wills&succession memory aid 2001

7/28/2019 Wills&Succession Memory Aid 2001

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CHARACTERISTICS OF SUCCESSION:1. Mode of acquisition

2. The property, rights & obligations to the extent of the value of the inheritancetransmitted3. The transmission takes place only by virtue of death4. The transmission takes place either by will or by operation of law5. The transmission to another

REQUISITES FOR TRANSMISSION OF RIGHT TO SUCCESSION (or more correctlystated, time of vesting of the successional right):

1. Death of the decedent2. Express will of the testator calling succession and/or provision of law prescribing

successors3. Rights or properties are transmissible

4. Transferee is still alive (didnt predecease)5. Transferee is capacitated to inherit6. Acceptance of the inheritance by the successor

KINDS OF SUCCESSION:1. Testamentary succession by will2. Intestate succession in default of a will3. Mixed

Treatment of accruals under the laws of succession:1. a. Article 793 refers to accruals after the making of the will

b. Article 781 refers to accruals after the death of the testator2. a. Article 793 accruals dont always pertain to the testate heirs

b. Article 781 accruals will always pertain to the testate heirs

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.

Validity of wills

EXTRINSIC FOR FILIPINOS FOR FOREIGNERS

1. Governing law as to time Article 795 law in forcewhen will was executed

Same rule (assumption: willis being probated here)

2. Governing law as to place Law of citizenship Law of citizenshipLaw of domicile Law of domicile

Law of residence Law of residenceLaw of place of execution Law of place of execution

Philippine law Philippine law

INTRINSIC FOR FILIPINOS FOR FOREIGNERS

1. Governing law as to time Article 2263 law at timeof death

Article 16, Article 1039 depends on personal law

2. Governing law as to place Article 16, Article 1039 Philippine law

Article 16, Article 1039 national law

Testamentary Capacity1. All persons not expressly prohibited by law

2. 18 years old and above3. Sound mind

2 Kinds of Wills:1. Notarial will Articles 804-806, & 807-808 in special cases

P r e p a r e d b y :BETA S IGMA LAMBDA, INC .National Exclusive Law Fraternity and Sorority

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Holographic Articles 804 & 810Common requirements that apply to the 2 kinds of wills

1. In writing2. In a language or dialect known to the testator

REQUISITES FOR VALID NOTARIAL WILL:1. In writing2. Executed in a language or dialect known to the testator3. Subscribed by the testator himself or by the testators name written by some

other person in his presence & under his express direction at the end thereof, atthe presence of witnesses

4. Attested & subscribed by at least 3 credible witnesses in the presence of thetestator and of one another

5. Each & every page must be signed by the testator or by the person requested by

him to write is name, & by instrumental witnesses in the presence of each other,on the left margin6. Each & every page of the will must be numbered correlatively in letters placed on

the upper part of each page7. Must contain an attestation clause, stating the following:

a. The number of pages of the willb. Fact that the testator signed the will & every page in the presence of

witnesses, or caused some other person to write his name under hisexpress direction

c. All witnesses signed the will & every page thereof in the presence of thetestator & of one another

8. Must be acknowledged before a notary public

Additional requisite if deaf or mute:Must either:

1 1. Read will personally, if able to do so;

2. Otherwise, he shall designate 2 persons to read it & communicate to him thecontents

Additional requisite if blind:Will shall be read to him twice:

1. Once by one of the subscribing witnesses2. Once by the notary public before whom it is acknowledged

REQUISITES OF HOLOGRAPHIC WILL:1. In writing2. Executed in a language or dialect known to the testator3. Entirely written, dated & signed by the hand of the testator himself

AMENDING A WILL:1. Notarial will can only be amended through a codicil2. Holographic will can be amended in 3 ways:

a. Dispositions may be added below the signature, PROVIDED that saiddispositions are also dated & signed & everything is written by the handof the testator himself

b. Certain dispositions or additional matter may be suppressed or insertedPROVIDED that sad cancellation is signed by the testator & is written bythe testator himself (no need to be detailed)

c. Executing a codicil which may either be notarial or holographic

Effect of cancellation, addition insertion), or erasure on the validity of the will1. If made by the hand of the testator & authenticated by him: alters the will without

affecting its validity


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2. If made by the hand of the testator but was not authenticated by him: deemed asif not written at all

3. If made by testator but not handwritten: entire will is nullified4. By a stranger & the testator has authenticated the same: entire will is nullified5. Made by a stranger but not authenticated by the testator: deemed as if not

written at all

What is a codicil?It is a supplementary or addition to a will, made after the execution of the will &

annexed to be taken as part by which any disposition in the original will may beexplained, added to or altered.

