civil law wills and succession

8/4/2019 Civil Law Wills and Succession

http://slidepdf.com/reader/full/civil-law-wills-and-succession 1/35

SUCCESSION

SUCCESSION A mode of acquisition by virtue of

which the property, rights andobligations to the extent of the valueof the inheritance, of a person aretransmitted through his death toanother or others either by his will orby operation of law. (Art. 774)

Kinds:1. Testamentary or Testacy (by will);2. Legal or intestacy (by operation of lawbased on the decedent’s presumed will);

3. Mixed (Partly Testamentary and Legal);

and4. Partition inter vivos (to a certaindegree).

Elements:1. DECEDENT (subjective element)2. SUCCESSORS (subjective element)a. Heirs - those who are called to the

whole or to an aliquot portion of theinheritance either by will or byoperation of law

1) Voluntary – those instituted by the

testator in his will, to succeed tothe inheritance or the portionthereof of which the testator canfreely dispose.

2) Compulsory or Forced – those whosucceed by force of law to someportion of the inheritance, in anamount predetermined by law,known as the legitime.

3) Legal or Intestate – those whosucceed to the estate of thedecedent who dies without a valid

will, or to the portion of suchestate not disposed of by will.

b. Devisees or legatees - persons to whomgifts of real or personal property arerespectively given by virtue of a will

NOTE: The distinctions between heirs anddevisees/legatees are significant in thesecases:

1. Preterition (pretermission)2. Imperfect disinheritance3. After-acquired properties4. Acceptance or non-repudiation of

the successional rights.

3. DEATH OF THE DECEDENT (casualelement) Moment when rights to succeed aretransmitted (Art 777) However, a person may be “presumed”dead for the purpose of opening hissuccession (see rules on presumptivedeath). In this case, succession is only of provisional character because there is

always the chance that the absentee maystill be alive.4. Inheritance (objective element);

NOTE: Whatever may be the time when actualtransmission takes place, succession takesplace in any event at the moment of thedecedent’s death. (Lorenzo vs. Posadas 64 Phil353)

SUCCESSION INHERITANCERefers to the

legal mode bywhichinheritance istransmitted tothe personsentitled to it

Refers to the

universality orentirety of theproperty, rightsand obligationsof a person whodied

Inheritance includes:

1. PROPERTY, RIGHTS AND OBLIGATIONS NOT EXTINGUISHED BY DEATHGeneral rules on rights and obligationsextinguished by his death

a) Rights which are purely personal are bytheir nature and purposeintransmissible for they areextinguished by death (e.g. thoserelating to civil personality, familyrights, discharge of office).

b) Rights which are patrimonial or relatingto property are generally part of

1

loveliannebacanipublico



inheritance as they are notextinguished by death.

c) Rights of obligations are by naturetransmissible and may constitute partof inheritance both with respect to therights of the creditor and as regards tothe obligations of the debtor.

2. ALL WHICH HAVE ACCRUED THERETO SINCETHE OPENING OF SUCCESSION ( Article 781Civil Code)

I. Testamentary Succession

A. CONCEPT

WILL - an act whereby a person is permitted,with the formalities prescribed by law, tocontrol to a certain degree the disposition of his estate to take effect after his death (Art.783)

NOTE: Thus, a document that does notpurport to dispose of one’s estate either bythe institution of heirs or designation of devisees/legatees or, indirectly, by effecting adisinheritance, is not to be governed by the

law on testamentary succession but by someother applicable laws.

Kinds of Wills:1. Notarial or ordinary2. Holographic

Characteristics of a Will:1. UNILATERAL2. STRICTLY PERSONAL ACT - The disposition

of property is solely dependent upon thetestator.

NOTE: The following acts MAY NOT be left tothe discretion of a third person: ( Article 785,787 Civil Code)duration or efficacy of the designation of

heirs, devisees or legatees;determination of the portions which they are

to take, when referred to by name; and

determination of whether or not thetestamentary disposition is to beoperative.

NOTE: However, the following acts MAY beentrusted to a third person: ( Article 786 CivilCode)

a. distribution of specific property or sumsof money that he may leave in general tospecified classes or causes; and

b. designation of the persons, institutionsor establishments to which such propertyor sums are to be given or applied.

3. FREE AND VOLUNTARY ACT – Any viceaffecting the testamentary freedom can causethe disallowance of the will.4. FORMAL AND SOLEMN ACT – The formalitiesare essential for the validity of the will.5. ACT MORTIS CAUSA6. AMBULATORY AND REVOCABLE DURING THE

TESTATOR’S LIFETIME7. INDIVIDUAL ACT – Two or more personscannot make a single joint will, either fortheir reciprocal benefit or for another person.However, separate or individually executedwills, although containing reciprocal provisions(mutual wills), are not prohibited, subject tothe rule on disposicion captatoria.DISPOSITION OF PROPERTY

B. INTERPRETATION OF WILLS (ARTS. 788-792)

The testator’s intent (animus testandi),as well as giving effect to such intent, isprimordial. It is sometimes said that thesupreme law in succession is the intent of thetestator. All rules of construction are designedto ascertain and give effect to that intention.It is only when the intention of the testator iscontrary to law, morals, or public policy that itcannot be given effect.

In case of doubt, that interpretation by whichthe disposition is to be operative shall bepreferred. That construction is to be adoptedwhich will sustain and uphold the will in all itsparts, if it can be done consistently with theestablished rules of law.

2




Kinds of Ambiguities: (Article 786)1. LATENT OR INTRINSIC AMBIGUITIES – thatwhich does not appear on the face of the willand is discovered only by extrinsic evidence.2. PATENT OR EXTRINSIC AMBIGUITIES – thatwhich appears on the face of the will itself

NOTES:

There is no distinction between patent andlatent ambiguities, in so far as theadmissibility of parol or extrinsic evidenceto aid testamentary disposition isconcerned.

Extrinsic evidence to explain ambiguities ina will cannot include oral declarations of the testator as to his intention.

The validity of a will as to its form dependsupon the observance of law in force at thetime it is made. (Art. 795).

If a law different from the law in force atthe time of the execution of the will goesinto effect before or after the death of thetestator, such a law shall not affect thevalidity of the will, provided that such will

was duly executed In accordance with theformalities prescribed by law in force atthe time it was made.

AFTER-ACQUIRED PROPERTY (Art. 793)Gen. Rule: Property acquired during theperiod between the execution of the will andthe death of the testator is NOT includedamong the property disposed of.Exception: When a contrary intentionexpressly appears in the will

NOTE: This rule applies only to legacies anddevises and not to institution of heirs.

C. Testamentary Capacity– refers to the ability as well as the power tomake a will.- must be present at the time of the executionof the will.

Requisites:1. At least 18 years of age2. Of sound mind, i.e., the ability to know:

a. the nature of the estate to be disposedof;

b. the proper objects of his bounty; andc. the character of the testamentary act.

NOTE: The law presumes that the testator isof sound mind, UNLESS:a. he, one month or less, before making hiswill, was publicly known to be insane; orb. was under guardianship at the time of making his will. (Torres and Lopez de Buenovs. Lopez 48 Phil 772)

In both cases, the burden of proving sanityis cast upon proponents of the will.

Effect of Certain Infirmities:1. mere senility or infirmity of old agedoes not necessarily imply that a personlacks testamentary capacity;2. physical infirmity or disease is notinconsistent with testamentary capacity;3. persons suffering from idiocy (thosecongenitally deficient in intellect),imbecility (those who are mentallydeficient as a result of disease), and seniledementia (peculiar decay of the mentalfaculties whereby the person afflicted isreduced to second childhood) do notpossess the necessary mental capacity tomake a will;4. an insane delusion which will renderone incapable of making a will may bedefined as a belief in things which do notexist, and which no rational mind wouldbelieve to exist;5. if the insane delusion touches tosubject matter of the will, testamentarydisposition is void.6. a deaf-mute and blind person can makea will (i.e. Art. 807-808). A blind man witha sound and disposing mind can make aholographic will.7. an intoxicated person or person underthe influence of drugs may make a will asthere is no complete loss of understanding.

3




Exception: where the testator has usedintoxicating liquor or drugs excessively tosuch an extent as to impair his mind, sothat at the time the will is executed, hedoes not know the extent and value of hisproperty, or the names of persons who arethe natural objects of his bounty, theinstrument thus executed will be deniedprobate for lack of testamentary capacity.

D. Formalities of Wills(EXTRINSIC VALIDITY)

COMMON FORMALITIES

1. Every will must be in writing; and2. Executed in a language or dialect known to

the testator.

SPECIAL FORMALITIESI. NOTARIAL OR ORDINARY WILLa. SUBSCRIPTION – made at the end thereof

by the testator himself or by the testator'sname written by some other person in hispresence and by his express direction; Subscription refers to the manual act

of testator and also of his instrumentalwitnesses of affixing their signature to

the instrument. b. ATTESTATION AND SUBSCRIPTION -(evidenced by an “attestation clause”) by3 or more credible witnesses in thepresence of the testator and of oneanother; Attestation consists in the act of

witnesses of witnessing the executionof the will in order to see and takenote mentally that such will has beenexecuted in accordance withrequirements prescribed by law.

ATTESTATION SUBSCRIPTION1. an act of

the senses1. an act of the hand

2. mental act 2. mechanicalact

3. purpose isto renderavailable

3. purpose isidentification

proof duringprobate of will

c. MARGINAL SIGNATURES – affixed by thetestator or the person requested by him towrite his name and the instrumentalwitnesses of the will on each and everypage thereof, except the last, on the leftmargin;

Exceptions to the rule that all of the pagesof the will shall have to be signed on the leftmargin by the testator and witnesses::

(1) in the last page, when the will consistsof two or more pages;(2) when the will consists of only one page;(3) when the will consists of two pages, thefirst of which contains all the testamentarydispositions and is signed at the bottom bythe testator and the witnesses and thesecond contains only the attestation clauseduly signed at the bottom by thewitnesses.

The inadvertent failure of one witness toaffix his signature to one page of a

testament, due to the simultaneous liftingof two pages in the course of signing, is notper se sufficient to justify denial of probate (Icasiano vs. Icasiano II SCRA 422).

d. PAGE NUMBERINGS – Written correlativelyin letters placed on the upper part of eachpage;

NOTE: This is not necessary when all of thedispositive parts of a will are written on onesheet only.

e. ACKNOWLEDGMENT – Done before a notarypublic by the testator and the instrumentalwitnesses.

