4th Year Review

7/30/2019 4th Year Review

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ARTICLE 774.

Succession is a mode of acquisition by virtue of which the property,rights and obligations to the extent of the value of the inheritance, of aperson are transmitted through his death to another or

others either by his will or by operation of law.

Talks of succession mortis causa Elements: Definition Mode of acquisition (ownership) Transfer of the property, rights and obligations to the extent of thevalue of the inheritance of a person Transmission thru death (not during life) Transmission to another By will or operation of law(testate or intestate/legalHuman Corpse

Not part of the inheritance because the latter refers only to theinheritance or universality of the property of the deceased transmittedtohis successors mortis causa

Without prejudice to RA 349 which allows the granting of organs afterdeath Organs can be used for medical, surgical andscientific puposes.

Although a person cannot dispose of his corpse as his property, hemay provide forthe manner in which it shall be disposed of bythose who are called upon to do so

ARTICLE 776. The inheritance includes all the property, rights andobligations of a person which are not extinguished by his death.

Rights Extinguished by Death:

support; usufruct; those arising from personal consideration; personal easements; partnership rights; agency; and

life annuity

WHEN DOES THE OPENING OF SUCCESSION OCCUR?

ARTICLE 777. The rights to the succession are transmitted from themoment of the death of the decedent.

Requisites of Succession:

death of decedent1. transmissible estate2. existence (transferee is still alive)3. capacity of successor4. designated by decedent or by law; and5. acceptance of successor (no repudiation)

Death: Kinds

Actual death successor becomes the owner at the time of death andnot at the time of the delivery of the property

Presumed death- Ordinary Death

Shall be presumed dead for the purpose of opening his succession atthe end of ten years (5 years in case he disappeared after the age of75)

Death is presumed at the end of ten or five yearsExtraordinary Death

Death is presumed to have occurred at the time of loss and not atthe end of four yearsKinds of Succession:


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1. Testamentary = decedent died with a valid will

2. Legal or intestate = effected by operation of law in default of a will(note: this shd. be separated since legal means the legitime whileintestate means there was no will)3. Mixed = effected partly by will and partly by operation of law

4. Contractual Succession = future husband and future wife give toeach other future property, effective mortis cause, by means of amarriage settlement

Kinds of Will:

1. Notarial will = executed with the formalities of the law and is dulyacknowledged and notarized by a notary public

2. Holographic will = entirely written in the handwriting of the testatorand must be signed and dated also in his handwriting

3. Nuncupative will = oral will (not allowed)

1. Heir = what is given is whole or aliquot part Compulsory heir = succeeds by operation oflaw with recognized legitime

Voluntary heir those instituted by testator in order to succeed tothe free portion legal or intestate heir = those who succeed tothe estate of the decedent if there is no will

2. devisee = what is given in an individualized or specific real property

3. legatee = individualized or specific personalproperty

If in a will, a compulsory heir is given more than his legitime, heassumes a dual status

Art. 783. A will is an act whereby a person is permitted, with theformalities prescribed by law, to control to a certain degree thedisposition of his estate, to take effect after his death.

Essential Characteristics of Testamentary Act: Personal Act Animus testandi Solemn or formal act Statutory Right unilateral Capacity Free from vices of consent Individual Revocable Disposes of the testators estate mortis causa

ARTICLE 786. The testator may entrust to a third person thedistribution of specific property or sums of money that he may leave ingeneral to specified classes or causes, and also the designation of thepersons, institutions or establishments to which such property or sumsare to be given or applied.

allowable designation classes or causes must be specifiedKinds of Ambiguities in wills:

A. Intrinsic or Latent Ambiguity = ambiguity is hidden because itdoes not appear on the face of the will parol evidence is admissible

B. Extrinsic or Patent Ambiguity = ambiguity appears on the face ofthe will; apparent and not hidden


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parol evidence admissible excluding testimonial evidence on theoral declarations of the testator as to his intentionAFTER-ACQUIRED PROPERTIES

Gen. Rule: the will only include those properties already possessed andowned by the testator at the time of his death, not those acquired after

Exceptions:

if expressly stated in the will to include after-acquired properties

if will is republished or modified by a subsequent will or codicil

will erroneously stated properties unless after making the will, saidproperties will belong to the testator legacy of credit or remissionARTICLE 795. The validity of a will as to its form depends upon theobservance of the law in force at the time it is made.

Extrinsic Validity Intrinsic Validity

form of the will substance of the will

viewpoint of time:

law in force at the time the willwas made law in force at the time of the

decedents death

viewpoint of place or country:

Filipino = Phil law, law of the country where he may be or where he executes the will

alien abroad = law of his domicile, his nationality or Phil lawsalien in the Phil = law of his nationality, or Phil law

national law of the decedent, regardless of the place of execution or theplace of death

Requisites for the testator at the time of the

execution:

ARTICLE 796. All persons who are not expressly prohibited by lawmay make a will.

ARTICLE 797. Persons of either sex under eighteen years of agecannot make a will.

ARTICLE 798. In order to make a will it is essential that the testatorbe of sound mind at the time of its execution.

a) WHAT ARE THE RULES GOVERNING THE EXTRINISIC VALIDITY OF AWILL? (Arts. 17, 815-817, 819)

Testator Place ofExec.Rule governing extrinsic (formal) validity

Filipino Phil CC Filipino foreign country

1.law of the place where it was made2.CC Foreigner Phil1.CC2.laws of his own country

Foreigner

Foreign country1.law of the place where the will was made2.law of his own country or nationality3.law of the country where he resides or domiciled

4.CCA will executed in a foreign country according to the laws of thatcountry may be probated in the Philippines without the necessity ofprevious probate in said foreign country

In the absence of evidence, foreign laws on testamentary formalitiesare presumed to be the same as those of the Phil


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In the absence of proof of the foreign laws of procedure in probatematter and that the foreign court which allowed the will is a probatecourt, it will be presumed that the proceedings in the matter ofprobating and allowing a will in that court are the same as thoseprovided for in our laws on the subject.

WHAT ARE THE LAWS GOVERNING THE INTRINSIC VALIDITY OF AWILL? (Arts.15, 16, 1039 of the NCC)

National Law of the Deceased Governs: Order of successionAmount of successional rightsIntrinsic validity of the provisions of the willCapacity to succeedc) WHAT OTHER FORMALITIES ARE REQUIRED IN MAKING ANOTARIAL OR ORDINARY WILL? Arts. 805-806

Requirements: Notarial or Ordinary Will

1. In writing2. In a language or dialect known to the testator3. subscribed at the end thereof by the testator himself or the testatorsname written by another person in his presence and by his expressdirection4. Attested and subscribed by 3 or more credible witnesses in thepresence of the testator and in the presence of each other5. The testator or the person requested by him to write his name andthe instrumental witnesses of the will, shall also sign, as aforesaid, eachand every page thereof, except the last, on the left margin.6. All pages shall be numbered correlatively in letters on the upper partof each page7. The attestation clause shall . . . .8. Acknowledged before a Notary Public

Guison vs. Conception, 5 Phil

The testatrix was not able to sign her name tothe will, and she requested another person to sign it for her.

It will be seen that the witness Feliciano Maglaqui, instead of writingthe name of the testatrix on the will, wrote his own. Probate of the willwas refused in the court below on the ground that the name of thetestatrix was not signed thereto

In re: Will of Siason, 10 Phil 504

"At the request of Seora Maria Siason. (followed by signature of)

"CATALINO GEVA. And three witnesses "T. SILVERIO. FRUCTUOSO G.MORIN. "RAFAEL ESPINOS." Macapinlac vs. Alimurong, 16 Phil 41

It is shown by the evidence that the will was wholly written in thehandwriting of the subscribing witness, Gregorio Sangil, and at the footthereof the following words appear in a new paragraph and sufficientlyapart:

"At the request of the testatrix, Da. Simplicia de los Santos, I signed.

"For Simplicia de los Santos. "Amando de Ocampo."

Ex Parte Arcenas, 4 Phil 700

: "John Doe, by the testator, Richard Roe;" or in this form:"By the testator, John Doe, Richard Roe."

Yap tua vs. Yap Ka Kuan, 27 Phil 579

There was but one room in which the will was executedOne part of the room was one or two steps lower than the floor of theother, that the table on which the witnesses signed the will was locatedupon the lower floor of the room

Testatrix was lying in bed, and from the bed it was possible for her tosee the table on which the witnesses signed

While the rule is absolute that one who makes a will must sign thesame in the presence of the witnesses and that the witnesses must sign


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in the presence of each other, as well as in the presence of the onemaking the will, yet, nevertheless, the actual seeing of the signaturemade is not necessary.

It is sufficient if the signatures are made where it is possible for eachof the necessary parties, if they so desire, to see the signatures placed

upon the will.

Jaboneta vs. Gustillo, 5 Phil 541

After one witness signed, he left the place where the will was signedbut before leaving, he saw the last witness begin to sign but was not yetconsummated when the first witness turned his back and left the room

The fact that he was in the act of leaving, and that his back was turnedwhile a portion of the name of the witness was being written, is of noimportance.