Qualifications of a witness and a testator:WITNESS TESTATOR

1. At least 18 years old2. Physically fit (not deaf, dumb, blind)3. Literate, able to read and write4. No prior conviction for perjury/false

testimony/falsification5. Not the notary public before whom

the will is acknowledged6. Sound mind7. Domiciled in the Philippines

1. Same2. May be blind, deaf or deaf-mute3. No literacy requirement4. No such requirement

5. No such requirement

6. Same7. No such requirement

REVOCATION OF A WILL:1. By implication of law

2. By the execution of a documentation with all the requisites of a will3. By the physical act of destruction coupled with the intent to revoke

PROBATE It is a the special proceeding by which the validity of a will maybeestablished

Matters to be proved in a probate:1. Whether the instrument which is offered for probate is the last will and testament

of the decedent2. Whether the will has been executed in accordance with the formalities prescribed

by law3. Whether the testator had testamentary capacity at the time of the execution of

the will

GROUNDS FOR DISALLOWANCE OF A WILL:1. The testator did not possess testamentary capacity at the time of execution2. The testator failed to comply with prescribed formalities3. The execution of the will is attended by a vice of consent

INSTITUTION OF HEIR an act by virtue of which a testator designates in his will theperson or persons who are to succeed him in his property and transmissible rights andobligations

Requisites for a valid institution of heir:

1. Designation in will of person/s to succeed2. Will specifically assigns to such person an inchoate share in the estate3. The person so named has capacity to succeed4. The will is formally valid5. No vice of consent is present6. No preterition results from the effect of such will


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3 principles in the institution of heirs:1. Equality: heirs who are instructed without a designation of shares inherit in equal

parts2. Individuality: heirs collectively instituted are deemed individually named unlesscontrary intent is proven

3. Simultaneity: when several heirs are instituted, they are instituted simultaneously& not successively

Rules regarding a persons right to dispose of his estate:1. If one has no compulsory heirs:

a. He can give his estate to any person qualified to inherit under himb. However, he must respect restrictions imposed by special laws

2. If one has compulsory heirs:a. He can give only the disposable portion to strangers

b. Legitimes of compulsory heirs must be respected

PRETERITION:1. There must be an omission of one, some or all of the heir/s in the will2. The omission must be that of a COMPULSORY HEIR3. Compulsory heir omitted must be of the DIRECT LINE4. The omitted compulsory heir must be LIVING at the time of testators death or

must at least have been CONCEIVED before the testators death

Effects of preterition:1. The institution of heirs is annulled2. Devises & legacies shall remain valid as long as they arent officious

DISINHERITANCE It is the act by which the testator, for just cause, deprives acompulsory heir of his right to the legitime.

Preterition vs. DisinheritanceDISINHERITANCE PRETERITION

Express deprivation of legitime Tacit deprivation of legitime

Always voluntary May also be voluntary but is presumed tobe involuntary (as its an omission tomention as an heir or though mentioned,isnt instituted as an heir)

Legal cause is present Presumed by law to be a mere oversight

Even a compulsory heir may be totallyexcluded Compulsory heir is merely restored to hislegitime

