Notes & Cases on Succession.docx

8/15/2019 Notes & Cases on Succession.docx

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Notes And Cases On SUCCESSION

Based on Lectures given by:

Prof. Ruben Baane and Prof. Aracei Baviera

Co!"ied and Edited by Rode A. #oina UP La$ Batc% &''(

This work is a compilation of Prof. Ruben Balane's lectures in succession, by his students both in

the UP College of aw and in the !teneo aw "chool. ectures of Prof. Ba#iera in Ci#il aw Re#iew

$"uccession% ha#e also been included in this work.

"pecial thanks to ouella &ra for lending me her magic notes on "uccession as compiled by students of

the !teneo aw "chool, to ianne Tan for lending me her diskette in "uccession containing the lectures of

Prof. Ba#iera and to the late duardo Balangue for lending me his magic notes on "uccession as

compiled by students of the UP College of aw.

This work is dedicated to Class !, UP aw Batch ())*, to which & belong.

-- RAM

_______________

IN)RO*UC)ION

Conce"t.++ Succession is the last mode of acquiring ownership. It is an independent mode of acquiring

ownership.

Re,uisites of Succession:

(1) eath of the predecessor!(") #$istence and capacit% of the successor!

(&) 'roision of the law or proision of a will granting the right of succession!

() Acceptance *% the successor.

-: Is tradition deivery/ re,uired for o$ners%i" to transfer0

A+ ,o. wnership is transferred *% succession not *% an% other mode.

Ety!oogy.++ Succession is deried from " /atin words+ sub meaning under (e.g. an underling a

su*ordinate if a plane traels at a su*sonic speed or fl% *elow opposite-- su*sonic) and cedere meaning

to gie to pass.

Succession therefore is a passing under. It gies the idea of the nature of succession as

originated from Roman /aw. 0h% do the Romans call it a passing under 2ec. of the fiction in Roman/aw that a personalit% occupies a space that is a legal personalit% is permanent. A permanent fi$ture *ut

the occupant will go awa%. And it is the successor who will occup% the space %ou left acant. 3here is

alwa%s what %ou call personalitas. 4Sound through4 li5e a pla% where %ou wear a mas5 and the one *ehind the curtain is sounding through. that is some*od% is reall% tal5ing *ehind %ou. 3his *% analog%

is succession.

Persona means 4%ou4 the character. Personalita or personalit% w6c is alwa%s there and there is

or there will alwa%s *e an occupant who comes and goes! it ma% change the character the person passes

under. 0hat is *ehind all this 'ersonalit% neer dies. 0e are *ut dust and shadows *ased on the realit%

of death.


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Notes and Cases on SUCCESSION 7ompiled and #dited *% RAM

0h% do we hae to deise this fiction 0h% the law on succession 3he /aw on succession has

arious underpinnings in Roman /aw that is first the ague idea of after life li5e the ideas of 8orace --

state of good in the #lipian fields! second that the law deelops *ased on conditions of societ%. ne of

the most *asic desire of man is the desire for immortalit%.

8ow 0hen 3o 0hom In 0hat proportion are the% transmitted -- Succession.

2ASIS 9 38# /A0 , S:77#SSI,+

1. Succession proides the ehicle for satisf%ing %our %earning and longing for immortalit%. It satisfies or

consoles %ourself that something in %ou lies foreer and this is %our personalit%. thers usuall% leae

something li5e paintings *oo5 of poems statue so that the% will *e remem*ered foreer e.g. 8orace *%

Sha5espeare.

". 7oncept of pater familias. iligence of pater familias. Pater familias means head of the famil%. 3he

*asic unit of Roman societ%. It is he who managed and e$ercised authorit% oer his children a*solute

control oer his wife. In Roman law a man;s wife is his child. It is he who is the guardian of the famil%

gods. It is a position that must *e occupied eer% time. It is unthin5a*le to *e otherwise. nce he dies it

is a*solutel% necessar% not onl% in religion that he is to *e replaced immediatel%. 3his is indispensa*le.

3hese underpinnings are gone now. 3oda% succession is nothing *ut a mode of acquiring ownership.

0h% 2ecause %ou do not hae the fiction to hae succession *ec. of the spread of 7hristianit% w6c too5

the place of those %earnings that it is *elieing in


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I!"ortant Princi"es of Succession $%ic% "er!eates t%e entirety of Succession/:

1. -ortis Causa.++Succession can not ta5e place while the owner is alie. 3he heir6successor has a mere e$pectanc% right to the prop. of the decedent during the lifetime of the latter.

". Interest of the famil% ma% oerride the will of the decedent *ec. of compulsor% heirs.

3here is a legitime resered for the famil%. A will cannot impair the legitime.

&. 3he estate passes or deoles to the famil% unless the decedent e$pressl% ordersotherwise in a will. 9amil% coers spouse ascendants descendants and collateral relaties.

. 3he famil% can not *e entirel% depried of the estate *ec. of the s%stem of legitime.

?. 0ithin the famil% heirs of equal degree6 pro$imit% inherit in equal shares.'resumption of equalit%. 3his is onl% the general rule. 3here are e$ceptions.

@. 3he State has a share in the inheritance through ta$es.

. 3he heirs are not lia*le for the de*ts of the estate *e%ond their share in the inheritance.

#state is lia*le for the de*ts left *% the decedent. e*ts are to *e deducted *efore the heirs can get their

shares. 'rocedure+ 7ollect all assets deduct de*ts then partition the shares. :p to what e$tent :p to

all its assets. If the estate is Bero *alance the heirs get nothing.

:nder the modern ciil law if the decedent left more de*ts than assets it will not change or affect %our

status an%wa% *ut not w6 the decedent;s creditors-- the% hae to *eware-- ca#eat creditor .

Basis of t%e La$ on Succession.++ Some sa% it is the law on propert% w6c seems to *e the *asic attitude

of the 7ode. thers sa% succession is a law on persons *ec. of the compulsor% heirs. 8ow can %ou

e$plain that Is there some lin5 *et. the law on succession and propert% 3here is. 7astan said that law

on succession is *oth law on persons and propert%. 8oweer in a pure testamentar% succession the law

on persons do not come to pla%. Sa% a will giing :' a propert%. 3his is more on the law of propert%.

3his is the ecclectic theor% of 7astan.

#a6or C%anges in t%e Ne$ Civi Code on Succession:

1. Allowance of holographic wills (Art. C1D.) It gies greater freedom to the decedent to

choose in what form he can dispose *% will his estate. 8olographic will is not a noelt% *ut a reial.3his was allowed in the Spanish times *ut was a*rogated during the American regime. It was onl%

restored under the ,77.

". Improement in the successional position of the suriing spouse. :nder the 77 the

suriing spouse had a right of usufruct onl%. :nder the ,77 the suriing spouse is gien full

ownership and is a compulsor% heir. 3he share is aria*le that it is so *ewildering.

&. A*olition of the right of me/ora or *etterment (the right of the parent to gie a child morethan the other.) 3his is *asicall% a portion of the legitime 16&. 9reedom is gien to the testator as to who

among his children he will gie the 16&. 3his s%stem was neer utiliBed *ec. it was neer understood *%

the people.

. A*olition of the reser#as and re#ersiones. 3he ,77 restored reser#a troncal, re#ersion

adopti#a (under ' @D&.)

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&/ )%ose !ade bet$een "ersons $%o $ere guity of adutery or

concubinage at t%e ti!e of t%e donation9

/ )%ose !ade bet$een "ersons found guity of t%e sa!e cri!ina offense; in

consideration t%ereof9

8/ )%ose !ade to a "ubic officer or %is $ife; descendants and ascendants; by reason of %is

office.

In t%e case referred to in No. &; t%e action for decaration of nuity !ay be broug%tby t%e s"ouse of t%e donor or donee9 and t%e guit of t%e donor and donee !ay be "roved by

"re"onderance of evidence in t%e sa!e action.

C. Increase of the free portion-- corollar% to the a*olition of the me/ora

E. /imitation of the fideicommisar% su*stitution to one degree (*efore two degrees)

1D. Intestate succession is narrowed from si$th degree to fifth degree.

11. A*olition of the institution under pupilar and e/emplar (su*stitution.)

1". Allowance of lifetime pro*ate.

Areas in Succession Affected by t%e A!erican Code:

1. Rules in interpretation.-- Arts. CC-E"

". Rules on formal requirements of a will.-- Arts. CD-CDE

&. Rules goerning witnesses to wills.-- Arts. C"D-C"

. Rules on repu*lication and reial of wills.-- Arts. C&?-C&@

?. Rules on reocation.-- Arts. C"E-C&1

@. Rules on allowance and disallowance of wills.-- Arts. C&C-C&E . Rules on 3estamentar% capacit%.

7hapter 1

. Succession is a !ode of ac,uisition by virtue of $%ic% t%e "ro"erty; rig%ts and

obigations to t%e e?tent of t%e vaue of t%e in%eritance of a "erson are trans!itted t%roug% %is

deat% to anot%er or ot%ers eit%er by %is $i or by o"eration of a$.

2alane+ &. Succession is a !ode of ac,uisition.++ 'ropert% rights and o*ligations are transmitted! those

w6c are not e$tinguished *% death of the decedent is inheritance. Succession is *ut a process of transmission.

Succession is a mode of acquisition of inheritance transmitted to the heirs upon the death of the

decedent through a will or *% operation of law.

. )$o ee!ents of Succession.++ (1) identit% of o*=ects! (") change of su*=ects.

8. Rue.++ 3he estate of the decedent pa%s for the o*ligations of the decedent. 0hat is left is gien to the

heirs.

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>. Connect Art. 77> $@ Art. 77(; su"ra.

9or mone% de*ts+ If not paid in settlement proceedings heirs could *e lia*le to the e$tent of what

the% receied

9or o*ligations+ #.g. lessee-lessor-- o*ligation to 5eep the lessee in the peaceful possession is

transmitted to the heirs.

