SUCCESSION REVIEWER FOR MIDTERMS

By: Priscilla Mae Ymas, Lovely Myrrh Parado and Laiza Gingoyon

SUBSTITUTION OF HEIRS

1. Meaning of “substitution of heir”:

It is the appointment of another heir in default of or after the heir originally instituted (Art. 857,

NCC).

2. Purposes of substitution of heirs:

(a) To prevent the property from falling into the hands of people not desired by the testator

(b) To prevent intestate succession

(c) To allow the testator greater freedom to reward those more worthy of his affection and

bounty than his intestate heirs.

Note: There may also be substitution of legatees and devisees.

3. Kinds of substitution: (Art. 858, NCC)

(a) Simple, vulgar or common (Art. 859) (Without stating the reasons for substitution)

One or more persons substitute the instituted heirs in case of predecease, repudiation,

or incapacity.

Ex.: T instituted A as his heir, but provided in his will that in case A cannot for any reason

receive the inheritance, he shall be substituted by B.

Or, simply, T designates B as his heir and C as B’s substitute.

(b) Brief (Art. 860)

Ex.: T institutes A as his heir, with B and C as substitutes (Art. 860)

(c) Compendious (Art. 860)

Ex.: A and B are instituted, with C as substitute.

(d) Fiedicommissary substitution (Art. 863) – See discussion below and next pages

(e) Reciprocal (Art. 861)

Ex.: A and B are instituted, with the provision that if A predeceases, renounces, or turns

out to be incapacitated, B substitutes him, and vice-versa.

Even if the original shares given to A and B are not equal, like A was given 2/3 and B 1/3

of the testator’s estate, since the institution is reciprocal, if either A or B predeceases, renounces,

or is incapacitated, the other gets the original share of the one originally instituted.

(f) Remember that the cause for the substitution need not be stated, in which case the

substitution applies in predecease, renunciation or incapacity.

4. Fideicommissary substitution (Art. 863, NCC)

T institutes A as first heir or fiduciary, but he must preserve and transmit the estate to second

heir B called fideicommissary or beneficiary, with the following conditions:

(a) The substitution does not apply to the legitime (Art. 864)

(b) The fideicommissary substitution must be express; i.e., the obligation to preserve and

transmit the property to the second heir is clearly imposed.

(c) The second heir should not go beyond one degree or one transfer from the first heir (Art. 863)

(d) Both heirs inherit from the testator.

(e) Both heirs must be living or at least conceived at the time of testator’s death.

(f) The second heir acquires the right from the time of the testator’s death. If he dies before the

first heir or fiduciary dies, his (the second heir’s) right passes to his heirs. (Art. 866)

(g) The first heir enjoys the property almost like a usufructuary (Art. 866).

So: (i) He cannot alienate the property

(ii) He is entitled to refund of useful improvements, legitimate expenses, and credits

(Art. 865)

(h) One degree means one generation or one transfer (so, the second heir can be a juridical

person).

(i) Since the substitute must be one degree from the first heir, he must be a parent or child of the

first heir. He cannot be a brother, because brother is two degrees from the first heir.

(j) The nullity of the fideicommissary substitution does not prejudice the validity of the institution

of the first heir. The fideicommissary clause is simply deemed not written. (Art. 868)

Remember also:

(a) Suppose the fiduciary dies ahead of the testator, the second heir gets the property not as a

fideicommissary but as a simple substitute, to give effect to the testator’s will.

But if the second heir or fideicommissary dies ahead of the testator, there is no

fideicommissary substitution because both heirs must be living at the time of the testator’s

death, since both inherit from the testator.

However, if after the testator’s death, the fideicommissary dies ahead of the fiduciary,

the right of fideicommissary (or second heir) passes to his heirs (Art. 866)

(b) If the fiduciary registers the property in his name without the fideicommissary substitution,

innocent parties are protected.

However, if the property is unregistered, the buyer acquires only the seller’s right; i.e.,

subject to the fideicommissary substitution.

(c) The fideicommissary is a sort of naked owner; ownership is consolidated in him upon

transmission of the property to him.