Requisites for a valid disinheritance1. Heir disinherited must be designated by name or in such a manner as to leave no

room for doubt as to who it is intended2. Disinheritance must be for a cause designated by law3. It must be made in valid will4. It must be made expressly, stating the cause in the will itself5. Cause must be certain & true, & must be proved by interested heirs if the person

disinherited should deny it6. It must unconditional

7. Must be total

Summary of causes of disinheritanceGROUNDSFORDISINHERITANCE

CHILDREN/DESCENDAN

TS

PARENTS/ASCENDANT

S

SPOUSE UNWORTHINESS

1 Guilty/convicted of attempt * * * *


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against life of testator/spouse/ ascendant/

descendant

GROUNDSFORDISINHERITANCE

CHILDREN/DESCENDA

NTS

PARENTS/ASCENDANT

S

SPOUSE UNWORTHINESS

2 Accused testator/decedent of crimepunishable byimprisonment of more than6 years, found groundless,false

* * * *

3 Causes testator/ decedent

to make will or change oneby fraud, violence,intimidation, or undueinfluence

* * * *

4 Unjustified refusal tosupport testator

* * *

5 Convicted of adultery orconcubinage with spouseof testator / decedent

* * *

6 Maltreatment of testator byword & deed

*

7 Leading a dishonorable or

disgraceful life

*

8 Conviction of crime whichcarries penalty of civilinterdiction

*

9 Abandonment of childrenor inducing children to livecorrupt and immoral life orattempted against virtue

* *

10 Loss of parental authority * *

11 Attempt by one parentagainst life of the otherUNLESS theres

reconciliation betweenparents

*

12 Spouses given cause forlegal separation

*

13 Failure to report violentdeath of decedent within 1month, unless authoritieshave already taken action

*

14 Force, violence,intimidation or undueinfluence to preventanother from making a will

or revoking one alreadymade or who supplants oralters the latters will

*

15 Falsifies or forges asupposed will of thedecedent

*


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Causes of vacancy in succession:

1. The testator creates it himself disinheritance2. The does something repudiates3. Something happens to the heir incapacitated / predecease

How are vacancies filled:1. Substitution2. Representation3. Accretion

Classes of substitution1. Singular or vulgar substitution

a. Simple

b. Brief c. Compendiousd. Reciprocal

2. Fideicommissary Substitution

FIDEICOMMISSARY SUBSTITUTION A substitution is a fideicommissary substitutionif the testator institutes an heir with an obligation to deliver to another the propertyso inherited. The heir instituted to such condition is called the first heir or fiduciaryheir, the one to receive the property is the fideicommissary or second heir.

Requisites of a fideicommissary substitution:1. A 1st heir or fiduciary is first called to the enjoyment of the property so inherited

2. A 2

nd

heir or fideicommissary substitute3. An obligation clearly imposed on the fiduciary to preserve & transmit the propertyto a fideicommissary substitute

4. The substitution doesnt go beyond the 1st degree of the fiduciary5. The fideicommissary substitution is made expressly6. Both the fiduciary & the fideicommissary substitute are living or at least

conceived at the time of the death of the testator7. The fideicommissary substitution is imposed on the free portion of the estate &

not on the legitime

LEGITIME - It is that part of the testators property which he cannot dispose ofbecause the law has reserved it for certain heirs called compulsory heirs.

Different classes of heirs:1. Voluntary heirs succeed by virtue of a will2. Legal or intestate heirs succeed by operation of law in the absence of a will3. Compulsory heirs succeed because the law reserved for them

Classes Compulsory Heirs:1. Primary

a. Legitimate children & their descendants (legitimate)b. Surviving spouse (legitimate)c. Illegitimate children & their descendants (legitimate or illegitimate)

2. Secondarya. Legitimate parents & ascendants (legitimate) inherit only in default of 1ab. Illegitimate parents (no other ascendants) inherit only in default of 1a &

1c

Summary of legitimes of compulsory heirs:SURVIVINGRELATIVES

LEGITIMATECHILDREN &

SURVIVINGSPOUSE

ILLEGITIMATECHILDREN

LEGITIMATEPARENTS &

ILLEGITIMATEPARENTS


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DESCENDANTS ASCENDANTS

Legitimate

children alone

(divided

by the # ofchildren)

1 legitimate childsurviving spouse

SURVIVINGRELATIVES

LEGITIMATECHILDREN &

DESCENDANTS

SURVIVINGSPOUSE

ILLEGITIMATECHILDREN

LEGITIMATEPARENTS &

ASCENDANTS

ILLEGITIMATEPARENTS

LegitimatechildrenSurviving spouse

(dividedby no. ofchildren)