. Pro"erty and Rig%ts+ 'assed on to the decedent;s successors

(. Obigations:

a. #onetary.++


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2alane+ 1. 3his article literall% means that the 4decedent has the right to the succession which is

transmitted upon his death.4 3his is illogical *ec. the decedent does not hae rights to the succession. 3o

improe the proision change the words 4succession4 to 4inheritance4 (the right to succeed is an inchoate

right) and the er* 4transmitted4 to 4*ecome ested.4

. 4our Ee!ents of Succession:

1. eath

". 0ill or peration of law

&. #$istence and capacit% of the successor

. Acceptance.

8. 3his proision is the heart and soul of succession. 3he most essential proision of the law on succession.

>. Rights to succession est at the moment of death not transmitted. 3he right should *e made effectie

from the moment of death. 3his is so *ec. the rights to succession *efore death are mere inchoate. 2ut

from the moment of death those inchoate rights *ecome a*solute.

Rights to succession are ested from the moment of death not upon the filing of petition for

testate6 intestate proceedings not upon the declaration of heirship or upon settlement of the estate.3he rights to succession are automatic. 3radition or delier% is not needed. 9iction of the law is

that from the moment of the death of the decedent the right passes to the heirs.

uring the lifetime of the predecessor rights to succession are a mere e$pectanc%. 8ence no

contract can *e legall% entered into regarding the e$pected inheritance. 0hen a heir receies his

inheritance he is deemed to hae receied it at the point of death. this is so *% legal fiction to aoid

confusion.

. 7AS#S+

:son . el Rosario.-- :pon the death of the hus*and *efore the ,77 the rights of the wife to

the inheritance were ested. So the rights of the illegitimate children under the ,77 to inherit can not

pre=udice the ested rights of the wife. 0e hae to appl% the 77 *ec. at the time of his death it is the

77 w6c goerned the law on succession. 9or the determination of successional rights the law at the point of death should *e the one applied.

2or=a . 2or=a.-- 3he right to inherit is ested at the moment of death. #en if she did not 5now

how much she was going to inherit she could still dispose of her share in the inheritance. Said right to

the share was hers from the moment of death and she could do whateer she wanted w6 her share een

sell it.

2onilla . 2arcena.-- >ou do not need a declaration of heirship whether testate or intestate

oluntar% etc. 3he rights of the heirs to the prop. est in them een *efore =udicial declaration of their

*eing heirs in the testate proceedings.

An action to quiet title is not e$tinguished *% the death of the decedent it *eing a patrimonial

right. 8ence the heirs hae the right to *e su*stituted to the action een *efore their haing declared as

heirs.

FimeneB . 9ernandeB.-- 7arlos died in 1E&@ *efore the effectiit% of the ,77. As such his

illegitimate child cannot inherit from him. As such title to the land *elongs to the cousin who inherited

the land w6 7arlos.

.

Art. 77. Succession !ay be:

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&/ )esta!entary9 / Lega or

Intestate9 or

8/ #i?ed.

2alane+

1. 3estamentar% (Art. E.)-- designation of an heir in a will". /egal or Intestate .-- w6o a will or the will is inalid

&. Mi$ed (Art. CD.)-- partl% *% will and partl% *% operation of law

. 7ompulsor%.-- Succession to the legitime *% a forced heir.

Art. 77'. )esta!entary succession is t%at $%ic% resuts fro! t%e designation of an %eir;

!ade in a $i e?ecuted in t%e for! "rescribed by a$.

2alane+ 8eir includes deisees and legatees.

Art. 7D. #i?ed succession is t%at effected "arty by $i and "arty by o"eration of a$.

Art. 7&. )%e in%eritance of a "erson incudes not ony t%e "ro"erty and t%e trans!issibe

rig%ts and obigations e?isting at t%e ti!e of %is deat%; but aso t%ose $%ic% %ave accrued t%ereto

since t%e o"ening of t%e succession.

2alane+ It is *etter to scrap Art. C1. It has no significance. #en w6o it those w6c accrue after death

will still *elong to the heirs.

#.g. A has a son G. A dies in 1ECC. Inheritance is a mango plantation. In 1EED there is a crop.

Is it part of the inheritance

1. According to Art. C1 %es. 3his is inconsistent w6 Art *ec. succession occurs at themoment of death. Art. C1 implies a second succession.

". /egal concept.-- ,o. G owns it through accession and not succession. 9ruits are no

longer part of the inheritance. It *elongs to the heir *ec. of ownership of the land he receied at the

moment of death. (Art. .)

3hose w6c hae accrued thereto after death do not comprise the inheritance *ut the% accrue *%

irtue of ownership (accretion.)

Art. 7. An %eir is a "erson caed to t%e succession eit%er by t%e "rovision of a $i or by

o"eration of a$.

*evisees and egatees are "ersons to $%o! gifts of rea and "ersona "ro"erty are

res"ectivey given by virtue of a $i.

2alane+ 3he definitions gien in this article are not good. 3he definitions contained in the Spanish 7iil

7ode were *etter. An heir succeeds *% uniersal title. eisee or legatee succeeds *% particular title.

According to 7astan an heir is one who succeeds to the whole (uniersal) or aliquot part of the

estate. eisee or legatee is one who succeeds to definite specific and indiidualiBed properties.

#.g. I *equeathed 16" of m% fishpond in 'ampanga to A. Is the successor an heir legatee or

deisee A deisee the prop. *eing a specific real prop.

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-: Is it i!"ortant to distinguis% bet. %eir devisee and egatee0

A+ 2efore %es. 3he heir inherited een de*ts of the decedent een if it e$ceed the alue of the propert%.

eisees or legatees were lia*le for de*ts of the decedent onl% up to the e$tent of the alue of the prop.

,ow ,o. #$cept in one instance in case of preterition in Art. C?. If read carefull% institution

of heir is annulled while deise and legac% are not so long as there is no impairment of the legitime.

Art. 7 is not a $oring definition.++ Someone who is a deisee (succeeded *% a particular title) can fit

into the definition of an heir (succeeds to a fractional6 aliquot6 undiided part of the estate.) and ice

ersa.

C%a"ter

)ES)A#EN)ARF SUCCESSION

Section &

2ILLS

Subsection &

2ILLS IN


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. #ssentiall% reoca*le.-- ambulatory, it is not fi$ed can *e ta5en *ac5 (while the testator

is alie.) 3here is no such thing as an irreoca*le will. It onl% *ecomes irreoca*le upon death of the

testator.

?. 9ormall% e$ecuted.-- If the form is defectie it is oid. It can not *e cured.

@. 3estamentar% capacit% of the testator.

. :nilateral act.-- does not inole an e$change of alues or depend on simultaneous offer

and acceptance.C. -ortis causa.-- ta5es effect upon the person;s death (Art. .)

E. Statutor% grant.-- granted onl% *% ciil law. 3he law can also ta5e it awa%. It is not a

constitutional right *ut merel% statutor%. In Russia there are no wills all intestac%

1D. !nimus Testandi.++ 3here must *e an intent to dispose mortis causa the propert% of the

testator. 3here must *e a real intent to ma5e a will or a disposition to ta5e effect upon death. Said intent

must appear from the words of the will.

Montinola . 7A & 7A Reports &.-- 3he Repu*lic contended that the phrase 4I here*% leae

%ou (motherland) parents loed ones... 4 is a testamentar% disposition in faor of the Repu*lic as an heir.

7A ruled that it was not. 3he phrase is a mere piece of poetr% there *eing no animus testandi. 3he lac5

of such intent might *e seen from the face of the document itself.

11. Indiidual.-- ne person alone. Foint wills are prohi*ited under Art. C1C.

Hitug . 7A.-- A couple e$ecuted a suriorship agreement wherein their =oint *an5 account

would *ecome the sole propert% of the suriing spouse should one of them die. 3he S7 held that such

agreement is alid. 3he cone%ance is not a will *ec. in a will a person disposes of his prop. In this case

the *an5 account is part of the con=ugal funds. ,either is the agreement a donation inter #i#os *ec. it

ta5es effect after death.

Art. 7>. )%e !aing of a $i is a stricty "ersona act9 it cannot be eft in $%oe or in "art

to t%e discretion of a t%ird "erson; or acco!"is%ed t%roug% t%e instru!entaity of an agent of an

attorney.

2alane+ 3he ma5ing of a will is a purel% personal act. It is an e$ercise of the disposing power w6c cannot *e delegated. 2ut the ph%sical act of ma5ing a notarial will can *e delegated to the secretar% *ut not

the e$ecution or ma5ing of holographic wills.

#.g. A dictated 3he Secretar% wrote it down and t%ped. Is the will alid >es. 0hat cannot *e left in

whole or in part to a third person is the e$ercise of the will ma5ing power the e$ercise of the disposing or

testamentar% power. 3he mechanical act can *e delegated.

Art. 7. )%e duration or efficacy of t%e designation of %eirs; devisees or egatees; or t%e

deter!ination of t%e "ortions $%ic% t%ey are to tae; $%en referred to by na!e; cannot be eft to

t%e discretion of a t%ird "erson

2alane+ 3his proision clarifies Art. C on will-ma5ing power.

)%ings 2%ic% Cannot be *eegated to a )%ird Person by t%e )estator:

1. esignation of heir legatee or deisee e.g. I here*% appoint G as m% e$ecutor and it is

in his discretion to distri*ute m% estate to whomeer he wants to gie it. 3his can not *e done.

". uration or efficac% of such disposition li5e 42ahala 5a na Ru*en.4

&. etermination of the portion to w6c the% are to succeed when referred to *% name.

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Art. 7(. )%e testator !ay entrust to a t%ird "erson t%e distribution of s"ecific "ro"erty or

su!s of !oney t%at %e !ay eave in genera to s"ecified casses or causes; and aso t%e designation

of t%e "ersons; institutions or estabis%!ents to $%ic% suc% "ro"erty or su!s of !oney are to be

given or a""ied.