He, with the other witnesses and the testator, has assembled for thepurpose of execution the testament, and were together in the sameroom for that purpose, and at the moment whenthe witness Javellana signed the document he was actually andphysically present and in such position with relation toJavellana that he could see everything which took place by merelycasting his eyes in the proper direction, and without any physicalobstruction to prevent his doing so

Testate Estate of A. Ledesma, G.R. No. L-7179, June 30, 1955

Whether or not the notary signed the certification of acknowledgmentin the presence of the testatrix and the witnesses does not affect thevalidity ofthe codicil.Unlike the Code of 1889 (Art. 699), the new Civil Code does not require

that the signing of the testator, witnesses and notary should beaccomplished in one single act.(ii) Special rules for handicapped testators (Arts. 807-808)

WHAT IF THE TESTATOR BE DEAF OR DEAF-MUTE OR BLIND?

Deaf or Deaf-Mute Testator (Art. 807) if testator is literate, mustpersonally read the will

Blind Testator (Art. 808)whether literate or not, the will must be read to himif illiterate, the will must be read by 2 persons designated by the

testatorwhether literate or not, the will must be read twicereading is not enough; must communicate the contents to the testatorreading is enough

Witnesses to wills(Arts. 820-824)

Qualifications of Witnesses:

1. of sound mind2. at least 18 years of age3. able to read and write4. not be blind, deaf or dumb5. must be domiciled in the Phil6. not convicted of falsification of document, perjury or false testimony

CAN WITNESSES INHERIT IF DESIGNATED IN THE WILL?

ARTICLE 823. If a person attests the execution of a will, to whom orto whose spouse, or parent, or child, a devise or legacy is given by suchwill, such devise or legacy shall, so far only as concerns such person, orspouse, or parent, or child of such person, or any one claiming undersuch person or spouse, or parent, or child, be void, unless there arethree other competent witnesses to such will. However, such person soattesting shall be admitted as a witness as if such devise or legacy hadnot been made or given.

disqualified to inherit but not to testifyonly the part pertaining to them is considered voiddisqualification extends to:- witness- spouse of witness- parent of witness


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- child of witness- any one claiming under such person or spouse, or parent, or childHolographic wills

REQUIREMENTS:

1. must be entirely written by hand of testator himself (to prevent

falsification & forgery);2. must be dated by the hand of the testator himself;3. must be signed by the hand of the testator himself;4. must be executed in the language or dialect known to testator(language not just merely interpreted).5. Animus testandi6. executed at the time that such wills are allowed

Witnesses required for probate (Art. 811)If uncontested at least one witness (ordinary or expert) If contested at least three

WHAT SHOULD THE TESTATOR IF THERE ARE MORE

DISPOSITIONS WRITTEN BELOW HIS SIGNATURE?

ARTICLE 812. In holographic wills, the dispositions of the testatorwritten below his signature must be dated and signed by him in order tomake them valid as testamentary dispositions.

Undated and unsigned disposition below testators original signatureare void. They are considered independent of the will itself.WHAT IS THE EFFECT IF THERE ARE SEVERL DISPOSITIONS WHICHARE SIGNED BUT NOT DATED?

ARTICLE 813. When a number of dispositions appearing in aholographic will are signed without being dated, and the last dispositionhas a signature and a date, such date validates the dispositionspreceding it, whatever be the time of prior dispositions.

Article talks of dispositions which are signed but undated and not theother way aroundSubsequent dispositions if dated not signed, the disposition is notvalidated by subsequent dispositions, although the latter are dated andsignedIf neither dated nor signed, the disposition is invalid if proved to be

written on an occasion different from subsequent dispositionsWHAT ARE THE EFFECTS OF INSERTIONS MADE BY A 3RD PERSON?When made Consent ofTestatorEffect

After execution withoutInsertion is considered as not writtenValidity of the will cannot be

defeated by the malice of the third person

After the executionWith Will is valid but insertion is void

After the executionValidated by testators signature

Insertion becomes part of the willentire will is void

Contemporane ous with the execution withEntire will is void

ARTICLE 818. Two or more persons cannot make a will jointly, or inthe same instrument, either for their reciprocal benefit or for the benefitof a third person.

ARTICLE 819. Wills, prohibited by the preceding article, executed by

Filipinos in a foreign country shall not be valid in the Philippines, eventhough authorized by the laws of the country where they may havebeen executed.

Joint will = will made on one instrument by 2 or more persons whojointly signed the same as their will (prohibited)A Filipino may validly make a holographic will anywhere (810)


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A Filipino may not validly make a joint will anywhere (818, 819)

Mutual Wills = separate wills of 2 or more persons with reciprocalprovisions (allowed)

Exception to lex loci celebrationis (for Filipinos)If joint wills are executed by aliens abroad valid

BQ Wills; Joint Wills (2000)

Manuel, a Filipino, and his American wife Eleanor, executed a Joint Willin Boston, Massachusetts when they were residing in said city. The lawof Massachusetts allows the execution of joint wills. Shortly thereafter,Eleanor died.

Can the said Will be probated in the Philippines for the settlement of herestate? (3%)

CODICIL

Definition: ARTICLE 825. A codicil is a supplement or addition to awill, made after the execution of a will and annexed to be taken as apart thereof, by which any disposition made in the original will isexplained, added to, or altered.

How is it executed: ARTICLE 826. In order that a codicil may beeffective, it shall be executed as in the case of a will.

Incorporation by reference : Requisites

ARTICLE 827. If a will, executed as required by this Code, incorporates

into itself by reference any document or paper, such document or papershall not be considered a part of the will unless the following requisitesare present:

1. The document or paper referred to in the will must be in existence atthe time of the execution of the will;2. The will must clearly describe and identify the same, stating

among other things the number of pages thereof;3. It must be identified by clear and satisfactory proof as the documentor paper referred to therein; and4. It must be signed by the testator and the witnesses on each andevery page, except in case of voluminous books of account orinventories.

GR: Incorporation can be done only in notarial wills bec.

Art 827 speaks of witnesses

EXCEPTION:

1. if a holographic will happen to have at least 3 credible and qualifiedwitnesses2. if a holographic will (with NO witnesses) refers to a document entirelywritten, dated, and signed in the handwriting of the testator

Revocation

A.] Revocation made outside the Phil: testator not domiciled in Phil:1. law of the place where the will is made2. law of the place where the testator was domiciled at thetime the will was made (domiciliary law)

testator is domiciled in Phil:1. law of the Phil2. law of the place where the will was executed

B.] Revocation made in the Phil:Civil Code = W or N testator is domiciled here

Note: National Law does not apply in revocation

HOW CAN A TESTATOR REVOKE A WILL?

Three ways of revoking a will:1. implication or operation of law2. virtue of overt act3. virtue of revoking will or codicil


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Instances: Revocation by implication of law1. decree of legal separation;2. preterition3. legacy or credit against 3rd person or remission of debt was provided

in will and subsequently, testator brings action against debtor;4. substantial transformation of specific thing bequeathed;5. when heir, devisee, or legatee commits any of the acts ofunworthiness

Revocation by an Overt Act

overt act of destruction is executedact must be completed at least on its subjective phasethese is an intent to revoke (animo revocandi)at the time of the revocation, the testator has capacity to make a will,that is, he is of sound mindrevocation is personally done or effected by the testator himself, or byanother person by the express direction of the former and in his

presence

Overt act of burning

burning of small part is sufficientburned envelope thinking will was there but was removed = ineffectual(but the person who removed the will cannot inherit bec. ofunworthiness)accidental burning = ineffectualenvelope was burned but the will inside it is untouched - ineffectual

Overt act of tearing

sufficient even if slightintention to revoke but was stopped and persuaded by others = notrevokedtearing of signature = will is voidtearing includes cutting

Overt act of Obliterating or Cancelling

1. cancellation- running of lines but words remain legible- perforating2. obliteration = to blot out or to render

undecipherable3. crumpling = not an overt act of destruction cancellation or obliteration revokes the will totallyor partially if all parts or just the signature is cancelled or obliterated, the wholewill is revoiked signature strikes the existence of the entire willRevocation by the Execution of Another Will or

Codicil

may be express or impliedimplied complete inconsistency between the willsa will may be revoked through a notarial or

holographic willrevoking will must be valid, otherwise there is no revocationa valid revocation is not affected by reason of incapacity orrenunciation of hers, legatees or deviseesrevocation in the subsequent will must be definiteand not based on false cause

Invalid Will Ineffective Will

invalid revoking willcannot revoke a previous will

inoperative orineffective valid will can revoke a previous will

valid but not operative because incapacity of heirs or renunciation

CASE: Molo vs. Molo


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"This doctrine is known as that of dependent relative revocation, and isusually applied where the testator cancels or destroys a will or executesan instrument intended to revoke a will with a present intention to makea new testamentary disposition as a substitute for the old.

