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____________________________ PART II: SUCCESSIONS ____________________________

II Successions

A General principles

1 Opening of succession

a Definition

What is meant by the “opening” of a succession? Is there only one “meaning”? Read the following doctrinal materials:

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3 Victor Marcadé, EXPLICATION THÉORIQUE ET PRATIQUE DU CODE NAPOLÉONnos 22-24, at 13-15 (7th ed. 1873 ; Carlos Lazarus tr. 1970)

22. By the phrase "opening of the succession" is meant the fixing of the rights of those who are called thereto; the transformation of their hope into an existing right and of their quality as presumptive heirs into real successors. It is thus at the time the succession is opened that one must, in order to qualify as heir, fulfill the condition imposed by law; and he who will have ceased to fulfill these conditions just prior to the opening of the succession, or who will have fulfilled them some instant later, cannot be heir. Only one event opens the succession of a person, viz.: his natural or civil death.

In Rome, it was not precisely upon the death of the deceased that the intestate succession was opened; it was at the time it became certain that there was no testamentary heir. And, as it was essential that the heir be at least conceived before the death of the de cujus, the combination of these two rules sometimes brought about results totally devoid of reason and which, under our Art. 718 [C.N. Art. 718] cannot occur. Thus, Pierre dies leaving an only son, Paul, and a testament instituting a stranger as his testamentary heir; six months later Paul's wife becomes pregnant and Paul dies; later the instituted heir renounces the succession. What then? Under Roman law, Paul's child, who is Pierre's grandchild, could not take the succession of his grandparent. He could not take as heir of Pierre, for he was not yet conceived when Pierre died; nor could he take it as heir of his father Paul on the theory that it devolved upon Paul before his death, because Paul died before the succession was actually opened. Paul's child was thus deprived of the succession of his grandfather.

With us, this inequitable result is impossible because, since the succession is always opened by the death of the de cujus, it would have devolved upon Paul prior to his death, who would then have transmitted it to his child in his own right.

23. Generally, the determination of the precise instant of death is unnecessary. When the presumptive heir of the deceased has outlived the deceased by some time, the exact moment of the death of the latter is of no importance. Thus, if the date of my mother's death was January 10, 1842, and a few days later, I, as her only child, come to claim her succession, it would make no difference whether she died at any given hour

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in the morning, noon, or night, for in any case, it is evident that I existed when she died and that, consequently, I have inherited her succession.

But when the same presumptive heir of the deceased has also died more or less at the same time, it is of the utmost importance to determine the exact time at which each of them died; thus where Pierre, whose only presumptive heirs are his paternal cousin Paul and his maternal cousin Jacques, and the paternal cousin dies on the same day as Pierre, it is extremely important to determine which of them died first. If Pierre dies before Paul, the latter inherits one-half of the succession and transmits it to his own relations; but if it is Paul who dies before Pierre, Paul's entire succession belongs to Jacques, the maternal cousin. In other words, where Paul, Pierre's paternal cousin is his only relation, he will take the entire succession if he has survived him; while if he dies first, it will pass either to Pierre's widow or to the state if Pierre was not married. The reason for this is that in order to be able to inherit the heir must exist at the instant the succession becomes opened. (Art. 725) (R.C.C. Art. 939)

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Cynthia Samuel, Katherine S. Spaht & Cynthia Picou,SUCCESSIONS & DONATIONS: CASES & READINGS 62 (Fall 2000)

The term "opening of the succession" or “commencement of succession” means, as Marcadé puts it, the time when the rights of those who are called to the succession come into existence. The term is also used, however, to refer to the "steps" required to effect the judicial transmission of the succession to the legal heirs. Art. 2811 of the Louisiana Code of Civil Procedure provides:

A proceeding to open a succession shall be brought in the district court of the parish where the deceased was domiciled at the time of his death.

If the deceased was not domiciled in this state at the time of his death, his succession may be opened in the district court of any parish where:

(1) Immovable property of the deceased is situated; or(2) Movable property of the deceased is situated, if he owned no

immovable property in the state at the time of his death.________

NOTE

To a purist such as myself, the use to which the Code of Civil Procedure puts the phrase “opening of a succession” is “barbaric” (that is to say, reflects ignorance of juridical science) and, therefore, is to be avoided like the plague. When I use the phrase “opening of a succession,” I shall use it only in the sense explicated by Marcadé, that is, as the event whereupon the property of the deceased devolves upon his successors, namely, his death. When I want to refer to what the Code of Civil Procedure calls the “opening of a succession” I shall use, instead, the phrase “initiation of succession proceedings.” You, of course, will be expected to conform to this usage as well.

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b Prerequisites

1) Actual death

a) Definition

What is “death”? See CC art. 25 cmt. (c) & La. R.S. 9:111.

b) Proof. Several possibilities:________

C.C.P. Art. 2821. Evidence of Jurisdiction, death, and relationship. . .The deceased's death, his marriage, and all other facts necessary to establish the

relationship of his heirs may be evidenced either by official certificates issued by the proper public officer, or by affidavits.

C.C.P. Art. 2822. Requirements of affidavit evidenceThe affidavits referred to in Art. 2821 shall be executed by two persons having

knowledge of the facts sworn to. These affidavits shall be filed in the record of the succession proceeding.

C.C.P. Art. 2823. Additional evidenceIn any case in which evidence by affidavit is permitted under Art. 2821, the court

may require further evidence of any fact sworn to therein by the introduction of evidence as in ordinary cases.