2alane+ Art. C@ is an e$ception to Arts C and C?. It coers things that are part of the essence of willma5ing *ut allowed to *e delegated.

E?a!"es of Pro%ibited *eegation:

1. 7an not delegate the designation of the amount of prop. e.g. I here*% set aside the sum _____ w6c m%

e$ecutor ma% determine for the cause of mental health. 3he amount is not specified.

". 7an not delegate the determination of causes or classes to w6c a certain amount is to *e gien e.g. I

here*% set aside '1M for such worth% causes as %ou ma% determine. 3his is not alid *ec. the cause is

not specific.

2% wa% of e$ception there are " things w6c can *e delegated. 3he testator must specif%-- (a) the amountof propert%! (") the cause of classes of propert%-- *efore the delegation can ta5e effect.

1. 3he designation of person or institution falling under the class specified *% the testator. 7hoosing the

mem*ers of the class *ut is restricted *% the class designation e.g. I here*% set aside the sum of '1M for

the deelopment of AIS research. M will choose w6c institution. 3his is allowed *ec. %ou hae guided

alread% M;s decision. 8oweer M cannot designate Manila 8otel.

". 3he manner of distri*ution or power of apportioning the amount of mone% preiousl% set aside or prop.

specified *% the testator e.g. I designate the following hospitals to get the share in m% estate and appoint

M to apportion the amount of '1DM. I set aside '"?DDDD for the following institutions+ :' '


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#.g. 3he word 4chic54 can hae " interpretations+ (1) a girl in w6c case inoperatie *ec. not w6in the

commerce of man and (") sisiw.-- operatie. Interpret according to the second.

Art. 7'. 2%en t%ere is an i!"erfect descri"tion; or $%en no "erson or "ro"erty e?acty

ans$ers t%e descri"tion; !istaes and o!issions !ust be corrected; if t%e error a""ears fro! t%e

conte?t of t%e $i or fro! e?trinsic evidence; e?cuding t%e ora decarations of t%e testator as to %isintention9 and $%en an uncertainty arises u"on t%e face of t%e $i; as to t%e a""ication of any of its

"rovisions; t%e testatorGs intention is to be ascertained fro! t%e $ords of t%e $i; taing into

consideration t%e circu!stances under $%ic% it $as !ade; e?cuding suc% ora decarations.

2alane+

&. 5inds of A!biguity:

a. 'atent apparent.-- that w6c appears in the face of the will e.g. 4I gie 16" of m%estate to one of m% *rothers.4 0ho among the *rothers 3his is patentl% am*iguous.

*. /atent hidden.-- perfectl% unclear on its face. 3he am*iguit% does not appear until %ou appl% the

proisions of the will e.g. 4I gie to M the prop. intersecting 2uendia and '. de Ro$as. 3he am*iguit% is

determined onl% when the will is pro*ated. 3hat is when it appears that I am the owner of all the

corners of the lot. ,ow w6c of those lots

. Rue: 7larif% am*iguit% and *e guided *% these+ 3estac% should *e preferred or upheld as far as

practica*le. An% dou*t shall *e resoled in faor of testac%.

-: 1o$ $i you resove t%e a!biguity0 2%at evidence do you ad!it0

A+ >ou can admit an% 5ind of eidence as long as releant and admissi*le according to the Rules of

7ourt. 3his includes written declarations.

#$cept+ ral declarations of the testator. 0h% 2ec. the% cannot *e questioned *% the deceased.

Also *ec. the% are eas% to fa*ricate.

If inspite of eidence %ou still cannot cure am*iguit% then annul the will.

If the am*iguit% is patent disregard the will. If latent loo5 into the eidences allowed *% law.

Art. 7'D. )%e $ords of a $i are to be taen in t%eir ordinary and gra!!atica sense;

uness a cear intention to use t%e! in anot%er sense can be gat%ered; and t%at ot%er can be

ascertained.

)ec%nica $ords in a $i are to be taen in t%eir tec%nica sense; uness t%e conte?t ceary

indicates a contrary intention; or uness it satisfactoriy a""ears t%at t%e $i $as dra$n soey by

t%e testator; and t%at %e $as unac,uainted $it% suc% tec%nica sense.

Art. 7'. )%e invaidity of one of severa dis"ositions contained in a $i does not resut in

t%e invaidity of t%e ot%er dis"ositions; uness it is to be "resu!ed t%at t%e testator $oud not %ave!ade suc% ot%er dis"ositions if t%e first invaid dis"osition %ad not been !ade.

2alane+


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Art. 7'8. Pro"erty ac,uired after t%e !aing of a $i s%a ony "ass t%ereby; as if t%e

testator %ad "ossessed it at t%e ti!e of !aing t%e $i; s%oud it e?"ressy a""ear by t%e $i t%at

suc% $as %is intention.

2alane+ 3his is a new proision. It is *etter if this was not placed here. 0h% 2ec. prop. acquired after

the ma5ing of the will will not pass unless there is a clear intention or e$press proisions that the prop.

will *e passed *% the testator. #.g. I gie as legac% to M m% cars. I onl% had " cars when I e$ecuted thewill. After w6c I acquired 1? more cars. 0hen I die how man% cars will she get 9ollowing Art. E&

she will get onl% " cars. 3he additional cars are not included.


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%ou owned more. the more a person owns the more he is apt to forget what he has in detail. If %ou thin5

%ou own A%ala *ridge and gies it as a deise something is wrong w6 %ou.

*. 'roper o*=ects of his *ount%.-- Jnow his immediate relaties. #$perience of man5ind is

that %ou gie to people who are attached to %ou *% *lood. Immediate relaties referred to are spouses

parents children *rothers sisters *ut not first cousins. 9irst cousins usuall% are not 5nown especiall% if

the% lie a*road. 3he nearer the relation the more %ou should 5now. 3he farther the less the law e$pects

of %ou. If the testator can not recogniBe his immediate relaties then there is something wrong.c. 7haracter of the testamentar% act.-- Jnow the essence of ma5ing a will. Jnow that %ou

are+ (1) ma5ing a document that disposes (freel% gratuitousl%) of %our propert%! (") to ta5e effect upon%our death.

,ote+ #en if %ou are insane as to other things as long as %ou 5now these three (&) things %ou hae

testamentar% capacit%.

8. Insanity is reative. It is different in marriage and in contracts. 2ut in wills not 5nowing one or more of

the & mentioned a*oe %ou are considered insane.

Art. DD. )%e a$ "resu!es t%at every "erson is of sound !ind; in t%e absence of "roof tot%e contrary.

)%e burden of "roof t%at t%e testator $as not of sound !ind at t%e ti!e of !aing %is

dis"osition is on t%e "erson $%o o""oses t%e "robate of t%e $i9 but if t%e testator; one !ont%; or

ess; before !aing %is $i $as "ubicy no$n to be insane; t%e "erson $%o !aintains t%e vaidity

of t%e $i !ust "rove t%at t%e testator !ade it during a ucid interva.

2alane+ 3his is the law on presumption of soundness of mind as of the time of the e$ecution of the will.


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#ffect+ 1. Re*utta*le presumption of sanit% is nullified or swept awa%.

". 3here is a re*utta*le presumption of unsoundness of mind.

Art. D&. Su"ervening inca"acity does not invaidate an effective $i; nor is t%e $i of an

inca"abe vaidated by t%e su"ervening of ca"acity.

2alane+ 3his article ma5es e$plicit what was mentioned in Art. CDD. 3he requirement is that sanit%

should e$ist onl% at the time of e$ecution. Su*sequent insanit% does not affect the alidit% of the will nor an inalid will *e alidated *% the recoer% of the senses of the testator.

Art. D. A !arried $o!an !ay !ae a $i $it%out t%e consent of %er %usband; and

$it%out aut%ority of t%e court.

Art. D8. A !arried $o!an !ay dis"ose by $i of a %er se"arate "ro"erty as $e as %er

s%are of t%e con6uga "artners%i" or absoute co!!unity "ro"erty.

Subsection 8.++ Forms of Wills

2alane+ 5inds of 2is ao$ed under t%e NCC.++ (1) ordinary or notarial will w6c requires an

attestation clause an ac5nowledgement *efore a notar% pu*lic! (") holographic will w6c must *e entirel%

written dated and signed in the handwriting of the testator.

-: 1o$ about Non-cupative 2is0

A+ 3he% are not allowed *% the ,77. 3his 5ind of will is an oral will made *% the testator in

contemplation of death. 3his is allowed among Muslims onl%.

Co!!on Re,uire!ents for bot% inds of $is:

1. It must *e in writing". #$ecuted in the language or dialect 5nown to the testator.

+ 0hat 5ind of language

A+ It must *e a language (a) spo5en *% a su*stantial num*er of persons! (*) must hae *een reduced to

writing and (c) fairl% su*stantie *od% of literature

+ 0hat is a dialect

A+ A dialect is a ariation of tongue.

Art. D>. Every $i !ust be in $riting and e?ecuted in a anguage or diaect no$n to t%e

testator.

2alane+

Re,uire!ents:

1. In writing *ut no specific form is required. It could *e in a mar*le glass or on a wall so long as there was

testamentar% capacit%.

". 0ritten in a language or dialect 5nown to the testator.

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7. Requisites for an ordinar% attested will (notariBed will.).-- 'urpose of requisites+ =udgment call of 7ode

7ommission! *alancing of " policies.-- (1) to encourage a person to ma5e a will! (") to ma5e sure that the

will is testament of the testator to minimiBe fraud.

&. Signed by t%e testator or %is agent in %is "resence and by %is e?"ress direction at t%e end t%ereof

and in t%e "resence of t%e $itnesses.

a. Su*scri*e.-- literall% means 4to write one;s name.4 Sign means 4to put a distinctiemar54 (this is the *etter term to use.)