(d) The second heir can be, as stated above, a juridical person, provided there is only one

transfer.

(e) The second heir, being an heir also of the testator, must be capacitated to succeed the

testator, not the first heir or fiduciary.

(f) T instituted A as first heir and B as fideicommissary or second heir. A predeceases T. Will B

inherit when T dies?

Yes, not as a fideicommissary but as an ordinary substitute heir.

(g) T instituted A as first heir and B , A’s brother, as fideicommissary or second heir. T died and his

property passed on to A. Upon A’s death, will B get the property?

No. The fideicommissary substitution is not valid because B is second degree from A.

Property will go to A’s heirs, testate or intestate.

(h) T instituted A as first heir; A’s son A-1 as second heir; and A-1’s mother is third heir. Is this a

valid fideicommissary substitution?

As far as A and A-1 are concerned, yes. But as to A-1’s mother, no because she is not

one degree from A; in fact, she may not even be related to A by blood. But she may still get the

property from A-1 by testate or intestate succession.

DISPOSITIONS WITH CONDITIONS OR TERMS

1. Applies to the free portion; never to the legitime.

2. Kinds of institution:

(a) With a condition: B is instituted provided he passes the 2004 bar exams.

(b) With a term: B is instituted beginning 2003.

(c) For a certain purpose or cause (Modal institution): A is given 30,000 to be spent for the

interment of the testator.

3. With Condition:

(a) Impossible or illegal conditions and those against good customs are deemed not imposed and

do not prejudice the heir, even if the testator should provide otherwise (Art. 873). It is only the

condition that is void.

(b) An absolute condition not to marry is void for being against good morality and public policy.

Hence, the disposition is deemed not subject to a condition and is valid. (Art. 874)

(c) Absolute condition not to remarry is also void as against morality and public policy, except:

(i) When imposed on the widow or widower by a deceased spouse. If the condition is

violated, the widow or widower gets only his/her legitime. Free portion goes to the

intestate heirs of the deceased.

(ii) When imposed on the widow/widower by the ascendants or descendants of the

deceased spouse.

(d) Examples:

(i) T instituted friend F provided he will never marry. F married after T’s death.

F is still entitled to inherit from T because the condition is immoral.

(ii) H instituted his wife as sole heir (there are no other compulsory heirs) on condition

that when she becomes a widow, she would not remarry. Two years after H’s death, the

widow remarried.

The condition is valid as to the free portion. But the wife still gets her legitime.

(iii) A instituted his friend B provided he does not marry C.

The condition is valid because it is not an absolute prohibition.

(e) Disposition captatoria: A disposition on condition that the heir shall make in his will a

provision in favor of the testator or any other person.

The disposition itself is void, not just the condition. So the heir gets nothing because the

institution is a nullity.

(f) Potestative condition (Art. 876): The fulfillment depends solely on the heir and must be

performed by him personally.

(i) Must be fulfilled as soon as the heir learns of the testator’s death.

(ii) When condition has already been complied with and cannot be complied with again,

condition is deemed fulfilled (Art. 876)

Ex. The heir must learn how to play the piano.

(iii) Substantial or constructive compliance is enough (that is, the heir tried his best),

(g) Casual or mixed condition (Art. 877)

Casual – depends upon chance or the will of a third person

Mixed – depends partly on the will of the heir and partly upon chance or the will of a

third person.

Examples: That A becomes a lawyer.

That C wins first prize in the lotto.

That A wins the Miss Universe beauty contest.

Rules:

(i) Condition may be fulfilled before or after the death of the testator.

(ii) If already complied with and testator was not aware of the compliance, already

deemed fulfilled.

(iii) If already complied with and testator was aware of the compliance, deemed fulfilled

if cannot be complied with again.

Ex.: That B becomes a lawyer.

(iv) Again, substantial or constructive compliance is sufficient.

(h) Negative potestative condition:

(i) A institutes B provided he stops smoking.

(ii) B gets the property upon giving security, and will have to return the property in case

of contravention of condition, with fruits and interests (Art. 879)

(i) Positive potestative condition:

(i) A institutes B provided the latter learns how to play the piano.