"The rule is established that where the act of destruction is connectedwith the making of another will so as fairly to raise the inference thatthe testator meant the revocation of the old to depend upon the efficacyof the new disposition intended to be substituted, the revocation will beconditional and dependent upon the efficacy of the new disposition; andif, for any reason, the new will intended to be made as a substitute isinoperative, the revocation fails and the original will remains in fullforce."

"This is the doctrine of dependent relative revocation. The failure of thenew testamentary disposition, upon whose validity the revocationdepends, is equivalent to the non-fulfillment of a suspensive conditionProbate = authentication of the will

- process of proving before a competent court the due execution of awill by a person possessed of testamentary capacity and the compliancewith the solemnities prescribed by law and its approval

GR probates court area of inquiry: extrinsic validity of the will

1. due execution

2. testamentary capacity3. compliance with solemnities

ARTICLE 839. The will shall be disallowed in any ofthe following cases (exclusive):

1. Non-compliance with the formalities required by law

- notarial wills = Art 804-806- holographic wills = 8102. Insanity or mental Incapacity to make a will3. will executed through force or duress or fear or threats- force = violence = serious and irresistible force- intimidations = reasonable and well grounded fear of an - imminent

and grave evil upon his perso prop or upon the - person or prop of hisspouse, descendants or ascendants4. undue and improper pressure- to be sufficient to avoid a will, the influence exerted must be of a kindthat so overpowers and subjugates the mind of the testator as todestroy his free agency and make him express the will of another ratherthan his own5. Signature of testator was procured by fraud- fraud or trick must be proved by evidence6. testator acted by mistake or did not intend that the document be hiswill at the time of signingEffect of Fraud, force, duress, threats, undue influence, and mistake:

In contracts In wills

vitiates consent andrenders the contract voidable

voidable contracts are susceptible of ratificationthese vices ofconsent render the will void

not susceptible of ratification; in succession, there is no voidable will

if wants to ratify = execute a codicil or a ratifying deed

Testate Estate of Pilapil, 72 Phil 546order by the testator to forego probate provision is void.Probate is mandatory and is required bypublic policy

Tolentino vs. Francisco, 57 Phil 749


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repudiating witnessesa will may be admitted to probate notwithstanding the fact that one ormore of the subscribing witnesses do no unite with the other, or othersit is sufficient if the court is satisfied from all the proof that the will wasexecuted and attested in the manner required by law

Mercado vs. Santos, 66 Phil 215

probated will later turned out to be a forgeryprobate of a will is considered as conclusive as to its due execution andvalidity criminal action will not lie against the forger of the will that hasbeen duly admitted to probate

Coso vs. Fernandez Deza, 42 Phil 596

testator stated provisions in favor of a woman whom he had illicitaffairsmere affection, even if illegitimate, is not undue influence anddoes not invalidate a willno imposition or fraud has been shown in the present case.

Nepomuceno vs. Court of Appeals,G.R. No. L-62952.

October 9, 1985will contained provisions in favor of paramourthe respondent court acted within its jurisdiction when after declaringthe Will to be validly drawn, it went on to pass upon the intrinsic validityof the Will and declared the devise in favor of the petitioner null andvoid.the probate court is not powerless to do what the situation constrains itto do and pass upon certain provisions of the Will.Guevara vs. Guevara, 74 Phil. 479

Will the statute of limitations find application in probate of wills?

Reason and precedent reject the applicability of the Statute ofLimitations to probate proceedings, because the same are establishednot exclusively in the interest of the heirs, but primarily for theprotection of the testator's expressed wishes

Is probate still necessary even if decedent left no debts?

none of the heirs may sue for the partition of the estate in accordancewith a will without first securing its allowance or probate by the court

Sps. Ricardo Pascual vs. Court of Appeals,

G.R. No. 115925, August 15, 2003there was a claim over a certain property subject of a will pendingprobate article 838 means that, "until admitted toprobate, a will has no effect whatever and no rightcan be claimed thereunder."

Reynoso vs. Tolentino., G.R. No. 46078. May 25, 1939.

Court granted the partition of conjugal property made in accordancewith the will executed by the spouse even if such partition is

disadvantageous to the other spouse The court should have substantiated the opposition of the widow andshould have given her an opportunity to adduce evidence in its support. The will, in so far as the testator alone made therein a partition of theconjugal properties by assigning to himself those which he liked and tothe wife those which she did not like, is illegal.

Nuguid vs. Nuguid [G.R. No. L-23445. June 23, 1966.]

testator omitted her parents in the will parties shunted aside thequestion of whether or not the will should be allowed probatethese practical considerations induce this

Court to meet head-on the issue of the nullity of the provisions of thewill in question, there being a justiciable controversy awaiting solution.

Martinez vs. Balanay [G.R. No. L-39247. June 27, 1975.


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wife disposed her husbands share as hers where the will containsunusual provisions which are of dubious legality, the trial court can passupon the will's intrinsic validity even before its formal validity had beenestablished.probate of a will might become an idle ceremony if on its face the willis intrinsically void.

INSTITUTION OF HEIRS

Art. 840. Institution of heir is an act by virtue ofwhich a testator designates in his will the person or persons who are tosucceed him in his property and transmissible rights and obligations.

absence or inoperativeness of institution leads to intestate successionRequisites of Institution:

1. It must be made in a valid will; therefore, it requires

- capacity of the testator- formalities must be observed- no vice of consent (error, fraud, duress, undue influence)-the will must be duly probated (except in marriage settlements and inpartition inter vivos by the owner [1080])2. Made personally, not be an attorney in fact, nor subject tocontrol by a third person (784; 785)3. Within the authority granted by law: i.e. for property of freedisposition (842)- Institution of forced heir to the legitime is valid butsuperfluous- Institution of non-forced heir to the legitime is void4. The heir designated must be capable of succeeding (842)

5. The heir must be certain or ascertainable (845)6. There should be no preterition (total omission) of a forced heirManner of Designating Heir:

1. By name and surname or nickname2. By other identifying circumstances (843)

3. Error in designation of name, surname or other circumstances doesnot invalidate, if the identity can be ascertained in anyother manner (844)- if the identity is not ascertainable, the institutionis void (844)- the mere fact that a legatee is referred to as a natural child does not

make the legacy conditional

Rules of interpretation of institution

1. collective institution (of class or group) is valid [845]2. heirs instituted without designation inherit in equal parts (art. 846 -principle of equality)3. individual and collective institution made at the same time, meansindividual institution of all unless the intention is clearly otherwise (art.847 principle of individuality)4. the presumption is that institution is simultaneous and not successive(art. 849 principle of simultaneity)5. collective institution of relatives of the testator is in favor of thosenearest in degree (959)

6. institution of the poor (1030)

Art. 850. The statement of a false cause for theinstitution of an heir shall be considered as not written, unless itappears from the will that the testator would not have made suchinstitution if he had known the falsity of such cause.

false cause = erroneous reason for the institution of an heir= cause contrary to law - deemed not written UNLESS illegal causeappears to be the sole reason for the institution

Requisites of false cause to annul the will:

1. cause for the institution of heirs must be stated in the will2. cause must be shown to be false3. must appear from the face of the will that the testator would not havemade such institution if he had known the falsity of the cause


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Inoperative Institution:

1. By predecease of the heir (856)2. By repudiation of the heir (856)3. By error of the testator (false cause) if it appears from the will thathe would not have made the institution if he knew the truth (850)4. By uncertainty of the heir where he is unknown or cannot be

identified (845)5. By preterition of a compulsory heir in the direct line (854)6. By invalid disinheritance of a compulsory heir(918)

Preterition in Institution: Effects

A has 3 kids- X, Y and Z. A, in his will, instituted X and Yonly and his driver R. Z was omitted. Estate is 300.

Institution is annulled because there is preterition

Intestacy takes overX,Y and Z gets 100 each

What if R was just merely given a legacy of 10?

Legitime is 150Legacy is not inofficious effectiveLegacy must remain valid300 less 10 = 290

Divide 290 among X, Y and ZInvalid or Ineffective Disinheritance in Institution: Effects

A disinherited X and instituted Y and Z as heirs. X disinheritance isinvalid. The estate is 300.

Get Xs legitime 50 300 50 = 250 250 will be divided by Y and Z Institution will be annulled only insofar as the legitime is impaired

What if a legacy of 10 is given to R?

Legitime is 150 (50 each) Legacy is not inofficious effective Legacy must remain valid 300 less 10 = 290 Give the legitime to X of 50 290 50 = 240 Divide 240 between Y and Z

Classes or groups who can be instituted as heirs:

1. (Art 848) Brothers and sisters, some of the full blood, others halfblood2. (Art 849) a person and his children3. (Art 959) testators relatives (nearest in degree)4. (Art 1030) the poor in general living in the domicile of the testator orthe poor in a definite locality5. the institution of descendants or relatives of a legatee (The rule ofnearest excludes the farther will NOT apply here. Therefore, alldescendants and relatives will inherit per capita)

ARTICLE 854. The preterition or omission of one, some, or all of thecompulsory heirs in the direct line, whether living at the time of the

execution of the will or born after the death of the testator, shall annulthe institution of heir; but the devises and legacies shall be valid insofaras they are not inofficious.