*. Signing.-- *% writing his own name! a person ma% sign in other wa%s

(i) Matias . Salud.-- 3he testator signed affi$ing her thum* mar5 on the willthis is *ecause he can no longer write due to sic5ness6 disease called herpes 1oster cold ph%sical

infirmit%. Is this a sufficient signature >es. A thum* mar5 is a sufficient signature of the testator. In

fact it is alwa%s and under an% and all circumstances a alid wa% to sign a will. Reason+ It is less

posssi*le to forge. A thum* mar5 is alwa%s a alid wa% of signing whether literate or illiterate. 8oweerthere is also the danger of falsif%ing it *% affi$ing the thum* of a newl% dead person.

+ 0hat if the testator has no disease *ut signed in his thum* mar5A+ 3his will do *ec. thum* mar5 is a sufficient signature under all circumstances.

3he controers% is that what if after the testator affi$ed his thum* mar5 another person signed on

her *ehalf. Attestation clause does not state this. I mean it would not appear in the attestation clause.

3he S7 said that the person signing on his *ehalf is not an agent and *esides it was alread% signed *% the

testator affi$ing his thum* mar5 and to state this (the affi$ing of the thum* mar5) in the attestation is amere surplusage.

(ii)


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t%pewritten words 4por la testadora Anacleta A*ellana.4 3he S7 held that the testator;s name *e written

*% the agent signing in his stead in the place where he would hae signed if he were a*le to do so. It is

required that the witness write the testator;s name in the testator;s presence and under her e$press

direction.

(iii) 3he agent must sign where the testator;s signature should *e.

(i) 'urpose of the rules+ to test the authenticit% of the agenc%. It is an addedsafeguard to minimiBe fraud.

f. 3estator must sign in the presence of witnesses

(i) 9our cases+ 3estator.-- A! 0itnesses.-- 2 7

a. A signs w6 2 *reathing on her face. Is it signing in the presence of the

testator >#S.

*. A signs while 2 is tal5ing to 7. 2 can see A through peripheral

ision. Is A signing in 2; s presence >#S

c. A signs while 2 is tal5ing to 7 w6 2;s *ac5 to A. Is it signing in 2;s

presence >#S.

d. 2 goes out and stands *ehind the wall. 8e cannot see A. 2 is also

tal5ing to 9. Is a signing in 2;s presence ,.(ii) ,era . Rimando.-- Actual seeing is not required. 0hat is required is that

the person required to *e present must hae *een a*le to see the signing if he wanted to do so *% casting

his e%es in the proper direction. 8is line of ision must not *e impeded *% a wall or curtain. 3his is a

question of fact for the lower court to determine. 2lind witnesses are therefore disqualified.

. Attested and subscribed by at east t%ree credibe $itnesses in t%e testatorGs "resence and of

one anot%er.

a. + 7an the testator sign first not in the witness; presence then let the witnesses sign ,o.

Art. CD? requires that the testator should sign at their presence (Hda. de Ramos case.) 3here is some

inconsistenc% here *ut we hae to follow Art. CD?.

+ 7an the alidit% *e affected if the witness signed ahead of the testator

A+ ,o. 'roided it is made in one occasion or transaction. 8oweer in strict theor% it can not *e done

*ec. *efore the testator signed there is no will at all w6c the witnesses can sign and attest to. If there is

more than one transaction then the testator must alwa%s sign ahead of the witnesses.

*. Attestation Su*scri*ing

--isual act -- manual act

--witness -- sign

3he three witnesses must do *oth attesting and su*scri*ing.

c. 0here must witnesses sign 3his is not clear.

3a*oada . Rosal.-- In this case the witnesses signed at the left hand margin. 'etitioner

contended that the% should hae singed at the same place where the testator signed that is at the *ottom

of the end of the will. 3he S7 was li*eral. 3he purpose of signing at the end is to preent interpolation.

3he o*=ect of attestation and su*scription which is for identification was met when the witnesses signed

at the left hand margin of the sole page w6c contained all the testamentar% dispositions. (3his concerned a

"-page will w6 the first page containing all the dispositions and the second page the attestation and

ac5nowledgement.) 3he will was signed *% the witnesses at each and eer% page thereof.

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/iteral requirement.-- witnesses must also sign at the end6 last page In thecase.-- as long as signed in the margin J ,ow.-- under or on marginJ.

d. 7an witnesses sign w6 thum* mar5 (1) Some sa% >es *ec. it is onl% an act of

authentication! (") some sa% no *ec. one requirement is that witnesses must 5now how to read and write

w6c implies that the witness write his name.

8. )%e testator or agent !ust sign every "age e?ce"t t%e ast on t%e eft !argin.

a. 'urpose.-- to preent the disappearance of the pages.

*. 4#er% page e$cept the last.4 0h% not the last 2ec. it will alread% *e signed at the

*ottom.

c. /eft hand margin.-- requirement was made when right hand was not =ustified when

t%ped.

d. ,ow testator can sign an%where in the page.

(i) each page is signed and authenticated.-- mandator% (ii) left margin.-- director%.

>. 2itnesses !ust sign eac% and every "age; e?ce"t t%e ast; on t%e eft !argin.

3his is the same as num*er &.

0itnesses ma% sign an%where as long as the% sign

Icasiano . Icasiano.-- In the will su*mitted for pro*ate one page was not signed *% one of the

witnesses. Such failure to sign was due to inadertence since in the cop% all pages were signed. 3he S7

held that this was not a fatal defect. 7onsidering the circumstances the fact that the other requirement

was complied with and the notarial seal coincided w6 the third page during the sealing then the will could

*e pro*ated. :nusual circumstances w6c e$isted in the case+

(1) there was another cop%

(") inadertence6 oersight

(&) *ecause of the notarial seal.

3he presence of these facts led the S7 to allow the will.

3he general rule howeer is that the failure to sign an% page is a fatal defect.

. A "ages !ust be nu!bered in etters on t%e u""er "art of t%e "age.

a. Mandator%.-- there must *e a method *% w6c the sequence of the pages can *e 5nown!

to preent an insertion or ta5ing out of a page.

*. irector%

(i) Manner it is num*ered- letters num*ers Ara*ic roman numerals etc.! an%

conentional sequence of s%m*ols is allowed (ii) :pper

part

(. Attestation Cause.

a. 3hree things that must *e stated+

(i) the num*er of pages in the will

(ii) the fact that the testator or his agent signed the will in eer% page thereof in

the presence of the instrumental witnesses

(iii) that the instrumental witnesses witnessed and signed the will and all the

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pages thereof in the presence of the testator and one another.

*. Attestation clause is not a part of the will proper *ec. if contains no dispositions. It is

merel% essential for the formal requirements of a alid will. It is a statement of the witnesses.

c. 0here must witnesses sign At the *ottom in order to preent additions.

7agro . 7agro.-- In the case the page where the attestation clause appears was signed *% thewitnesses on the side and not after the attestation clause. 3he S7 held that this was a fatal defect. 3he

logic is that if there had *een no signature at the *ottom *ut on the sides there will *e ample room for

fraud that is to add in the attestation clause upon the death of the decedent an essential matter w6c was

not there in the first place to alidate it.!

d. Must the language of the will *e understood or 5nown *% the witnesses ,o. After

all witnesses need not 5now the contents of the will.

+ Is it required that the witnesses 5new the language of the attestation clause+ A+ ,o.

So long as it has *een interpreted to them.

+ Must the testator 5now the language of the attestation clause

A+ ,o. 0hat is required of the testator is to 5now the language of the will. An e$press

requirement of Art. CD.

Reason for the a*oe rules+ In order to minimiBe fraud. 3he er% purpose of Art. CD and CD?.

3he law encourages not discourages will ma5ing. 'recisel% *ec. it wanted to encourage wills. It sets up

safeguards to protect the will.

e. Must the testator sign the attestation clause ,o.

A*angan . A*angan.-- 3his case concerns a will that has onl% " pages. 3he first page contained

the dispositions and was signed *% the testator and the witnesses at the *ottom. 3he second pagecontained the attestation clause onl% and was signed *% the witnesses at the *ottom. 9rom the case we can

learn " things+ 3he first concerns the first page. Since it was signed *% the testator and the witnesses at

the *ottom then there is no need for them to sign at the left margin. 3he second concerns the second page.

Since it was alread% signed *% the witnesses at the *ottom of the attestation clause then there is no need

for them to sign on the margin.

+ Must an attested will *e dated

A+ ,o. /ac5 of date does not annul an attested will. 2ut a holographic will must *e dated. (Art.

C1D.)

7. NotariHation.++ A will is a pu*lic instrument that is wh% it must notariBed.

Art. D(. Every $i !ust be acno$edged before a notary "ubic by t%e testator and t%e

$itnesses. )%e notary "ubic s%a not be re,uired to retain a co"y of t%e $i; or fie anot%er $it%

t%e office of t%e Cer of Court.

2alane+

1. 7ruB . Hillasor.-- 3his case inoles a will wherein the notar% pu*lic was also one of the three

instrumental witnesses. id the will compl% w6 the requirement of & witnesses ,o. 3he S7 gae "

reasons+ (1) 3he notar% pu*lic can not *e an oath witness and at the same time an oath ta5er. It is

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impossi*le for him to ac5nowledge *efore himself! (") the aim of the notar% pu*lic to insure the

trustworthiness of the instrument would *e lost *ec. he will tr% to insure the alidit% of his own act.


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&. 3hese additional requirements are mandator% *% perfect analog% to the case of


24/146


Artices &D to &>.++ Provisions on Holographic Wills.

Art. &D. A "erson !ay e?ecute a %oogra"%ic $i $%ic% !ust be entirey $ritten; dated;

and signed by t%e %and of t%e testator %i!sef. It is sub6ect to no ot%er for!; and !ay be !ade in or

out of t%e P%ii""ines; and need not be $itnessed.

2alane+

A. Adantages+

1. 7heaper simple easier to reise no notar% pu*lic needed

". A*solute secrec% is guaranteed- onl% %ou the father and the mem*ers of the famil%will 5now its contents.

isadantages+

1. 'recisel% *ec. it guarantees secrec% and is simpler it is also easier to falsif%-- less people

%ou need to collude w6-- onl% %ourself *ut in attested will %ou need at least four () other people.