(ii) Upon A’s death, the property is placed under administration until the condition is

fulfilled (Art. 880)

4. With term

(a) Distinguished from condition

A term is sure to happen. It merely suspends the demandability of a right.

Ex. I give this property to X upon his mother’s death. (The mother will surely die.)

A condition not only suspends the demandability, but even the acquisition of the right

itself. It may or may not happen.

Ex. I give this property to X if his mother dies of cancer.

(b) In a disposition with a term, the heir acquires the right pending arrival of the term, and

transmits the right to his heirs even before the arrival of the term (Art. 878, NCC). This is because

a term is sure to happen.

But if the instituted heir under a suspensive condition dies before the condition is

fulfilled, he transmits nothing to his heirs because he never inherited from the testator.

(c) Kinds of terms:

(i) Suspsensive: Beginning 2003

(ii) Resolutory: Effects cease on December 1, 2003.

(iii) Ex die in diem: From a certain day to a certain day, like from year 2002 to 2010.

(d) Rules to follow:

(i) T institutes his brother A for 5 years after T’s death.

A enters possession at once, which will end after 5 years.

(ii) T institutes his brother A 5 years from his (T’s) death.

This is a suspensive term. The legal heirs enter into possession of the property

in the meantime before arrival of term after giving security (Art. 885). A gets the

property only after 5 years from testator’s death.

(iii) T institutes B subject to a suspensive condition. If T dies, the property shall be placed

under administration until the condition is fulfilled. (Art. 880)

In suspensive term, the legal heirs enter into the possession of the property

before term arrives, subject to giving security (Art. 885)

If the legal heirs do not give security, place the property under administration

(Art. 880)

(iv) A institutes B upon death of C.

(aa) Legal heirs possess property until the term arrives after giving security. If

security is not given, place the property under administration.

(bb) Instituted heir who dies before the arrival of the term transmits his rights

to his own heirs. This is because the term is sure to come.

5. Modal Institution

May be a statement of the object of the institution, or the application of the property for a

certain purpose, or a charge imposed on the heir or legatee/devisee.

(a) Examples:

(i) I institute a to my estate for his legal education.

(ii) I institute A as my heir provided he devotes 50% of the income of the property to the

establishment of a professional chair in Civil Law at the San Sebastian College of Law.

(b) Rules to follow

(i) The inheritance can be immediately demanded provided the heir gives security for

compliance with the wishes of testator (Art. 882)

(ii) Heir must return property with fruits and interests if obligation is disregarded (Art.

882)

(i) Distinguished form suspensive condition in that if suspensive condition is not

yet fulfilled, property is not demandable even if security is offered. In modal institution,

property is immediately demandable provided heir gives security for compliance with

wishes of testator.

LEGITIME

1. Definition of legitime:

That part of the testator’s estate which he cannot dispose of because the law has reserved it for

his compulsory heirs (Art. 886, NCC)

2. Who are compulsory heirs?

(a) Primary compulsory heirs

(i) Legitimate children and their legitimate descendants

(ii) Surviving spouse

(iii) Illegitimate children and their descendants, whether legitimate or illegitimate

(b) Secondary compulsory heirs

(i) Legitimate parents and other legitimate ascendants (they inherit only in default of

legitimate children and their descendants)

(ii) Illegitimate parents (other illegitimate ascendants not included). They inherit only in

default of legitimate and illegitimate children and their respective descendants.

3. Remember:

(a) Purpose of legitime is to protect the surviving spouse and the children from the unjustified

anger or thoughtlessness of the testator

(b) If there are no compulsory heirs, there can be no legitime

(c) The testator cannot deprive the compulsory heirs of their legitime except through valid

disinheritance

(d) The testator cannot impose any conditions, substitutions, or burdens on the legitime except

the condition that the estate will not be divided for a period not exceeding 20 years (Art. 1083)

(e) Donations intervivos are to be reduced if found inofficious (i.e. if they exceed the free portion)

(f) Compulsory heirs are not compelled to accept their legitime

4. Legitimes of compulsory heirs

(a) Legitimate children – ½ of estate divided by number of children

(b) One legitimate child – still ½

(c) One legitimate child and surviving spouse –

Child – ½

Surviving spouse – ¼

(d) Two or more legitimate children and surviving spouse:

Legitimate children – ½

Surviving spouse – same share as one legitimate child

(e) Two or more legitimate children, surviving spouse, illegitimate children

Legitimate children – ½

Surviving spouse – same share as one legitimate child (to be taken from the free

portion)

Illegitimate children – each gets ½ of share of one legitimate child (Also to be taken from

the free portion)

(g) Surviving spouse and illegitimate children:

Surviving spouse – 1/3

Illegitimate children – 1/3

(h) Legitimate parents, surviving spouse, illegitimate children –

Legitimate parents – ½ (even if there is only one parent)

Surviving spouse – 1/8

Illegitimate children – ¼

(i) Legitiamte parents only – 1/2

(j) Illegitimate children only – ½

(k) Surivivng spouse only – ½, but if marriage was in articulo mortis and testator died within 3

months from marriage, 1/3; if parties, however, had lived together for more than 5 years before

their marriage, ½

(l) Legitimate parents and illegitimate children

Legitimate parents – ½

Illegitimate children – ¼

(m) Illegitimate parents only – ½

(n) Illegitimate parents and surviving spouse –

Illegitimate parents – ¼

Surviving spouse – 1/4

(o) Illegitimate children only – ½

(p) Illegitimate parents and illegitimate children

Parents – None

Illegitimate children – ½

Remember also:

(a) Legitime children always get ½ of the estate as legitime. And this is true even if there is only

one child

(b) Legitimate parents as secondary compulsory heirs also always get ½ of the estate as their

legitime, and this is true even if there is only one legitimate parent

(c) There is no representation in the ascending line

(d) The legitime of the surviving spouse must be paid first out of the free portion; then, give the

illegitimate children their legitime. Therefore, if there are many illegitimate children, each of

them might not get ½ of the share of a legitimate child.

(e) There is also representation of illegitimate children

(f) Illegitimate children do not inherit abintestato from legitimate children and the relatives of

their illegitimate father and mother because of the barrier, and vice versa (Art. 992)

(g) Brothers and sisters are not compulsory heirs, but they are intestate heirs. So, a testator can

give his entire estate to strangers in his will, excluding his brothers and sisters.

(h) To determine the legitime, get the value of the property, minus debts, plus the value of

donations subject to collation (Art. 908)

(i) Donations to children shall be charged to their legitime; donations to strangers shall be

charged to the free portion; if they are inofficious, they shall be reduced (Art. 909)

(j) The legitime of legitimate parents shall be divided between them equally. If one parent is

dead, the other gets the whole legitime.

(k) If the testator has no legitimate parents but is survived ascendants of equal degree, the

legitime shall be divided equally between paternal and maternal lines. If the ascendants are of

different degrees, the ones nearest in degree get the entire legitime (Art. 889)

5. Reserva Troncal

Art. 891. The ascendant who inherits from his descendant any property which the latter may

have acquired by gratuitous title from another ascendant, or a brother or sister, is obliged to

reserve such property as he may have acquired by operation of law for the benefit of relatives

who are within the third degree and who belong to the line from which said property came.

(NCC)

Example:

Explanation:

(a) Mother gave land to child by donation or in her will; i.e., by gratuitous title

(b) Child died with no descendant and no will, so father inherited land intestate. Or child have land

to father as the latter’s legitime in a will

(c) Father owns land only until he dies. Land is reserved by law in favor of the relatives of the mother

within the 3rd degree from the child, who are the reservees or reservatarios

CHILD(Propositus)

MOTHER (origin) FATHER (reservor or reservista)

Transmission by operation of law, i.e., by legitime or by intestate succession

Transmission by gratuitous title

(d) The reserves or reservatarios within the 3rd degree from the child are any of the following:

a. Maternal half-brothers and half-sisters (2nd degree)

b. Maternal half-nephews and half-nieces (3rd degree)

c. Maternal grandparents (2nd degree)

d. Maternal great grandparents (3rd degree)

e. Maternal aunts and uncles (3rd degree)

(e) Among the reserves, those in the direct line are preferred as against the collateral line. Thus, a

grandparent is preferred to a half-brother or sister. Also, the nearer excludes the farther.

