instrument is his testament, that he is able to see and read but unable to sign because of a physical infirmity, and shall affix his mark where his signature would otherwise be required; and if he is unable to affix his mark he may direct another person to assist him in affixing a mark, or to sign his name in his place. The other person may be one of the witnesses or the notary.
(2) In the presence of the testator and each other, the notary and the witnesses shall sign the following declaration, or one substantially similar: “In our presence the testator has declared or signified that this is his testament, and that he is able to see and read and knows how to sign his name but is unable to do so because of a physical infirmity; and in our presence he has affixed, or caused to be affixed, his mark or name at the end of the testament and on each other separate page, and in the presence of the testator and each other, we have subscribed our names this ___ day of __ ,___ .”
Art. 1577. Requirements of form. The notarial testament shall be prepared in writing and dated and shall’ be executed in the following manner. If the testator knows how to sign his name and to read, and is physically able to do both, then:
(1) In the presence of a notary and two competent witnesses, the testator shall declare or signify to them that the instrument is his testament and shall sign his name at the end of the testament and on each other separate page.
(2) In the presence of the testator and each other, the notary and the witnesses shall sign the following declaration, or one substantially similar: “In our presence the testator has declared or signified that this instrument is his testament and has signed it at the end and on each other separate page, and in the presence of the testator and each other we have hereunto subscribed our names this ___day of ___,___.”
Art. 1576. Notarial testament. A notarial testament is one that is executed in accordance with the formalities of Articles 1577 through 1580.1.
Art. 1577. Requirements of form. The·notarial testament shall be prepared in writing and dated and shall be executed in the following manner. If the testator knows how to sign his name and to read, and is physically able to do both, then:
(1) In the presence of a notary and two competent witnesses, the testator shall declare or signify to them that the instrument is his testament and shall sign his name at the end of the testament and on each other separate page.
(2) In the presence of the testator and each other, the notary and the witnesses shall sign the following declaration, or one substantially similar: “In our presence the testator has declared or signified that this instrument is his testament and has signed it at the end and on each other separate page, and in the presence of the testator and each other we have hereunto subscribed our names this ___day of ___,__.”
Art. 1575. Olographic testament. A. An olographic testament is one entirely written, dated, and signed in the hand-writing of the testator. Although the date may appear anywhere in the testament, the testator must sign the testament at the end of the testament. If anything is written by the testator after his signature, the testament shall not be invalid and such writing may be considered by the court, in its discretion, as part of the testament. The olographic testament is subject to no other requirement as to form. The date is sufficiently indicated if the day, month, and year are reasonably ascertainable from information in the testament as clarified by extrinsic evidence, if necessary.
B. Additions and deletions on the testament may be given effect only if made by the hand of the testator.