". It ma% not e$press testator;s wishes due to fault% e$pression

&. ,o protection against causes itiating consent *ec. there are no witnesses-- danger is

higher.

. oes not reeal testamentar% capacit% of testator due to lac5 of witnesses

?. #asier to conceal than an attested will.-- %ou can allege that no will was made

@. .-- must *e *% the hand of the testator himself.

1. 0ritten entirel% *% the testator

#.g. (a) If partl% *% the testator and partl% *% another person HI

(*) If another person wrote an additional part w6o 5nowledge of the testator thewill is HA/I *ut the addition is HI.

(c) If another person wrote an additional part w6 the 5nowledge of the testatorHI.

". ated

a. (1) Ro$as . de Fesus.-- n the will the date was written as 49e*.6 @1.4 Is italid >es.


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7MM#,3+ I am not happ% w6 the decision *ec. the period coers one whole month. ne of the

purposes is to 5now when it was e$ecuted speciall% in the cases where there are other wills. #$ample

another will dated 9e*. 16 @1. As such it is dangerous to sa% that 49e*.6@14 is sufficient.

(") /a*rador . 7a.-- In this case the date was indicated in the *od% of the willas part of the narration. Is this alid >es. It is not necessar% that the will *e separate from the *od%. In

fact it can *e an%where in the will as long as the date appears in the will.

*. If the date is proen wrong then its alidit% depends on whether the error is deli*erate

or not. If deli*erate the will is considered not dated and the will is oid. If not deli*erate the date will

*e considered as the true date.

c. ate is usuall% written *% putting the da% month and %ear. 8oweer other wa%s ma% *e adopted such as 47hristmas da% of 1EE?.4

&. Signature.-- 7ommentators hae said that the signature must consist of the testator;s

writing his name down. 3he reason for this is since he is a*le to write his will then he is literate enough

to write his name.

7. 1. Are holographic wills in letters allowed >es proided there is an intent on the part of the testator to

dispose of the propert% in the letters and the & requisites are present.

#.g. 4I gie %ou 16" of m% estate as proided for in the document I 5ept in the safe.4 3his is a

holographic will *ec. the letter does not in itself dispose of the propert%.

". 7an a *lind testator ma5e a holographic will >es. 3here is no form required. 0hat is

important is the presence of the & requisites.

Art. &&. In t%e "robate of a %oogra"%ic $i; it s%a be necessary t%at at east one $itness

$%o no$s t%e %and$riting and signature of t%e testator e?"icity decare t%at t%e $i and t%esignature are in t%e %and$riting of t%e testator. If t%e $i is contested; at east t%ree of suc%

$itnesses s%a be re,uired.

In t%e absence of any co!"etent $itness referred to in t%e "receding "aragra"%; and if t%e

court dee! it necessary; e?"ert testi!ony !ay be resorted to.

2alane+

Re,uire!ents in t%e Probate of 1oogra"%ic 2is:

1. ocumentar% Requirement

a. ou are presented in the pro*ate court the *lood% test papers of A in 7iil /aw =ust to show

the handwriting of A *ut %ou do not hae the will. 8ow will %ou compare when %ou do not hae an% willto *e compared. 2ut if the will is there I would *e the first one to proe %our handwriting *% showing

%our *lood% test papers. (2alane.)

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#$ception+ If there is an e$isting cop% or duplicate photostatic $ero$.

Rodelas . AranBa.-- In the case the proponent of the will sought to present a cop% of the

holographic will to the court. 3he court allowed the production of the cop%. 3he *asis of this acceptance

is the footnote no. C in the case of an where the court said that 4perhaps if a photostatic cop% is

presented...4

3he merit of the Rodelas case is dou*tful.. Authenticit% of the will is *ased on the handwriting

and the signature. 8andwriting e$perts use as a *ases the penlifts of the writer. In photocopies penliftsare not discerni*le and so the e$perts are depried of their *asis in determining the authenticit% of the

will.

*. /ost holographic wills can not *e pro*ated een *% the testimonies of the witnesses. 3he

reason is that the will itself is the onl% proof of its authenticit%.

". 3estimonial Requirement

a. :ncontested will.-- onl% one witness to identif% the signature and handwriting of the

testator.

*. 7ontested will.-- three witnesses to identif% the signature and handwriting of the testator.

ABaola . Singson.-- In the case the oppositors of the will contested the will on the ground that it

was e$ecuted through fraud. 3he% howeer admitted its due e$ecution. uring the case the proponent presented onl% one witness to identif% the signature and handwriting of the testator. Is one witnesssufficient considering there is an oppositor to the will

>es. 3he S7 held that one witness is sufficient. 0hat the law enisions is that the genuineness of

the handwriting and signature *e contested. 7ontested holographic will refers to the challenge *% the

oppossitors that the will is not in the handwriting of the deceased. 3he oppossitors in this case did not

challenge the handwriting of the deceased. 3heir ground for opposing pro*ate is that the will was

e$ecuted through fraud and improper and undue influence. 8ence the pro*ate required onl% one witness.

3he authenticit% of the will is not contested. 3herefore the will itself not *eing contested was

that of the testator. 3he oppossitors here precisel% admit that authenticit% of the will *ut oppose on the

ground that there is fraud or undue influence initiated upon her in the e$ecution of the will. 8ence it is

uncontested.

2biter dictum3 3he three witness proision for contested holographic will is merel% director%.3he court upon satisf%ing itself of the authenticit% of the will can require one or ten witnesses. 3he =udge5nows *est. 3he second paragraph of Art. C11 gies the court discretion hence the director% effect of the

Art.-- (a) it is a matter of qualit% and not quantit%! (*) to require & witnesses ma5es it worse than

treason w6c requires onl% " witnesses.

0hich is *etter ne who testif% *ut w6 unquestioned credi*ilit% or "D AHS#7M witnesses

So do not rel% on the quantit%. 3he case of ABaola is merel% a guide and interprets Art. C11 for us. It is

not mandator%. It alwa%s depends on the =udge.

Art. &. In %oogra"%ic $is; t%e dis"ositions of t%e testator $ritten beo$ %is signature

!ust be dated and signed by %i! in order to !ae t%e! vaid as testa!entary dis"ositions.

2alane+ 3o authenticate additional dispositions the same must *e signed and dated *% the testator.

Art. &8. 2%en a nu!ber of dis"ositions a""earing in a %oogra"%ic $i are signed

$it%out being dated; and t%e ast dis"osition %as a signature and date; suc% date vaidates t%e

dis"ositions "receding it; $%atever be t%e ti!e of "rior dis"ositions.

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2alane+ If a will has seeral additions the testator has two options+ (1) Sign

each disposition and sign and date the last! or

(") Sign and date each one of the additions.

Art. &>. In case of any insertion; canceation; erasure or ateration in a %oogra"%ic $i;

t%e testator !ust aut%enticate t%e sa!e by %is fu signature.

2alane+ Insertion; Canceation; Erasure; or Ateration.++ Authenticate *% 4full signature4 that is inthe manner the testator usuall% signs his name.

Jalaw . Reloa.-- In the case there were " alterations. In the first alteration the name of Rosa

as sole heir was crossed out and


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a. 9ilipino ma5es a will here

*. 9ilipino ma5es a will a*road.

c. 9oreigner ma5es a will here.

d. 9oreigner ma5es a will a*road.

". 0hat law goerns the alidit% of will

a. Intrinsic.-- the national law of the testator *. 3ime.-- At the time of death.

c. 'lace.-- the same for 9ilipinos and aliens. 3he same rule whereer %ou ma5e %our will.

>ou hae fie (?) choices-- the law of

1. 3he testator;s citiBenship

". 3estator;s domicile

&. 'lace of e$ecution . 3estator;s residence ?. 'hilippines.

#$ample an Argentine citiBen domiciled in 9rance residing in 2elgium isiting the 'hils. In Fapan he

e$ecuted a will. 8e ma% choose among the fie (?) places as to what law shall goern the formalrequirements of his will.

If Ru*en e$ecuted a will in Ma5ati he will hae to follow 'hilippine law *ec. all the choices points to that onl%.

Art. &. )$o or !ore "ersons cannot !ae a $i 6ointy; or in t%e sa!e instru!ent; eit%er

for t%eir reci"roca benefit or for t%e benefit of a t%ird "erson.

2alane+ &. *efinitions.++ (a) A =oint will is one document w6c seres as the will of " persons! this is

prohi*ited! (*) A reciprocal will inoles " instruments reciprocall% ma5ing each other heir! this is not

prohi*ited.

. Ee!ents of a 3oint 2i: (a) one single instrument! (*) it is the will of " or more persons.

8. -: 2%y are 3oint 2is Pro%ibited0

A+ (a) It encourages undue influence murder or attempt to 5ill the other *ec.

generall% =oint wills *enefit each other.

(*) It runs counter to the idea that wills are reoca*le. It ma5es reocation more

difficult. #.g. tearing it up-- destro%s the will of another.

(c) It undermines the personal element of a will.-- It *ecomes a multiple will.

>. E?a!"es:

a. ne sheet of paper. n each side is a will of one person. Is it alid >es *ec. there

are " documents.

*. ne sheet of paper. n the front page on the upper half is a will of A. n the *ottomhalf is the will of 2. Is it alid >es. 3his is not a =oint will *ec. there are still " documents.

. In


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Art. &'. 2is; "ro%ibited by t%e "receding artice; e?ecuted by 4ii"inos in a foreign

country s%a not be vaid in t%e P%ii""ines; even t%oug% aut%oriHed by t%e a$s of t%e country

$%ere t%ey !ay %ave been e?ecuted.

2alane+

1. 3his proision is an e$ception to the rule enunciated in Articles C1? to C1 that for 9ilipinos as long as

the will is alid in the place of e$ecution then it is alid in the 'hils.

". 9ilipinos whether here or a*road cannot e$ecute =oint wills. It is against pu*lic polic%.