(f) Maternal half-nephews and half-nieces are preferred to maternal aunts and uncles because they

are also intestate heirs of the propositus

(g) Children of first cousins are not reserves, because they are already the 6th degree from the

propositus.

Other rules to remember:

(a) Between the brother of the father and brother of the mother, the property goes to the latter by

reserva troncal.

(b) Suppose the mother dies intestate, leaving a car to her child. Later, the child dies intestate with

no wife and no children. The father inherits the car by intestate succession. This car is reservable.

MGGP

MGP

(Origin)MA MU Mother

MHS MHB Child(Propositus)

MHN MHN

3

233

33

122

Reservatariosor Reservees (Relatives of the propositus within the 3rd degree in the maternal line)

(c) The propositus is the owner of the above car while alive, so he can defeat the reserva by selling

the car.

(d) There is no reserva troncal if the child gives the property to his father in a will out of the free

portion, because that is not by operation of law

(e) The reservista is a full owner of the property subject to a resolutory condition; i.e., upon his

death, the property goes to the reservees

(f) The property cannot be used to pay the debts of the reservista’s estate because it is not part of

his estate after his death

(g) The reservista must inventory the property and must furnish a bond, mortgage or any other

security to secure the delivery of the property or its value to the reservees.

(h) The reservista is liable for all deterioration imputable to his fault or negligence

(i) Land may be registered as subject to reserva troncal, and if there is such annotation in the title,

security is not necessary

(j) If the property is personal, the reservista may sell, donate, or pledge the property, but his estate

must reimburse the reserves the value of the property

(k) If the property is land, the reservista must annotate the reserva troncal within 90 days from the

time he accepts the inheritance (when there is no case filed in court) or within 90 days from the

time it is awarded to him by the court (Arts. 199 and 191, Spanish Mortgage Law)

The reservees can judicially demand the annotation.

(l) The reservees inherit the property from the propositus, not from the reservista. They are

conditional heirs of the propositus

(m) There is representation in reserva troncal, but the representative must also be within the 3 rd

degree from the propositus (like nephews and nieces)

(n) Proceeds of insurance given to the beneficiary are not subject to reserva troncal because this is

not a donation

(o) If the mother gives a sweepstakes ticket to her son and the ticket wins and later, the prize is

inherited by the father, there is no resreva troncal because the prize came from the PCSO, not

from the mother

(p) Prescription extinguishes the reserva troncal (30 years for real property, 8 years for personal

property)

(q) If the property subject to reserva troncal is expropriated, the reserva continues on the indemnity

(r) If the property is insured and later destroyed, the reserva continues on the insurance proceeds

(s) The purpose of the reserva troncal is to keep the property in the family to which it belongs

(Velayo Bernardo vs. Siojo)

(t) Reserva troncal exists only in the legitimate family; no reserva exists in favor illegitimate relatives

(u) Reserva maxima and reserva minima:

Explanation: A son received from his mother 20K under her will. He also had properties of his

own worth 40K. When the son died without a spouse and without children, he left all his estate

(worth 60K) to his father in his will. How much is the reservable property?

The legitime of the father in his son’s estate is 30K (1/2 of 60K). Under the principle of reserva

maxima, since the 20K legitime of 30K received by the son from his mother can be included or

contained in his legitime of 30K, said 20K is reservable. But under the principle of reserva

minima, only ½ of 20K is reservable, on the theory that only ½ of the 20K received by the son

from his mother went to the father by operation of law.

The reserva maxima is more in consonance with the original objective of reserva troncal, because

it subjects to the reservation the largest amount possible.

But the reserva minima is more just and more equitable, more in line with the philosophy of the

law of socialization of property, and favored by Manresa and Scaevola.

(v) How is the reserva extinguished?

a. Death of the reservor or reservista

b. Death of all the would-be reservees ahead of the reservor

c. Accidental loss of the reservable property

d. Prescription (runs from the death of the reservor) – 30 years for real property, 8 years

for personal property

DISINHERITANCE

1. Meaning of Disinheritance:

Art. 915. A compulsory heir may, in consequence of disinheritance, be deprived of his legitime,

for causes expressly stated by law.

