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Section I   Rules concerning the Nature and Form of Substitutions

Revised Laws of Saint Lucia (2021)

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Section I   Rules concerning the Nature and Form of Substitutions

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    861.   There are 2 kinds of substitution:

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    Common substitution is that by which a person is nominated to take the benefit of a disposition in the event of its failure in respect of the person in whose favour it is first made.

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    Fiduciary substitution is that in which the person receiving the thing is charged to deliver it to another either at his or her death or at some other time.

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    Substitution takes its effect by operation of law at the time fixed upon, without the necessity of any actual delivery or other act on the part of the person charged to deliver.

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    862.   Fiduciary substitutions include common substitutions without any expressions to that effect being necessary.

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    Whenever the common is expressly joined to the fiduciary, to meet particular cases, the substitution is called compendious.

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    When the term substitution is used alone, it applies to the fiduciary, with the common attached to it, unless the nature or terms of the disposition indicate the common alone.

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    863.   The person charged to take in the first instance is called the institute, and the one who is entitled to take after him or her is called the substitute. When there are several degrees in the substitution, each one of the substitutes, except the last in order, becomes in turn an institute with regard to the substitute who comes next.

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    864.   A substitution may exist although the term usufruct be used to express the right of the institute. In general the whole tenor of the act and the intention which it sufficiently expresses are considered, rather than the ordinary acceptation of particular words, in order to determine whether there is substitution or not.

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    865.   Substitutions may be created by gifts inter vivos, made in contracts of marriage or otherwise, by gifts in contemplation of death made in contracts of marriage, or by will.

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    The capacity of the persons is governed in each case by the nature of the act.

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    The disposition which creates the substitution may be conditional like any other gift or legacy.

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    Substitutions may be appended to dispositions that are either universal, general, or particular.

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    The substitute need not be present at the gift inter vivos which creates the substitution in his or her favour; he or she need not even have been born nor conceived at the time of the act.

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    866.   Substitutions made by contract of marriage are irrevocable, like gifts made in the same manner.

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    Substitutions made by other gifts inter vivos may be revoked by the donor, notwithstanding the acceptance by the institute for himself or herself, so long as they have not come into operation; unless, as in the case of gifts in general, they have been accepted by the substitute, or in his or her behalf, either formally or in an equivalent manner.

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    The acceptance made for themselves by institutes, even when they are not related to the donor, also renders irrevocable the substitution in favour of their children born or to be born.

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    The revocation of a substitution, when it is allowed, cannot prejudice the institute nor his heirs by depriving them of the possible benefit of the lapse of the substitution, or otherwise. On the contrary, and although the substitute might have received but for the revocation, such revocation goes to the profit of the institute, and not of the grantor, unless the latter has made a reservation to that effect in the act creating the substitution.

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    Substitutions by will may be revoked like all other testamentary dispositions.

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    867.   Movable as well as immovable property may be the subject of substitution. But corporeal movables, unless they are subjected to a different disposition, must be publicly sold and their price be invested for the purposes of the substitution.

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    Ready money must also be invested in the same manner.

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    The investment must in all cases be made in the name of the institute as such.

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    868.   Substitutions created by will or by gifts inter vivos cannot extend to more than 2 degrees exclusive of the institute.

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    869.   The rules concerning legacies in general also govern in matters of substitution, in so far as they are applicable, save in excepted cases.

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    Substitutions by gift inter vivos, like those created by will, are subject to the same rules as legacies, as to their coming into operation and after they are in operation. Whatever relates to the form of the act, and the acceptance and prehension of the property by the first donee, remains subject to the rules which belong to gifts inter vivos.

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    An acceptance by the first institute under the gift is sufficient for the substitutes, if they avail themselves of the disposition, and if it have not been validly revoked.

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    If the gift inter vivos lapse in consequence of repudiation or for want of acceptance on the part of the first donee, fiduciary substitution does not take place, nor does the common unless the donor has so provided.

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    870.   The testator may impose a substitution either upon the donee or the legatee whom he or she benefits, or upon his or her heir on account of what he or she leaves him or her as such.

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    871.   The donor in an act inter vivos cannot subsequently create a substitution of the property he or she has given, even in favour of the children of the donee.

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    Nor can he or she reserve the right of doing so, except it be in a contract of marriage. The grantor may however reserve to himself or herself, in all cases, the right to determine the proportions in which the substitutes shall receive.

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    Nevertheless the donor or testator may, in a new gift inter vivos of other property to the same person, or in a will, create a substitution of the property given unconditionally in the first gift; such a substitution takes effect only by virtue of the acceptance of the subsequent disposition of which it forms a condition, and does not prejudice the rights acquired by third parties.

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    872.   Children who are not called to the substitution, but are merely named in the condition without being charged to deliver over to others, are not deemed to be included in the disposition.

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    873.   The rule respecting representation which applies to other legacies, applies also to substitutions created by will unless the testator has manifested an intention inconsistent with the rule.

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