NOTE: The notary public before whom the willwas acknowledged cannot be considered as thethird instrumental witness since he cannotacknowledge before himself his having signed

4




the will. If the third witness were the notarypublic himself, he would have to avow, assent,or admit his having signed the will in front of himself. To allow such would have the effectof having only two attesting witnesses to thewill which would be in contravention of Arts.805 and 806. (Cruz vs. Villasor 54 SCRA 31) MANNER OF SIGNING: The use of any signature, marks or

design intended by the testator toauthenticate renders the will sufficientlysigned by the testator. A signature by mark will be sufficienteven if at the time of placing it, thetestator knew how to write and is able todo so. It is sufficiently signed by writing hisinitials, or his first name, or he may useeven an assumed name. A complete signature is not essential tothe validity of a will, provided the part of the name written was affixed to theinstrument with intent to execute it as awill.

ATTESTATION CLAUSE

- memorandum or record of facts wherein thewitnesses certify that the will has beenexecuted before them, and that it has beenexecuted in accordance with the formalitiesprescribed by law. Absence of this clause will render the will

a nullity.

It must state the following ESSENTIAL FACTS:

1. the number of pages used uponwhich the will is written;

HOWEVER, even if number of pages is omitted

in the AC BUT if there is an acknowledgmentclause which states the number of pages or thewill itself mentioned such number of pages, itmay still be considered valid applying theLiberal Interpretation of the law. (Tabuada vs.Rosal)

2. the fact that the testator signedthe will and every page thereof, or

caused some other person to write hisname, under his express direction, inthe presence of the instrumentalwitnesses;

When the testator expressly causedanother to sign the former’s name, thisfact must be recited in the attestationclause. Otherwise, the will is fatallydefective. (Garcia vs. Lacuesta 90 Phil489)

3. that the witnesses witnessedand signed the will and all the pagesthereof in the presence of the testator and of one another.

TEST OF PRESENCE: Not whether theyactually saw each other sign, but whetherthey might have seen each other sign hadthey chosen to do so considering theirmental and physical condition and positionwith relation to each other at the momentof inscription of each signature. (Jabonetavs. Gustilo)

In the case of an ordinary or attested will,its attestation clause need not be written

in a language or dialect known to thetestator since it does not form part of thetestamentary disposition.

The language used in the attestation clauselikewise need not even be known to theattesting witnesses. Art. 805 merelyrequires that, in such a case, theattestation clause shall be interpreted tosaid witnesses. (Caneda vs. CA 222 SCRA781)

Effects of defects or imperfections in the

Attestation Clause: If the defect of the attestation clause goesinto the very essence of the clause itself orconsists in the omission of one, some, orall of the essential facts, and such omissioncannot be cured by an examination of thewill itself, the defect is substantial in

5




character, as a consequence of which thewill is invalidated.

However, In the absence of bad faith,forgery, fraud, or undue and improperpressure and influence, defects andimperfections in the form of attestation orin the language used therein shall notrender the will invalid if it is proved thatthe will was in fact executed and attestedin substantial compliance with Art. 805( formal requirements). This is known asthe DOCTRINE OF LIBERALINTERPRETATION (Art. 809)

Purposes of requiring witness to attest andto subscribe to a will:

1. identification of the instrument2. protection of the testator from fraudand deception3. the ascertainment of the testamentarycapacity of the testator.

NOTE: Certain points to consider (Tolentino)

1. Mere knowledge by testator that

another is signing, and acquiescing in it,there being no express direction, is NOTsufficient.2. Not required that the name of theperson who writes the testator’s nameshould also appear on the will; enough thattestator’s name is written.3. If the required numbers of attestingwitness are competent, the fact that anadditional witness, who was incompetentalso attested to the will, cannot impair thevalidity.

4. Immaterial in what order the acts areperformed provided the signature oracknowledgment by the testator and theattestation of the witnesses beaccomplished in one occasion, and as partof one transaction.

5. The law refers to page and not to sheetor leaf or folio, so every page used in thewill should be signed on the left margin.

6. An attestation clause need be signedONLY by the witnesses and not by thetestator as it is a declaration made by thewitnesses.

7. date of will:

a. ordinary will: not an essential part;

b. holographic will: an essential part.

8. Failure or error to state the place of execution will not invalidate the will.9. Signing of a will by the testator andwitnesses and acknowledgment before anotary public, need not be a single act.

10. Testamentary capacity must alsoexist at the time of acknowledgment.

ADDITIONAL REQUIREMENTS FOR SPECIAL

CASES1. Deaf or deaf-mute testator:a) personal reading of the will, if able to

do so; ORb) if not possible, designation of 2 persons

to read the will and communicate tohim, in some practicable manner, thecontents thereof. (Article 807)

2. Blind testator: Double-readingrequirement:

a. first, by one of the subscribing

witnesses, AND b. second , by the notary public before

whom the will is acknowledged.(Article 808) Art. 808 applies not only to blind

testators but also to those who, for onereason or another are incapable of readingtheir wills (e.g. poor, defective or blurredvision).

In a case where the testator did notread the final draft of the will, but the

lawyer who drafted the document, readthe same aloud in the presence of thetestator, 3 witnesses, and notary public,the Court held that the formalimperfections should be brushed asidewhen the spirit behind the law was servedthough the letter was not. (Alvarado vs.Gaviola 226 SCRA 347)

6




WITNESS TO NOTARIAL WILLS(ARTS. 820 & 821)Requirements:1. of sound mind;2. able to read and write;3. not blind, deaf or dumb;4. at least 18 years of age;5. domiciled in the Philippines;6. has not been convicted of falsification of a

document, perjury, or false testimony

NOTE: A witness need not know the contentsof the will, and need not be shown to have hada good standing in the community where helives. Also, the acknowledging notary publiccannot be one of the 3 minimum numbers of witnesses.Interested witness A witness to a will who is incapacitated

from succeeding from the testator byreason of a devise/legacy or othertestamentary disposition therein in hisfavor, or in favor of his spouse, parent, orchild. However, his competence as awitness subsists.

2. HOLOGRAPHIC WILL (Article 810)

a. entirely written by the handof the testator;

b. entirely dated by the handof the testator; and

c. entirely signed by the handof the testator.

NOTE: The law exacts literal compliance withthese requirements. HENCE, THE DOCTRINE OFLIBERAL INTERPRETATION CANNOT BE APPLIED.

Nevertheless, the Court held in a case thatas a general rule, the “date” in aholographic will should include the day,month, and year of its execution.However, when there is no appearance of fraud, bad faith, undue influence andpressure and the authenticity of the will isestablished and the only issue is whetheror not the date “FEB./61” appearing on

the will is a valid compliance with Art.810, probate of the holographic will shouldbe allowed under the principle of substantial compliance. (In the matter of Intestate Estate of Andres de Jesus and Bibiana Roxas de Jesus, 134 SCRA 245)

Rule in case of insertion, cancellation,erasure or alteration: Testator must authenticate the same by his

FULL SIGNATURE . ( Article 814)

NOTE: In the case of Kalaw vs. Relova (134SCRA 241), the holographic will in dispute hadonly one substantial provision, which wasaltered by substituting the original heir withanother, but which alteration did not carry therequisite of full authentication by the fullsignature of the testator, the effect must bethat the entire will is voided or revoked forthe simple reason that nothing remains in thewill after that which could remain valid.

Effects of words written by another andinserted in the words written by thetestator:a. If the insertion was made after the

execution of the will, but without theconsent of the testator, such insertion isconsidered as not written, because thevalidity of the will cannot be defeated bythe malice or caprice of third person.

b. If the insertion after the execution of thewill was with the consent of the testator,the will remains valid but the insertion isvoid.

c. If the insertion after the execution isvalidated by the testator by his signaturethereon, then the insertion becomes partof the will, and the entire will becomesvoid, because of failure to comply with therequirement that it must be wholly writtenby the testator.

d. If the insertion made by a third person ismade contemporaneous to the executionof the will, then the will is void because itis not written entirely by the testator.

7




Probate of Holographic Will

1. If UNCONTESTED, requires that at least 1witness who knows the handwriting andsignature of the testator explicitly declarethat the will and signature are in thehandwriting of the testator; if no witness,expert testimony may be resorted to.

2. If CONTESTED, requires at least 3 of suchcredible witnesses, if none expert witness.

NOTE: Where the testator himself petitions forthe probate of his holographic will and nocontest is file, the fact that he affirms thatthe holographic will and the signature are inhis own handwriting, shall be sufficientevidence thereof. If the holographic will iscontested, the burden of disproving thegenuineness and due execution thereof shallbe on the contestant.

A photostatic or xerox copy of a lost ordestroyed holographic will may beadmitted because the authenticity of thehandwriting of the deceased can bedetermined by the probate court, ascomparison can be made with the standardwritings of the testator. (Rodelas vs.

Aranza, 119 SCRA 16)

Governing law on formalities1. As to time: The validity of a will as to its form depends

upon the observance of the law in force atthe time it is made. Its intrinsic validity ,however, is judged at the time of thedecedent’s death by the law of hisnationality.

2. As to place:

a. Filipino testator executing a will in thePhilippines: Philippine law

b. Filipino testator executing a will outside of the Philippines: either

1) The law of the country in which it isexecuted; or

2) The law of the Philippines.c. Alien testator executing a will in the

Philippines: either

1) The law of the Philippines; or2) The law of the country of which he is a

citizen or subject.d. Alien testator executing a will outside of

the Philippines: either

1) The law of the place where it isexecuted; or

2) The law of the place in which heresides; or

3) The law of his country; or4) The law of the Philippines.

Aspects of the will governed by National Lawof the Decedent (Article 1039 and Article 16Civil Code)

a. Order of successionb. Amount of successional rightsc. Intrinsic validityd. Capacity to succeed

Joint will – a single testamentary instrumentwhich contains the wills of two or morepersons, jointly executed by them, either fortheir reciprocal benefit or for the benefit of athird person--will of 2 or more persons is made in the sameinstrument and is jointly signed by them

Mutual wills – wills executed pursuant to anagreement between two or more persons todispose of their property in a particularmanner, each in consideration of the other--separate wills of 2 persons, which arereciprocal in their provisions.

