There are two kinds of donations. A donation inter vivos (between living persons) is an act by which the donor divests ownership of a thing, at present and irrevocably, in favor of a donee who accepts it.1  A donation mortis causa (in prospect of death) is an act to take effect, when the donor shall no longer exist, by which the donor disposes of the whole or a part of the donor’s property, and which is revocable.2

• 1La. C.C. art. 1468.
• 2La. C.C. art. 1469.

A person of the age of majority can give via donation inter vivos and mortis causa.1  A minor under the age of sixteen years does not have capacity to donate either inter vivos or mortis causa, except in favor of a spouse or children.2  A minor who has attained the age of sixteen has capacity to make a donation mortis causa in favor of any person and a donation inter vivos in favor of a spouse or children.3

To have capacity to donate inter vivos or mortis causa, a person must also be able to comprehend generally the nature and consequences of the disposition being made.4  Capacity to donate mortis causa must exist at the time the testator executes the testament.5  A person who challenges a testator’s capacity must prove by clear and convincing evidence that the testator lacked capacity when the will was executed.6  Special rules apply to full and limited interdicts.7

• 1La. C.C. art. 1470.
• 2La. C.C. art. 1476.
• 3Id.
• 4La. C.C. art. 1477.
• 5La. C.C. art. 1471.
• 6La. C.C. art. 1482(A).
• 7La. C.C. art. 1482(B)–(C).

All persons have capacity to receive donations inter vivos and mortis causa, except as expressly provided by law.1  The capacity to receive a donation inter vivos must exist at the time the donee accepts the donation.2  Capacity to receive a donation mortis causa must exist at the time of the testator’s death.3  When a donation depends on fulfillment of a suspensive condition, the donee must have capacity to receive at the time the condition is fulfilled.4

The Civil Code has particular provisions for unborn children. To be capable of receiving by donation inter vivos, an unborn child must be in utero at the time the donation is made.5  To be capable of receiving by donation mortis causa, an unborn child must be in utero at the time of the testator’s death.6  In either case, the donation has effect only if the child is born alive.7

• 1La. C.C. art. 1470.
• 2La. C.C. art. 1472.
• 3Id.
• 4La. C.C. art. 1473.
• 5La. C.C. art. 1474.
• 6Id.
• 7Id.

A donation inter vivos is without effect unless and until accepted by the donee during the donor’s lifetime.1  If the donee is of full age, the acceptance may be made by the donee or by a mandatory having power to accept the donation.2  Gifts to an unemancipated minor may be accepted by a parent or other ascendant or by the minor’s tutor, even if the person who accepts is also the donor.3

• 1La. C.C. art. 1544.
• 2La. C.C. art. 1545.
• 3La. C.C. art. 1548.

For a donation to be valid, (1) the donor and donee must have capacity to give and receive; (2) the requisite formalities must be followed; and (3) the donation must not violate a substantive limit on donations.

Various grounds may render a donation null:

• Donation impoverishes donor.1
• Donation lacks proper form or the donee fails to accept.2
• Donation procured through fraud, duress, or undue influence.3
• Donee is incapable of receiving.4  
• Donation is of property that does not exist at the time of the donation.5
• Donation conditional on will of the donor.6
• Donation conditioned on paying debts and charges other than those existing at the time of the donation.7

To annul a donation on the basis of undue influence, one must show that the donee’s influence was so substantial that the donee substituted his or her own volition for that of the donor.8  However, if the evidence shows that the execution of the testament was well within the discretion of the testator, the court should not find that the testator’s volition has been replaced by that of the donee.9      

If a person commits fraud or exercises duress or unduly influences a donor, or procures an appointment by such means, that person cannot serve or continue to serve as an executor, trustee, attorney, or other fiduciary even if so designated in a testament or act of donation.10

• 1La. C.C. art. 1498.
• 2In re Succession of Jones, 46,904 (La. App. 2 Cir. 1/25/12), 86 So. 3d 25.
• 3La. C.C. art. 1480.
• 4La. C.C. art. 1475.
• 5La. C.C. art. 1528.
• 6La. C.C. art. 1529.
• 7La. C.C. art. 1530.
• 8La. C.C. art. 1479.
• 9Succession of Cole, 618 So. 2d 554 (La. App. 4 Cir. 1993).
• 10La. C.C. art. 1481.