If the omitted compulsory heirs should die before the testator, theinstitution shall be effectual, without prejudice to the right ofrepresentation.


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Requisites of Preterition:

1. total omission in the inheritance there is preterition if mentioned in the will but not given anyshare

there is no preterition as long as heir is given something no matterhow small (completion of legitime) there is no preterition if donations were given in advance asdonations form part of inheritance does not disinherit the heir, but leaves nothing to him in thehereditary estate w/n the testator mentioned him in the will no total omission if heir already received something from the testator(donation inter vivos)2. omitted person must be a compulsory heir3. said compulsory heir must come from the direct line, whetherascending or descending EXCEPTION: an adopted child is deemed a legitimate child preterition of a spouse does not invalidate because not in the directline

4. omitted compulsory heir must survive the testator

Effects of Preterition:

1. annuls entirely the institution of heirs,2. but the devisees and legacies shall be valid insofar as they are notinofficious3. if the compulsory heirs would predecease the testator, the institutionof heir shall be effectual, but the omitted heir would be represented byhis heir, when representation is proper4. if omitted heir is not in the direct line (like spouse), only the legitimeis given to him/her and the institution of heir is annulled up to thatextent only

Preterition (2001)

Because her eldest son Juan had been pestering her for capital to start abusiness, Josefa gave him P100,000. Five years later, Josefa died,leaving a last will and testament in which she instituted only her fouryounger children as her sole heirs.

At the time of her death, her only properly left was P900,000.00 in abank. Juan opposed the will on the ground of preterition.

How should Josefa's estate be divided among her heirs? State briefly thereason(s) for your answer. (5%)Substitution of Heirs

Art. 857. Substitution is the appointment of another heir so that he mayenter into the inheritance in default of the heir originally instituted.

Kinds

ARTICLE 858. Substitution of heirs may be:(1) Simple or common (art. 858);(2) Brief or compendious (art. 860);(3) Reciprocal (art. 861);

(4) Fideicommissary (art. 863);(5) Reciprocal (art. 861)

SIMPLE, VULGAR OR COMMON SUBSTITUTION

ARTICLE 859. The testator may designate one or more persons tosubstitute the heir or heirs instituted in case such heir or heirs shoulddie before him, or should not wish, or should be incapacitated to acceptthe inheritance.

A simple substitution, without a statement of the cases to which itrefers, shall comprise the three mentioned in the preceding paragraph,

unless the testator has otherwise provided.BRIEF OR COMPENDIOUS SUBSTITUION

ARTICLE 860. Two or more persons may be substituted for one; andone person for two or more heirs.

Brief or Compendious Substitution


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Brief two or more take the place of one There is plurality of substitutes Equal shares in absence of stipulation Compendious one takes the place of two or more One is appointed for all

RECIPROCAL SUBSTITUTION

ARTICLE 861. If heirs instituted in unequal shares should bereciprocally substituted, the substitute shall acquire the share of the heirwho dies, renounces, or is incapacitated, unless it clearly appears thatthe intention of the testator was otherwise. If there are more than onesubstitute, they shall have the same share in the substitution as in theinstitution.Effect:

Only two heirs reciprocally substituted

the substitute acquires the whole share that the other heir leftvacant, whether that share is larger or smaller than his own, unless itclearly appears that the intention of the testator was otherwise

More than two heirs reciprocally substituted

the vacant share must be divided among thesubstitutes in the same relative proportion as the respective sharesgiven to them by the testator

ARTICLE 863. A fideicommissary substitutionby virtue of which the fiduciary or first heir instituted is entrusted with

the obligation to preserve and to transmit to a second heir the whole orpart of the inheritance, shall be valid and shall take effect, providedsuch substitution does not go beyond one degree from the heiroriginally instituted, and provided further, that the fiduciary or first heirand the second heir are living at the time of the death of the testator.

Requisites: FIDEICOMISSARY SUBSITUTION

1. First Heir Must be capacitated mad must accept May enjoy and use the fruits (not an agent) cannot alienate Bound to make inventory

No bond required He must make an inventory of the trust property He must preserve the capital of the property He must deliver the inheritance to theFideicommissary (or heirs of the latter)

2. An obligation clearly imposed upon him to preserve and transmitto a third person the whole of part of the inheritance

Must be given expressly by name or by specific obligation Suggestion is not allowed Not conditional

3. Second Heir Naked owner There is ownership upon transfer of property Inherits from the testator If he dies ahead of the Fiduciary, but after the testator, the rights ofthe fideicommissary pass to his own heirs (fideicommissary substitutionis not extinguished) If the fideicommissary heir is disqualified to inherit or repudiates, thesubstitutionis inoperative

4. the First and the Second Heirs must be only one degree apart one generation and not one transfer

5. Both heirs must be alive or at least conceived at the time of testatorsdeathConditional Testamentary Dispositions andTestamentary Dispositions With a Term


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ARTICLE 871. The institution of an heir may be made conditionally,or for a certain purpose or cause.

Classes of Institution of Heirs:

1. With a condition2. With a term

3. For a purpose or cause4. Simple institution

1) Simple or pure: = The heir or legatee acquiresthe inheritance from the death of the testator

2) Conditional Institution = (871-877) its effectivity is subordinatedto the happening or non- happening of a fact or event which is bothfuture & uncertainCondition is a future and uncertain event depending:upon chance (casual); orupon the exclusive will of the heir (potestative); orupon both 1 & 2 (mixed)

No condition is imposable on the legitime (Art 872) EXCEPT:Payment of legitime in cash to other children where an industrial,agricultural or manufacturing establishment is allotted entirely to oneheir by the parent (1080(2))Imposition of indivision for not more than 20 years (1083(1)) Impossible, illegal and immoral conditions (precedent) are considerednot imposed; therefore, the effect is that of pure institution The same rule applies in donations (727) The reverse rule is true in ordinary obligations (1183)where the obligation itself is void- If the condition is to do an impossible or illegal thing, both thecondition and the obligation are void.

- If the condition is negative, not to do the impossible, just disregardthe condition but the obligation remains.- If the condition is negative, not to do an illegal thing, both thecondition and the obligation are valid.

Disposition Captatoria = condition that the heir make a willin favor of another, or in favor of the testator, is VOID (875)

Condition (suspensive) not to contract a first marriage is illegal andvoid, if absolute (not to marry any person, at any time, in any place)

Condition (suspensive) not to contract a second or subsequentmarriage is valid ifImposed upon the surviving spouse; and

By the deceased spouse or by descendants orascendants of the deceasedIf violated, the spouse gets the legitime only and not the free portion

PROVIDED it affects usufruct, an allowance or some personal prestation(not ownership)Time of fulfillment of potestative, casual, or mixed conditions(876, 877)

POTESTATIVE CONDITION = must be fulfilled as soon asthe death of the testator is learned, even if alreadyfulfilled before UNLESS repetition is impossible

CASUAL or MIXED CONDITION: must happen or be fulfilled before or after death oftestatorIf already fulfilled at the time of the execution of will and testator isunaware- condition deemed complied withIf testator had knowledge- condition considered fulfilled if it is of suchnature that it can no longer be complied with

NEGATIVE POTESTATIVE CONDITION = the heirmust give security (caucion muciana) before entering into possession;

that if the condition be not performed, he will return the property andfruits or interest (879).

The estate is to be under administration until the bond is given (880(2))Performance of conditions:

Equivalent (constructive) performance is admitted only where the


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- Person interested in non-performance prevents the performance; or- the potestative condition is dependent upon the heir and he does all hepossibly can to complyInstitution with a period (or term) = (878, 880, 885)

term is the day or time when the effect of an institution of heirs is tobegin or cease

suspensive or ex diemeffects commence from a certain day or timedoes not prevent the instituted heir from acquiring rights andtransmitting them to his heirs before arrival of the term (878)

resolutory or in diemeffects cease on a certain day or time

Effect of suspensive or resolutory term BEFORE the day arrives:

The legal (intestate) heir shall be considered as called until the arrivalof period or upon its expiration (885)

note: If the term be suspensive, the legal (intestate) heir shall notenter into possession until he gives sufficient security, with theintervention of the heir instituted

Modal Institution = (871, 882, 883) institution of an heir is made, fora certain purpose or cause

Modo (modus) may consist in either:

A special object (purpose) ofinstitution, stated in the will; or Application of property left by the testator; or A charge imposed on the heir

The presumption is against a condition but in favor of modo

Effect of modo

1. The heir may claim the property upon him or his heirs, giving securityfor compliance with the testators wishes or the return of what has beenreceived with fruits or interest (882(2))

2. Non compliance of modo operates as a negative resolutorycondition (the property must be returned with fruits)

3. If exact compliance is not possible, it shall be complied in the mannermost analogous to and conformable to the testators wishes (803)

Institution of pious works and prayers (1029)

to the church; to the State

Classification of Compulsory Heirs:

Primary compulsory heirs

1. legitimate children & their descendants2. the widow or widower3. illegitimate children

secondary compulsory heirs

1. legitimate parents and ascendants (in default of legitimatechildren and descendants of the testator)2. the father or mother (not other descendants) of deceased illegitimatechildren (in default of legitimate or illegitimate children and descendantsof the deceased)

NOTE that legitimate parents and ascendants are not excluded byillegitimate descendants; BUT the illegitimate parents are excluded byany descendants whatsoever, legitimate or illegitimate (903)

ARTICLE 890.


