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UP LAW BOC SALES CIVIL LAW
322
CIVIL LAW
SUCCESSION
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I. GENERAL
PROVISIONS
A. DEFINITION
Succession - a mode of acquisition by virtue of
which the property, rights and obligations to
the extent of the value of the inheritance, of a
person are transmitted through his death to
another or others either by his will or by
operation of law. [Art. 774, CC]
Kinds of Succession
(1) Testamentary – that which results from the
designation of an heir, made in a will
executed in the form prescribed by law.
[Art. 779, CC ]
(2) Legal or Intestate – that which takes place
by operation of law in the absence of a
valid will.
(3) Mixed – that which is effected partly by will
and partly by operation of law. [Art. 780,
CC]
(4) Compulsory – succession to the legitime
and prevails over all other kinds of
succession [Balane, 2010 ]
B. OBJECT OF SUCCESSION AND
TRANSMISSION
Inheritance includes:
(1) All the property, rights and obligations of a
person which are not extinguished by his
death [ Art. 776, CC ]
(2) Not only the property and the
transmissible rights and obligations
existing at the time of his death, but alsothose which have accrued thereto since the
opening of the succession [ Art. 781, CC ]
What are transmitted?
(1) Rights and obligations which are not
strictly personal (intuit personae) [Balane,
2010]
(2) Money debts of the decedent are not
transmitted to the heirs nor paid by them.
The estate pays them. [Balane, 2010]
Rule on Transmission:
General rule: All property rights which haveaccrued to the hereditary estate since the
opening of succession are transmitted to the
heirs
Exception: Property acquired after the making
of a will shall not pass to the heirs unless it
should expressly appear in the will that such
was the intention of the testator. [Art. 793, CC ]
Rules on Opening of Succession:
(1)
The rights to succession are transmittedfrom the moment of the death of the
decedent. [Art. 777, CC ]
Implications of this principle:
(a) The law in effect at the time of death of
the decedent governs the succession
[ Art. 2236, CC ]
(b) The heir becomes the owner of his
share as well as all fruits which accrue
after the death of the decedent.
(c)
Upon death of the decedent, heirs mayimmediately possess, administer and
dispose of their shares in the estate (in
the absence of existing debts/claims
against the estate);
(d) The possession of hereditary property
is deemed transmitted to the heir
without interruption and from the
moment of death of the decedent, in
case the inheritance is accepted [ Art.
533, CC ]
(e)
Estate taxes accrue upon death of thedecedent, even if the heirs come into
possession only later.
(2) A person may be “presumed” dead for the
purpose of opening his succession. In this
case, succession is only of provisional
character because there is always a chance
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that the absentee may still be alive. [Arts.
390-391, CC ].
C. SUBJECTS OF SUCCESSION
Decedent – person whose property istransmitted through succession, whether or
not he left a will. [Art. 775, CC ]
Testator – a decedent who left a will [Art. 775,
CC ]
Kinds of Successors
(1) Heirs – those who are called to the whole
or an aliquot portion of the inheritance
either by will or by operation of law [Art.
782, CC ](2) Devisees – persons to whom gifts of real
property are given by virtue of a will
(3) Legatees – persons to whom gifts of
personal property are given by virtue of a
will
Note: The distinction is significant in case of
preterition.
Kinds of Heirs
(1)
Compulsory Heirs – those who succeed byforce of law to some portion of the
inheritance, in an amount predetermined
by law known as the legitime, of which they
cannot be deprived by the testator, except
by a valid disinheritance. They succeed
regardless of a will.
(2) Voluntary or Testamentary Heirs – those
who are instituted by the testator in his
will, to succeed to the portion of the
inheritance of which the testator can freely
dispose. They succeed by reason of a will.(3) Legal or Intestate Heirs – those who
succeed to the estate of the decedent who
dies without a valid will, or to the portion of
such estate not disposed of by will, or
when certain grounds are met
II. Testamentary
Succession
A. WILLS
A.1. IN GENERAL
Will - an act whereby a person is permitted,
with the formalities prescribed by law to
control to a certain degree the disposition of
his estate to take effect after his death. [Art.