2. Purpose or object:

a. To maintain good order and discipline within the family.

b. To punish the ungrateful, the culpable, the cruel, the unworthy heir, the unfaithful spouse.

3. Requisites of a valid disinheritance:

a. Disinherited heir must be clearly identified.

b. Must be for a cause provided for by law (Art 915)

c. Must be express, stating the cause in the will (Art 916)

d. Cause must be legal, true and existing (Art 916)

e. Must be conditional.

f. Can’t be partial; must be total or complete.

If partial, disinheritance is not valid, and the heir gets his or her legitime.

4. Remeber also:

a. Can be made only in a will. There is no disinheritance in legal succession.

b. Includes not only the legitime, but also the free portion.

c. If will is revoked, disinheritance becomes ineffective.

d. Only compulsory heirs can be disinherited, so brothers and sisters cannot be the subject of

disinheritance.

e. Reconciliation renders disinheritance ineffective.

f. In preterition, the whole institution of heir is annulled.

In invalid disinheretance, the disinherited heir still gets his legitime.

g. Heirs of the disinherited heir represent the latter in the legitime, but the disinherited heir

shall not have the usufruct of the property constituting the legitime (Art 923)

5. Problems:

a. T has 5 children. He made a will with only one provision, i.e. disinheriting one of his children

for living a disgraceful life. If T dies with an estate of 100,000, how would his estate be

divided?

The disinherited child shall not be entitled to his legitime and also a share in the estate

as an intestate heir, since intestacy is only the presumed will of the deceased.

Divide the estate among the four children equally or 25,000 each.

b. Suppose in problem (a), T also instituted his 4 other children as heirs in his will. Divide the

100,000 estate.

Since the disinherited heir loses not only his legitime but any share in the free portion,

again divide the P100,000 estate equally among the 4 instituted children.

c. T has 3 daughters. He made a will disinheriting one of them for living a disgraceful life, and

gave his entire estate of 300,000 to his 2 other daughters. Divide the estate.

The disinheritance is valid, so divide the entire estate equally between the two

daughters who were instituted as heirs.

d. Suppose in problem (c), the ground for disinheritance is that the daughter married a man

that the father does not like. Divide the estate.

The disinheritance is not valid because the cause is not valid. So the disinherited

daughter gets her legitime of 50,00 (1/3 of 150,000). Then divide the free portion of

150,000 equally between the two other daughters, which the get as an instituted heirs

in addition to their legitime of 50,000 each.

e. T’s will reads: “I disinherited my son A if he makes an attempt against my life.” Is the

disinheritance valid?

No, because it is conditional. And this true even if a actually makes an attempt against

his father’s life after the execution of the will. But if A is convicted, he will not also

inherit from T, not because of the attempted disinheritance, but because he is

incapacitated under Art 1032(2).

f. T disinherited his child C in his will, providing that C would only get ½ of his rightful share in

T’s estate. Is the disinheritance valid?

No, because it is partial. So C still get his legitime.

6. Grounds for disinheritance

Of children, legitimate or

illegitimate (Art 919)

Of parents, legitimate or

illegitimate (art 920)

Of spouse (Art 921)

Conviction of attempt against

the life of testator, his spouse,

descendant or ascendant

Same Same

Has accused testator of a

crime punishable by 6 yrs or

more if found to be

groundless

Same Same

Conviction of adultery or

concubinage of the testator’s

Same When he or she has given

ground for legal separation

spouse (even if no case is filed)

Refusal to support testator

w/o justifiable reason

Refusal to support children

and descendants w/o

justifiable reason

Unjustified refusal to support

children or other spouse

Maltreatment of testator by

words or deed (conviction is

not necessary)