C.C.P. Art. 2824. No affidavit evidence of factual issuesNo fact which is an issue in a contradictory proceeding in a succession may be

proved by affidavit under Art. 2821 and 2822. In all such contradictory proceedings, issues of fact shall be determined on the trial thereof only by evidence introduced as in ordinary cases.

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1] Documentary evidence:

a] Death certificate signed by attending physician or coroner (CCP 2821, ¶ 2)

b] Affidavits of 2 witnesses to event of death (CCP 2822)

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2] Testimonial evidence (CCP 2823)

2) Presumed death

a) Disappearance upon exposure to great peril (CC art. 30)

1] Explication

2] Illustration

SH 1. Several years after Pascal purchased a life insurance policy (on his own life) from Cajun Insurers, Inc., he was diagnosed with TB. His condition thereafter worsened, and he allegedly became despondent and melancholy. Then he just disappeared. Seven years later, Jolie, as the beneficiary of the policy, sued Cajun for the proceeds. Can Jolie prove Pascal's death? Why or why not? See the jurisprudence that follows:

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Bennett v. Equitable Life Assur. Soc.,180 La. 238, 156 So. 290 (1934)

LAND, Justice.Plaintiff, as beneficiary, sues to recover $3,941.16 on a life insurance policy for

$5,000, issued by defendant on the life of Jack H. Bennett, plaintiff's husband, who disappeared from his home in the city of New Orleans in March, 1924.

. . .The only issue involved is whether or not plaintiff's husband has been proved to

be dead and plaintiff is therefore entitled to recover under the policy.The facts alleged in the petition to support the presumption of death are

substantially as follows: . . . Jack H. Bennett left his home in the city of New Orleans on or about March 27, 1924, and has never been heard from since that time; . . . he was 47 years of age when he left; . . . he had been suffering from pulmonary tuberculosis, and had been under the treatment of a physician therefor from January, 1923, to December, 1923, but that, instead of improving, his condition steadily grew worse; . . . the knowledge that he was afflicted with that disease and that his condition showed no improvement under treatment made him melancholy and despondent, which was his condition at the time he left March 27, 1924, and during the time just preceding his departure; . . . the condition of his health from the ravages of the disease was such that it would have been impossible for him to have survived as long as a period of seven years; . . . at the time he left and prior thereto he was on good terms with plaintiff, his wife; . . . he had always been kind, thoughtful, and affectionate towards her, and that his failure to have communicated with her since March, 1924, is irreconcilable with his

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previous conduct towards her; . . . shortly before he left he had suffered a serious hemorrhage of the lungs, and his health was steadily growing worse; . . . the failure of plaintiff to receive any word from him during the period of more than seven years since he left home, in contrast with his previous thoughtful and affectionate disposition towards plaintiff, can be reasonably explained under no other hypothesis than that he is dead.

. . .Dr. George S. Bel, of New Orleans, the principal witness for plaintiff, testified

that he treated Bennett from January 12, 1923, until December 18, 1923, and that Bennett was suffering from pulmonary tuberculosis. He further testified that Bennett was not in the last stages of consumption, and that he never treated him at home, but that the patient came to his office for all treatments. The doctor testified:

'Q. Was his condition such that it would have been reasonably possible for it to have brought on his death within a period, say, of seven years after you saw him? 'A. Why, sure, possibly it could have brought on his death. 'Q. Well, would you have considered it very unusual or extraordinary if it brought on his death within that period? 'A. The death of an individual of this type, the way we draw our conclusions, would be if he followed out the proper directions and took a first class rest and all such things like that, it is possible he would not have died. 'Q. The question is whether it is possible he would have died? 'A. Yes, sir, it was possible. 'The Court: ‘Q. What are the probabilities, Doctor? 'A. It is just probable. I could not say whether the man is dead or alive or note.’

. . . 'By a maxim, consecrated by the best authorities, every absentee, whose death is not clearly and precisely established, is presumed to live until the age of one hundred years; that is to say the most remote period of the ordinary life of man. 1 Denisart, 13, Verbo Absens. 'An absentee is presumed to live until the contrary is proved: otherwise the absence must be such, that the life of a man, who may live one hundred years, should be presumed to have ended. 1 Ferriere, 13, Verbo Absens. 'Death is never presumed from absence, therefore he who claims an estate, on account of a man's death, is always held to prove it. An absentee is always reputed living, until his death be proved--or until one hundred years have elapsed since his birth. 2 Ferriere, 226, Verbo Mort. 'Although a man be absent, and there be no account of him, his death is not to be presumed: they do not proceed to the division of his estate, for he is presumed to live one hundred years. 2 Pigeau, 2.'

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. . .In Martinez v. Succession of Vines, . . . it is said . . .: 'There are occurrences--as a wreck, a battle, or the like--which would authorize a court in presuming the death of one, known to have been exposed to the perils of either; but such a presumption 'must be weighty, precise and consistent.' The ascertained facts on which it is rested, must draw with them, as a necessary consequence, the unascertained facts sought to be established, 'and exclude every other rational conclusion.''

So, where the absentee had not been heard from for more than twenty years, and was last heard from about a year before the great earthquake and fire at San Francisco in the year 1906, and the house in which he was then living had been destroyed in the earthquake and fire, and some 1,200 corpses could not be identified, it was held that the reasonable conclusion was that the absentee was dead. Marrero v. Nelson . . . .