783, CC ]
i. KINDS OF WILLS
(5) Notarial – an ordinary or attested will,
which must comply with the requirements
of the law [Arts. 804-808, CC ]
(6) Holographic – a will entirely written, dated
and signed by the hand of the testator [Art.
810, CC ]
ii. CHARACTERISTICS OF WILLS
(1) Purely personal – will-making is non-
delegable
making of a will cannot be left in whole
or in part of the discretion of a thirdperson, or accomplished through the
instrumentality of an agent or attorney
[ Art. 784, CC ]
testator may not make a testamentary
disposition in such manner that another
person has to determine whether or not
it is to be operative [ Art. 787, CC ]
What cannot be
delegated to 3rd
persons
What may be entrusted
to 3rd persons
(1) designation of
heirs, devisees and
legatees
(2) duration/efficacy
of designation
(3) determination of
(1) designation of
person/institution
falling under a
class specified by
testator
(2) manner of
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portions, when
referred to by
name [Art. 785,
CC ]
distribution of
property specified
by testator [ Art.
786, CC ]
Note: testator mustfirst specify the class
and the amount of
property for proper
delegation
(2) Free and intelligent [Art. 839, CC ]
(3) Solemn and formal - if the form is
defective, the will is void
(4) Revocable and ambulatory – will can be
revoked at any time before the testator’s
death [Art. 828, CC ](5) Mortis causa - takes effect upon the
testator’s death
(6) Individual – prohibition against joint wills
[Art. 818, CC ]
(7) Executed with
animus testandi – intent to
dispose of the property
(8) Executed with testamentary capacity
(9) Unilateral act - does not involve an
exchange of values or depend on
simultaneous offer and acceptance
(10)
Dispositive – disposes of property
General rule: Wills contain disposition of
the testator’s estate mortis causa.
Exceptions: (non-dispositive wills)
will recognizing an illegitimate child
will disinheriting a compulsory heir
(11) Statutory grant – permitted only by law,
not a constitutional right
As it is a statutory grant, a will must be
made in accordance with the formalities
prescribed by the law [Art. 783, CC; Balane
(2004) ]
iii. RULES OF CONSTRUCTION AND
INTERPRETATION
[ Arts. 788-795]
Main rule: All rules are designed to ascertain
and give effect to the intention of the testator.
Rationale: Testamentary succession is
preferred to intestacy.
(1) Different interpretations, in case of doubt,
that which would make the will operative
[Art. 788, CC ]
(2) Words to be taken in their ordinary and
grammatical sense unless there is a clear
intention to use them in another sense
[Art. 790, CC ](3) Technical words are to be taken in their
technical sense unless there is a contrary
intention or when testator was
unacquainted with such technical sense
[Art. 790, CC ]
(4) Words must be of an interpretation to give
effect to every expression. To make it
operative rather than inoperative; that
which will prevent intestacy [Art. 791, CC ]
(5) Invalidity of one of several dispositions does
not result in invalidity of others unless thetestator would not have made such
dispositions if the first invalid disposition
had not been made [Art. 792, CC ]
(6) Every devise and legacy shall convey all the
interest unless it clearly appears the
intention was to convey a less interest [Art.
794, CC ]
(7) Where there are ambiguities (i.e. imperfect
description or no person or property
exactly answers to the description,
mistakes, omissions), intrinsic or extrinsic
evidence may be used to ascertain the
intention of the testator
Oral declarations of the testator as to hisintention must be excluded. [Art 789, CC ]
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Kinds of Ambiguities
Patent or Extrinsic
Ambiguity
Latent or Intrinsic
Ambiguity
one which appears
upon the face of the
instrument
one which cannot be
seen from the reading
of the will but whichappears only upon
consideration of
extrinsic
circumstances
There is no distinction between patent and
latent ambiguities in so far as the admissibility
of parol or extrinsic evidence to aid
testamentary disposition is concerned.
iv. GOVERNING LAWS, IN GENERAL
Aspect of the Will Governing Law
Formal Validity Law in force at the time the
will was executed [ Art. 795,
CC ]
Intrinsic Validity Law of decedent’s
nationality at the time of his
death [ Arts. 16 and 2263, CC ]
Aspects of the Will Governed by the National
Law of the Decedent
(1) Order of succession;
(2) Amount of successional rights;
(3) Intrinsic validity of testamentary
provisions; and
(4) Capacity to succeed [Art. 16, CC ]
A.2. TESTAMENTARY CAPACITY AND
INTENTTestamentary capacity must exist at the time
of the execution of the will
Supervening incapacity does not invalidate an
effective will nor is the will of an incapable
validated by a supervening of capacity [Art.