&. 7an aliens e$ecute =oint wills

a. If e$ecuted in the countr% where it is allowed >#S it ma% *e pro*ated here.

*. If made here and their countr% allows them to do this 3here are " iews on this+

(i) >es follow the personal law.

(ii) ,o *ec. it is against pu*lic polic%.

Subsection >.++ Witnesses to Wills.

Art. D. Any "erson of sound !ind and of t%e age of eig%teen years or !ore; and not bind;

deaf or du!b; and abe to read and $rite; !ay be a $itness to t%e e?ecution of a $i !entioned in

artice D of t%is Code.

Art. &. )%e foo$ing are dis,uaified fro! being $itnesses to a $i:

&/ Any "erson not do!icied in t%e P%ii""ines9

/ )%ose $%o %ave been convicted of fasification of a docu!ent; "er6ury or fase

testi!ony.

2alane+ Articles C"D and C"1 ma% *e ta5en together. 3hese proisions are applica*le onl% to attested

wills and not to holographic wills.

Si? -uaifications of 2itnesses to 2is or Re,uisites for Co!"etence to be a 2itness:

a. "ound -ind.++ A*ilit% to comprehend what he is doing same as soundness of mind

for contracts.

*. !t least (4 yrs or o#er.++ 7omputed according to the calendar %ear.

c. 5ot Blind, deaf and mute dumb.++ 3his is important *ec. these are the three senses

%ou use for witnessing.

d. !ble to read and write.-- /iterate. Some commentators sa% thum* mar5 is not

sufficient for witnesses! he has to affi$ his signature.

e. 6e must be domiciled in the Philippines.

+ If a will is e$ecuted a*road in a place where there is no one domiciled in the 'hils.

although there are 9ilipino citiBens not domiciled in the 'hils. does domicile requirement still appl%

A+ 3here are two answers for all theor%

1. >es *ec. the law does not distinguish

". ,o there is an implied qualification.-- 3he rule applies in wills e$ecuted inthe 'hils.

3o *e practical there are two solutions+

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1. >ou hae ? choices as to w6c law goerns. 7hoose an%.

". Fust e$ecute a holographic will.

f. 6e must not ha#e been con#icted of falsification of document, per/ury or false

testimony.

+ 0h% not rapeA+ 2ec. chastit% has nothing to do w6 truthfulness. 3ruthfulness is the gauge.


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(c) If there are four witnesses each one is gien a deise or legac%.

(i) Are the% competent to *e witnesses >es.

(ii) Are *equests to them alid 3here are " iews+

1. >es. 2ec. for each of them there are three other witnesses. (/i*eraliew.)

". ,o. 2ec. this is an o*ious circumention of Art. C"&. Art. C"& has

for its purpose the preention of collusion. (Strict iew.)

Art. >. A !ere c%arge on t%e estate of t%e testator for t%e "ay!ent of debts due at t%e

ti!e of t%e testatorGs deat% does not "revent %is creditors fro! being co!"etent $itnesses to %is

$i.

Subsection .++ Codicils and Incorporation "y #eference.

Art. . A codici is a su""e!ent or addition to a $i; !ade after t%e e?ecution of a $i

and anne?ed to be taen as a "art t%ereof; by $%ic% any dis"osition !ade in t%e origina $i is

e?"ained; added to; or atered.

2alane+

#.g. In a will 4I gie m% car to A Ful% " 1EE?.4 2ec. I want to specif% w6c of m% cars I ma5e a will

stating 4In m% will of Ful% " 1EE? I gae a car to A. I want to clarif% that I am giing him m% 2M0 w6

plate num*er .......4

+ 0hen is a su*sequent document a codicil and when is it another will

A+ 1. It is a codicil when it e$plains adds to or alters a proision in a prior will.

". It is another will if it ma5es an independent disposition.

#.g. Fune 1 1EE? 4I gie m% car to A.4

Ful% 1 1EE? 4I gie m% house to 2.4 3his is a second will.

9our uestions+

1. If original will is attested can %ou ma5e an attested codicil

". If original will is attested can %ou ma5e a holographic codicil

&. If original will is holographic can %ou ma5e a holographic codicil

. If the original will is holographic can %ou ma5e an attested codicil

A+ >es to all. 3he form of a codicil does not hae to conform to the form of the will. A will does not

impose its form on the codicil. As long as the codicil complies w6 the form of wills it is alid. (Art.

C"@.)

Art. (. In order t%at a codici !ay be effective; it s%a be e?ecuted as in t%e case of a $i.

2alane+ 0hether %ou call the second document a will or a codicil does not reall% matter. It is all

theoretical. It is onl% a matter of terminologies. 3he% *oth require the formal requisites of a will.

Art. 7. If a $i; e?ecuted as re,uired by t%is Code; incor"orates into itsef by reference

any docu!ent or "a"er; suc% docu!ent or "a"er s%a not be considered a "art of t%e $i uness t%e

foo$ing re,uisites are "resent:

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&/ )%e docu!ent or "a"er referred to in t%e $i !ust be in e?istence at t%e ti!e of t%e

e?ecution of t%e $i9

/ )%e $i !ust ceary describe and identify t%e sa!e; stating a!ong ot%er t%ings t%e

nu!ber of "ages t%ereof9

8/ It !ust be identified by cear and satisfactory "roof as t%e docu!ent or "a"er

referred to t%erein9 and

>/ It !ust be signed by t%e testator and t%e $itnesses on eac% and every "age; e?ce"t incase of vou!inous boos of account or inventories.

2alane+

+ 0hat do %ou incorporate

A+


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Art. '. A revocation done outside t%e P%ii""ines; by a "erson $%o does not %ave %is

do!icie in t%is country; is vaid $%en it is done according to t%e a$ of t%e "ace $%ere t%e $i $as

!ade; or according to t%e a$ of t%e "ace in $%ic% t%e testator %ad %is do!icie at t%e ti!e9 and if

t%e revocation taes "ace in t%is country; $%en it is in accordance $it% t%e "rovisions of t%is Code.

2alane+ 3his article is incomplete. It does not coer all situations.

+ 8ow do %ou reo5e 0hat law goerns reocation

A+ It depends where the reocation is made+

1. If done outside the 'hils+

a. If the testator is not domiciled in the 'hils+

(i) the law of the place where the will was made

(ii) the law of the place where the testator was domiciled at the time of the reocation

*. If the testator is domiciled in the 'hils+

(i) 'hil. law *ec. his domicile is here.

(ii) /aw of the place of reocation *ec. of Art. 1 ,77

". If done inside the 'hils. follow 'hil. law.

Art. 8D. No $i s%a be revoed e?ce"t in t%e foo$ing cases:

&/ By i!"ication of a$9 or

/ By so!e $i; codici; or ot%er $riting e?ecuted as "rovided in case of $is9 or

8/ By burning; tearing; canceing; or obiterating t%e $i $it% t%e intention of

revoing it; by t%e testator %i!sef; or by so!e ot%er "erson in %is "resence; and by %is e?"ress

direction. If burned; torn; canceed; or obiterated by so!e ot%er "erson; $it%out t%e e?"ress

direction of t%e testator; t%e $i !ay sti be estabis%ed; and t%e estate distributed in accordance

t%ere$it%; if its contents; and due e?ecution; and t%e fact of its unaut%oriHed destruction;

canceation; or obiteration are estabis%ed according to t%e Rues of Court.

2alane+

)%ree 2ays of Revoing a 2i:

&. By I!"ication of La$.

a. Art. 1D&".-- :nworthiness to succeed e.g. I instituted ' as heiress after which she

5illed m% parents. 3he will instituting her as heiress is reo5ed *% implication of law.

*. Art. E?.-- eals w6 the deise or legac%.-- transformation of the propert% *% the

testator e.g. If I conerted to a su*diision the fishpond w6c I gae to 3 as deise.

c. Art. [email protected] /egal separation. 3he guilt% spouse who gae the ground for legal

separation will not inherit and an%thing gien to her is impliedl% ta5en awa% *% law.

d. Art. C?.-- Preterition annuls the institution of heirs.

. By Subse,uent Instru!ent; 2i or Codici:

a. Requisites+

1. 7apacit% to reo5e.-- Insane persons can not reo5e

". Reo5ing instrument will or codicil must *e alid

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&. Reo5ing instrument will or codicil must contain either a reo5ing clause

(e$press) or *e incompati*le (implied)

. Reo5ing will must *e pro*ated *ec. w6o pro*ating it can not hae the effect

of reocation.

*. Such reocation ma% either *e+

1. #$press.-- 7ontains an e$press reocator% clause". Implied.-- 'roisions of su*sequent will are incompati*le with the proisions

of the prior will. It ma% either *e+ (i) total when all the proisions are incompati*le! (ii) partial when

onl% some proisions are incompati*le.

8. By "%ysica *estruction.++ 3his is the most unlimited wa% of reocation *ec. it coers an% act of

ph%sical destruction. It is not an e$clusie list *ut more or less coers eer%thing

Ee!ents:

a. Corpus.-- Act of destruction-- completion of intent-- all acts needed to reo5e hae

*een done

+ Must it *e total destructionA+ ,o. As long as eidence on the face of the will shows act to reo5e.

*. !nimus.-- Intent and capacit% to reo5e.

2oth elements must concur.

#$amples+

a. A *lind testator as5ed his nurse to gie him his will. 3he nurse gae him his old letters.

3he testator thin5ing it is his will threw it into the fire. In this case there is animus *ut no corpus.Reocation is ineffectie.

*. I threw m% ciil law e$ams. 2ut it turned out it was m% will. Reocation is not alid.3here is no animus or intent to reo5e.

Notes:

1. 8ow much destruction of the corpus do %ou need >ou need the ph%sical destruction of

the will itself. oes it mean total destruction of the will so that nothing will *e left ,o. As long as

there is eidence of ph%sical destruction li5e let us sa% edges were *urned. If onl% the coer was *urned

there is no reocation-- no corpus. If the destruction was not total there is still reocation as long as

there is6 was eidence of the destruction of the will the destruction need not *e total.