Where the absentee lived in the city of New Orleans and was shown to have left home on shipboard for a nearby port, where yellow fever was raging, and the boat was shown to have left there for some other distant port, and neither the boat not the absentee ever returned or was heard of again, the lapse of thirty- five years and absence under such circumstances were held to be sufficient to justify the conclusion that the absentee was dead. Sterrett v. Samuel . . . .

In Boyd v. New England Mutual Life Ins. Co. . . , the absentee disappeared from a ship at sea. Nearly seven years elapsed since the date of his disappearance without any tidings from him. His absence under such circumstances was held to support the conclusion that he was dead.

But, in the case at bar, the absentee's own physician testifies that 'it is just probable' that Bennett is dead, and would not state that it was his opinion that he was dead. There is no evidence in the record to show that the absentee has been exposed to any peril of life during his absence. The letter written by the absentee to his wife on the morning he disappeared does not suggest any suicidal intent or purpose. It reads as follows:

'Honey: 'Do not worry when you get this as I am doing what I think best for all of us. 'I met an old time friend Tuesday and he offered me a job as a pipe fitter for a big oil company in Oklahoma and has waited since then to take me with him in his car. I will make from ten to fifteen dollars per day. 'I hate to do this but will make up to you and Chester many times when I get to making real money. Will enclose ten dollars for your immediate needs and send more as soon as I reach Vanita. 'Tell Chester that I love him . . . . 'We leave at 1 P. M. today. 'Over. 'Don't forget dearest it is for your sake that I want to make more money. 'Love to all.

Jack.'. . .

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In this letter Bennett makes no statement that he thought death impended or that he was not going to get well. On the contrary, he indicated that his purpose in leaving was to work and earn more money.

. . .The trial judge, who saw and heard the witnesses testify, decided that no such

presumption had been established by the facts developed and dismissed plaintiff's suit. We find no error in his conclusion.

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3] Prerequisites

a] Exposure to circumstances in which "death seems certain" (CC art. 30 cmt. (b))

b] Illustrations of such circumstances (Bennett)

c] Contemporaneous disappearance

4] Proof (of predicate facts)

b) Missing in action (La. R.S. 9:1441-1443)

1] Prerequisites (1441)

a] Active member of armed service

b] Reported missing

c] Armed service to which he was attached accepts the presumption of his death

2] Proof (of predicate facts): certified copy of official certificate of armed service to which he was attached indicating that this service has accepted the presumption of his death

c) Long absence (per 934 & 54)

1] Prerequisites:-349-


a] Absence (CC art. 47)

b] Long (CC art. 54)

2] Proof (of predicate facts)

c Fixing the opening date

1) Where death is established through some means other than under CC art. 54

a) Initial date: as determined by court

b) Revised date (?)

2) Where death is established in the manner set out in CC art. 54

a) Initial date: date of death as determined by court

b) Revised date (CC art. 56)

1] Proof: new evidence of a different date of death (56-1)

2] Standard: clear & convincing evidence (56-1)

c) Effects (CC art. 56-2)

1] What must be restored (comment (c))

a] Property itself, if initial successors still have it

b] If not (i.e., if already alienated), then value

2] What need not be restored: gathered fruits

d Reversal of opening-350-


1) Not actual death

2) Presumed death

a) Disappearance upon exposure to great peril (CC art. 30)

b) Missing in action (9:1441-1443)

1] Possibility of reversal (§ 1442)

2] Effects of reversal

a] Return of property itself or, if transferred, its value plus "damages" for diminished value due to encumbrances

b] Revenues, amount dependent on time of return

3] Prescription: 30 years

c) Long absence (CC arts. 934 & 54)

1] Possibility of reversal (CC art. 57).

2] Effects of reversal: right of recovery (comment (c))

3] Prescription: none

e Order of opening: commorientes________

Cynthia Samuel, Katherine S. Spaht & Cynthia Picou,SUCCESSIONS & DONATIONS: CASES & READINGS 63-64 (Fall 2000)

Suppose heirs who are reciprocally entitled to inherit from each other die together in circumstances where it can not be determined who died first? For example, suppose a husband and wife, neither of whom has descendants, die together in an airplane crash. Neither H nor W made a will. They are reciprocal heirs ab intestato for their community property. If it could be proven that W survived H, the result would be that

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W inherited H’s community property and transmitted it as part of her estate to her heirs. H’s family would receive none of H’s community property. Likewise, if it could be proven that H survived W, H would have inherited W’s community property and would have transmitted it as part of his estate to his heirs. W’s family would receive none of her community property.

Prior to July 1, 1999 the solution offered by the Louisiana Civil Code followed that of Roman Law: code articles created artificial presumptions that depended on the respective ages of the reciprocal heirs (and at one time also the sex of the heirs). These presumptions, called the “commorientes presumptions,” dictated which heir survived the other. Thus in the example above, if both H and W were over the age of sixty but W was younger, W would have been presumed to have survived H, and H’s family would have received none of his community property. See R.C.C. arts. 936-938 (repealed).

The commorientes presumptions had long been criticized as yielding an arbitrary and unsatisfactory result. They were repealed effective July 1, 1999.

What now is the solution to the problem above? The commorientes presumptions derogated from the general rule of Article 31, which provides: “One claiming a right that has accrued to another person is bound to prove that such person existed at the time when the right accrued.”

