INTRODUCTION
Book 3 of the CCQ and important areas of spill-over in the code e.g. the family patrimony, matrimonial regimes, nominating a tutor for a will, property institutions and so on (see handout list) and in statutes like pension legislation and taxation legislation.
Transitional rules are also frequently used in this area of the law e.g. a will drafted or a gift given under the old code or a death occurring prior to 1994.
Art. 37 of the transitional provisions governs when the succession opens (i.e. death) and art. 40 says to look at the date the will or gift was signed.
Art. 67 – 71(?) for the transitional provisions on trusts.
Topic 1: Legal Institutions and Actors (See Handout Chart)
I. Successions (devolution because of death)
A. Intestate
Established by law when a person dies without a will. It is sometimes called “legal succession” because it is a default or legal regime operating with suppletive law and presumed intention.
The inheritors are referred to as the “heirs” (héritiers)
The actors are: the deceased, the heirs and the interposed liquidator (under the old law the testamentary executor) (arts 776 +).
By virtue of art. 625, the heirs are seized or step into the shoes of the deceased.
Spouse gets ½ and children get 2/3 (children preferred to wife).
B. Testate
Here the succession is contained in a testamentary act (a will, a gift mortis causa or a marriage contract).
The inheritors here are called “legatees” (légataires), by particular, general or universal title.
The actors are: the testator or testatrix, the legatees and the interposed liquidator (arts 776 +).
Art. 704 gives the 4 elements of a will: (i) a unilateral juridical act (no acceptance needed); (ii) revocable as an expression of one person’s will (hence a prohibition against joint wills in art 704(2) and the art. 706 prohibition against renouncing your right to revoke your will); (iii) a formalistic act (despite erosions in that area); (iv) liberality in which the testator is freely and gratuitously giving upon death.
The CCLC used the language of “heir” and it was not always clear whether that applied to the testate or intestate situation. The designation for both heirs and legatees is now “successors.”
A succession can be both in intestate and in testate. If there’s a portion of the property not disposed of in the will (i.e. no residual clause) intestacy rules will probably apply.
Under the characterization chart in Topic 1 the first organ donation form is not a will because it is lacking the required form for a will (it is not a holograph will, notarial will or a lawyer/witness will under art. 712). The giving of the property in exchange for taking care of the testator was held to be a valid holograph will (though it might look like there was no liberality because o
The 3 actors here are: The donor or testator, the institute (grevé) and the substitute (appelé). The institute is the “owner” of the property that the donor or testator has given her, but it is a separate patrimony intended for the substitute. The substitute’s right derives from the donor or the testator, not from the institute.
The substitution can only exist for 3 ranks – hence the donor or testator can give two “ownerships” (i.e. two substitutes in total – in which case the substitute becomes the institute for the second substitute).
The institute acts like a fiduciary with respect to the property (under the CCLC there was a distinction between vulgar substitution and fiduciary substitution, where the former was like a default). Under the CCQ, the institute may alienate (could not under the former law – indeed a stipulation of inalienability was so characteristic of this institution that the presence of one would make the rules on substitution kick in); however, a fund must be created for the substitute with the funds. The donor or testator can refine the terms so that the institute can do more (but then must do an inventory, take out insurance, be prudent etc.).