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-legitime for the legitimate parents- shallbe divided between them equally-if one of the parents should have died, the whole shall pass to thesurvivor.

-If testator leaves neither father nor mother, but is survived byascendants:> equal degree of the paternal and maternal lines- the legitime shall be divided equally> of different degrees- the legitime goes to the ones nearest in degree of either line.

No right of representation in the ascending line

ARTICLE 898.

widow or widower survives with legitimate children and withillegitimate children

Satisfy first the legitime of legitimate children and spouse, then dividethe remaining among the illegitimate children

Hence, if there are many illegitimate children, theymay not get share of that of the legitimate child

ARTICLE 900.

Surviving spouse as the only compulsory heir

GR: spouse gets one-halfEXC: spouse gets one-third if marriage was in articulo mortis and

testator died within three months from celebration of marriage

EXC: TO THE EXC: when they have been living as husband and wife formore than five years.ARTICLE 908. How to determine the legitime?

Net Hereditary Estate (NHE)

Formula: Property left - Debts & Charges + Value ofCollationable Donations = NHE

ARTICLE 909. Donations to children and strangers

Donations to children

First be charged to legitimeIf legitime is insufficient, charge to free portionIf donations cannot be covered by the free portion, donations must bereduced so as not to impair others legitime

Donations to Strangers

Should be charged to free portionMust be reduced if inofficiousMust be collated not as advances of the legitime butadvances of the free portion

Art. 910 - Donations to illegitimate children

Should be charged against their legitimeShould not impair legitime of legitimatechildrenAny donation in excess of legitime shall be charged to the free disposal

ARTICLE 911. HOW REDUCTIONS SHOULD BEMADE?

1. Determine the NHE2. Determine legitime of compulsory heirs based on theNHE3. Add total values of legitimes of all compulsory heirs4. deduct the value of the total legitimes from the NHE

(1) to arrive at the free disposal (not free portion)5. charge the donations to strangers to the free disposal6. charge preferred legacies and devises to free disposal7. charge all other legacies/devises to free disposal8. in case free disposal is insufficient, reduce thelegacies, donations, etc. in the order of priorityLenny passed away on December 2005 leaving five (5)


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legitimate children namely Bam, Bem, Bim, Bom, Bum.

On the day of the burial, the acknowledged illegitimate childrenof Lenny surfaced and introduced themselves as Pao and Poo.

Prior to Lennys death, she incurred an indebtedness amountingto P100,000.

Lenny also donated to her bestfriend an amount of P40,000 on1999. Days before Lennys demise, she gave Bim, her favorite child, anamount of P120,000 which is double the amount she gave to Poo on2001.

Lenny has a total estate worth P180,000.

Determine the Net Hereditary Estate of Lenny. Who are entitled to theestate of Lenny and how much are their respective share/s?Given: Leg ch 5; ill ch 2; debt 100; donation to friend 40

(1999); Bim 120 (2005), Poo 60 (2001); estate - 180

Total estate of 180 less debt of 100 = 80 80 + 40 (friend) + 120 (Bim) + 60 (Poo) = 300 Estate = 300 Hence, the legitime of leg. Children = 150 (30 each) Legitime of ill. Ch. is 15 (to be taken from the free portion) Free disposal = 120 Charge donation to Bim to legitime = excess of 90 Charge donation to Poo to legitime = excess of 45 Charge donation to friend to free disposal = 40 Total of 175 chargeable to free disposal 175 120 = 55

Since Bim received the latest donation, he must return the excess of55 Donations made to friend and Poo will remain Hence, 40 (friend) + 45 (Poo) + 35 (Bim) = 120 (free disposal)

Reserva troncal

ARTICLE 891. The ascendant who inherits from his descendant anyproperty which the latter may have acquired by gratuitous title from

another ascendant, or a brother or sister, is obliged to reserve suchproperty as he may have acquiredby operation of law for the benefit of relatives who are within the thirddegree and who belong to the line from which said property came.Reserve troncal - It is the duty imposed by law upon ascendants whoinherit from descendants to preserve certain properties of the estate forspecified relatives belonging to the line from which the property came

Parties in reserve troncal

1. Origin ascendant, brother or sister from whom theproperty came2. Propositus the descendant who acquired the property gratuitously3. Reservor or Reservista ascendant who in turn acquired the propertyfrom the descendant by operation of law

4. Reservees or Reservatarios relatives within the third degreebelonging from the line from which the property came

Transfer from origin to propsitus must begratuitous (donation, remission, testamentary succession or legalsuccession)

Transfer from propositus to reservoir must be by operation of law(legal succession or legitime in the case of testamentary succession)

ORIGIN

Must be an ascendant or brother or sisterIf brother or sister, must be half-brother or half- sister of propsitus

Must be a legitimate relative (reserve troncal exists only in legitimatefamily)Transmission must be by gratuitous titlePROPOSITUS

Descendant who inherits from origin Death gives rise to reserva (no reserva duringhis lifetime)


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Must be legitimate descendant (half-brother or half-sister) of theorigin from whom third degree is counted Descendant (prepositus) must leave1. No legitimate descendants; or2. No legitimate descendants qualified orwilling to inherit.

3. Presence of illegitimates, without concurring legitimate descendants,does not bar ascendants from inheriting

RESERVOR OR RESERVISTA

Ascendant who inherits from the propositus by operation of law (bylegal succession or by legitime)Must be legitimate, qualified and willing to inheritHas the obligation to reserveNo reserva if he inherits free portion by virtue of a willOwnership is subject to a resolutory conditionRESERVEES OR RESERVATARIOSRelatives within the third degree from the propositusThere must be death of reservista and the Reservatorio must survivereservista

They inherit from the propositus and not from reservorMust be a legitimate relative of the origin and propositusRight of representation is only admitted within the third degree; acousin (4th degree) of the prepositus can not become reservatorio byrepresenting his fatherFirst degree parents of propositusSecond degree grandparents, full and halfbrothers and sisters of propositusThird degree uncles and aunts by blood; great grandparents;nephews and nieces of propositusNearer excludes the farther

HOW MUCH IS RESERVABLE?

RESERVA MAXIMA vs. RESERVA MINIMA

A son received 20 from his mother gratuitously. Son has his ownsavings of 40. Son died without an issue and survived by his father.How much of the 60 is reservable?

-fathers legitime is (30)

Reserva Maxima entire 20

reservable property includes all that can be included in the halfconstituting the legitime of the reservista

Reserva Minima 10 only

Half of the 20 (10) is given as a legitime or by operation of law

Which is which?

Reserva maxima is more in keeping with the spirit of the provisionReserva minima is more just, equitable and logical

Disinheritance

Requisites: Valid disinheritance

1. must be made in a will (or codicil)2. must be made expressly (not presumed)3. must be for a legal cause

4. must be for a true cause5. must be for an existing cause6. must be total or complete7. must be stated in the will itself8. heir must be clearly identified9. will must not have been revokedDepriving in a will a compulsory heir of hislegitime through true and lawful causesRetribution and not vengeanceNo disinheritance in legal successionCourts may inquire into the validity of thedisinheritanceDisinheritance also includes the free portion

written evidence aliunde is allowed in determining the identity ofdisinherited heira revoked will loses the effect of disinheritancepartial disinheritance is no disinheritancedisinheritance is ineffective if conditionally made and has not yetoccurred at the time the will is made


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Descendant (919) Ascendant (920) Spouse(921)

When the heir has been found guilty of an attempt against the life of thetestator, his or her spouse, descendants, or ascendants

When the heir has accused the testator of a crime for which the lawprescribes imprisonment for six yearsor more, if the accusation has been found groundless

When the heir by fraud, violence, intimidation, or undue influencecauses the testator to make a will or to change one already made

When the heir (legitimate or not) has been convicted of adultery orconcubinage with the spouse of the testator (w/ or w/out incest)

Loss of parental authority due to fault of the heir

Refusal to support the testator without justifiable cause

Maltreatment of the testator by word or deed, by the child ordescendant (Maltreatment of child by parent is not ground fordisinheriting parent because it is part of parental discipline)

When a child or descendant leads a dishonorable or disgraceful life

Conviction of a crime which carries with it the penalty of civil interdiction

Refusal to support children and descendants without justifiable cause

When the parents have abandoned their children or induced their

daughters to live a corrupt or immoral life, or attempted against theirvirtue

An attempt by one of the parents against the life of the other, unlessthere has been a reconciliation between them

Unjustifiable refusal to support the children or the other spouse

When the spouse has given cause for legal separation

ARTICLE 922. A subsequent reconciliation between the offender

and the offended person deprives the latter of the right to disinherit,and renders ineffectual any disinheritance that may have been made.