In the example above, when the commorientes presumption of W’s survival was applied, W’s heirs did not have to prove, as article 31 would have made them prove, that in actual fact W existed when H died in order to claim that W inherited H’s community property and transmitted it to her heirs through her estate. The elimination of the commorientes presumptions means that Article 31 is applicable to the example. W’s heirs are claiming that a right accrued to W, namely, her right to inherit H’s community property. They must thus prove in actual fact that W existed when the right accrued, that is, that she existed at H’s death. Since H and W died in such a way that the order of their deaths can not be determined, W’s heirs will fail in their burden of proof. This means that H’s community property will devolve as if W did not survive. H’s family, not W’s, will receive H’s community property. Likewise, H’s heirs can not prove that H survived W, as Article 31 would require them to do in order to claim W’s community property. So W’s community property devolves to W’s family, not H’s.

When Article 31 applies, there can be no transmission without proof of survival. The application of Article 31 thus gives the same result as if H and W had died simultaneously. Louisiana’s solution is now like that of the presumption of simultaneous death of other states.

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1) The problem

SH 2. Pascal and Julie are out for an evening of dancing at a bal de maison, when, suddenly and without warning, an asteroid falls from the sky, crushing the house and killing them. Neither leaves any descendants or

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ascendants, though each leaves a sibling: Pascal, his brother, Basile, and Julie, her sister, Suzanne. (i) Who would end up getting all of the community property if Pascal had predeceased Julie? Why? (ii) Who would end up getting the property if Julie had predeceased Pascal? Why? See CC arts. 889 & 892, ¶ 1.

* Possible solutions

a) Approach #1: Rules based on characteristics pertinent to survivability (CC arts. 937-938 (1870))

b) Approach #2: Arbitrary presumption

c) Approach #3: Independent devolution

3) The chosen solution (CC art. 935 cmt. (g))

How should SH 2 be resolved, i.e., who gets what? Why?

Is the rule for the distribution of life insurance proceeds, where the insured (de cujus) and the beneficiary (successor) perish together, the same or different from that indicated in CC art. 935 cmt. (g)? Explain. See the legislation that follows:

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La. R.S. 22:645. Payment of proceeds; simultaneous deathsWhere the individual insured and the beneficiary designated in a life insurance

policy or policy insuring against accidental death have died and there is not sufficient evidence that they have died otherwise than simultaneously, the proceeds of the policy shall be distributed as if the insured had survived the beneficiary, unless otherwise expressly provided in the policy.

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2 Aptitude to succeed: incapacity & declaration of unworthiness

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9 Charles Aubry et Charles Rau, Droit Civil Français § 591, at 364(6th ed. 1953; Carlos Lazarus tr. 1970)

§ 591. General Concepts.In matters of succession, an incapable is a person who lacks the qualities to which

the law has subordinated the right to inherit from another.-353-


A person is unworthy in matters of succession when, as punishment for his conduct towards the decedent or his memory, he has been judicially divested of his right to inherit.

Incapacity produces its effects by operation of law. It prevents hereditary seizin.Unworthiness likewise produces its effect before a judgment has decreed that it

has been incurred. Unworthiness is incurred even if the unworthy one has died before such a judgment has been rendered. And this judgment carries with it the resolution of any real rights to the inheritance that the unworthy person has granted to third parties, unless the latter can show that in acquiring their rights, they relied on the fact that the unworthy person was a presumptive heir. [Cf. La. C.C. Arts. 941, 945.]

He who has been declared unworthy is excluded only from the succession of the person with regard to whom he has been found guilty of the fault, on which his unworthiness is founded.

Unworthiness and incapacity may be urged by any one having a legal interest in doing so, especially by the other heirs or universal successors, by the donees or legatees of the de cujus, as well as by the creditors of these last.

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Cynthia Samuel, Katherine S. Spaht & Cynthia Picou,SUCCESSIONS & DONATIONS: CASES & READINGS 104-05 (Fall 2000)

The Louisiana Civil Code treats of incapacity and unworthiness in La. Civ. Code arts. 939-946. It provides that in order to inherit ab intestato, a person must be capable of inheriting at the time the succession is opened in his favor. But since everyone is capable of inheriting, even lunatics, it would appear that the only requirement is that the heir be in existence at the moment of the death of the de cujus.

A person is in existence, even though he has not been born, if he has already been conceived at the time of the opening of the succession. A condition to inheritance by the conceived child is that the child be capable of succeeding at the moment of his birth.

Consequently, a child who has not been conceived at the moment of the opening of the succession would be incapable of inheriting, and a child born dead, or incapable of living, is equally incapable of inheriting, even though conceived at the time the succession was opened. See Aubry et Rau, supra.

To determine whether the child was conceived at the moment of the opening of the succession, the general assumptions made in La. Civ. Code arts. 184-186 can be helpful, particularly La. Civ. Code art. 185. Article 185 assumes that a child may have been conceived as long as 300 days before birth, which is a liberal assumption. Thus, if the decedent died within that 300-day period preceding the birth of the child born capable of living, a court could conclude that the child was conceived at the time of opening of the succession thus was capable of inheriting. Such conclusion would be reasonable absent proof to the contrary, such as expert testimony about the date of conception or lay testimony about the date of intimate relations between the decedent and the child’s mother. Article 186, furthermore, assists in identifying which of two

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husbands is the parent of the child by applying the presumption of paternity to the second husband if under Article 184 the child is conceived during the first marriage but born during the second marriage.

