Table of Contents

CHAPTER VI - OF DISPOSITIONS MORTIS CAUSA (IN THE PROSPECT OF DEATH)

 

SECTION I - OF TESTAMENT OR CODICIL

Art. 81. No disposition causa mortis shall henceforth be made otherwise than by last will or testament, or by codicil: all other form is abrogated.

Art. 82. A testament is the act of last will clothed with certain solemnities, by which the testator disposes of his property either universally, or by universal title, or by particular title.

Art. 83. The codicil is an act less solemn than the testament, by which the testator can dispose only on a particular title and only of moveable effects.

Art. 84. The form of testaments and codicils is the same; it differs only as to the number of witnesses that must be present at each of those acts respectively.

Art. 85. In general they who have the power to make wills, may make either a testament or a codicil, or even both together.

Art. 86. When there is no testament, the heir of the blood, or the legitimate heir is obliged to execute the dispositions contained in the codicils in like manner as though he had been instituted heir.

Art. 87. A testament or codicil cannot be made by the same act, by two or more persons, either for the benefit of a third person, or under the title of a reciprocal or mutual disposition.

Art. 88. The custom of willing either by testament or by codicil, by the intervention of a commissary or attorney in fact, is abolished.
Thus the institution of heir, and all other testamentary dispositions committed to the choice of a third person, are null, even should that choice have been limited to a certain number of persons designated by the testator.

 

SECTION II - OF THE FORM OF TESTAMENTS AND CODICILS

Art. 89. All testaments and codicils are divided into three principal classes, to wit:
1st, Testaments and codicils nuncupative, or open.
2d, Testaments and codicils mystic or shut.
3d, Ologrophic testatments and codicils.

Art. 90. Testaments and codicils, whether noncupative or mystic, must be drawn up in writing, either by the testator himself, or by any other person, under his dictation.
The usage of the testaments or codicils merely verbal, that is to say resulting from the mere disposition of witnesses who were present when the testator made known to them his will, without his having committed it or caused it to be committed to writing, is abrogated.

Art. 91. Nuncupative testaments and codicils may be made by public act, or by act under private signature.

Art. 92. The nuncupative testament by public act, must be received by a notary public, in presence of three witnesses residing in the place where the will is executed, or of five witnesses not residing in said place.
This testament must be signed by the testator and written by the notary, as it is dictated.
It must then be read to the testator in presence of the witnesses.
Express mention is made of the whole, observing that all those formalities must be fulfilled at one time, without interruption, and without turning aside to other acts.

Art. 93. This testament must be signed by the testator; if he declares that he knows not how, or is not able to sign, express mention of his declaration as also of the cause that hinders him from signing, must be made in the act.

Art. 94. This testament must be signed by the witnesses, or at least by one of them for all, if the others cannot write.

Art. 95. The nuncupative codicil by public act, shall be clothed with the same formalities as are above prescribed for nuncupative testaments, except as to the number and quality of the witnesses who are to be present, and it will suffice if it be received by one notary and two witnesses.

Art. 96. A nuncupative testament under private signature, must be written by the testator himself, or by any other person from his dictation, or even by one of the witnesses, in presence of five witnesses residing in the place where the will is received, or of seven witnesses residing out of that place.
Or it will suffice if the presence of the same number of witnesses, the testator presents the paper on which he has written his testament, or caused it to be written, out of their presence, declaring to them that that paper contains his last will.
In either case the testament must be signed by the testator, if he knows how, or is able to sign, and by the witnesses, or at least by one of them for all, in case the other know not how to sign.
This testament is subject to no other formality than those prescribed by the present article.

Art. 97. The nuncupative codicil without private signature, is subject to all the formalities prescribed by the preceding article, except that it is sufficient for it, to be passed or declared in the presence of five witnesses.

Art. 98. In the country it suffices for the validity of nuncupative testaments and codicils under private signature, if the testament be passed in the presence of three witnesses residing in the place where the testament is received, or of five witnesses residing out of that place; and if the codicils be passed in the presence of two witnesses, provided that in both these cases a greater number of witnesses cannot be had.

Art. 99. The mystic or secret testament, otherwise called the closed will, is made in the following manner.
The testator must sign his dispositions if he knows how, or is able to do it, whether he have written them himself or have caused them to be written by another person; the paper containing these dispositions or the paper serving as their envelope, must be closed and sealed. The testator shall present it thus closed and sealed to the notary and to seven witnesses, or he shall cause it to be closed and sealed in their presence.
Then he shall declare to the said notary in presence of said witnesses, that that paper contains his testament written by himself, or by another by his direction, and signed, or not signed by him the testator, as the case may be.
The notary shall then draw up the act of superscription which shall be written on that paper or on the sheet that serves as its envelope, and that act shall be signed by the testator if he can sign, and by the notary and the witnesses.
All that is above prescribed shall be done without interruption or turning away to other acts, and in case the testator, by reason of any hindrance that has happened since the signing of the testament, cannot sign the act of superscription, mention shall be made of the declaration made by him thereof without its being necessary in that case to increase the number of witnesses.

Art. 100. If the testator does not know how to sign, or was disabled from doing it, when he caused his disposition to be written, another witness shall be called to the act of superscription, besides the number required by the preceding article, who shall sign the act with the other witnesses, and mention shall be made of the cause for which the other witness is called in.

Art. 101. In case the witnesses cannot all write, one of them at least must sign the act of superscription for all the others, when the testament has been signed by the testator, but if the testament has not been signed by the testator, two of the witnesses at least must sign the act of superscription for the other witnesses who do not know how to sign.

Art. 102. All the formalities prescribed by the three preceding articles, are observed with regard to mystic or closed codicils, except that it is sufficient, if the delivery of them be made to a notary in presence of only five witnesses, if the testator has signed his codicil, or of six witnesses if he has not signed it.

Art. 103. The olographic testament; or codicil is that which is made and written by the testator himself, without the presence of any witness.  It may be either open or sealed; but when it is sealed it needs no other superscription than this or words equivalent "this is my olographic will or codicil," which superscription must be signed by the testator.
An olographic testament or codicil shall not be valid, unless it be entirely written, signed and dated with the testator's hand. It is subject to no other form. Yet it is prudent to deposit it with a notary to prevent its being purloined, though its not being deposited will not make it void, if it be acknowledged and proved as hereafter directed.

Art. 104. Testaments and codicils which the testators may please to cover and seal, will still be valid as nuncupative testaments and codicils, if they be clothed with all the formalities prescribed for the validity of those kinds of acts respectively.

Art. 105. The following persons are absolutely incapable of being witnesses to testaments or codicils.
1st, Women of what age soever;
2d, Male children who have not attained the age of sixteen years complete.
3d, Persons either insane, deaf, dumb or blind.
4th, Persons whom the law deems infamous;
5th, Slaves

Art. 106. Neither can testaments be witnessed by those who are instituted heirs, or named legatees either universal or on a universal title.

Art. 107. By the residence of the witnesses in the place where the testament is executed, is understood their residence in the parish where that testament is made; that residence is necessary only when it is expressly required by law.

Art. 108. The formalities to which testaments and codicils are subject by the provisions of the present section, must be observed, otherwise the testaments and codicils are null and void.

Art. 109. Provided always that the testaments and codicils made in foreign countries or in the states and other territories of the union, shall take effect in this territory, if they be clothed with all the formalities prescribed for the validity of wills and codicils in the place where they have been respectively made.




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