Effect of reconciliation:

- If it occurs before disinheritance is made - Right to disinherit isextinguished.- If it occurs after the disinheritance is made - Disinheritance is setaside

How disinheritance is revoked:

- Subsequent reconciliation- Nullification of the will of the testator- Subsequent institution of the disinherited heir in a subsequent will

ARTICLE 923. The children and descendants of the persondisinherited shall take his or her place and shall preserve the rights ofcompulsory heirs with respect to the legitime; but the disinheritedparent shall not have the usufruct or administration of the propertywhich constitutes the legitime.

Effect of Disinheritance: (Right of Representation)The right of representation is granted only to descendantsof disinherited descendants.Disinheritance is personal to the disinherited and affects him only

> does not affect the children and descendants of the disinherited heir.

ARTICLE 918. Disinheritance without a specification of the cause,or for a cause the truth of which, if contradicted, is not proved, or whichis not one of those set forth in this Code, shall annul the institution ofheirs insofar as it may prejudice the person disinherited; but the devises


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and legacies and other testamentary dispositions shall be valid to suchextent as will not impair the legitime.

Effects: Ineffective Disinheritance

1. institution of heirs is annulled- only insofar as it may prejudice the person disinherited

- insofar as the legitime of said heir is impaired

2. devises, legacies and other testamentary dispositions shall be valid tosuch extent as will not impair the legitimeDistinction: Preterition vs. Valid Disinheritance

Preterition Valid Disinheritance

Omission may be eitherintentional or unintentionalAlways intentional

With or without cause Cause must always be statedin the will; must be true and legal

Annuls the institution; omittedheir inheritsDisinherited heir inheritsnothing

May exist with or without a will A will is always required

Institution is always void exceptwhen preterited heir predeceases the testatorMay be valid when all the requirements of the law are followed

Distinction: Preterition vs. Imperfect Disinheritance

Imperfect Disinheritance Preterition

Refers to all those cases where the disinheritance is not made inaccordance with the requisite formalities required by law

Results in PARTIAL ANNULMENT: Institution remains valid as long as thelegitime of the defectively disinherited heir had not been impaired

Disinherited heir may be any compulsory heirInstitution of heirs is TOTALLY annulled

Omitted heir must be a compulsory heir in the direct line

Always express Always implied

Always intentional May or may not be intentional

Legacies and Devises

ARTICLE 924. All things and rights which are within the commerce ofman may be bequeathed or devised.

Legacy: (Bequeathed)Gift of personal property given in a willTestamentary disposition of personal property by particular title

Devisee: (Devised)Gift of real property given in a willTestamentary disposition of real property by particular title

Limitation - should not impair the legitime

What cannot be bequeathed:- res communes - res nullius

- property of public dominion - illicit things- public use - purely personal orintransmissible rights

Persons who May be Charged by Testator with

Payment or Delivery of Legacy or Devise (Art.

925):


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1. any compulsory heir;2. any voluntary heir;3. any legatee or devisee; or4. the estate, represented by the executor or administrator.

GR: If no one is charged with the duty of giving legacies and devisees, it

is the estate which must give the legacies or devisees

EXCEPTION: If the testator gives this duty to the compulsory heirs, orto legatees and devisees (Sub-Devisee or Sub-Legacy)

LIABILITY OF HEIRS

Heirs who take possession of the estate are solidarily liable Question of who is negligent is immaterial Does not include fortuitous events

Generic or Indeterminate (art. 928):

It is not particularly designated or physically segregated from all otherthings belonging to the same class.

NOTE:If the thing lost is determinate, the obligation to deliver is extinguishedprovided the obligor is not guilty of fault, delay or fraud.If the legacy or devise is a burden on the estate itself, there is nowarranty against eviction if there were court proceedings which orderedthe giving of such legacy.Legacy/ Devise of a thing belonging to another: (930-931)

Testator ordered the acquisition

- Estate should try to acquire the part or interest owned by other partiesOR- If the owner is unwilling to part with the thing, estate gives themonetary equivalent

Testator erroneously believed that the thing belonged to him

GR: legacy/ devise is voidEXCEPTION: testator acquired the thing after making the disposition

Legacy/ Devise of a thing already belonging to the legatee/devisee or subsequently acquired by him: (932-933)

Thing already belongs to the legatee/ devisee at the time ofthe execution of the will- Legacy/ devise is void- Not validated by subsequent alienation by devisee/legatee

Thing is owned by stranger at the time of the execution of the will andacquired thereafter by legatee/ devisee- Testator erroneously believed that it belonged to him> legacy/ devise is void- Testator was not in error> legatee/ devisee is entitled to reimbursement if this was acquiredonerously; BUT nothing more is due if it was acquired gratuitously

LEGACY IS PLEDGED OR MORTGAGED

GR: Estate should answer for the indebtedness such as pledges,mortgages, any other lien before or after the execution of the will.

Exception:

- Contrary intention- Testator expressly provide that the devisee or legatee shall pay- Easement- Usufructs- Leases of real rights

Ex to the EX:

-Devisee or legatee may be ordered to pay provided the amount doesnot exceed the value of the devise or legatee (925)

Legacy of Credit (Art. 935)

Novation of creditLegatee is subrogated in favor of the testator

Executor or administrator- shall assign the actions to the legatee, or- deliver proceeds to the legateelegacy of credit shall comprise that part still existing at thetestators death with the interestlegacy of credit may be generic or specificall guarantees whether personal (guaranty or surety) or real


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(pledge or mortgage) are deemed included

Legacy of Remission (Art. 935)

donation mortis causasubject to rule of inofficious testamentary dispositionsmay be reduced if legitime is impaired

amount remitted must be included in the computation of theNHE

EFFECT OF ACTION AGAINST DEBTOR-LEGATEE (Art. 936)

Legacy is revoked (credit or remission)Payment may come before or after testatorsdeathRevocation refers to the bringing of the action and not the paymentJudicial demand is needed (action)If the principal obligation is remitted, the pledge isautomatically remittedAlso includes mortgage, antichresis or any other security

Legacy or Devise to a creditor (Art. 938)

GR: Will be treated like any other legacy/ devise and therefore will notbe imputed to the debt

EXCEPTION: Will be imputed to the debt iftestator so provides, andif the debt exceeds the legacy/ devise, the excessmay be demanded as an obligation of the estate

Testamentary Instruction to pay a debt (art. 939):

This is not a testamentary disposition, but merely adirection to discharge a civil obligation Instruction to pay a non-existing debt- should be disregarded, because this would be solution indebiti Instruction to pay more than what is due

- effective only as to what is due, unless the bigger amount specifiedconstitutes a natural obligation

Alternative Devise or Legacy (Art. 940):

- One which provides that among several things mentioned, only one isto be given.

Right of Choice:

GR: Given to the person burdened (executor oradministrator, heir, legatee or devisee)EXCEPTION: The legatee/ devisee, if the testator so provides

Person who is to choose dies before choice is made:Choice belongs to executor or administrator- right is transmitted to his successor in officeChoice belongs to an heir, legatee or devisee- right is transmitted to his own heirs

> Once the choice is made, it is irrevocable. The alternativelegacy is converted into pure obligation (1179)

Rules on Validity: (Art. 941)

Generic Legacy

valid even if no such movables exist in the estate estate will simply acquire itGeneric Devise valid only if there exists such an immovable in thetestators estate at the time of his death

Right of Choice: (Art. 942)

1. person burdened

2. estate limitations> choice must neither be inferior or superior quality> for generic personal legacies = if there be some in the estate, personcharged must select from them and not from outside the estate

Legacy for Education

Duration:


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1. Age of majority; or2. Completion of professional, vocation, or general course (if legateepursues his studies diligently

Whichever comes later Legacy for SupportDuration:

Legatees lifetime, unless the testator has provided otherwiseLegacy of a Periodical Pension

Demandability:

1. Upon testators death2. Succeeding ones = beginning of the period without duty to reimburseshould the legatee die before the lapse of the period

Legacy for EducationLegacy for Support Legacy of a Periodical PensionAmount:

1. fixed by testator2. proper as determined by legatees social standing and circumstances;& value of disposable estate

Amount:

1. fixed by testator2. testator during his lifetime used to give the legatee, unless markedlydisproportionate to the value of disposable portion3. reasonable as determined by legateess social standing & value ofdisposable estate

Legatee must wait until an order for distribution has been issued.