A more difficult inquiry occurs if the child born capable of living was the result of assisted conception. When is a child “conceived” if the child results from in vitro fertilization to which the mother submitted? The child became a human embryo, designated a “juridical” person (see La. Civ. Code art. 24), when after combining one or more female eggs with sperm, cell division took place sufficient to warrant implantation in the in vitro fertilization patient. See R.S. 9:121, 122. Does conception occur at the moment sufficient cell division or implantation occurs or at the time the human embryo is implanted in the patient? Cf. La. Civ. Code arts. 26, 940, 1474. By not using the same terminology for La. Civ. Code art. 940 that the legislature used for La. Civ. Code art. 1474 (in utero), the inference is that conception may occur before implantation in the mother’s womb. In addition, in 2000 the legislature amended the statutes governing birth certificates to define as biological mother and father the donors of egg and sperm, who are married to each other, and whose child is born from a surrogate who is a biological relative of one of the two donors. See La. R.S. 40:32(1), 34B(1).

There is a difference between incapacity and unworthiness. The person who is incapable has never inherited, while the person who has been declared unworthy is precluded from inheriting although he may otherwise be capable of inheriting. Before amendment and its effective repeal on July 1, 1999, Article 965 explained the difference.

Article 967 had provided that unworthiness is never incurred by the act itself; it must be pronounced judicially by a judgment against the heir. This was quite contrary to the French theory that unworthiness is effective before the judgment declaring the heir unworthy and that upon the rendition of the judgment all transactions by the unworthy heir concerning the succession are retroactively resolved. See Aubry et Rau, supra. The new articles on unworthiness implicitly provide for the same result as prior law. See Articles 941, 945.

An action for incapacity or for unworthiness, as the case may be, can be brought only by those who would be called to the succession in default of the unworthy heir, or by those who would inherit concurrently with him. Article 942. And finally, Article 943 provides that a suit for unworthiness cannot be sustained if there has been a reconciliation with or forgiveness by the de cujus.

The cause for which persons may be declared unworthy are contained in Article 941: the conviction of a crime involving the intentional killing, or attempted killing, of the decedent or having been judicially determined to have participated in the intentional unjustified killing, or attempted killing of the decedent.

Closely connected to the articles on unworthiness [a]re the articles which govern[ ] disinherison of forced heirs, which enumerate[ ] the causes for which a parent may disinherit his child. . . . Also in pari materia are the articles of the Code treating of the revocation of donations inter vivos. See Articles 1559-1569.

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a Incapacity

1) Definition (CC art. 950, ¶ 1 (1870))

2) Time of assessment (CC art. 939)

3) Procedure: burden of proof (CC art. 952 (1870))

4) Required qualities: existence (CC art. 939)

a) Coming into existence

1] One who has been born before the de cujus dies

2] One who has been conceived before the de cujus dies, provided he is later born alive (CC arts. 940)

a] Definition of conception (CC art. 26)

b] Determination of time of conception

1} Importance: for posthumously born child

2} Method: general presumptions of paternity

3} Illustrations

SH 3.1. H & W are married. H dies. W bears child, C, 6 months later. Does C inherit from H? Why or why not? See CC art. 185, s. 1.

SH 3.2. Same, but C is born 1 year after H's death. Does C inherit from H? Why or why not? See CC art. 185, s. 2.

SH 3.3. H1 & W are married. H1 dies. Wasting no time, W marries H2 3 months later. Another 3 months pass (6 months after H1 died), and W bears a child, C. Does C inherit from H1? Why or why not? See CC arts. 184-186.

3] One who (i) is fertilized after his father’s death and (ii) is implanted in the womb of

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the father’s widow, (iii) with written permission of the father, and (iv) is then born within 2 years of the father’s death (La. Rev. Stat. 9:391.1(2001))

b) Not going out of existence

1] Actual death (La. Rev. Stat. 9:111)

2] Presumed or declared death (CC art. 58)

a] Prerequisites

1} Presumed dead

a} Long absence (CC art. 54)

b} Disappearance upon exposure to great peril (CC art. 30)

c} Missing in action (R.S. 9:1441; CC art. 30 cmt. (c)).

2} Declared dead (CC arts. 54 & 58)

5) Effects

a) Transmission

1] Where representation is possible

2] Where representation is not possible

b) Seizin

b Unworthiness to succeed

1) Definition (CC art. 964 (1870))

2) Procedure

a) Standing to bring action

1] Statement of rule (CC art. 942)-357-


2] Illustration of rule

SH 4. H (husband) & W (wife) have a child, C. H dies, survived for sure by W, by C, and by B, his brother. H leaves behind only separate property. But there's good reason to believe that C may have caused H's death. Who can challenge C's worthiness to inherit? Why?

b) Prerequisite: judgment

Is unworthiness, like incapacity, self-operative? Why or why not? CC art. 941 cmt. (b) & CC art. 965 (1870)).

c) Proceeding

Can action for declaration of unworthiness be brought in a collateral, i.e., independent, proceeding? Why or why not? CC art. 941 s. 2 & comment (d).

d) Prescription

SH 5.1. H (husband) & W (wife) have a child, C. On June 1, 2000, H dies intestate, survived by W, by C, and by B, his brother. H’s succession is judicially opened, i.e., the court proceedings begin, on September 15, 2000. There’s good reason to believe that C may have caused H’s death. By what date must W or B bring suit to have C declared unworthy? Why? See CC art. 944.