Same as theshare @legit child

Legitimate

childrenIllegitimatechildren

of the

share of @legit child

1 legitimate childsurviving spouseillegitimatechildren

of theshare of @legit child

2 or morelegitimatechildrensurviving spouseIllegitimate

children


Same as theshare of @legit child

of theshare of @legit child

Legitimateparents alone

LegitimateparentsIllegitimatechildren

LegitimateparentsSurviving spouse

Legitimateparents

Surviving spouseIllegitimatechildren

1/8

Illegitimatechildren alone


IllegitimatechildrenSurviving spouse

1/3 1/3 (dividedby no. ofchildren)

Surviving spousealone

or 1/3 ifmarriage inarticulo

mortisIllegitimateparents alone

IllegitimateparentsSurviving spouse


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Remedy of compulsory heir in case of impairment of legitime:

1. If the impairment is total them there may be preterition if the compulsory heirpreterited is either an ascendant or descendant. Article 854 would come into play(annulment of institution of heir & reduction of devises and legacies)

2. If the impairment is partial, then the compulsory heirs is entitled to completion oflegitime under Article 906

3. If the impairment is thru donation, then remedy is collation.

RESERVA TRONCAL It is that part of the decedents property that an ascendant, whoinherits by operation of law from his descendants which the latter may have acquired bygratuitous title from another ascendant or sibling, is obliged by law to reserve suchproperty for the benefit of 3rd degree relatives who belong to the line from which theproperty which otherwise will go to certain specific heirs but which law reserves to

certain predetermined heirs.

Order of payment in case estate is INSUFFICIENT to cover legacies & devises1. Remuneratory legacies or devises2. Preferential legacies or devises declared by testator3. Legacies for Support4. Legacies for Education5. Legacies or devises for Specific, determinate thing6. All others, pro-rata

Causes for legal or intestate succession1. Person dies without a will2. Person dies with void will3. Person dies with a will that subsequently loses validity4. Will doesnt institute an heir or institution is void5. Will doesnt dispose of ALL property belonging to the testator6. Suspensive condition attached to the institution of the heir doesnt happen or isnt

fulfilled7. Heir predeceases, or repudiates the inheritance8. Incapacity of the heir

2 fundamental underlying principles in legal or intestate succession1. Rule of Proximity nearer exclude the more remote2. Rule of Equal Division equal division within the same group

Grounds when the right of representation will be available:1. Disinheritance2. Incapacity3. Predecease

Who can exercise right of representation1. Intestate succession only: heirs in the collateral line, but only in favor of the

children of siblings2. Both testate & intestate succession: heirs in the descending line, NEVER in the

ascending line

Order of Intestate succession of a legitimate child, an illegitimate child and anadopted child

LEGITIMATE CHILD ILLEGITIMATE CHILD ADOPTED CHILD

1 Legitimate child andlegitimate descendants

legitimate child &legitimate descendants

legitimate child &legitimate descendants

2 Legitimate parents &legitimate ascendants

illegitimate children &legitimate or illegitimate

illegitimate children &legitimate or illegitimate


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descendants descendants3 Illegitimate children & left

or illegitimatedescendants

illegitimate parents legitimate or illegitimate

parents & legitimateascendants, adoptiveparents

4 Surviving spouse surviving spouse surviving spouse

5 Legitimate siblings,nephews, nieces

illegitimate siblings,nephews, nieces

siblings, nephews, nieces

6 Legitimate collateralrelatives

State State

7 State

Order of succession & concurrence in intestate succession

INTESTATE HEIR EXCLUDES EXCLUDED BY CONCURS WITH

Legitimate children

& Legitimatedescendants

Ascendants,

collaterals & state

No one Surviving spouse

Illegitimate children

Illegitimate children& Descendants

Illegitimate parents,collaterals & state

No one Surviving spouseLegitimate children& legitimate parents

Legitimate parents &legitimatedescendants

Collaterals & state Legitimate children Illegitimate children& surviving spouse

Illegitimate parents Collaterals & state Legitimate children& illegitimatechildren