". A man can not reo5e the will effectiel% *ec. of insanit%.

&. In case of tearing there must *e intent to reo5e. 3hat is the testator had completed

what he intended to *e done. If in the act of tearing the testator was dissuaded not to continue is therereocation ,o *ec. the testator was not a*le to do what he intended to *e done.

#.g. If the testator tore the will into " and when he was a*out to tear it into quarters the heir

as5ed for his forgieness. 3he testator said+ 4Fust paste the will.4 Is there reocation ,one. 3here is no

animus *ec. he was not a*le to complete what he intended to do.

>. If the testator totall% destro%ed the will and he changed his mind is there reocation >es. 3he act was

alread% consummated. 8is remed% is to e$ecute another will.

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Maloto . 7A.-- In the case the estate was distri*uted equall% *% intestac% *et. the heirs.

Su*sequentl% a will was found. In the will more was gien to " of the heirs. As such the " who got

more sought the pro*ate of the will. 3he other " o*=ected claiming that the will had *een reo5ed. 3he

issue is whether or not there had *een a alid reocation. 3he S7 held no. 0hile there ma% hae *een

intent to reo5e there was no corpus. 3here is no eidence to show that what was reo5ed was the will

of the testator. Also the destruction was not proen to hae *een done in the presence and under the

e$pression of the testator.


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2alane+ Art. C&? is deried from Argentine 7ode. If %ou want to reie a will w6c is oid as to its form

%ou must repu*lish the will and =ust cannot refer to it. #$ample Attested will w6 =ust " witnesses. >ou

discoered the mista5e later on. >ou cannot =ust repu*lish it. >ou hae to write it all oer again.

n the other hand Art. C&@ is deried from the 7alifornia code. 3he mere reference to a preious

will will reie it

Result of the two articles+ 7haosK

8ow to reconcile /oo5 at 3olentino.

Art. C&? e$plicitl% refers to wills oid as to form. 7ause of the nullit% is the defect in the form.

>ou must reproduce the dispositions in a su*sequent will.

Art. C&@ applies if the reason of nullit% is other than defectie form e.g. :nderage testator fraud

under duress. >ou ma% repu*lish or refer to the will. #.g. 4I here*% repu*lish and reie m% will of ct.

1? 1EE?...4 Said repu*lication was made after the discoer% of the reason of the nullit%.

Art. 87. If after !aing a $i; t%e testator !aes a second $i e?"ressy revoing t%e first;

t%e revocation of t%e second $i does not revive t%e first $i; $%ic% can be revived ony by anot%er

$i or codici.

2alane+

A. 3his proision is craB%KKK

Situation+ G ma5es a will in 1EE& (0ill 1)

G ma5es a will in 1EE e$pressl% reo5ing will 1. (0ill ".)

G ma5es a will in 1EE? reo5ing will ". (0ill &.)

Reocation &nstanter++ instantl%

0ill 1 is not reied *ec. its reocation was instant

#$ception+ 1. 0ill & e$pressl% reies 0ill 1.

". will & reproduces proisions of 0ill 1.

0h% craB% 2ec. this is contrar% to esta*lished principles in succession.

Succession 'rinciple Art. C&

1. 0ill ta5es effect upon death.1.


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Subsection .++ %lloance and $isalloance of Wills.

Art. 8. No $i s%a "ass eit%er rea or "ersona "ro"erty uness it is "roved and ao$ed

in accordance $it% t%e Rues of Court.

)%e testator %i!sef !a; during %is ifeti!e; "etition t%e court %aving 6urisdiction for t%e

ao$ance of %is $i. In suc% case; t%e "ertinent "rovisions of t%e Rues of Court for t%e ao$ance

of $is after t%e testatorGs deat% s%a govern.

)%e Su"re!e Court s%a for!uate suc% additiona Rues of Court as !ay be necessary for

t%e ao$ance of $is on "etition of t%e testator.

Sub6ect to t%e rig%t of a""ea; t%e ao$ance of t%e $i; eit%er during t%e ifeti!e of t%e

testator or after %is deat%; s%a be concusive as to its due e?ecution.

2alane+ 'ro*ate is mandator%.

3here are " 5inds of pro*ate+ (a) ante+mortem at the instance of the testator! (*) postmortem at

the instance of an% interested part%.

#ffect+ It is su*=ect to appeal *ut once final it *ecomes conclusie or res /udicata as to its due

e$ecution and testamentar% capacit% of the testator (e$trinsic alidit%.)

Advantages of %nte-mortem Probate:

1. It eases the mind of the testator

". 3here is opportunit% to change

&. >ou can proe the capacit% of the testator

*isadvantage of %nte-mortem Probate.++ otios-- superfluous futile. 0h% 2ec. the testator can easil%

ma5e a su*sequent will reo5ing it. So unless the testator is er% sure it might *e useless to hae an

ante+mortem pro*ate.

3he issue in pro*ate is the e$trinsic or formal alidit% of the will.


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2alane+ 3he rules on institution of heir also appl% to deisees and legatees.

Art. >&. A $i s%a be vaid even t%oug% it s%oud contain an institution of an %eir; or suc%

institution s%oud not co!"rise t%e entire estate; and even t%oug% t%e "erson so instituted s%oud

not acce"t t%e in%eritance or s%oud be inaca"acitated to succeed.In suc% cases t%e testa!entary dis"ositions !ade in accordance $it% a$ s%a be co!"ied

$it% and t%e re!ainder of t%e estate s%a "ass to t%e ega %eirs.

2alane+ 1. #en if there is no institution of an heir the will is alid *ut it is useless unless it

ac5nowledges an illegitimate child or disinherits a compulsor% heir.

". If the institution does not coer the entire estate the e$cess shall either go to the compulsor% heirs or *%

intestac%. (Mi$ed succession.)

&. 8ow much can the testator dispose of from his estate 8e can dispose all e$cept when there are

compulsor% heirs. In such a case he can onl% dispose of the free portion.

. . One $%o %as no co!"usory %eirs !ay dis"ose by $i of a %is estate or any "art

of it in favor of any "erson %aving ca"acity to succeed.

One $%o %as co!"usory %eirs !ay dis"ose of %is estate "rovided %e does not contravenet%e "rovisions of t%is Code $it% regard to t%e egiti!e of said %eirs.

2alane+

G -------- spouse

6 L

A 2 7

G has a spouse and & children.

7hildren get 16" of the estate

------- /egitimes

Spouse gets 16@ of the estate6

Art. >8. )%e testator s%a designate t%e %eir by %is na!e and surna!e; and $%en t%ere are

t$o "ersons %aving t%e sa!e na!es; %e s%a indicate so!e circu!stance by $%ic% t%e instituted

%eir !ay be no$n.

Even t%oug% t%e testator !ay %ave o!itted t%e na!e of t%e %eir; s%oud %e designate %i! in

suc% !anner t%at t%ere can be no doubt as to $%o %as been instituted; t%e institution s%a be vaid.

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2alane+ es.

3he 4un5nown person4 referred to in this article refers to one who cannot *e identified and not to

one whom the testator does not personall% 5now. 3he *asis of the nullit% is the ina*ilit% to determine the

intention of the testator.

#.g. 43o someone who cares.4 -- Hoid.

43o someone w6 ten e%es.4 -- Hoid this refers to someone who does not e$ist.

3his designation is alid if the identit% is not 5nown at the time of ma5ing the will *ut can *e

5nown in the future *% circumstances. 8ow 2% esta*lishing certain criteria at the proper time e.g. 9irst9ilipino who wins a gold medal in the l%mpics.

". 7lass designation is alid class in 7iil /aw Reiew :' 7ollege of /aw 1EE?-1EE@.

Mass institution+ see Articles C@ CC (*rothers and sisters) CE (designation of a person and his

children) E?E (relaties) 1D"E (pra%ers and pious wor5s for the *enefit of his soul) and 1D&D (poor.)

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Art. >(. 1eirs instituted $it%out designation of s%ares s%a in%erit in e,ua "arts.

2alane+ 3his is a presumption of equalit%. 3his supports the underl%ing principle of this chapter w6c is

respect for the wishes of the testator.

Art. >7. 2%en t%e testator institutes so!e %eirs individuay and ot%ers coectivey as$%en %e says; I designate as !y %eirs A and B; and t%e c%idren of C; t%ose coectivey designated

s%a be considered as individuay instituted; uness it ceary a""ears t%at t%e intention of t%e

testator $as ot%er$ise.

2alane+ 'ro*lem+ 3he testator proides 4I gie 16& of m% estate to A 2 and 7.4 7 is a class of people.

8ow do %ou diide the estate

A+ It is not to *e interpreted as 16& to A 2 and class 7. Rather the 16& of the estate should *e

diided equall% among A 2 and the mem*ers of class 7. 0h% 2ec. the presumption is that the

mem*ers of 7 were indiiduall% designated.

2ut if the testator sa%s 4I gie 16& of m% estate to A 2 and class 7 as a unit then 16& will *e

diided equall% among A 2 and class 7.

Art. >. If t%e testator s%oud institute %is brot%ers and sisters; and %e %as so!e of fu

bood and ot%ers of %af bood; t%e in%eritance s%a be distributed e,uay; uness a different

intention a""ears.

2alane+ 9ull *lood means same parents! half *lood means onl% one parent is the same.


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Austria . Re%es.-- In the case the oppossitor sought to nullif% the institution of the adopted

children as heirs *ec. it was found out that the adoption did not compl% w6 the law. 3he S7 held that the

institution was alid. 9or it to *e inalid and *e an e$ception to the general rule & requisites must

concur+

1. 7ause for the institution must *e stated in the will!

". 7ause must *e shown to *e false!

&. It must appear on the face of the will that the testator would not hae made suchinstitution if he had 5nown the falsit% of the cause.

3he wishes of the testator must *e respected.