SH 5.2. The same as before (SH 5.1), except that (i) H leaves a testament and (ii) the testament is probated the very same day on which the succession is judicially opened. What result now? Why? See CC art. 944.

3) Cause

a) Ground: Judicial determination of successful or attempted intentional killing of deceased (CC art. 941)

1] Successful or attempted intentional killing

SH 6.1. F, who has been drinking heavily, jumps behind wheel. His 2-year old son, S, is with him. F runs off the road into a bayou, killing S. S is survived by F and M. Can F be declared unworthy to inherit from S? Why or why not?

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SH 6.2. M, a Democrat, & her daughter, D, a Republican, get into a heated argument over who’s better–Gore or Bush. Out of their minds with rage, the two ladies begin to strangle each other. D dies as a result, survived by M and by her cousin, C. At the ensuing criminal trial, M testifies that though she had intended to hurt D, she did not have intent to kill her. Believing that testimony, the jury convicts M of manslaughter. Can M be declared unworthy to inherit from S? Why or why not?

DH 6.3. Near the end of their lives, H (husband) & W (wife) had some attorneys, evidently relatives of H, draw up testaments for them in which each was to leave 1/2 of his/her estate to his/her own siblings and the other 1/2 to the other spouse and his/her sibling. Neither will was ever executed. Two weeks later, W ended up in hospital in a comatose condition. At that time, H, his siblings, and the doctor decided to terminate W's life support, allegedly "in order to prevent [her] execution of a new will." W's siblings then brought suit against H and his siblings, seeking, among other things, a declaration that H was unworthy to inherit from W. H responded with an exception of no cause of action. If the allegations are accepted as true, can H be declared unworthy to inherit from W? Why or why not? See the jurisprudence that follows:

________

Perrier v. Bistes,650 So.2d 786 (La. App. 4th Cir. 1995)

WALTZER, J.Plaintiffs, siblings of decedent Thelma Reinike Bistes, brought suit against

decedent's husband, Jules Frank Bistes, his siblings Christian Bistes, Audry Bistes and Shirley Paciera, decedent's doctor, Frank Incaprera, MD, and Pendleton Memorial Methodist Hospital. Plaintiffs seek: (Count 1) a declaratory judgment that Jules Bistes is unworthy to inherit from his deceased wife; (Count 2) to be recognized as Mrs. Bistes' sole heirs; (Count 3) damages against the Bistes siblings, doctor and hospital for Mrs. Bistes' wrongful death and for their survival actions . . . .

. . .Counts 1 and 2 address Jules' alleged unworthiness to inherit his wife's estate.

The petition alleges that Jules and Thelma married in January, 1950, executed wills leaving their estates to each other, and were married at the time of Thelma's death. Jules was very ill for eight years prior to his wife's death. Approximately two weeks prior to Thelma's death, Vernon Bistes met with Jules, Christian and two attorneys, Kevin Kytle and Vincent Paciera. During the meeting it was agreed that Paciera would draft a will for Jules with an equal division of the estate between the Reinike and Bistes families and Kytle drafted a will for Thelma. Neither will was executed. On information and belief, on the morning of 30 August 1991, Audry, Shirley, Jules and unidentified family members conspired unlawfully to cause Thelma, who was then

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comatose, to be removed from life support in order to prevent execution of a new will. Thelma died three and one-half hours after Dr. Incaprera had her removed from life support.

Plaintiffs make no claim that any defendant has been charged by indictment or information, or been the subject of an investigation for intentionally having caused Thelma's death.

Whether Counts 1 and 2 survive or succumb . . . depends on whether these allegations, accepted as true, and interpreted in plaintiffs' favor, support a claim that Jules is unworthy to be his wife's heir pursuant to LSA-C.C. arts. 966 and 967. The gravamen of Counts 1 and 2 of the petition is that Jules' conspiracy to cease life support to his comatose wife constitutes "intentional, unjustified killing." We find such an interpretation to be inconsistent with the legislative intent of article 966.

In 1987, the Louisiana legislature enacted Act No. 354, H.B. No. 807, entitled: "SUCCESSIONS -- MURDERER UNWORTHY OF INHERITING -- REVOCATION OF TESTAMENT AN ACT to amend and reenact Civil Code Articles 966(1) and 1691, relative to successions, unworthiness of heirs and revocation of testaments, to provide that a [sic] heir who is convicted or judicially determined to have participated in the killing or attempted killing of the deceased shall be deemed unworthy to inherit and shall have a legacy revoked, and to provide for related matters." (Emphasis added)

While the legislature added as grounds for unworthiness the judicial determination of participation in the intentional, unjustified killing or attempted killing of the deceased, there is nothing in the language or history of Act No. 354 that would apply its provisions to a situation in which a medical determination was made to terminate life support to a comatose patient. We find the use of the word "murderer" in the title of Act 354 to be inconsistent with the interpretation suggested by plaintiffs.

We affirm the trial court's judgment granting Jules' exception of no cause of action as to Counts 1 and 2.

. . .