Surviving spouse

Surviving spouse Collaterals other

than siblings,nephews and nieces

No one Legitimate children

Illegitimate childrenLegitimate parents &Illegitimate parents

Siblings, nephewsnieces

All other collaterals& state

Legitimate children,illegitimate children,Legitimate parents &illegitimate parents

Surviving spouse

Other collateralswithin 5th degree

Collateral remoter indegree & state

Legitimate childrenIllegitimate childrenLegitimate parentsIllegitimate parents&

Surviving spouse

Collaterals in thesame degree

State No one Everyone No one

Summary of intestate shares:1. Legitimate children & legitimate descendants alone

INTESTATE HEIR SHARE AS LEGITIME SHAREAS FREEDISPOSAL

TOTAL INTESTATESHARE

Legitimate children 1

TOTAL 1

2. One legitimate child and surviving spouse

INTESTATE HEIR SHARE AS LEGITIME SHAREAS FREE

DISPOSALTOTAL INTESTATE

SHARE

Legitimate child

Surviving spouse

TOTAL 1

3. Legitimate children & surviving spouse


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Legitimate children Remaining portion of estate after paying Whole estate dividedequally between totalnumber of childrenplus the surviving

spouseSurviving spouse Same as share of @

legitimate childLegitimes to bedivided equally

between total no. ofchildren plus thesurviving spouse

No. of children plusthe surviving spouse

TOTAL Varies on no. of children

Varies on no. ofchildren

1

4. Legitimate children & illegitimate children



Legitimate children Remaining portion of estate after paying

Whole estate dividedby the ration of 2 foreach legitimate child

Illegitimate children share of @legitimate child

Legitimes to bedivided by the rationof 2 for @ legitimate

child, 1 for @illegitimate child

1 for @ illegitimatechild provided that

legitimes wouldnt beimpaired

TOTAL Varies on no. of children

Varies on no. ofchildren

5. One legitimate child, illegitimate children, & surviving spouse



Legitimate child Remaining portion of estate after paying

legitimes to bedivided by the rationof 2 for @ legitimate

child, 1 for @

illegitimate child

Whole estate dividedby the ratio of 2 @

legitimate child

Illegitimate child share of @legitimate child

1 for @ illegitimatechild


Surviving spouse & 2 for the survivingspouse

Legitimes wouldntbe impaired

TOTAL Varies depending onno. of illegitimate

children

Varies depending onno. of illegitimate

children

1

6. Legitimate children, illegitimate children & surviving spouseINTESTATE HEIR SHARE AS LEGITIME SHAREAS FREE


SHARE

Legitimate children Remaining portion of estate, if any afterparing legitimes tobe divided by theratio of 2 for @legitimate child

Whole estate dividedby the ratio of 2 for@ legitimate child


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Illegitimate children share of @ legitchild



Surviving spouse & 2 for the survivingspouse & 2 for the survivingspouse provided thatlegitimes wont be

impaired

TOTAL Varies depending onno. of illegitimate

children

Varies depending onno. of illegitimate

children

1

7. Legitimate parents alone



Legitimate parents 1

TOTAL 1

8. Legitimate parents & illegitimate childrenINTESTATE HEIR SHARE AS LEGITIME SHAREAS FREE


SHARE

Legitimate parents

Illegitimate children TOTAL 1

9. Legitimate parents & surviving spouse



Legitimate parents

Surviving spouse 1/8 1/8

TOTAL 1

10. Legitimate parents, surviving spouse & illegitimate children



Illegitimate children 1/3 1/6

Surviving spouse 1/8 1/8

Illegitimate children 1/4

TOTAL 7/8 1/8 1

11. Illegitimate children aloneINTESTATE HEIR SHARE AS LEGITIME SHAREAS FREE


SHARE

Illegitimate childrenalone

1

TOTAL 1

12. Illegitimate children & surviving spouse



Illegitimate children 1/3 1/6

Surviving spouse 1/3 1/6 TOTAL 2/3 1/3 1

13. Surviving spouse


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Surviving spouse or 1/3 or 1/3 1TOTAL or 1/3 or 1/3 1