In the case the third requisite was a*sent. As such the e$ception was not applica*le and the

general rule would appl%.

If there is dou*t as to whether there is a alid institution *ec. of the false cause resole it in faor

of alidit%.

Art. &. If t%e testator %as instituted ony one %eir; and t%e institution is i!ited to an

ai,uot "art of t%e in%eritance; ega succession taes "ace $it% res"ect to t%e re!ainder of t%eestate.

)%e sa!e rue a""ies; if t%e testator %as instituted severa %eirs eac% being i!ited to an

ai,uot "art; and a t%e "arts do not cover t%e $%oe in%eritance.

2alane+ 3he principle enunciated here has alread% *een proided in Art. C1.

Assuming in par. 1

a. 3he testator has no compulsor% heirs -- part of the whole estate not disposed of *% will

goes *% intestac%.

#.g. ,o compulsor% heirs and the testator sa%s 4I gie 16& of m% estate to G.4 16& will go

to G and the "6& will go *% intestac%.

*. 3estator has compulsor% heirs-- part of the free portion not disposed of *% will goes

*% intestac%.

#.g. 3wo legitimate children and testator sa%s 4I gie 16 of m% estate to G.4 16" will go to the

" children 16 will go to G and 16 will go *% intestac%.

3he same applies when a acanc% occurs.

Art. . If it $as t%e intention of t%e testator t%at t%e instituted %eirs s%oud beco!e soe %eirs to

t%e $%oe estate; or t%e $%oe free "ortion; as t%e case !ay be; and eac% of t%e! %as been instituted

to an ai,uot "art of t%e in%eritance and t%eir ai,uot "arts toget%er do not cover t%e $%oe

in%eritance; or t%e $%oe free "ortion; eac% "art s%a be increased "ro"ortionay.

2alane+ 3his article spea5s of the testator;s intention to gie the entire free portion or the entire

inheritance as the case ma% *e *ut he made a mista5e in the addition of the different proportions.

#lements+

1. Seeral heirs!

". Indicates his intention to gie his entire estate to this heirs

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a. If no compulsor% heirs whole estate

*. If w6 compulsor% heirs whole free portion

&. Indicates portions he wants to gie to each

. 3otal of portions is less than whole estate or free portion as the case ma% *e.

#.g. 3estator has no compulsor% heirs. 8e indicates in the will that his intention to gie his entire estate

to his heirs. 8e gies 16 to A 16@ to 2 16& to 7. 3he estate is worth '1"DDDD.

A '&DDDD

2 "DDDD

7 DDDD 'EDDDD

0hat do %ou do with the remaining '&DDDD

1.


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#lements+

1 to & -- same as those in Art. C?"

. 3otal of portion e$ceeds the whole estate or whole free portion as the case ma% *e #.g. same

as a*oe e$cept that A gets 16" 2 gets 16& and 7 gets 16.

3he alue of the estate is '&DDDD.

A 1?DDD

2 1DDDD

7

?DD

&"?DD

0hat do %ou do w6 the e$cess of '"?DD

1.


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". 7 gets DP 2 gets &DP and A gets &DP. Assume the third will is incompati*le to the

first ".

Art. >. )%e preterition or o!ission of one; so!e; or a of t%e co!"usory %eirs in t%e direct

ine; $%et%er iving at t%e ti!e of t%e e?ecution of t%e $i or born after t%e deat% of t%e testator;

s%a annu t%e institution of %eir9 but t%e devisees and egacies s%a be vaid insofar as t%ey are notinofficious.

If t%e o!itted co!"usory %eirs s%oud die before t%e testator; t%e institution s%a be

effectua; $it%out "re6udice to t%e rig%t to re"resentation.

2alane+

A. 7larification+

1. 40hether liing at the time of the e$ecution of the will or *orn after the death of thetestator.4 3his does not coer all the possi*ilities. 0hat a*out those *orn after the e$ecution of the will

*ut *efore the death of the testator Art. C? also coers them =ust an oersight.

". #$tends protection onl% to 4compulsor% heirs in the direct line.4 Is this redundant Aren;t

compulsor% heirs in the direct line ,o. Spouses are compulsor% heirs not in the direct line.So what is the remed% of the wife who has *een omitted emand her legitime. 7ompulsor%heirs in the direct line coer onl% ascendants and descendants.

2. Preterition.+- 4 praeter 4 means 4to go *e%ond4 -- not enough to 5now the meaning.

1. 0ho is a person preterited

Manresa.-- 47omplete omission from the will4 -- 0rongK 0h% It presupposes

that if mentioned in the will then the heir is not preterited. 8oweer whether %ou are mentioned in thewill or not has no effect on the preterition.

Illustrations+

(1) I hae a son A. 3he will states 4I gie 16" to 2.4 A is not preterited *ec. he gets the other

half.(") I hae a son A. 3he will states 4I gie 16& to 2 and 16& to 7.4 A is not preterited *ec. he

gets the other 16&. 8is legitime howeer is impaired.

(&) I hae a son A. 3he will states 4I gie 16" to 2 16" to 2 and to A all m% loe.4 A een

if mentioned in the will was preterited.

Preterition occurs if the heir receies nothing from the inheritance *% wa% of testamentar%

disposition deise legac% intestac% or donation inter #i#os.

". Situations

a. 8eir is mentioned *ut nothing is left to him-- 8eir is preterited if he receies

nothing *% intestac%.

*. 8eir is instituted in the will *ut the part she is instituted in is less than herlegitime.-- 3here is no preterition.

Re%es . 2arreto-atu.-- In the case /ucia receied a part of the estate through a =udiciall%

approed pro=ect of partition w6c was *ased on the will of her father. 8oweer it was found out later on

that he Salud was not reall% the child of her parents. As such /ucia sought to annul the institution of

Salud as heir claiming that she was preterited. 3he S7 held that she was not preterited *e. she had

receied a part of the estate. 3here is no preterition if the heir is gien testamentar% disposition een if it

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*e less than her legitime. 3he remed% of the heir is for the completion of her legitime pursuant to Art.

ED@.

&. efinition of preterition.+- Preterition happens when the compulsor% heirs in the direct

line are totall% omitted from the inheritance that is the heir got nothing *% wa% of testamentarr%

disposition donation legac% deise or intestac%.

7. 0ho can *e preterited

1. /egitimate children-- >es.

". Illegitimate children-- >es. 3he law ma5es no distinction.

&. 'arents whether legitimate or illegitimate.-- >es.

,uguid . ,uguid.-- In the case Rosa died haing @ *rothers and sisters and her parents.

8oweer she instituted one of her sisters as her uniersal heir. 3he parents opposed the pro*ate claimingthe% were preterited. 3he S7 held that the parents were preterited. As such the institution of the sister as

uniersal heir is oid. 3he estate will *e distri*uted *% intestac%. 3he S7 further stated that =ust *ec. %ou

are an heir *ut not a compulsor% heir it does not mean that %ou will receie an%thing. If compulsor%

heirs in the direct line are preterited and the free portion had alread% *een deised to other people the

annulment of the institution of heir will in effect anull %our institution. Also when the law sa%s deise or legac% this is used in its ordinar% sense. 3he claim of the sister that her institution as a uniersal heir is

equialent to a deise is untena*le. If such were accepted it would render Art. C? useless.

. es.

?. Spouse.-- ,o.

@. Adopted child.-- >es.

Acain . Acain.-- In the case Acain left his estate to his *rothers completel% omitting his wifeand legall% adopted daughter. As such the two opposed the pro*ate of the will claiming the% were

preterited. 3he S7 held that the adopted child was preterited *ut not the wife. A wife is not a compulsor%

heir in the direct line so she cannot *e preterited. 0ith respect to the adopted child it is different. :nder

Art. &E of ' @D& adoption gies to the adopted person the same rights and duties as if he were alegitimate child of the adopter and ma5es the adopted person a legal heir of the adopter. 3he S7 further

stated that since there were no deises or legacies and a compulsor% heir was preterited the effect is as if

nothing was written in the will. 3he whole estate will *e distri*uted *% intestac%.

. #ffect of preterition.+- 4Annul the institution of heir *ut deises and legacies shall *e alid insofar as

the% are not inofficious.4 -- A*rogate set aside eliminate cancel.

1. #ffect of preterition (of parents) when there are no deises or legacies (,uguid case)--

whole will is considered ine$istent.

". If there are deises or legacies.-- Set aside onl% the institution of heirs *ut not the

institution of deisees and legatees. If the deise and legac% e$ceed the free portion decrease the deiseand legac%.

Solano . 7A.-- 3his case made a wrong decision. It made the effect of preterition the reduction

of the share of the instituted heir rather than annulling the whole institution of heir.

Acain . IA7.-- 3his case restored the correct interpretation laid down in ,uguid that preterition

annuls the institution of heirs.

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/egitime - &DDDDD6 & N 1DDDDD each.

/ac5s 1?DDDD (Q O >)

1. Is > preterited ,o. 3here is ?DDDD that he will get *% intestac%. > can demand completion

of his legitime under Art. C??. 8e can get ?DDDD from the undisposed portion. 8e =ust lac5s ?DDDD.

0here do %ou get the deficienc%

a. If we follow Art. C?? get from the compulsor% heirs. In other words get from Gand Q proportionatel%. 3he result is that Q will complain *ec. now his legitime would *e incomplete.

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Section 8.++ &u"stitution of Heirs.

Art. 7. Substitution is t%e a""oint!ent of anot%er %eir so t%at %e !ay enter into t%e

in%eritance in defaut of t%e %eir originay instituted.

2alane+

1. 4In default.4 -- failure to inherit *ecause of+ (a) predecease (*) renunciation or (c) incapacit%.

a. Is it a complete definition ,o. It is incomplete *ec. default coers or defines onl%

simple su*stitution and not fideicommissary su*stitution.

*. 7omplete definition.-- Su*stitution is the appointment of another heir so that he ma%

enter into the inheritance either in default of the heir o

Notes & Cases on Succession.docx

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