PLOTKIN, Judge, Dissenting with Written Reasons.The majority incorrectly and fallaciously interprets La. C.C. art. 966, and by

direct implication La.C.C. art. 1691 and La.C.C. art. 2315.5, finding that in civil cases, as a matter of law, an heir may not be disinherited unless he or she has been convicted of intentionally killing or attempting to kill the deceased. I strongly disagree with the majority's decision for three reasons: (1) the decision violates the established standards for appellate review of a trial court judgment granting an exception of no cause of action; (2) the majority's focus on the word "murderer" in the title of the act which amended La. C.C.P. art. 966 results in an interpretation contrary to the legislative intent in adopting the statute, and (3) the majority fails to recognize that the act was intended to prevent heirs from inheriting when they intentionally breach a duty to provide appropriate medical care when that failure causes the patient's death, with or without the assistance of a medical person. Thus, I respectfully dissent.

. . .

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Legislative intent of amendment to La.C.C. art. 966Prior to the 1987 amendment, La.C.C. art. 966 provided, in pertinent part, as

follows: “Persons unworthy of inheriting, and as such, deprived of the successions to which they are called, are the following: 1. Those who are convicted of having killed, or attempted to kill, the deceased; and in this respect they will not be the less unworthy, though they may have been pardoned after their conviction.”

In 1987, La.C.C. art. 966 was amended to read, in pertinent part, as follows: “Persons unworthy of inheriting, and as such, deprived of the successions to which they are called, are the following: 1. Those who are convicted of a crime involving the intentional killing or attempted killing of the deceased, or, if not convicted, who are judicially determined to have participated in the intentional, unjustified killing or attempted killing of the deceased. An executive pardon shall not restore the right to succeed.”

In the same act of the legislature which amended La.C.C. art. 966, La.C.C. art. 1691, relative to revocation of testaments, was amended. Prior to 1987, that provision stated, in pertinent part, as follows: “However, in all cases, a legacy or disposition shall be deemed revoked in the event that the legatee has unlawfully taken the life of the testator, and said legacy or disposition shall be deemed not written.”

The provision was amended to read, in pertinent part, as follows: “However, in all cases, a legacy or disposition shall be deemed revoked and not written when the legatee has been convicted of a crime involving the intentional killing or attempted killing of the testator or, if not convicted, is judicially determined to have participated in the intentional, unjustified killing or attempted killing of the testator. An executive pardon shall not affect the revocation.”

. . .Obviously, these . . . provisions--all enacted by the same legislature and all

dealing with the same subject area--should be read in pari materia. Further, both La.C.C. art. 966 and La.C.C. art. 1691 were amended in 1987 to extend the class of persons who could be disinherited to include those "who are judicially determined to have participated in the intentional, unjustified killing or attempted killing of the deceased" in addition to those "who are convicted of having killed, or attempted to kill, the deceased." That change in the language of the statute must be interpreted to indicate an intent to change the law to include a new class of persons subject to disinherison for any involvement in the intentional, unjustified death of the decedent. . . .

The majority ignores the fact that the 1987 amendments to La.C.C. art. 966 and La.C.C. art. 1691 were obviously intended to change the law by focusing on the legislature's use of the word "murderer" in the title to the act which effected the change, saying the use of that word is "inconsistent" with the plaintiffs' suggestion that it should apply to "a medical determination ... to terminate life support to a comatose patient."

First, I would note that the word "murderer" is not included in the language of the statute itself, but is found only in the title to the act which amended the statute. The title to the act is, of course, not a part of the law. Further, in my view, the use of the

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word "murderer" in the title is "inconsistent" with some of the express terms of the statute, since the language of the statute itself contemplates its application to everyone who has "been convicted of a crime involving the intentional killing or attempted killing of the deceased, or, if not convicted, who are judicially determined to have participated in the intentional, unjustified killing or attempted killing of the deceased." Certainly, people who have "attempted" to kill another are not commonly referred to as "murderers," nor are those who have been "judicially determined to have participated" in the intentional death of another. Thus, the majority's focus on the word "murderer" in the title to the act is misplaced.

Second, I believe that the plaintiffs' allegations in the instant case are sufficient to state a cause of action under La.C.C. art. 966 against the defendants. The plaintiffs specifically alleged in paragraph 45 of their petition that the defendants "conspired to unlawfully cause [the decedent] to be removed from life support" and that they "had as their sole objective to take whatever means necessary to defeat [the decedent] from executing a new Will in order that estate could be obtained solely by the [defendants]." Those allegations, if proven, would certainly give a court grounds to "judicially determine" that the defendants "participated in the intentional, unjustified killing or attempted killing" of the decedent.

. . .In addition to failing to recognize the fact that the plaintiffs' allegations are

sufficient to state a cause of action, the majority improperly characterizes the defendants' alleged actions as "a situation in which a medical determination was made to terminate life support to a comatose patient," saying La.C.C. art. 966 was obviously not intended to apply to such a situation. At this point in this case we are not dealing with such a situation. The plaintiff's well-pleaded allegations are to be accepted as true; the majority should not impose its interpretation of the facts, making unwarranted speculations and conclusions, when considering an exception of no cause of action.

A patient's family and treating physician are under a duty to provide appropriate medical care. The intentional failure to provide that medical care may result in a homicide, if the patient's death results from intentional active conduct on the part of the heir, including an omission to treat. For example, were an heir or a physician, at the urging of or with the collusion of the heir, to unplug a respirator which has supplanted a patient's natural breathing process, that act on the part of the heir or the physician would be intentional active conduct causing the patient's intentional, unjustified death. Similarly, when a physician intentionally fails to provide medical treatment at the request of an heir, the heir and the physician have "participated in the intentional, unjustified death of the deceased" for purposes of La.C.C. art. 966.