14. Illegitimate parents alone



Illegitimate children 1

15. Illegitimate parents & surviving spouse



Illegitimate parents Surviving spouse

TOTAL 1

16. Siblings, nephews & nieces alone



Siblings, nephews,nieces

1

TOTAL 1

17. Surviving spouse, siblings, nephews & nieces



Surviving spouse Siblings, nephews,

nieces

TOTAL 1

Requisites for accretion to take place:1. Unity of object2. Plurality of heirs

3. Some of the heirs cannot or are disqualified to accept (R.I.P)4. Others are accepting &5. There has been earmarking

Incapacity to succeed because of possible undue influence1. Priest who heard confession during last illness & his relatives with thin the 4 th

degree & the order, chapter, etc., to which the priest belongs2. Guardian before final accounts have been approved EXCEPT if an ascendant,

descendant, sibling, spouse3. Attesting witness to execution of will & their spouses, parents, children or any

one claiming under them4. Physician, surgeon, nurse who took care of testator during his last illness5. Individuals, associations, corporations not permitted by law to inherit

Validity and Effect of Legacy/DeviseThing owned in part bytestator (Article 929)

General Rule: Conveys only interest or part owned by testator

Exception: if testator otherwise provides a. He may convey more than what he owns - the state shld try to


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acquire the part or interest owned by other parties. If otherparties are unwilling to alienate, the estate should give the

legatee/devisee the monetary equivalent (analogy with Article931)b. He may convey less than what he owns (Article 794)

Thing owned by another(Articles 930-931)

General Rule:

a. If testator ordered acquisition of the thing - the order should becomplied with. If the owner is unwilling to part with the thing,the legatee/devisee should be given the monetary equivalent

b. If testator erroneously believed that the thing belonged to him -legacy/device is void

Exception: if testator acquire the thing onerously orgratuitously after making of the disposition, disposition isvalidated

c. If testator knew that the thing did not belong to him but did notorder its acquisition - code is silent but disposition shld beconsidered valid (Balane & Tolentino) - there is an impliedorder to acquire & doubts must be resolved in favor ofintestacy

Thing already owned tothe legatee/devisee(Articles 932-933)

a. If thing already belonged to legatee/devisee at time ofexecution of will legacy/devise is void

b. If thing was owned by another person at time of making the willand thereafter it is acquired by legatee/devisee

1. If testator erroneously believed that he owned the thing legacy /devise is void

2. If testator was not in error -

i. If thing was acquired onerously by L/D L/Dentitled to be reimbursed

ii. If thing was acquired gratuitously by L/D nothing is due

iii. If thing was owned by testator at time will wasmade and L/D acquired the thing from himthereafter law is silent (Balane: deemedrevoked)

Legacy/Devise to remove

an encumbrance over athing belonging to testator(Article 932 par 2)

Valid, if the encumbrance can be removed for a consideration

Legacy/Devise of a thingpledged or mortgaged(Article 934)

The encumbrance must be removed by paying the debt unless thetestator intended otherwise

COLLATION -To collate is to bring back or to return to the hereditary mass, in fact or byfiction, property which came from the estate of the decedent, during his lifetime, butwhich the law considers as an adverse from the inheritance. It is the act by virtue ofwhich, the persons who concur in the inheritance bring back to the commonhereditary mass the property which they have received from him, so that a division

may be effected according to law & the will of the testator.

Important periods to remember:

1 month or less before making a will Testator, if publicly known to be insane,burden of proof is on the one claimingvalidity of the will

20 years Maximum period testator can prohibit


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alienation of dispositions5 years from delivery to the State To claim property escheated to the State

1 month To report knowledge of violent death of decedent lest he be considered unworthy

5 years from the time disqualified persontook possession

Action for declaration of incapacity & forrecovery of the inheritance, devise orlegacy

30 days from issuance of order ofdistribution

Must signify acceptance/repudiationotherwise, deemed accepted

1 month form written notice of sale Right to repurchase hereditary rights soldto a stranger by a co-heir

10 years To enforce warranty of title/quality of property adjudicated to co-heir from thetime right of action accrues

5 years from partition To enforce warranty of solvency of debtor of the estate at the time partition is made

4 years form partition Action for rescission of partition on accountof lesion


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wills&succession memory aid 2001

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