Date of effectivity retroacts to the decedents death

if legacy not inofficiousLEGACIES Demand- abilityOwnership Fruits

Pure & Determinate

Pure & GenericUpon testators death

Upon testators deathUpon testators death

from testators estate = upon testators death acquired from3rd person = upon acquisitionUpon testators death

Upon determination, unless testator provides otherwise (949)LEGACIES Demand- abilityOwnership Fruits

With a (suspensive) term

Conditional (suspensive)Upon the arrival of the term

Upon the happening of the conditionUpon the arrival of the term,but the right to it vests upon the testators death (878)

Upon testators death, if the condition is fulfilledUpon the arrival of the term (implied from 885)

Upon the happening of the condition, unless testator provides otherwise

ARTICLE 950. If the estate should not be sufficient to cover all thelegacies or devises, their payment shall be made in the following order:

(1) Remuneratory legacies or devises;(2) Legacies or devises declared by thetestator to be preferential; (3) Legacies for support;(4) Legacies for education;


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(5) Legacies or devises of a specific, determinate thing which forms apart of the estate;(6) All others pro rata. (887a)Art 911 Art 950

When such reduction is necessary to preserve the legitime fromimpairment, whether there are donations inter vivos or not

When, although the legitime has been preserved by the testator himself,by giving the compulsory heirs sufficient to cover such legitime, thereare donations inter vivosconcurring with the legacies or devises within the free portionWhen the question ofreduction is exclusively among the legatees themselves, either

- because there are no compulsory heirs, or

- because the legitime has already been provided among thecompulsory heirs in his will or there are no donations inter vivosArticle 911: Application

Given: Estate = 50; Legitime of 2 children in the will = 20 (each);donation inter vivos to F = 30; preferred legacy to X = 4; legacy to Y foreduc = 10; remuneratory legacy to Z = 20

Get NHE - 50 + 30 = 80 Legitime is of 80 = 40 40 for children is covered Free portion = 40

Donation and legacy = 64 Apply art. 911 donation IV concurs with legacy Donation inter vivos of 30 stands Remaining 10 less preferred legacy of 4 = 6 Proportionate reduction for Y and Z Y gets 2 Z gets 4

ARTICLE 911. HOW REDUCTIONS SHOULD BEMADE?

1. Determine the NHE2. Determine legitime of compulsory heirs based on theNHE3. Add total values of legitimes of all compulsory heirs4. deduct the value of the total legitimes from the NHE(1) to arrive at the free disposal (not free portion)5. charge the donations to strangers to the free disposal

6. charge preferred legacies and devises to free disposal7. charge all other legacies/devises to free disposal8. in case free disposal is insufficient, reduce thelegacies, donations, etc. in the order of priorityArticle 950: ApplicationGiven: Estate = 80; legitime to children = 20 each;preferred legacy to X = 25; remuneratory legacy to Y= 30; legacy for education to Z = 15

Legitime of 40 (20 each) is sufficient Free portion = 40 Legacies = 70 Apply 950 (RPSESA) reduction is exclusivelyamong legacy Satisfy Ys legacy 30 (40-30) Remaining amount is 10 X gets 10


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X suffers a reduction of 15 Z gets nothing

Rules on Acceptance and Repudiation ofLegacies/ Devises (Art 954):

- if the legacy/ devise is partly onerous and partly gratuitous, therecipient cannot accept the gratuitous part and renounce the onerouspart

- If the legatee/ devisee dies before accepting or renouncing, his heirsshall exercise such right (heirs exercise right as to their pro-indivisoshare)Rules when 2 Legacies/ Devises to the SameRecipient (Art. 955) :

Both gratuitous - may accept or repudiate either or both except iftestator intended it to be inseparable

Both onerous - may accept or repudiate either orboth except if testator intended it to be inseparable One gratuitous & the other onerous - the recipient cannot accept thegratuitous part and renounce the onerous part

Legacy/ Devise to one who is also a compulsory heir:

- Recipient may accept either or both

ARTICLE 957. The legacy or devise shall bewithout effect:

Par. 1 transformation

Form external appearance of the thing

Denomination essential elements, species or genus

Par. 2 alienation

- Alienation of property must be voluntary- There is an implied revocation as there is change of intention- Does not apply in foreclosure of mortgage- Repurchase of the property revives the legacy or devise- When a property has been alienated because of vitiated consent andwas reacquired by the testator, the legacy or devisee is still effective> Exc: legacy or devise is ineffective ifby reason of nullity of contract

Par. 3 loss

-Loss refers to both physical loss and legal or juridical loss(expropriation proceedings)

- during the lifetime of the testator, or

- after his death without the heir's fault.

> the person obliged to pay the legacy or devise shall be liable foreviction

> if the thing bequeathed should not have been determinate as to itskind, in accordance withthe provisions of article 928.ARTICLE 959. A disposition made in general terms in favor of thetestator's relatives shall be understood to be in favor of those nearest indegree.

Relatives must be within the fifth degreeRelatives by affinity are excludedNearer in degree excludes the fatherRight of representation does not existNo preference in line as what matters is the nearness of degreeApplies only to testators relatives (e.g. not to wife)


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Does not apply to those who are entitled thereto(goes to intestate heirs)Legal or Intestate Succession

ARTICLE 960. Legal or intestate succession takes place:

(1)If a person dies- without a will, or- with a void will, or- one which has subsequently lost its validity;

(2)When the will- does not institute an heir to, or- does not dispose of all the property belonging to the testator.

(3) - If the suspensive condition attached to theinstitution of heir> does not happen or>is not fulfilled, or- if the heir

>dies before the testator, or> repudiates the inheritance,> there being no substitution, and> no right of accretion takes place;

(4) When the heir instituted is incapable of succeeding, except incases provided in this Code.

Other Causes of Intestacy:

Happening of resolutory conditionExpiration of resolutory termPreteritionIn cases of ineffective testamentary dispositionIntestate heirs are not necessarily compulsoryheirsOrder of intestate succession is fixed by law and cannot be altered byagreementIntestate heirs cannot be disinherited unless they are also compulsoryheirs

If intestate heirs are not compulsory heirs, theycan only be excluded

Rules: Exclusion of an Intestate Heir

1. Excluded heir must not be a compulsory heir2. State must never be excluded3. When a person is excluded, he alone is excluded and does not includehis own descendants and other heirs4. express exclusion of an intestate heir makes the property go to theheirs of the same degree, if any, otherwise to the next degreeIntestate Heirs:

1. Legitimate Children/ Descendants2. Illegitimate Children/ Descendants3. Legitimate Parents/ Ascendants4. Illegitimate Parents5. Surviving Spouse6. Brothers, Sisters, Nephews, Nieces

7. Other Collateral to the 5th degree8. State

Direct Line: No legal limit to the number of degrees forentitlement to intestate succession

Collateral Line: Computation of degrees is particularly importantbecause intestate succession extends only to the5th degree of collateral relationship (1010)Order of Intestate SuccessionDescending Direct Line

Deceased is a Legitimate Child

1) Legitimate children and their legitimate descendants (992)- includes the legitimated, adopted children & descendants


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2) Legitimate parents and other legitimate ascendants (992)- no right of representation in ascending;- if there are no legitimate parents, the adopting parents will take theirplace but they will concur with the surviving spouse and the illegitimatechildren)[190 FC]

3) Illegitimate children and their descendants, whether legitimate orillegitimate [988, 990, 992)

4) Surviving spouse, without prejudice to the rights of brothers andsisters, nephews and nieces if there be any (995)

5) Brothers and sisters, nephews and nieces. Other collateral relativesup the 5th degree of relationship (1010)7State (1011)

Deceased is an Illegitimate Child

1 Legitimate children and their legitimate descendants(979)

2 Illegitimate children and their descendants, whetherlegitimate or illegitimate (988, 989, 990)

3 Illegitimate parents or parents by nature(ascendants of illegitimate parents are not included) [993]

4 Surviving spouse (994); Illegitimate brothers and sisters, nephewsand nieces if there be any (by inference from 994[2])

5 Brothers and sisters, nephews and nieces

6 State (1011)

Succession to the Estate of an Adopted Child: (190 FC)

1 a. legitimate children b. illegitimate children c. surviving spouse

2 a. biological parents (legitimate or illegitimate or legitimateascendants, as the case may be)b. adopter/s

3 a. surviving spouse orillegitimate childrenb. adopter/s

4 a. surviving spouseb. illegitimate childrenc. adopter/sRule on intestacy applies

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5 Adopter/s alone -Whole estate

6 Collateral blood relatives alone- Rules on intestacy applies

Art. 982. The grandchildren and other

descendants shall inherit by right of representation, and if any one ofthem should have died, leaving several heirs, the portionpertaining to him shall be divided among the latter in equal portions.


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EXCEPTION:

Grandchildren inherit in their own right whenall heirs repudiates.

Ascending Direct Line

father and mother, if living, shall inherit in equal shares. should one only of them survive, he or she shall succeed to the entireestate of the child. no right of representation in the ascending line in default of the father and mother, theascendants nearest in degree shall inherit. should there be more than one of equal degree belonging to the sameline they shall divide the inheritance per capita should they be of different lines but of equal degree, one-half shall goto the paternal and the other half to the maternal ascendantsNearer excludes the fartherIllegitimate ChildrenARTICLE 991. Illegitimate children concurring with legitimateascendants ( ill ch; - ascendants)

Estate 100 - leg parent; 2 ill ch leg par 50; 2 ill ch 50 (25 each)

Estate 100 - leg parent; 2 ill ch; legacy to F - 10 F 10 100 10 = 90 leg par 45 ; ill ch 45 (22.5 each)

In case of partial intestacy, charge the part given to the stranger to the instate share of the illegitimate children without however impairingthe legitime of the latter

100 50 = 50 (leg parents) 50 10 (F) = 40 40 ill ch ( 20 each)ARTICLE 992. An illegitimate child has no right to inherit ab intestatofrom the legitimate children and relatives of his father or mother; norshall such children or relatives inherit in the same manner from theillegitimate child.