Reciprocal wills- wills in which the testatorsname each other as beneficiaries under similartestamentary plans

NOTE: A will that is both joint and mutual isone executed jointly by two or more persons,the provisions of which are reciprocal andwhich shows on its face that the devises aremade in consideration of the other. Such isprohibited.

Reasons:1. will is purely personal and unilateral act

8




2. contrary to the revocable character of awill

3. may expose the testator to undueinfluence, and may even induce one of thetestators to kill the other.

NOTE: Joint wills executed by Filipinos in aforeign country shall not be valid in thePhilippines, even though authorized by theforeign country in which they may have beenexecuted ( Article 819 Civil Code).

This prohibition is applicable only injoint wills executed by Filipinos in a foreigncountry; it does NOT APPLY to joint willsexecuted by aliens.

E. CODICIL AND INCORPORATION BYREFERENCE

CODICIL A supplement or addition to a will, madeafter the execution of a will and annexedto be taken as a part thereof, by which anydisposition made in the original will isexplained, added to, or altered. (Article825)

NOTE: To be effective, it must be executedas in the case of a will. Its execution has theeffect of republishing the will as modified.

INCORPORATION BY REFERENCE (ART 827) Contemplates only lists of properties,

books of accounts, and inventories. Provisions which are in the nature of testamentary dispositions must becontained in the will itself.

Requisites for a valid incorporation byreference: (ART 827)1. The document or paper referred to in the

will must be in existence at the time of theexecution of the will;

2. The will must clearly describe and identifythe same, stating among other things thenumber of pages thereof;

3. It must be identified by clear andsatisfactory proof as the document orpaper referred to therein;

4. It must be signed by the testator and thewitnesses on each and every page, exceptin case of voluminous books of account orinventories.

F. REVOCATION OF WILLS ANDTESTAMENTARY DISPOSITIONS

REVOCATION An act of the mind, terminating thepotential capacity of the will to operate atthe death of the testator, manifested bysome outward or visible act or sign,symbolic thereof. Such right to revoke awill cannot be waived or restricted.

LAWS WHICH GOVERN REVOCATION (ART 829)1. If the revocation takes place in the

Philippines, whether the testator isdomiciled in the Philippines or in someother country , it is valid when it is inaccordance with the laws of thePhilippines

2. If the revocation takes place outside thePhilippines, by a testator who is domiciled in the Philippines, it is valid when it is inaccordance with the laws of thePhilippines

3. Revocation done outside the Philippines,by a testator who does not have hisdomicile in this country , is valid when it isdone according to the:a. laws of the place where the will was

made, orb. laws of the place in which the

testator had his domicile at the time

of revocation;

MODES OF REVOCATION (ART 830)1. By implication of law:

a. legal separation revokes testamentaryprovisions in favor of the offendingspouse;

b. preterition revokes the institution of heir;

9




c. judicial action for recovery of debtrevokes a legacy of credit/remission of debt;

d. transformation, alienation, or loss of bequeathed property revokes a legacyof such property;

e. act of unworthiness by an heir,devisee/legatee revokes testamentaryprovisions in his favor;

f. if both spouses of the subsequentmarriage acted in bad faith, saidmarriage shall be void ab initio andtestamentary dispositions made by onein favor of the other are revoked byoperation of law (Art. 44, FamilyCode); and

g. void ab initio or annulled marriagesrevoke testamentary dispositions madeby one spouse in favor of the other(Art. 50, Family Code).

2. By some will, codicil, or other writing,executed as provided in case of wills,which may either be:a. Express – when there is a revocatory

clause expressly revoking the previouswill or a part thereof

b. Implied – when the provisions thereof are partially or entirely inconsistentwith those of the previous will

NOTE: While express revocation may beeffected by a subsequent will, or a codicil, ora nontestamentary writing executed asprovided in case of wills, implied revocationmay be effected only by either a subsequentwill, or a codicil.

3. By burning, tearing, cancelling, orobliterating the will.Requisites:a. testamentary capacity at the time of

performing the act of destruction;b. intent to revoke (animus revocandi);c. actual physical act of destruction;d. completion of the subjective phase;

ande. performed by the testator himself or by

some other person in his presence andexpress direction

(THE LIST IS EXCLUSIVE.)

NOTE: The act of revocation is a personal actof the testator. He cannot delegate to anagent the authority to do the act for him.Another person, however, may be selected byhim as an instrument and directed to do therevocatory acts in his presence. A destructionnot accomplished in the testator’s presence isan ineffective revocation of the will.

DOCTRINE OF PRESUMED REVOCATION Whenever it is established that thetestator had in his possession or had readyaccess to the will, but upon his death itcannot be found or located, thepresumption arises that it must have beenrevoked by him by an overt act. Where it is shown that the will was incustody of the testator after its execution,and subsequently, it was found among thetestator’s effects after his death in such astate of mutilation, cancellation orobliteration as represents a sufficient actof revocation, it will be presumed in theabsence of evidence to the contrary, thatsuch act was performed by the testator

with the intention of revoking the will.

DOCTRINE OF DEPENDENT RELATIVEREVOCATION (ART 832) A revocation subject to a condition does

not revoke a will unless and until thecondition occurs. Thus, where a testator“revokes” a will with the proven intentionthat he would execute another will, hisfailure to validly make a latter will wouldpermit the allowance of the earlier will.

Where the act of destruction is connectedwith the making of another will so as fairlyto raise the inference that the testatormeant the revocation of the old to dependupon the efficacy of the new dispositionintended to be substituted, the revocationwill be conditional and dependent upon theefficacy of the new disposition; and if forany reason, the new will intended to be

10




made as a substitute is inoperative, therevocation fails and the original willremains in full force (Vda. De Molo vs. Molo90 Phil 37).

Revocation by mistake A revocation of a will based on a falsecause or an illegal cause is null and void.Thus, where a testator by a codicil or laterwill, expressly grounding such revocationon the assumption of fact which turns outto be false, as where it is stated that thelegatees/devisees named therein are dead,when in fact, they are living, therevocation does not take effect.

G. REPUBLICATION AND REVIVAL OF WILLS

REPUBLICATION The act of the testator whereby hereproduces in a subsequent will (express)the dispositions contained in a previouswill which is void as to its form, or heexecutes a codicil (constructive) to hiswill. Its purpose is to cure the will of its formaldefects.

NOTES:

To republish a will void as to its form, allthe dispositions must be reproduced or copied in the new or subsequent will;

To republish a will valid as to its form butalready revoked the execution of a codicilwhich makes reference to the revoked willis sufficient.

Effects of Republication by virtue of aCodicil:

1. Codicil revives the previous will2. The old will is republished as of the date of

the codicil— makes it speak, as it were,from the new and later date.

3. A will republished by a codicil is governedby a statute enacted to the execution of the will, but which was operative when thecodicil was executed.

REPUBLICATION REVIVAL

1. Takes placeby an act of thetestator

1. Takes place byoperation of law.

2. Correctsextrinsic andintrinsicdefects.

2. Restores arevoked will

REVIVAL The restoration to validity of a willpreviously revoked by operation of law

(implied revocation). PRINCIPLE OF INSTANTER The express revocation of the first will

renders it void because the revocatoryclause of the second will, not beingtestamentary in character, operates torevoke the previous will instantly upon theexecution of the will containing it.

NOTE: In implied revocation, the first will isnot instantly revoked by the second willbecause the inconsistent testamentary

dispositions of the latter do not take effectimmediately but only after the death of thetestator.

H. ALLOWANCE AND DISALLOWANCE OFWILLS

PROBATE A special proceeding mandatorily requiredfor the purpose of establishing the validityof a will. The statute of limitations is not applicable

to probate of wills.

Questions determinable by the probatecourt: (ICE)

1. identity of the will;

2. testamentary capacity of the testatorat the time of the execution of the will;and

11




3. due execution of the will.

GENERAL RULE: In probate proceeding, thecourt’s area of inquiry is limited to anexamination of, and resolution on the extrinsicvalidity if the will, the due execution thereof,the testatrix’s testamentary capacity and thecompliance with the requisites or solemnitiesprescribed by law. The probate court cannotinquire into the intrinsic validity of testamentary provisions.

EXCEPTION: Practical considerations, e.g.when the will is intrinsically void on its face.

In Nuguid vs Nuguid (17 SCRA 449), theSupreme Court held that, if the case wereto be remanded for probate of the will,nothing will be gained. On the contrary,this litigation would be protracted. Andfor aught that appears in the record, in theevent of probate or if the court rejects thewill, probability exists that the case willcome up once again before us on the sameissue of the intrinsic validity or nullity of the will. RESULT: waste of time, effort,expense, plus added anxiety.

In Nepomuceno vs CA (139 SCRA 207), theCourt ruled that “the court can inquire asto the intrinsic validity of the will becausethere was an express statement that thebeneficiary was a mistress.

NOTES: Criminal action will not lie against theforger of a will which had been dulyadmitted to probate by a court of competent jurisdiction. (Mercado vs.Santos 66 Phil. 215)

The fact that the will has been allowedwithout opposition and the order allowingthe same has become final and executoryis not a bar to the presentation of acodicil, provided it complies with all theformalities for executing a will. It is notnecessary that the will and codicil be

probated together as the codicil may beconcealed by an interested party. Theymay be probated one after the other.(Macam vs. Gatmaitan 60 Phil 358)

When a will is declared void because it hasnot been executed in accordance with theformalities required by law, but one of theintestate heirs, after the settlement of thedebts of the deceased, pays a legacy incompliance with a clause in the defectivewill, the payment is effective andirrevocable ( Article 1430, NCC; NaturalObligations).

Grounds for Disallowance of a Will (ART 839)1. Formalities required by law have not been

complied with;2. Testator was insane, or otherwise

incapable of making a will, at the time of its execution;

3. Will was executed through force or underduress, or the influence of fear, or threats;

4. Will was procured by undue and improperpressure and influence, on the part of thebeneficiary or of some other person;

5. Signature of the testator was procured byfraud;

6. Testator acted by mistake or did not intendthat the instrument he signed should be hiswill at the time of affixing his signaturethereto.

NOTE: GROUNDS ARE EXCLUSIVE.