In other words, the intentional denial of medical treatment may be a cause, among other causes, that brings about a patient's death. Under such circumstances, the intentional conduct of multiple parties, acting in concert, may cause a patient's death. Such parties would often not be subject to criminal sanctions because of proof problems and lack of evidence. It was for these exact reasons that the legislature enacted the civil disinherison provisions in La.C.C. art. 966, La.C.C. art. 1691, and

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La.C.C. art. 2315.5. The unequivocal legislative intent was to authorize a civil procedure whereby a court could bar an heir from receiving any compensation or inheritance, if that court "judicially determined" that the heir "participated" in the intentional, unjustified death or attempted death of the deceased. This interpretation is fully consistent with Louisiana's Natural Death Act, La. R.S. 40:1299.58.1 et seq., which recognizes a patient's right to refuse medical treatment.

Thus, I would reverse the granting of the exception of no cause of action concerning Jules Bistes' worthiness to inherit from his wife's estate.

________

2] Conviction or judicial determination

a] Conviction

b] Judicial determination

DH 6.4. Olide, the father of Cupide and Facile, dies of poisoning. Suspecting that Cupide was the culprit, the district attorney prosecutes him for the premeditated murder of Olide. The jury, however, acquits Cupide. Then Facile, who evidently had followed the “OJ” story closely, brings a wrongful death action against Cupide, alleging that Cupide had deliberately poisoned Olide. After the jury returns the verdict form, which had asked “Did Olide deliberately kill Olide by poisoning?,” marked “Yes,” the judge enters judgment in favor of Facile. More recently, Facile has brought suit (in the succession proceedings) against Cupide to have him declared unworthy. Will she prevail? Why or why not? See Perrier again & CC art. 941 comment (f).

b) Defense: reconciliation (CC art. 943)

1] Definition

2] Varieties

a] Express

b] Tacit

1} Exposition (CC art. 975, ¶ 2 (1870))

2} Prerequisites

a} Knowledge of cause for unworthiness

b} Failure to disinherit (?)-363-


SH 6.5. Late one night, while Olide is asleep in bed, Cupide, his son, sneaks into his room, puts a pillow over his head, and tries to suffocate him. Once Olide’s body goes limp, Cupide, thinking that Olide is dead, puts the pillow back in its place and sneaks out of the room. But Olide is not dead. Several weeks later, however, Olide does die in a freak crawfishing accident. Facile, to whom Olide, before his death, had related the story of Cupide’s attempted suffocation, then brings suit against Cupide, seeking to have him declared unworthy. Why result? Why? See CC art. 975 (1870).

4) Effects

a) Enumeration

1] As to the devolution of the estate

a] Unworthy party loses stake (CC art. 945 (1))

b] Accretion of lost stake (CC art. 946 & cmt. (a))

1} Intestate

SH 6.6. Olide dies intestate, survived by his son, Cupide; his daughter, Facile; and his granddaughter (by Cupide), Naive. During the succession proceedings, Cupide is declared unworthy to succeed on the ground that he had intentionally killed Olide. Who gets Olide’s property? Why? See CC art. 946, ¶ 1 & cmt. (a), & arts. 888, 881, & 882.

2} Testate

SH 6.7. The same as before (SH 6.6), except that Olide left behind a testament whereby he had given “all of my property to Cupide and Facile, share and share alike in equal portions.” What result now? Why?

2] As to the unworthy heirs' rights vis-a-vis the estate: possession (CC art. 945(2))

a] Must turn over poss'n to worthy heirs.

b] Must also turn over all fruits collected from goods in his poss'n.

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3] As to the validity of the unworthy heirs' acts with respect to the estate

1] Sales, exchanges, dations en paiement

a] Validity

SH 6.8. By testament, Olide leaves all of his property to his son, Cupide. Then Olide dies, survived by Cupide; his daughter, Facile; and his granddaughter (by Cupide), Naive. Cupide then sells some of Olide’s property, i.e., Olide’s farm equipment, to Théophile. Later on, Cupide is declared unworthy to succeed on the ground that he had intentionally killed Olide. Naive now brings suit against Théophile, seeking to have the sale of the farm equipment declared null and to obtain the return of that equipment. Will Naive succeed? Why or why not? See CC art. 945(4).

SH 6.9. The same as before (SH 6.8), except that (i) Cupide sells the farm equipment to his girlfriend, Desirée; (ii) before the sale, Cupide tells Desirée (a) that he will probably be declared unworthy but (b) the sale will enable them to keep the equipment away from Naive and Facile; and (iii) Naive brings suit against Desirée. What result now? Why? See CC art. 945(4).

b] Recourse of worthy successors

SH 6.10. The same as before (SH 6.8). Assume that Naive can’t get the equipment back from Théophile. What now? Does Naive have some other remedyY? If so, what is it and against whom does it lie? See CC art. 945(4).

2] Donations

SH 6.11. The same as before (SH 6.8), except that (i) Cupide donated the equipment to Théophile; (ii) Théophile, in turn, had died intestate, survived by his son, François; and (iii) Naive brings suit against François. What result now? Why? See CC art. 945(4).

SH 6.12. The same as before (SH 6.11), except that (i) before Naive sues François, he sells the equipment to Gide, who knows nothing about Cupide’s wrongdoing, and (ii) Naive brings suit against Gide. What result now? Why? Should she consider suing someone else? If so, whom and why? See CC art. 945(4).

b) Characteristics

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1] Retroactivity

2] Relativity

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