Iron Curtain Rule / Barrier bet. Leg & Illeg Family

REASON: the illegitimate child is disgracefully looked upon by thelegitimate family while the legitimate family is, in turn, hated by theillegitimate child. The law does not recognize the blood tie and seeks toavoid further grounds of resentment.A

/ \

(leg) B C (illeg)

/ \ / \

(leg) D E (illeg) F (illeg) G (illeg)

Question: If B and C predecease A, can their children

inherit intestate from A?

illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother and vice versa

D can inherit while E cannot

F and G can inherit

Can an illegitimate child inherit by representation?

It depends

If an illegitimate child represents a legitimate ascendant, NO (art. 992)


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If an illegitimate child represents an illegitimate descendant, YES

Surviving Spouse

Marriage must be legitimate Does not include common law marriages, bigamous marriages A guilty spouse in legal separation does not inherit as in intestate heir Share of surviving spouse concurring with legitimateparents or ascendants (50-50)

Estate 20 = Leg parent 10; SS - 10Estate 20 ; Legacy 2 20 -2 = 18 leg par 9; ss -9 impairs legitime of parents

- If there is legacy, charge it to the to the surviving

spouse in order not to impair parents legacy (art. 997)

Leg par -10SS - 8 (10-2) Legacy - 2

ARTICLE 999. Surviving spouse concurring with legitimateas well as illegitimate children

Estate = 70 (SS, 2 leg ch, 1 ill ch)2 leg ch = 40 (20 each)SS = 20 (one share of a leg ch)ill ch = 10 (half of the leg child

Estate 70 (SS, 1 leg ch, 2 ill ch) Applying the above principle, hence:leg ch = 35SS = 352 ill ch = 35 (17.5 each)total 105 (in excess of 35)

What should be done? Legitime of surviving spouse and legitimatechildren must be satisfied first before giving the shares of theillegitimate children

Leg ch = 35SS = 17.52 ill ch = 17.5 (1/2 each)Total of 70

ARTICLE 1000. Surviving spouse concurring withlegitimate ascendants and illegitimate children

Given: Estate 100

Leg asc = (50)SS = 1/ 4 (25)Ill ch = 1/ 4 (25)

In case of partial intestacy, charge the legacy to the intestate share

of the spouse but her legacy must be preserved.

Estate = 100; Legacy to F = 10F = 10Asc = 50SS = 15Ill Ch = 25Collateral Relatives

Nearer excludes the fartherRight of representation only limited to nephews and niecesBrothers and sisters inherit per capitaNephews and nieces inherit per stirpesFull blood brothers and sisters shall be entitled to a share double to

that of the half blood brothers and sistersRelatives nearest in degree excludes the more

distant onesBetween an aunt and nephews/nieces, the latter are preferred


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Children of first cousins are not entitled to represent.Cousins are preferred over them.The State

- State inherits in default of relatives within the fifth degree

When the State inherits, the Assignment and Disposition of DecedentsAssets are the ff:

1) If decedent is a resident of the Philippines at anytime :Personal Property = to municipality of last residenceReal Property = where situated

2) If decedent never a resident of the PhilippinesPersonal and real property = where respectively situatedHow Property is to be used by the State:

-For the benefit of public educational and charitable institutions in therespective municipalities/cities

- Alternatively, at the instance of an interested party, or motu proprio,court may order creation of a permanent trust for the benefit of theinstitutions concerned

> Heirs may recover property within 5 years from delivery to the State(1014)

Right of Representation

ARTICLE 970. Representation is a right created by fiction of law, byvirtue of which the representative is raised to the place and the degreeof the person represented, and acquires the rights which the latterwould have if he were living or if he could have inherited.Right of representation exists in

1. Predecease in testate and intestate succession2. Incapacity in testate and intestate succession3. Disinheritance in testate succession

Intestate Succession right of representation covers all that theperson being represented would have inherited

Testate Succession right of representation covers only the legitime,there being no right of representation in voluntary heirsRepresentation never operates when there isREPUDIATION

Kinds of Succession that representation operates: Legitime Intestacy (It takes place only with respect to rights or inheritanceconferred by law)

What lines does representation obtain Legitime - direct descending line only Intestacy - direct descending line; and collateral line in case of nephews and nieces representing brothers and sisters ofthe deceasedThe person representing inherits from the person whom the personrepresented would have succeededProperty received by representation cannot be made to answer for thedebts of the person being represented Representative himself must be capable of succeeding the decedent Whenever there is succession by representation, the division of theestate shall be made per stirpes When nephews and nieces inherit without their uncles and aunts, theyshall inherit in equal portions

Grandchildren always inherit by representation whether they concurwith the children or not


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They inherit in their own right only when all the children renounce, andthey share equally or per capita

An illegitimate child can be represented by a legitimate or illegitimatedescendant A legitimate child can only be represented by a legitimate descendant

ARTICLE 976. A person may represent him whoseinheritance he has renounced.

ARTICLE 977. Heirs who repudiate their share may not berepresented.A renouncer may represent but may not be representedA (died on 2010)|B (died on 2006)|C (renouncer)|D

If B dies and C renounces, D cannot represent C If later A dies, C can represent B and inherit from ACauses Legitime Intestacy

Predecease Representation Representation

Incapacity Representation Representation

Repudiation No RepresentationNo Representation

Dis- inheritance Representation Not applicable

ADOPTED CHILD

An adopted child cannot representAn adopted child cannot be representedThere is no filiation between the adopted child

and the relatives of the adopterAn adopted is an heir of the adopter but not of the relatives of theadopter.

If the adopter predeceases the adopted child,the latter cannot represent the former in the inheritance from thelegitimate relatives of the adopterBasic Principles of the law of INTESTATE SUCCESSION

1. Compulsory heirs are never excluded- Theory of Concurrence and not of Exclusion

2. Nearer excludes the farther- without prejudice to right of representation

3. Right of Representatin- the farther becomes just near as the nearer

- does not exist in the ascending line- right of representation only exists in the ascending line- in the collateral line, such is only given to nephews and nieces- such is only true in legal succession- voluntary heirs cannot be represented4. Intestate share are either equal to or greater than the legitime5. In case of partial intestacy, the legacies and devises or institutionsto the free portion must be charged proportionately against intestateheirs who receive intestate shares greater than their legitime- but should not impair legitime

6. Grandchildren always inherit by representation whether they concurwith the children or not- They inherit in their own right only when all thechildren renounce, and they share equally or per capita

7. Nephews and nieces inherits by right of representation when theyconcur with aunts and uncles- parents should not have repudiated


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8. Nephews inherit in their own right when they do not concur withaunts or uncles

9. An illegitimate child can be represented by alegitimate or illegitimate descendant

10. A legitimate child can only be represented bya legitimate descendant

11. There is reserva troncal in legal succession12. A renouncer can represent but cannot berepresented

13. A person who cannot represent a near relative cannot also representa relative farther in degree

14. If decedent is survived by a grandfather and a brother, the formerinherits alone- both are of the 2nd degrees- direct line is preferred over collateral line

15. An aunt or uncle is excluded by nephews and nieces- both are of the 3rd degrees

- nephews and nieces are 4th in the order of leg succ- aunt or uncle are 5th in the order of leg succRight of Accretion

ARTICLE 1015. Accretion is a right by virtue of which, when two ormore persons are called to the same inheritance, devise or legacy, thepart assigned to the one who renounces or cannot receive his share, orwho died before the testator, is added or incorporated to that of his co-heirs, co-devisees, or co-legatees.

- Accretion is a right- It is based on the presumed will of the deceased- decedent prefers to give certain properties to certain individuals,rather than to his legal heirs- Accretion may be avoided by- Expressly designating a substitute- Expressly providing that he does not want accretion to occurRequisites of Accretion:

1. Unity of object- the same inheritance, legacy or devise2. Plurality of subjects- 2 or more persons are called to the same property pro indiviso3. Vacant portion; DUE TO:- Repudiation- Predecease

- Incapacity- If a suspensive condition is not fulfilled- If a particular heir cannot be identified4. AcceptanceTestator gave half of his house to A andanother half to B

- If A dies, half of the house goes to B by accretion

Testator gave 1st floor of his house to A and the second floor to B

- If A dies, the first floor will not go to B becausethe portion has been earmarked (art. 1017)

If earmarked Accretion does NOT apply

If not earmarked Accretion DOES applyACCRETION IN TESTAMENTARY SUCCESSION

As regards the Free Portion:


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Accretion applies only in free portion (1021)- Accretion is not applicable in legitime. Accretion takes place if all the requisites in Art1016 are present. If n

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