Fair arguments, persuasion, appeal toemotions, and entreaties which, withoutfraud or deceit or actual coercion,compulsion or restraint do not constitute

undue influence sufficient to invalidate awill. (Barreto vs. Reyes 98 Phil 996) Burden is on the person challenging thewill to show that such influence wasexerted at the time of its execution. To make a case of UNDUE INFLUENCE, thefree agency of the testator must be shownto have been destroyed; but to establish aground of contest based on FRAUD, free

12




agency of the testator need not be shownto have been destroyed. Allegations of fraud and undue influenceare mutually repugnant and exclude eachother; their joining as grounds for opposingprobate shows absence of definiteevidence against the validity of the will(Icasiano vs. Icasiano 11 SCRA 422)

REVOCATION DISALLOWANCE 1. voluntary actof the testator.

1. given byjudicial decree.

2. with or

without cause.

2. must always

be for a legalcause.

3. may bepartial or total.

3. always totalexcept: whenthe ground of fraud orinfluence forexample affectsonly certainportions of thewill.

I. INSTITUTION OF HEIRS(ARTS. 840-856)

INSTITUTION An act by virtue of which a testatordesignates in his will the person or personswho are to succeed him in his property andtransmissible rights and obligations. (Art840) The proper test in order to determine the

validity of an institution of heir is thepossibility of finally ascertaining theidentity of the instituted heir by intrinsicor extrinsic evidence.

PRESUMPTIONS

1. Presumption of Equality – Heirs institutedwithout designation of shares shall inheritin equal parts. This is limited only to the

case where all of the heirs are of the sameclass or juridical condition, and wherethere are compulsory heirs among the heirsinstituted, it should be applied only to thedisposable free portion.

2. Presumption of Individuality – When thetestator institutes some heirs individuallyand others collectively, those collectivelydesignated shall be considered asindividually instituted, unless it clearlyappears that the intention of the testatorwas otherwise.

3. Presumption of Simultaneity – when thetestator calls to the succession a personand his children, they are all deemed tohave been instituted simultaneously andnot successively.

INSTITUTION BASED ON A FALSE CAUSE(Article 850)

GENERAL RULE: The statement of a falsecause for the institution of an heir shall beconsidered as not written. Reason: Generosity of the testator is the

real cause of the testamentary disposition.

EXCEPTION: If it appears from the face of the will that the testator would not have made

the institution had he known the falsity of thecause. Example: Where the person instituted is a

total stranger to the testator, it is obviousthat the real cause of the testamentarydisposition is not the generosity of thetestator but the fact itself which turnedout to be false.

REQUISITES FOR THE ANNULMENT OFINSTITUTION OF HEIRS:1. cause of institution of heirs must be stated

in will;2. cause must be shown to be false;3. it must appear from the face of the will

that the testator would not have made theinstitution had he known the falsity of thecause.

13




Where the one-sentence willinstitutes the petitioner as the sole,universal heir and preterits the parents of the testatrix, and it contains no specificlegacies or bequests, such universalinstitution of petitioner, by itself, is void.Intestate succession ensues. (Nuguid vs.Nuguid, et al. 17 SCRA 449)

PRETERITION (ART. 854) Omission in the testator’s will of one,some, or all of the compulsory heirs in thedirect line, whether living at the time of the execution of the will or born after thedeath of the testator.

Requisites:1. The heir omitted must be a compulsory

heir in the direct line;

2. The omission must be complete and totalin character; and

3. The compulsory heir omitted must survivethe testator.

There is no total omission when:

a. A devise/legacy has been given to theheir by the testator

b. A donation inter vivos has beenpreviously given to the heir by thetestator; or

c. Anything is left from the inheritancewhich the heir may get by way of intestacy.

NOTE: In the above cases, the remedy of the heir is completion of legitime underArt. 906, in case the value of the property

received is less than the value of thelegitime.

Effects of Preterition:1. It annuls the institution of heir;

2. The devises and legacies are valid insofaras they are not inofficious; and

3. If the omitted compulsory heir should diebefore the testator, the institution shall be

effectual, without prejudice to the right of representation.

NOTE: In case of omission without preterition, the rule in Art. 855 should befollowed. The suggested alternate phrasing of Dr. Tolentino to the said article is: “The shareof the compulsory heir omitted in a will mustbe first taken from the part of the estate notdisposed of by the will, if any; if that is notsufficient, so much as may be necessary mustbe taken proportionally from the shares of the heirs given to them by will.”

PRETERITION DISINHERITANCE

1. deprivation of a compulsoryheir of hislegitime is tacit

1. deprivationof a compulsoryheir of hislegitime isexpress.

2. may bevoluntary butthe lawpresumes that itis involuntary

2. alwaysvoluntary.

3. law presumesthat there hasbeen merely anoversight ormistake on thepart of thetestator.

3. done with alegal cause.

4. omitted heirgets not only hislegitime but also

his share in thefree portion notdisposed of byway of legacies/devises.

4. if disinheritanceis not lawful,

compulsory heiris merelyrestored to hislegitime.

Where the deceased left nodescendants, legitimate or illegitimate,but she left forced heirs in the direct

14




ascending line—her parents, and herholographic will does not explicitlydisinherit them but simply omits themaltogether, the case is one of preterition of parents, not a case of ineffectivedisinheritance. (Nuguid vs. Nuguid 17 SCRA449)

NOTE: Preterition of the surviving spouse (SS)does not entirely annul the institution of theheir since SS is not a compulsory heir in thedirect line. However, since Article 842protects the legitime of the SS, the institutionis partially annulled by reducing the rights of the instituted heir to the extent necessary tocover the legitime of SS. (Tolentino)

EFFECT OF PREDECEASE--an heir who dies before the testator shalltransmit no right to his own heirs (rule isabsolute with respect to a voluntary heir)--what is transmitted to the representatives of compulsory heir is his right to the legitime andnot to the free portionEFFECT OF INCAPACITY--A voluntary heir who is incapacitated tosucceed from testator shall transmit no rightto his own heirs.--compulsory heir may be represented, butonly with respect to his legitime

EFFECT OF REPUDIATION--whether voluntary or compulsory, the heirwho repudiates his inheritance cannot transmitany right to his own heirs.

J. SUBSTITUTION OF HEIRS(ARTS 857-870)

SUBSTITUTION The act by which the testator designatesthe person or persons to take the place of the heir or heirs first instituted(Tolentino). It may be considered as asubsidiary and conditional institution.

Kinds:

1. Simple or Common (that which takes placewhen the testator designates one or morepersons to substitute the heirs/s institutedin case such heir/s should die before him,or should not wish, or should beincapacitated to accept the inheritance)

2. Brief or Compendious: brief (there aretwo or more persons designated by thetestator to substitute for only one heir),compendious (one heir is designated totake the place of two or more heirs)

Instances when substitutiontakes place:

a. instituted heir predeceases thetestator;

b. incapacity of the instituted heirto succeed from the testator; and

c. repudiation of the inheritance.

Effect of substitution:General rule: once the substitution hastaken place, the substitute shall not onlytake over the share that would have passedto the instituted heir, but he shall besubject to the same charges and conditions

imposed upon such instituted heir.Exceptions: (1) When the testator has expressly to thecontrary;(2) When the charges or conditions arepersonally applicable only to the heirinstituted.

3. FideicommissaryRequisites:

a. First heir ( fiduciary ) called to thesuccession.

b. An obligation clearly imposed uponsuch first heir to preserve the property andto transmit it to the second heir.

c. Second heir ( fideicommissary ) towhom the property is transmitted by thefirst heir. Without the obligation clearlyimposing upon the first heir the

15




preservation of the property and itstransmission to the second heir, there is nofideicommissary substitution (Rabadilla vs.CA 334 SCRA 522)

NOTE: Pending transmission of property, thefiduciary is entitled to all the rights of ausufructuary, although the fideicommissary isentitled to all the rights of a naked owner.

Limitations:a. Substitution must not go beyond onedegree from the heir originally instituted.

b. “Degree” means degree of relationship.c. Fiduciary and fideicommissary must beliving at the time of the death of thetestator.d. Substitution must not burden thelegitime of compulsory heirs.e. Substitution must be made expressly. A fideicommissary substitution isvoid if the first heir is not related in the 1 st

degree to the second heir (Ramirez vs.Vda. De Ramirez 111 SCRA 704)

K. CONDITIONAL, MODAL TESTAMENTARYDISPOSITIONS, AND TESTAMENTARY

DISPOSITIONS WITH A TERM (ART 871-885)

GENERAL RULE: The institution of an heirmay be made 1) conditionally, 2) for a term,or 3) for a certain purpose or cause (modal).Conditions, terms, and modes however, arenot presumed; they must be clearly expressedin the will. The condition must fairly appearfrom the language of the will. Otherwise, it isnot binding.

LIMITATIONS:

1. The testator cannot impose any charge,burden, encumbrance, condition, orsubstitution whatsoever upon the legitimeof compulsory heirs.

2. Impossible conditions and those contrary to law or good customs are presumed tohave been imposed erroneously or throughoversight, thus, are considered as notimposed.

3. An absolute condition not to contract a first marriage is always void and will beconsidered as not written.

4. An absolute condition not to contract asubsequent marriage is generally void,unless imposed upon a widow or widowerby the deceased spouse or by the latter’sascendants or descendants. Even so,however, the legitime of the survivingspouse cannot be impaired .

An absolute condition not tocontract marriage when validly imposed isresolutory in character. Consequently, if the testator institutes his wife as heir

subject to the condition that she will nevermarry again, she immediately acquires aright to the inheritance upon the death of testator, but if she violates the conditionby contracting a 2nd marriage, she loses herright to said inheritance.

NOTE: However, the following relativeconditions regarding marriage have beenconsidered as valid and binding:

a. generic condition to contract marriage;b. specific condition to contract marriage

with a determinate person; andc. specific condition not to contractmarriage with a determinate person.

5. Any disposition made upon the conditionthat the heir shall make some provisions inhis will in favor of the testator or of anyother person shall be void ( disposicioncaptatoria).

6. Conditions imposed by the testator uponthe heirs shall be governed by the rulesestablished for conditional obligations in

all matters not provided for by the law onsuccession.

Kinds of Conditions

1. Potestative Condition – dependsexclusively upon the will of the heir,devisee, or legatee, and must beperformed by him personally.