801, CC ]
Requisites:
He must not be expressly prohibited by law to
make a will [Art. 796, CC ]
(a)
Age Requirement
The testator must not be under 18 years ofage [Art. 797, CC ]
“Year” shall be understood to be 12calendar months [Sec. 31, Book 1, AdminCode ]
(b)
Soundness of Mind of the Testator
The testator is of sound mind at the time of
execution [Art. 798, CC ]
Sanity is negatively stated in Art. 799: Not necessary that the testator be in full
possession of reasoning faculties
Not necessary that the testator’s mind be
wholly unbroken, unimpaired,
unshattered by disease, injury or other
cause [Art. 799, CC ]
To be of sound mind, the testator must
know:
The nature of the estate to be disposed
of;
The proper objects of his bounty;
The character of the testamentary act
[Art. 799, CC ]
General rule: Soundness of mind is
presumed [Art. 800, CC ]
Exception: When the testator, one month
or less before the execution of the will, was
publicly known to be insane
A.3. FORM
IN GENERAL [Art. 804, CC ]
(1) The will must be in writing
(2) It must be in a language or dialect known
to the testator
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Applicable Laws as to Formal Validity
Formal validity is governed by the law in
force at the time the will was executed [Art.
795, CC]
As to the place, forms and solemnities of awill are governed by the law of the country in
which the will was executed [Art. 17, CC ]
Arts. 815-817 (summarized in the table
below) provide for the various governing laws
in these instances:
(1) A will was made in a foreign country by a
Filipino [ Art. 815]
(2) A will was made in a foreign country by
an alien [ Art. 816 ]
(3) A will was made in the Philippines by an
Alien [ Art. 817 ]
Governing Law as to Place of Execution of Will
Testator
Place of
Execution of
Will
Governing Law
Filipino
Philippines Philippine Law [ Art. 16,
CC ]
Outside of
the
Philippines
(1) Law of the country
in which it is
executed [ Art.17,CC ]; or
(2) Philippine Law [ Art.
815, CC ]
Alien
Philippines (1) Philippine Law; or
(2) Law of the country
of which testator is a
citizen or subject
[ Art. 817, CC ]
Outside of
thePhilippines
(1) Law of the place
where the will isexecuted [ Art. 17,
CC ]; or
(2) Law of the place
where the testator
resides; or
(3) Law of the testator’s
country; or
(4) Philippine Law [ Art.
816, CC ]
ATTESTED OR NOTARIAL WILLS
Specific Requirements for Notarial Wills
(1) Subscribed at the end
(2) Attestation clause
(3) Marginal signatures
(4) Page numbers
(5) Acknowledged by a notary public
(6) Additional requirements for handicapped
testators
(7) Subscribed by 3 or more witnesses in the
presence of the testator and of one another
(1) Subscription: Subscribed to, at the end of
the will [Art. 805, CC ]
By the testator himself; or
By the testator’s name written by a
representative in his presence and under
his express direction.
(2) Attestation: Attested and subscribed by 3
or more credible witnesses in the presence
of the testator and of one another [Art.
805, CC ]
Attestation Subscription
Mental act (act of the
senses)
Mechanical act (act of
the hand)
Purpose is to render
available proof during
probate of will, not
only of the authenticity
of the will but also ofits due execution
Purpose of
identification
The attestation clause shall state the
following:
(1) Number of pages;
(2) The fact that the testator or his
representative under his express
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direction signed the will and every
page in the presence of instrumental
witnesses
(3) That the witnesses signed the will and
all its pages in the presence of the
testator and of one another.