Attempt against the life of

other parent, unless there is

reconcilitation

When spouse has given

ground for loss of parental

authority

Leading dishonorable or

disgraceful life

Loss of parental authority for

causes specified by law

x

Caused testator to make a will

or to change one through

fraud, intimidation, or undue

influence

same same

Conviction of a crime which

carries with it a penalty of civil

interdiction

Abandonement of children

and descendants and inducing

daughters to live corrupt or

immoral lives or attempted

against their virtue

Note: maltreatment of child by

parent is not a ground for

disinheriting parent since it is

part of parental discipline.

x

7. Reconciliation between the testator and disinherited heir:

a. Subsequent reconciliation deprives the testator of the right to disinherit, and any

disinheritace already made becomes ineffectual.

b. Reconciliation needs no special form. It can be express or implied.

c. If the ground for disinheritance is also a ground for unworthiness, like abandonment of

children or attempt against the life of the testator, the heir cannot also inherit.

But reconciliation extinguishes unworthiness as an incapacity, because incapacity is only

presumed will of testator.

8. Ineffective disinheritance:

a. No cause for disinheritance is stated.

b. The cause is false.

c. The cause is not legal.

d. Subsequent reconciliation between the testator and disinherited heir results in

effective disinheritance.

9. How disinheritance is revoked:

a. By subsequent reconcilitaion between the testator and disinherited heir.

b. By the making of a new will making the disinherited heir as instituted heir.

REPRESENTATION

1. Representation defined:

It is “a right created by fiction of law, by virtue of which the representative is raised to the place

and degree of the person represented, and acquires the rights which the latter would have if he

were living or if he could have inherited (Art 970)

2. When does representation exist:

a. In testate succession

i. Exist in predecease, incapacity, and disinheritance.

ii. Covers only the legitime, which goes to the representative by operation of law.

iii. There is no right to represent voluntary heir.

b. In intestate succession

i. Exist also in predecease and incapacity.

ii. Covers all that the person represented could have inherited.

3. Rules to remember:

a. An adopted child cannot represent. Neither may an adopted child be represented.

b. The representative succeeds not the person represented but the one whom the person

represented would have succeeded (Art 971)

i. Since the representative does not succeed the person represented, he is not liable

for the debts of the latter.

ii. Because the property inherited by the representative does not come from the

person represented, if under the will of the latter, the representative is given less

than the other representatives, the representative still gets an equal share in the

property of the person whom the person represented would have succeeded.

Ex. T has 2 children A ans B. A has two children X and Z.

If A dies giving 2/3 of his estate to X and 1/3 Z, if later, T dies, X and Z will get

equal shares in A’s inheritance from T or as A’s representatives.

c. The right of representation takes place only in the direct descending line, never in the

ascending line (Art 972)

d. In the collateral line, representation takes place only in favor of children of brothers and

sisters, whether full or half-blood (Art 972, par 2). Hence, grandnephews and grandnieces

cannot represent.

e. The representative must himself be capable of succeeding the decedent (Art 973)

Ex. A has a child B who has a child C. If B disinherits C in his will, C can still represent B in

the succession of A, because C succeeds A , not B.

f. The representative must at least be conceived at the time succession opens.

g. When there is representation, the heirs inherit per stirpes, not per capita (Art 974)

That is, all those in a group inherit in equal shares, because per stirpes means inheritance by

group.

h. A person may represent him whose inheritance he has renounced (Art 976)

i. A renouncer may represent but may not be represented (Art 976,977)

j. Illegitimate children of legitimate children cannot represent because of the barrier, but

illegitimate children of illegitimates can represent.

k. When nephews and nieces survive with the uncles or aunts, they inherit by representation. If

they alone survive, they inherit in equal portions or per capita (Art 975)

i. A died intestate leaving an estate worth 24,000. He is survived by his wife W, his

brother B, and nephews X and Z, sons of his deceased brother C. Divide A’s estate.

W gets 12,000 or ½

B gets 6,000 ( ½ of the other 12,000)

X and Z gets 3,000 each (they divide per stirpes the remaining 6,000)

ii. Suppose in the above problem, B is also dead, survived by his son V. How should the

estate be divided?

W gets 12,000 or ½

Nephews V, X and Z divide the other 12,000 per capita because they alone

survive, their parents being already dead and they have no surviving uncles and

aunts.