16




2. Causal Condition –depends upon the will of the heir, devisee, or legatee, but upon thewill of a third person.

3. Mixed – depends jointly upon the will of the heir, devisee, or legatee and uponchance and/or will of a third person.

Fulfillment of Conditions:

1. Potestative Conditions must be fulfilledafter the death of the testator (exceptwhen it has already been fulfilled and is of such nature that it cannot be repeated);

2. Causal or mixed conditions may be fulfilledeither before or after such death, unlessthe testator has provided otherwise.

MODAL INSTITUTION (INSTITUCION SUBMODO) Attachment by the testator to an

institution of heir, or to a devise or legacy,of a statement of the:

a. object of the institution;

b. application of the property left bytestator; or

c. charge imposed by him.

NOTES:

When in doubt as to whether there is acondition or merely a mode, consider thesame as mode.

When in doubt as to whether there is amode or merely a suggestion, considersame only as a suggestion.

The ‘condition’ suspends but does notobligate; the ‘mode’ obligates but doesnot suspend (for he who inherits with amode is already an heir; one who inheritsconditionally is not yet an heir)

DOCTRINE of CONSTRUCTIVE FULFILLMENT:When without the fault of the fault of theheir, an institucion sub modo cannot takeeffect in the exact manner stated by thetestator, it shall be complied with in a manner

most analogous to and in conformity with hiswishes.

NOTE:

If the condition is casual, the doctrine isnot applicable since the fulfillment of theevent which constitutes the condition isindependent of the will of the heir,devisee/legatee. If the condition ispotestative or mixed, the doctrine isapplicable.

L. LEGITIMES (ARTS 886 – 914)LEGITIME That part of the testator’s property which

he cannot dispose of because the law hasreserved it for certain heirs who are,therefore, called compulsory heirs.

The course of action to enforce a legitimeaccrues upon the death of the donor-decedent since it is only then that the netestate may be ascertained and on whichbasis, the legitime may be determined.(Imperial vs. CA 316 SCRA 313)

NOTE: One half of the estate is always

reserved for the primary or secondarycompulsory heirs. The other half is what istermed under the NCC as the “free portion”from which the legitime of the concurringcompulsory heirs are taken. This “freeportion” is different from the “disposable freeportion” over which the testator hastestamentary control. The “disposable freeportion” is that which remains after thelegitime has been covered.

COMPULSORY HEIRS (CH)

Those for whom the legitime is reserved bylaw, and who succeed whether the testatorlikes it or not. They cannot be deprived bythe testator of their legitime except bydisinheritance properly effected.

Kinds of Compulsory Heirs:

17




1. Primary – those who have precedence overand exclude other CH. E.g. LCD.

2. Secondary – those who succeed only in theabsence of the primary CH. E.g. LPA or IP.

3. Concurring – those who succeed together with the primary or secondary CH. E.g. ICDand SS.

If the testatoris a

LEGITIMATEperson

If the testatoris an

ILLEGITIMATEperson

1. Legitimatechildren and

descendants(LCD)

1. Legitimatechildren and

descendants(LCD)

2. In default of theforegoing,legitimateparentsand ascendants(LPA)

2. Illegitimatechildren anddescendants(ICD)

3. Survivingspouse (SS)

3. In default of theforegoing,illegitimate

parentsonly (IP)

4. Illegitimatechildren anddescendants(ICD)

4. Survivingspouse (SS)

NOTES: See Sections 17 & 18 of R.A. 8552.

By force of the Family Code, adoptedchildren are deemed legitimate children of the adopters.

By force of the Family Code, IC withoutdistinction and so long as their filiation isduly established or proved in accordance

with law, are each entitled to 1/2 of thelegitime of a LC, thus abrogating the 5:4ratio between “natural” and “non-natural”IC.

RULES:1. Direct descending line

a. Rule of preference between linesb. Rule of proximity

c. Right of representation ad infinitum incase of predecease, incapacity, ordisinheritance (LC: LD only; IC: both LDand ID)

d. If all the LC repudiate their legitime,the next generation of LD succeed intheir own right

2. Direct ascending linea. Rule of division by linesb. Rule of equal division

3. Non-impairment of legitime

TABLE OF LEGITIMES

SURVIVOR LEGITIME NOTES

LC ½ Divide bythe # of LC,whether

they survivealone orwithconcurringCH.

1 LCSS

½¼

2 or moreLCSS

½equal to1 LC

LCIC

½½ of 1LC

LCSSIC

½¼½ of 1 LC

All theconcurringCH get from

18




the half freeportion, theshare of theSS havingpreferenceover that of the IC,whose sharemay sufferreductionpro ratabecausethere is nopreferenceamongthemselves.

LPA ½ Whetherthey survivealone orwithconcurringCH.

LPAIC

½¼

IC succeedin the ¼ in

equalshares.

LPASS

½¼

LPASSIC

½1/8¼

IC ½ Divideequally

among theIC.

SSIC

1/31/3

SS ½ 1/3 if

marriage isin articulomortis anddeceasedspouse dieswithin 3mos. afterthemarriage.

IP ½

IPAny child

-excluded-It

depends

Childreninherit inthe

amountsestablishedin theforegoingrules.

IPSS

¼¼

Only theparents areof IC areincluded.Grandparents and other

ascendantsareexcluded.

STEPS IN DETERMINING THE LEGITIME OFCOMPULSORY HEIRS:

1. Determination of the gross value of theestate at the time of the death of thetestator;

2. Determination of all debts and chargeswhich are chargeable against the estate;

3. Determination of the net value of theestate by deducting all the debts andcharges from the gross value of the estate;

4. Collation or addition of the value of alldonations inter vivos to the net value of the estate;

5. Determination of the amount of thelegitime from the total thus found;

19




6. Imputation of the value of all donationsinter vivos made to compulsory heirsagainst their legitime and of the value of all donations inter vivos made to strangersagainst the disposable free portion andrestoration to the hereditary estate if thedonation is inofficious; and

7. Distribution of the residue of the estate inaccordance with the will of the testator

COLLATION1. Fictitious mathematical process of adding

the value of the thing donated to the netvalue of the hereditary estate (Art. 908and Arts. 1061-1077).

2. Act of charging or imputing such valueagainst the legitime of the compulsory heirto whom the thing was donated (Arts.1061-1077).

3. Actual act of restoring to the hereditaryestate that part of the donation which isinofficious in order not to impair thelegitime of compulsory heirs.

RESERVA TRONCAL (ART 891) The reservation by virtue of which an

ascendant who inherits from hisdescendant any property which the lattermay have acquired by gratuitous title fromanother ascendant or a brother or sister, isobliged to reserve such property for thebenefit of relatives who are within the 3rd

degree and who belong to the line fromwhich such property came. It constitutes as an exception to both thesystem of legitime and the order of intestate succession.

Purposes:

1. To reserve certain property in favor of certain persons;

2. To prevent persons outside a family fromacquiring, by some chance or accident,property which otherwise would haveremained with the said family;

3. To maintain a separation between paternaland maternal lines.

NOTE: Considering the rationale for reservatroncal which is to ultimately revert ownershipof property that originally belongs to a line of relatives but which by force of law passes to adifferent line, the reserva would have noreason to arise where the ascendants whoacquire the property themselves belong to theline of relatives from which the property was,in turn, acquired by the descendant.

Requisites:

1. The property should have been acquired byoperation of law by an ascendant(reservista) from his descendant( propositus) upon the death of the latter.

2. The property should have been previouslyacquired by gratuitous title by thedescendant ( propositus) from anotherascendant or from a brother or sister(originator ).

3. The descendant ( propositus) should havedied without any legitimate issue in thedirect descending line who could inheritfrom him.

Personal elements:1. Originator – the ascendant, or brother orsister from whom the propositus hadacquired the property by gratuitous title(e.g. donation, remission, testate orintestate succession);

2. Propositus – the descendant who died andfrom whose death the reservista in turn hadacquired the property by operation of law(e.g. by way of legitime or intestatesuccession). The so-called “arbiter of thefate of the reserva troncal.”

3. Reservista – the ascendant, not belongingto the line from which the property came(Justice Vitug) that is the only compulsoryheir and is obliged to reserve the property.

NOTE: Dr. Tolentino is of the view that even if the reservista and the originator belong to thesame line, there is still an obligation toreserve.

20




4. Reservatarios – the relatives of thepropositus within the 3rd degree and whobelong to the line from which the propertycame and for whose benefit thereservation is constituted. They must berelated by blood not only to the propositusbut also to the originator.

NOTE: All personal elements must be joined by bonds of legitimate relationship.

NOTE: In determining the right of thereservatarios over the reservable property,there are 2 events to consider:

1. Death of propositus: all qualifiedreservatarios acquire an inchoate right.Reservista owns the property subject to aresolutory condition.

2. Death of reservista: survivingreservatarios acquire a perfect right.

NOTE: The NCC did not provide for the ruleson how the reservatarios would succeed to thereservista. However, the following rules onintestacy have been consistently applied:

a. Rule of preference between linesb. Rule of proximity

c. Right of representation ( provided thatthe representative is a relative of thedescendant- propositus within 3rd

degree, and that he belongs to the linefrom which the reservable propertycame)

d. “Full blood/double share” rule in Art.1006

Property subject toreservation: must be the same propertywhich the reservista had acquired by

operation of law from propositus upon thedeath of the latter and which the latter, inturn had acquired by gratuitous title duringhis lifetime from another ascendant,brother/sister.

Obligations of Reservista:(1) To make an inventory of all reservable

property;

(2) To appraise value of all reservablemovable property;

(3) To annotate in Registry of property thereservable character of all reservableimmovable property;

(4) To secure by mortgage (a) restitutionof movables not alienated, (b)payment of damages caused by hisfault or negligence, (c) return of pricereceived for movables alienated and(d) payment of value of immovablealienated.

A reservatorio may dispose of hisexpentancy to the reservable propertyduring pendency of the reserve in itsuncertain and conditional form. If he diesbefore the reservista, he has nottransmitted anything, but if he survivessuch reservista, the transmission shallbecome effective.

A will may prevent the constitution of areserva. In case of testate succession, onlythe legitime passes by operation of law.The propositus may, by will, opt to givethe legitime of his ascendant without

giving to the latter properties he hadacquired by gratuitous title from anotherascendant, or brother or sister. In suchcase, a reserva troncal is avoided .

However, if the ascendant was notdisentitled in the will to receive suchproperties, the reserva minima rule( proportional reserva) should be followed. Therule holds that all property passing to thereservista must be considered as passing partlyby operation of law and partly by will of thepropositus. Thus, one half of the properties

acquired by gratuitous title should bereservable, and the other half should be free.

