There are three types of testamentary dispositions: universal, general, and particular.1 A universal legacy is the disposition of all of the estate, or the balance of the estate that remains after particular legacies.2  A general legacy is a disposition by which the testator bequeaths a fraction or a certain proportion of the estate, or a fraction or a certain proportion of the balances of the estate that remains after particular legacies.3 A legacy that is neither general nor universal is a particular legacy.4

These classifications become important if a legacy lapses, if one of the legatees renounces the inheritance, or if there are insufficient assets to satisfy all legacies. Particular legacies must be discharged in preference to all others.5 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.6 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.7 When a legacy of money is expressly declared compensation for services, it shall be paid in preference to all other legacies of money.8

• 1La. C.C. art. 1584.
• 2La. C.C. art. 1585.
• 3La. C.C. art. 1586.
• 4La. C.C. art. 1587.
• 5La. C.C. art. 1600.
• 6La. C.C. art. 1601.
• 7Id.
• 8Id.

A legacy may lapse for several reasons including renunciation, invalidity, or the legatee’s death prior to that of the testator.1

The will controls the disposition (or “accretion”) of a lapsed legacy.2 In the absence of a governing testamentary provision, accretion occurs by the following rules:

1. A special rule applies when the legatee is the testator’s child or sibling, or a descendant thereof. In that case, the lapsed legacy goes to descendants of the legatee.3 The remaining rules apply to all other legatees.

2. If a joint legatee dies before the testator, the legatee’s share goes to the other joint legatee(s) equally.4 A legacy is “joint” if made to more than 1 person without assigning shares.5 The testamentary language controls this classification. For example, “I give my immovable property to A and B” creates a joint legacy, but the language “share and share alike” or “to share equally” does not. If the legacy is not joint, each legatee owns a specific portion without a right of survivorship in favor of co-legatees.6

3. When a particular or general legacy lapses, accretion takes place in favor of the successor who, under the will, would have received the thing if the legacy had not been made.7

4. A lapsed legacy that is not disposed of under the above rules goes ratably to the universal legatees.8

5. Any portion of the estate not disposed of under the above rules devolves by intestacy rules.9

• 1La. C.C. art. 1589.
• 2La. C.C. art. 1590.
• 3La. C.C. art. 1593.
• 4La. C.C. art. 1592.
• 5La. C.C. art. 1588.
• 6Succession of Lambert, 28 So. 2d 1 (La. 1946).
• 7La. C.C. arts. 1591, 1586–1587.
• 8La. C.C. arts. 1585, 1595.
• 9La. C.C. art. 1596.

The attorney, in all cases, shall present the original testament to the court to be filed and executed. If it is a testament other than a statutory testament, notarial testament, or nuncupative testament by public act, then the testament must also be proven (or probated).1 Thus, an olographic will must be proven. The petitioner must present the testament to the court even if he/she doubts the validity of the testament.2

If the petitioner cannot locate the original will, then the attorney should search for the original. If it was a notarial will, the attorney should try to contact the notary to see if there is an original will in the notary’s possession. The Secretary of State has a central registry of wills. If the testator registered his will, information about the will can be obtained from the Secretary of State.3 Also, some parishes allow wills to be registered with the clerk of court or notarial archives. In Orleans and other parishes there are will “books”, and your petition can reference at which book and page a will is located without presenting an original. In Jefferson Parish, and possibly others, the clerk of court stores wills and releases them with a proper petition. Nevertheless, wills are rarely registered.

If the original cannot be located, then the attorney has additional hurdles to overcome when proffering a copy. If the lost will was duly executed and in possession of (or readily accessible to) the testator, there is the legal presumption of revocation by destruction.4 When this presumption applies, those seeking to probate the will must establish by clear proof (1) that the testator made a valid will; (2) the contents or substance of the will; and (3) that the will, though it could not be found at the testator’s death after diligent search, was never revoked.5 This is most usually done by an affidavit of the client with personal knowledge that the original will existed after the death of the decedent, but was lost or destroyed by some other force, such as a house fire or natural disaster.

The attorney should also petition the court to direct that a search be made for the testament by a notary of the parish.6 This requirement most likely stems from the prior system in which notaries were required to keep files of their notarized documents. Presumably, the notary who notarized the missing testament would be the one charged with finding it, but this is not stated in the statute. The statute does say that the notary must be appointed by the court. However, experience has shown that many courts will accept an affidavit from the notary who prepared the document, stating that they possess a copy of the testator’s testament and that the proffered copy is the same as the one in the notary's records. This affidavit, along with an affidavit from persons with knowledge about the loss of the will after the decedent’s death, may be sufficient to probate the copy. 

If the will is not a notarial document, or the notary is unknown, the attorney should have the court appoint a notary to search the public registries for the missing will. If the notary fails to find the original will, then the client’s copy can be submitted with an affidavit. 

If the client knows that there was a will, but does not have a copy, there is case law supporting the proof of the contents of a will by parol evidence.7 Nevertheless, parol evidence is acceptable only if the witness actually read the testament and remembered its contents. Statements by the decedent are insufficient to establish the will’s contents.8

If the client does not have sufficient evidence to prove the contents of a will or to overcome the presumption of revocation, then the petition should state these facts and pray that the court find that the succession should proceed under the laws of intestacy. 

• 1La. C.C.P. art. 2852.
• 2La. C.C.P. art. 2853.
• 3See La. R.S. 9:2446–2447.
• 4Succession of Talbot, 530 So. 2d 1132 (La. 1988).
• 5Succession of Nunley, 69 So. 2d 33 (La. 1953).
• 6La. C.C.P. art. 2854; see La. C.C.P. Form 810a (West).
• 7Succession of Davis, 347 So. 2d 906 (La. App. 3 Cir. 1977).
• 8Fuentes v. Gaines, 25 La. Ann. 85 (1873), rev’d on other grounds, 92 U.S. 10.