Causes for Extinguishment of ReservaTroncal:1. Death of reservatarios;2. Death of all relatives of propositus within

the 3rd degree who belong to the line fromwhich the property came;

21




3. Loss of the reservable property for causesnot due to the fault or negligence of thereservista.

4. Waiver or renunciation by thereservatarios;

5. Prescription of the right of thereservatarios, when the reservista holdsthe property adversely against them in theconcept of an absolute owner;

6. Registration by the reservista of theproperty as free property under the LandRegistration Act

M. DISINHERITANCE (ART 915 – 923) A testamentary disposition by which aperson is deprived of, or excluded from,the inheritance to which he has a right. A disinheritance properly effected totallyexcludes the disinherited heir from theinheritance. The disinherited heir isdeprived not only of the legitime but alsoof such part of the free portion that wouldhave passed to him by a previous will(which is revoked, as inconsistent with, thesubsequent disinheritance) or by intestatesuccession.

Requisites:1. Effected only through a valid will;2. For a cause expressly stated by law;3. Cause must be stated in the will itself;4. Cause must be certain and true;5. Unconditional;

6. Total; and7. The heir disinherited must bedesignated in such a manner that there canbe no doubt as to his identity.

Effects of Disinheritance:

1. Deprivation of the compulsory heir who isdisinherited of any participation in theinheritance including the legitime.

2. The children/descendants of the persondisinherited shall take his or her place andshall preserve the rights of compulsoryheirs with respect to the legitime.

3. The disinherited parent shall not have theusufruct or administration of the propertywhich constitutes the legitime.

IMPERFECT DISINHERITANCE A disinheritance which does not have oneor more of the essential requisites for itsvalidity. Effects:

1. If testator had made disposition of theentire estate: annulment of thetestamentary dispositions only in so far asthey prejudice the legitime of the persondisinherited; does not affect thedispositions of the testator with respect to

the free portion.2. If testator did not dispose of the freeportion: compulsory heir is given all thathe is entitled to receive as if thedisinheritance has not been made, withoutprejudice to lawful dispositions made bythe testator in favor of others.

3. Devises, legacies and other testamentarydispositions shall be valid to such extent aswill not impair the legitime.

IMPERFECTDISINHERITANC

E

PRETERITION

1. The persondisinherited maybe anycompulsory heir

1. The personomitted mustbe acompulsory heirin the directline

2. Alwaysexpress

2. Alwaysimplied

3.Alwaysintentional

3. May beintentional orunintentional

22




4. Effect: Partialannulment of institution of heirs

4. Effect: Totalannulment of institution of heirs

Common Causes for Disinheritance of children or descendants, parents orascendants, and spouse:1. When the heir has been found guilty of an

attempt against the life of the testator,his/her descendants or ascendants, andspouse in case of children and parents;

2. When the heir has accused the testator of a crime for which the law prescribesimprisonment for 6 years or more, if theaccusation has been found groundless;

3. When the heir by fraud, violence,intimidation, or undue influence causes thetestator to make a will or to change onealready made;

4. Refusal without justifiable cause tosupport the testator who disinherits suchheir.

Peculiar Causes for Disinheritance1. Children/Descendants:

a. When the child/descendant has beenconvicted of adultery or concubinagewith the spouse of the testator;

b. Maltreatment of the testator by wordor deed by the child/descendant;

c. When the child/descendant leads adishonorable or disgraceful life;Conviction of a crime which carrieswith it a penalty of civil interdiction.

2. Parents/Ascendants:a. When the parents have abandoned their

children or induced their daughters tolive a corrupt or immoral life, orattempted against their virtue;

b. When the parent/ascendant has beenconvicted of adultery or concubinagewith the spouse of the testator;

c. Loss of parental authority for causesspecified in the Code; and

d. Attempt by one of the parents againstthe life of the other, unless there hasbeen reconciliation between them.

3. Spouse:a. When the spouse has given cause for

legal separation; When the spouse hasgiven grounds for the loss of parentalauthority.

Revocation of Disinheritance:1. Reconciliation;2. Subsequent institution of the disinherited

heir; and3. Nullity of the will which contains the

disinheritance.

NOTE: Once disinheritance has been revokedor rendered ineffectual, it cannot be renewedexcept for causes subsequent to therevocation or based on new grounds.

RECONCILIATION It is the resumption of genuine cordialrelationship between the testator and thedisinherited heir, approximating that whichprevailed before the testator learned of the cause for disinheritance, reciprocallymanifested by their actions subsequent tothe act of disinheritance. A subsequent reconciliation between theoffender and the offended person deprivesthe latter of the right to disinherit, andrenders ineffectual any disinheritance thatmay have been made. (Art. 922)

NOTES:

Mere civility which may characterize theirrelationship, a conduct that is naturallyexpected of every decent person, is notenough.

In order to be effective, the testator mustpardon the disinherited heir. Such pardonmust specifically refer to the heir and tothe acts causing the disinheritance. Theheir must accept the pardon.

No particular form is required. It may bemade expressly or tacitly.

23




NOTE: Where the cause for disinheritance islikewise a ground for unworthiness tosucceed, what is the effect of a subsequentreconciliation upon the heir’s capacity tosucceed?

1. If disinheritance has been made: Ruleon reconciliation applies. Thedisinheritance becomes ineffective.

2. If disinheritance has not been made:Rule on reconciliation does not apply. Theheir continues to be incapacitated tosucceed unless pardoned by the testatorunder Art. 1033. The law effects thedisinheritance.

N. LEGACIES AND DEVISES (ARTS. 924 – 959)

Persons charged with legacies and devises:(1) compulsory heir;(2) voluntary heir;(3) legatee or devisee;(4) estate

NOTES:

If the will is silent with regard to theperson who shall pay or deliver thelegacy/devise, there is a presumption that

such legacy or devise constitutes a chargeagainst the decedent’s estate.

Since legacies and devises are to be takenfrom the disposable free portion of theestate, thus, the provisions on institutionof heirs are generally applicable to them.

STATUS OFPROPERTY GIVEN

BYLEGACY/DEVISE

EFFECT ONTHE

LEGACY/DEVISE

1. Belonging to thetestator at thetime of theexecution of thewill until his death

Effective

2. Belonging to thetestator at the Revoked

time of theexecution of thewill but alienatedin favor of a 3rd

person

3. Belonging to thetestator at thetime of theexecution of thewill but alienatedin favor of thelegatee/devisee

gratuitously

No revocation.There is a clearintention tocomply withlegacy ordevise.

4. Belonging to thetestator at thetime of theexecution of thewill but alienatedin favor of thelegatee or deviseeonerously

Legatee/devisee can demandreimbursementfrom the heiror estate

5. Not belonging tothe testator at thetime the will isexecuted but hehas ordered thatthe thing beacquired in orderthat it be given tothelegatee/devisee

Effective

6. Not belonging tothe testator at thetime the will isexecuted and the

testatorerroneouslybelieved that thething pertained tohim

Void

7. Not belonging tothe testator at thetime the will is

Effective

24




executed butafterwardsbecomes his bywhatever title

8. Alreadybelonged to thelegatee/devisee atthe time of theexecution of thewill even thoughanother personmay have interesttherein

Ineffective

9. Alreadybelonged to thelegatee or deviseeat the time of theexecution of thewill even though itmay have beensubsequentlyalienated by him

Ineffective

10.Testator hadknowledge that

the thingbequeathedbelonged to a thirdperson and thelegatee/deviseeacquired theproperty

gratuitously afterthe execution of the will

Legatee/devisee can claim

nothing byvirtue of thelegacy/devise

11.Testator had

knowledge thatthe thingbequeathedbelonged to a thirdperson and thelegatee/deviseeacquired theproperty byonerous title

Legatee/devise

e can demandreimbursementfrom the heiror estate

ART. 911 ART. 950

Order of preference:

(LIPO)

Order of preference:

(RPSESO)

1. Legitime of compulsoryheirs

2. Donationsinter vivos

3. Preferentiallegacies or

devices4. All otherlegacies ordevices prorata

1. R emuneratoryL/D

2. Preferential L/D

3. L forsupport

4. L for

education5. L/D of a

specific,determinatething whichforms a part of the estate

All others prorata

Application: Application:

(1) When thereduction isnecessary topreserve thelegitime of compulsoryheirs fromimpairmentwhether thereare

(1) When thereare nocompulsory heirsand the entireestate isdistributed by thetestator aslegacies ordevises; or

donations inter

vivos or not; or(2) When,

although, thelegitime hasbeen preservedby the testatorhimself thereare donations

(2) When there

are compulsoryheirs but theirlegitime hasalready beenprovided for bythe testator and there are nodonations inter

25




inter vivos. vivos.

NOTES:

In case of reduction in the above cases, theinverse order of payment should befollowed.

When the question of reduction isexclusively among legatees and deviseesthemselves, Article 950 governs; but whenthere is a conflict between compulsoryheirs and devisees and legatees, Article911 applies.

GROUNDS FOR REVOCATION OF LEGACIESAND DEVISES (ART 957)

1. Testator transforms the thing bequeathedin such a manner that it does not retain

either the form or the denomination ithad.

2. Testator by any title or for any causealienates the thing bequeathed, or anypart thereof, it being understood that inthe latter case the legacy or devise shallbe without effect only with respect to thepart alienated.Except: when the thing should againbelong to the testator after alienation.

3. Thing bequeathed is totally lost during thelifetime of the testator, or after his deathwithout the heirs fault

4. Other causes: nullity of the will;noncompliance with suspensive conditionsaffecting the bequests; sale of the thing to

pay the debts of the deceased during thesettlement of his estate.

NOTE: LIST IS NOT EXCLUSIVE

II. LEGAL OR INTESTATE SUCCESSION

That which is effected by operation of lawin the absence or default of a will.

CAUSES OF INTESTACY1. If a person dies without a will, or witha void will, or one which has subsequentlylost its validity;2. Absence of an institution of heir;3. Partial institution of heir. In such case,intestacy takes place as to the undisposedportion (mixed succession);4. Non-fulfillment of suspensive conditionattached to the institution of heir;5. Predecease of the instituted heir;6. Repudiation by the instituted heir;7. Incapacity of instituted heir;8. Preterition. Intestacy may be total orpartial depending on whether or not thereare legacies/devises;9. Fulfillment of resolutory condition;10. Expiration of term or period of institution;11. Non-compliance or impossibility of compliance with the will.

NOTE: In all cases where there has been aninstitution of heir, follow the I.S.R.A.I. order of Justice Paras. If the I nstitution fails,Substitution occurs. If there is no substitute,the right of Representation applies in thedirect descending line to the legitime if thevacancy is caused by predecease, incapacity,or disinheritance. The right of Accretionapplies to the free portion when the requisitesin Art. 1016 are present. If there is nosubstitute, and the right of Representation orAccretion does not apply, the rules onI ntestate succession shall take over.

A. RULES1. Rule of Preference between lines

26




Those in the direct descendingline shall exclude those in the directascending and collateral lines, andthose in the direct ascending line shall,in turn, exclude those in the collateralline.

2. Rule of Proximity The relative nearest in degreeexcludes the more distant ones, savingthe right of representation when itproperly takes place. This rule is subject to the ruleof preference between lines.

3. Rule of Equal Division Relatives in the same degree

shall inherit in equal shares. EXCEPTIONS:a) Division in the ascending line (between

paternal and maternal grandparents);

b) Division among brothers and sisters,some of whom are of the full and othersof half blood; and

c) Division In cases where the right of representation takes place.

NOTE: This rule is subject to the rule of preference between lines.

4. Rule of Barrier between the legitimate

family and the illegitimate family The illegitimate family cannotinherit by intestate succession from thelegitimate family and vice-versa.

5. Rule of Double Share for full bloodcollaterals When full and half-blood

brothers or sisters, nephews or nieces,survive, the full blood shall take aportion in the inheritance double thatof the half-blood.

NOTE: In case of a disposition made in generalterms under Article 959, only the Rule of Proximity applies.

B. RELATIONSHIP (ARTS. 963 – 969)1. Number of generations determines

proximity.2. Each generation forms a degree.

3. A series of degrees forms a line.4. A line may be direct or collateral. A direct

line is that constituted by the series of degrees among ascendants anddescendants (ascending and descending).

5. A collateral line is that constituted by theseries of degrees among persons who arenot ascendants or descendants, but whocome from a common ancestor.

6. Full blood: same father and mother; half blood: only one of either parent is thesame.

7. In adoption, the legal filiation is personaland exists only between the adopter andthe adopted. The adopted is deemed alegitimate child of the adopter (AP), butstill remains as an intestate heir of hisnatural parents and other blood relatives.

C. RIGHT OF REPRESENTATION (RR)(ARTS. 970 – 977) A right created by fiction of law, by virtue

of which the representative is raised to theplace and degree of the personrepresented, and acquires the rights whichthe latter would have if he were living or if he could have inherited. Therepresentative is called to the successionby the law not by the person represented.He succeeds the one whom the personrepresented would have succeeded.

NOTES:

In the direct line, representation takesplace ad infinitum in the direct descendingline, never in the ascending.

In the collateral line, representation takesplace only in favor of the children of

brothers or sisters (nephews and nieces),whether of the full or half-blood, and onlyif they concur with at least 1 uncle oraunt.

1. Testamentary Succession

a) When a compulsory heir in the directdescending line had predeceased the

27




testator and was survived by hischildren or descendants.

b) When a compulsory heir in the directdescending line is excluded from theinheritance due to incapacity orunworthiness and he has children ordescendants.

c) When a compulsory heir in the directdescending line is disinherited and hehas children or descendants;representation covers only thelegitime.

d) A legatee/devisee who died after thedeath of the testator may berepresented by his heirs.

2. Intestate Succession

a) When a legal heir in the directdescending line had predeceased thedecedent and was survived by hischildren or descendants.

b) When a legal heir in the directdescending line is excluded from theinheritance due to incapacity orunworthiness and he has children ordescendants.

c) When brothers or sisters had

predeceased the decedent and theyhad children or descendants.

d) When illegitimate childrenrepresent their illegitimate parentswho already died in the estate of theirgrandparents.

e) When nephews and nieces inherittogether with their uncles and aunts inrepresentation of their deceasedparents who are the brothers or sistersof said uncles and aunts.

D. INTESTATE OR LEGAL HEIRS Those who are called by law to thesuccession either in the absence of a willor of qualified heirs, and who are deemed

called based on the presumed will of thedecedent.

REGULAR ORDER OF SUCCESSION (Decedentis a legitimate person):1. Legitimate children or descendants (LCD)2. Legitimate parents or ascendants (LPA)3. Illegitimate children or descendants (ICD)4. Surviving spouse (SS)5. Brothers and sisters, nephews and nieces

(BS/NN)6. Other collateral relatives within the 5th

degree (C5)7. State

IRREGULAR ORDER OF SUCCESSION(Decedent is an illegitimate person):

1. Legitimate children or descendants(LCD)

2. Illegitimate children or descendants(ICD)

3. Illegitimate parents (IP)4. Surviving spouse (SS)

5. Brothers and sisters, nephews and nieces(BS/NN)6. State

ORDER OF CONCURRENCE1. LCD, ICD, and SS2. LPA, ICD, and SS3. ICD and SS4. SS and IP5. BS/NN and SS6. C5 (alone)7. State (alone)

TABLE OF INTESTATE SHARES

SURVIVOR INTESTATE SHARE

Any classalone

Entire estate

1 LCSS

1/21/2(Diongson vs. Cinco,74 SCRA 118)

2 or moreLCSS

Consider SS as 1 LC,then divide estateby total number.

28




LPASS

1/21/2

LPASSIC

1/21/41/4

IPSS

1/21/2(The law is silent.

Apply concurrencetheory.)

SSBS/NN

½1/2

1 LCSSIC

First, satisfylegitimes. Estatewould be

insufficient.Reduction must bemade according tothe rules onlegitimes. Thelegitimes of LCD andSS shall always befirst satisfied inpreference to theICD.

2 or moreLC

SSIC

First, satisfylegitimes. There

would be an excessin the estate.Distribute suchexcess in theproportion 1:2:2, inaccordance with theconcurrence theory .

ORDER OF CONCURRENCE IN THE CASE OFADOPTED CHILD

SURVIVORS SHARE

1. LPA/IPAP ½½

2. LPA/IPAP

SS

½

½

3. LPA AP

½

ICD ½

4. LPAAP

SSICD

1/3

1/31/3

CARDINAL PRINCIPLES OF INTESTATESUCCESSION (Justice Paras)

1. Even if there is anorder of intestate succession, theCompulsory Heirs (CH) are never excluded.The Civil Code follows the concurrencetheory, not the exclusion theory.

2. Right of Representation

(RR ) in the collateral line occurs only inintestate succession, never in testamentarysuccession because a voluntary heir cannotbe represented (collateral relatives are notCH).3. The intestate sharesare either equal to or greater than thelegitime.

4. GENERAL RULE:Grandchildren always inherit by RR,provided representation is proper.

EXCEPTION: Whenever all the children

repudiate, the grandchildren inherit intheir own right because RR would not beproper.

5. Nephews and nieces inherit either by RR orin their Own Right (OR ).

a. RR: when they concur with auntsand uncles (provided that RR is proper)b. OR: when they do not concur withaunts and uncles.

6. ICD of legitimates cannot representbecause of the barrier, but both the ICDand LCD of illegitimates can.

7. There can be reserva troncal in intestatesuccession.

8. A renouncer can represent, but cannot berepresented.

9. A person who cannot represent a nearrelative cannot also represent a relativefarther in degree.

29




III. MIXED SUCCESSION OR PARTIALINTESTACY

Succession that is effectedpartly by will and partly by operation of law.

RULES:1. The law of legitimes must be broughtinto operation in partial intestacy, becausethe testamentary dispositions can affectonly the disposable free portion but neverthe legitimes.2. If among the concurring intestate heirsthere are compulsory heirs, whose legal orintestate portions exceed their respectivelegitimes, then the amount of thetestamentary disposition must be deductedfrom the disposable free portion, to beborne by all the intestate heirs in theproportions that they are entitled toreceive from such disposable free portionas intestate heirs.3. If the intestate share of a compulsoryheir is equal to his legitime, then theamount of the testamentary dispositionmust be deducted only from the intestateshares of the others, in the proportionsstated above.4. If the testamentary dispositionsconsume the entire disposable freeportion, then the intestate heirs who arecompulsory heirs will get only theirlegitime, and those who are notcompulsory heirs will get nothing.

IV. PROVISIONS COMMON TO TESTAMENTARYAND INTESTATE SUCCESSIONS

A. RIGHT OF ACCRETION (A)(ARTS 1015 – 1023) A right by virtue of which, when

two or more persons are called to the sameinheritance, devise or legacy, the partassigned to one who renounce or cannotreceive his share, or who died beforetestator, is added or incorporated to thatof his co-heirs, co-devisees, or co-legatees.

A right based on the presumedwill of the deceased that he prefers to givecertain properties to certain individuals,rather than to his legal heirs.

Requisites:

1. 2 or more persons must have beencalled to the same inheritance, legacy ordevise, or to the same portion thereof, proindiviso; and

2. there must be a vacancy in theinheritance, legacy or devise (caused bypredecease, incapacity, repudiation,nonfulfillment of suspensive condition orvoid or ineffective testamentary

dispositions.)

EFFECTS of PREDECEASE, INCAPACITY,DISINHERITANCE, or REPUDIATION in bothTESTAMENTARY and INTESTATE SUCCESSION

CAUSEOF

VACANCY

TESTAMENTAR Y SUCCESSION

INTESTATE

SUCCES-SION(IS)

Legitime

FreePortio

nPredecease

1. RR2. IS

1. A2. IS

1. RR2. IS

Incapacity RR2.IS

AIS

RRIS

Disinheri-tance

1.RR2.IS

_ _

Repudia-tion

IS A A

Summary:(A) In testamentary

succession:(1) Legitime:

(a) In case of predecease of an heir,there is representation if there arechildren or descendants; if none,the others inherit in their ownright.

(b) In case of incapacity, results arethe same as in predecease.

30




(c) In case of disinheritance, resultsare the same as in predecease.

(d) In case of repudiation by an heir,the others inherit in their ownright.

(2) Disposable free portion:Accretion takes place when requisitesare present; but if such requisites arenot present, the others inherit in theirown right.

(B) In intestate succession:(1) In case of predecease, there is

representation if there are children ordescendants; if none, the others inherit intheir own right.

(2) In case of incapacity, results are the sameas in predecease.

(3) In case of repudiation, there is alwaysaccretion.

B. CAPACITY TO SUCCEED BY WILL OR BYINTESTACY (ARTS. 1024 – 1040)

Requisites:1. The heir, legatee/devisee must be living or

in existence at the moment the successionopens; and

2. He must not be incapacitated ordisqualified by law to succeed.

THE FOLLOWING ARE INCAPABLE OFSUCCEEDING:A. Based on Undue Influence or Interest:(PIGRAP)

1. Priest who heard the confession of thetestator during his last illness, or theminister of the gospel who extendedspiritual aid to him during the same period;2. Individuals, associations andcorporations not permitted by law toinherit;3. Guardian with respect to testamentarydispositions given by a ward in his favorbefore the final accounts of theguardianship have been approved, even if the testator should die after the approval

thereof; nevertheless, any provision madeby the ward in favor of the guardian whenthe latter is his ascendant, descendant,brother, sister, or spouse, shall be valid;4. R elatives of such priest or minister of the gospel within the 4th degree, thechurch, order, chapter, community,organization or institution to which suchpriest or minister may belong;5. Attesting witness to the execution of awill, the spouse, parents or children, orany one claiming under such witness,spouse, parents or children; and6. Physician, surgeon, nurse, healthofficer or druggist who took care of thetestator during his last illness.

B. Based on Morality or Public Policy(ART 739)1. Those made in favor of a person with whom

the testator was guilty of adultery orconcubinage at the time of the making of the will.

2. Those made in consideration of a crime of which both the testator and the beneficiaryhave been found guilty.

3. Those made in favor of a public officer orhis spouse, descendants and ascendants, byreason of his public office

C. Based on Acts of Unworthiness (A4F3P)1. Parents who have abandoned their children

or induced their daughters to lead acorrupt or immoral life, or attemptedagainst their virtue;

2. Any person who has been convicted of anattempt against the life of the testator,his/her spouse, descendants or ascendants;

3. Any person who has accused the testator of a crime for which the law prescribesimprisonment for 6 years or more, if theaccusation has been found groundless;

4. Any person convicted of adultery orconcubinage with the spouse of thetestator;

5. Any heir of full age who, having knowledgeof the violent death of the testator, shouldf ail to report it to an officer of the lawwithin a month, unless the authorities have

31




already taken action; this prohibition shallnot apply to cases wherein, according tolaw, there is no obligation to make anaccusation;

6. Any person who by f raud, violence,intimidation, or undue influence shouldcause the testator to make a will or tochange one already made;

7. Any person who f alsifies or forges asupposed will of the decedent; and

8. Any person who by the same meansprevents another from making a will, orfrom revoking one already made, or whosupplants, conceals, or alters the latter'swill.

NOTE: The moment the testator uses one of the acts of unworthiness as a cause fordisinheritance, he thereby submits it to therules on disinheritance. Thus, reconciliationrenders the disinheritance ineffective.

PARDON OF ACTS OF UNWORTHINESSEXPRESS IMPLIED

1. made by theexecution of adocument or anywriting in whichthe decedentcondones thecause of incapacity

1. effectedwhen testatormakes a willinstituting theunworthy heirwith knowledgeof the cause of incapacity

2. cannot berevoked

2. revokedwhen thetestatorrevokes the willor theinstitution

C. ACCEPTANCE AND REPUDIATION OFINHERITANCE (ARTS. 1041 – 1057)

Characteristics: (VIR)

1. Voluntary and free

2. Irrevocable, except if there is vitiationof consent or an unknown will appears

3. R etroactive

Requisites:

1. certainty of the death of the decedent

2. certainty of the right to the inheritance

Acceptance vs. Repudiation:(1) Acceptanceinvolves the confirmation of transmissionof successional rights, while repudiationrenders such transmission ineffective.(2) Repudiation isequivalent to an act of disposition andalienation.(3) The publicityrequired for repudiation is necessary forthe protection of other heirs and also of creditors.

Form of Acceptance1. Express Acceptance – one made in a public

or private document.2. Tacit Acceptance – one resulting from acts

by which the intention to accept isnecessarily implied or which one wouldhave no right to do except in the capacityof an heir

Tacit acceptance is presumed

from certainacts of the heir as:1. When heir sells, donates, or assigns his

right.2. When heir renounces it for the benefit of

one or more heirs.3. When renunciation is in favor of all heirs

indiscriminately for consideration4. Other acts of tacit acceptance

a. heir demands partition of theinheritance

b. heir alienates some objects of the

inheritancec. Under Art 1057, failure to signifyacceptance or repudiation within 30days after an order of distribution bythe probate court.

REPUDIATION must be made in a publicinstrument (acknowledged before a notarypublic) or authentic document (equivalent

32




of an indubitable writing or a writingwhose authenticity is admitted or proved)or by petition presented to the courthaving jurisdiction over the testamentaryor intestate proceeding.

Reason for formality: Law considers thatthe act of repudiation is more solemn thanthe act of acceptance and that repudiationproduces a more violent and disturbingconsequences.

Heir in two capacities: An heir who issuch by will and by law, and he repudiatesthe inheritance as a testamentary heir, will

be considered to have repudiated theinheritance as a legal heir. But when anheir repudiates as a legal heir, he maylater on accept as a testamentary heir.

D. COLLATION (ARTS. 1061-1077) Every compulsory heir, who succeeds withother compulsory heirs must bring into themass of the estate any property or rightwhich he may received from the decedent,during the lifetime of the latter, by way of donation, or any other gratuitous title, in

order that it may be computed in thedetermination of the legitime of each heir,and in the account of partition. (Art. 1061) An act of returning or restoring to thecommon mass of the estate, either actuallyor fictitiously, any property which a personmay have received from the decedentduring the latter’s lifetime, but which isunderstood for legal purposes as anadvance from inheritance.

OPERATIONS RELATED TO COLLATION

1. Collation – adding to the mass of thehereditary estate the value of the donationor gratuitous disposition

2. Imputing or Charging – crediting thedonation as an advance on the legitime (if the donee is a compulsory heir) or on thefree portion (if the donee is a stranger)

3. Reduction – determining to what extentthe donation will remain and to whatextent it is excessive or inofficious.

4. Restitution – return or payment of theexcess to the mass of hereditary estate.

Persons obliged to collate

1. GENERAL RULE: compulsory heirs

EXCEPTIONS:a. When the testator should have so

expressly provided; andb. When the compulsory heir should have

repudiated his inheritance

2. Grandchildren who survive with their

uncles, aunts, or 1

st

cousins, and inherit byright of representation.

NOTE: Grandchildren may inherit fromgrandparent in their own right (i.e. heirs nextin degree) and not by right of representation if their parent repudiates the inheritance of thegrandparent, as no living person can berepresented except in cases of disinheritanceand incapacity. In such case grandchildren arenot obliged to bring to collation what their

parent has received gratuitously from their

grandparent)

What to collate:

1. Any property or right received bygratuitous title during the testator’slifetime

2. All that they may have received from thedecedent during his lifetime

3. All that their parents would have broughtto collation if alive

Properties not subject to collation (2nd

concept):1. Absolutely no collation (all concepts):

a. Expenses for support, education(elementary and secondary only),medical attendance, even inextraordinary illness, apprenticeship,ordinary equipment, or customary gifts(Art. 1067).

2. Generally not imputable to legitime:

33




a. Expenses incurred by parents in givingtheir children professional, vocationalor other career unless the parents soprovide, or unless they impair thelegitime.

b. Wedding gifts by parents andascendants consisting of jewelry,clothing, and outfit except when theyexceed 1/10 of the sum disposable bywill.

E. PARTITION AND DISTRIBUTION OF ESTATE(ARTS. 1078 – 1105) It is the separation, division and

assignment of a thing held in commonamong those to whom it may belong. Itincludes every act which is intended to putan end to indivision among co-heirs, andlegatees or devisees, although it shouldpurport to be a sale, exchange,compromise, or any other transaction. It isnot subject to any form.

Who may effect partition:

1. decedent himself during his lifetime by anact inter vivos or by will;

2. heirs themselves;

3. competent court;4. 3rd person designated by the decedent.

Who can demand partition:1. compulsory heir;2. voluntary heir;3. legatee or devisee;

4. any person who has acquired interest inthe estate.

When partition cannot be demanded: (PAPU)

1. when expressly prohibited by the testator

himself for a period not exceeding 20years;

2. when the co-heirs agreed that the estateshall not be divided for a period notexceeding 10 years, renewable for another10 years;

3. when prohibited by law;

4. when to partition the estate would renderit unserviceable for the use for which it isintended.

Prohibition to Partition

1. The prohibition to partition for a periodnot exceeding 20 years can be imposed onthe legitime.

2. If the prohibition to partition is for morethan 20 years, the excess is void.

3. Even if a prohibition is imposed, the heirsby mutual agreement can still make thepartition.

PARTITION INTER VIVOS (ART 1080)It is one that merely allocates specificitems or pieces of property on the basis of the pro-indiviso shares fixed by law orgiven under the will to heirs or successors.

NOTE: Partition is not itself a mode of acquiring ownership, nor a title therefore. Thispartition, being predicated on succession,necessitates relationship to the decedent (incase of intestacy) or a will duly probated (incase of testacy). A partition inter vivos madein favor of intestate heirs could be operative.

Dispositions, however, to non-intestate heirsmay suffer an impediment unless based on avalid will, except perhaps when suchdispositions are intended to take effect duringthe life of the testator and the formalities of donations are properly complied with.

EFFECTS OF INCLUSION OF INTRUDER INPARTITION:

1. Between a true heir and several mistakenheirs – partition is VOID.

2. Between several true heirs and a mistakenheir – transmission to mistaken heir isVOID.

3. Through error or mistake, share of trueheir is allotted to mistaken heir – partitionshall not be rescinded unless there is badfaith or fraud on the part of the otherpersons interested, but the latter shall be

34




proportionately obliged to pay the trueheir of his shareNOTE: partition with respect to themistaken heir is VOID.

A VOID WILL MAY BE A VALID PARTITION:1. If the will was in fact a partition; and2. If the beneficiaries in the void will were

legal heirs.

civil law wills and succession

Documents