The signatures of the witnesses must be at
the bottom of the attestation clause [Cagro
v. Cagro (1953)]
The notary public cannot be counted as an
attesting witness [Cruz v. Villasor (1973)]
Test of presence: Not whether they actually
saw each other sign, but whether they
might have seen each other sign had theychosen to do so considering their mental
and physical condition and position with
relation to each other at the moment of
inscription of each signature. [ Jaboneta v.
Gustilo (1906)]
(3) Marginal Signatures
General rule: Testator or his representative
shall write his name, and the witnesses
shall sign each and every page except the
last page [ Art. 805, CC ]
Exceptions:
(1) When the will consists of only one page
(2) When the will consists of only two
pages, the first of which contains all
dispositions and is signed at the
bottom by the testator and the
witnesses, and the second page
contains only the attestation clause
duly signed at the bottom by the
witnesses. [ Abangan v. Abangan (1919)]
The use of thumbprint was allowed [Matias
v. Salud (1957) ]
The inadvertent failure of one witness to
affix his signature to one page of a
testament, due to the simultaneous lifting
of two pages in the course of signing, is not
per se sufficient to justify denial of probate.
[Icasiano v. Icasiano (1964) ]
(4)
Page Numberings: Numbered correlativelyin letters placed on the upper part of each
page (i.e. Page One of Five Pages). [Art.
805, CC ]
Mandatory part: pagination by means of
a conventional system
Directory part: pagination in letters on
the upper part of each page [Balane
(2010) ]
(5) Acknowledged before a notary public by
the testator and the witnesses [Art. 806,CC ]
Notary public cannot be considered a third
witness. He cannot acknowledge before
himself his having signed the will. To allow
such would have the effect of having only
two attesting witnesses to the will. [Cruz v.
Villasor (1973) ]
The certification of acknowledgement need
not be signed by the notary in the presenceof the testator and the witnesses.
[Javellana v. Ledesma (1955) ]
(6) Additional rules for handicapped testators:
(a) Deaf Mute [ Art. 807, CC ]
Testator must personally read the
will; or
Testator shall personally designate
two persons to read the contents and
communicate it to him in some
practicable manner.
(b) Blind [ Art. 808, CC ]
The will shall be read to the testator
twice - By one of the subscribing
witnesses and by the notary public
acknowledging the will.
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A testator suffering from glaucoma is
considered as legally blind [Garcia v.
Vasquez (1970) ]
(7) Witnesses
Qualifications [Art. 820, CC ](1) Of sound mind
(2) Aged 18 years or over
(3) Not blind, deaf or dumb
(4) Able to read and write
Disqualifications [Art. 821, CC ]
(1) Person not domiciled in the Philippines
(2) Those who have been convicted of
falsification, perjury, or false testimony.
Rules on Interested Witness [Art. 823, CC ] General Rule Exception
Devises or legacies in
favor of a spouse,
parent or child who
also attests to the will
as a witness shall be
void
If there are three other
competent witnesses,
the device or legacy
shall be valid and the
interested witness
shall be treated as a
mere surplusage
Creditors are not incompetent to bewitnesses [Art. 824, CC ]
Supervening incompetency shall not
prevent the allowance of the will [Art. 822,
CC ]
Substantial Compliance Rule (as to the form of
the attestation clause)
Substantial compliance rule applies only in
cases when such defects and imperfections can
be supplied by an examination of the will itself.
There must be no bad faith, forgery, fraud, or
undue and improper pressure and influence for
substantial compliance to be allowed. [Art.
809, CC ]
Examples:
Whether all pages are consecutively
numbered
Whether the signatures appear in each and
every page
Whether the subscribing witnesses are three Whether the will was notarized [Caneda v CA
(1993) ]
Omissions which can be supplied by an
examination of the will itself, without the need
of resorting to extrinsic evidence, will not be
fata and will not prevent allowance of the will.
Omissions which cannot be supplied except by
extrinsic evidence or evidence aliunde are fatal
and would result in the invalidation of the will.
Example: Whether the testator signed in the
presence of the witnesses, or the witnesses
signed in the presence of the testator and of
one another.
HOLOGRAPHIC WILLS
Requisites:
(a) In writing [Art. 804, CC ]
(b) In a language known to the testator [Art.
804, CC ]
(c) Entirely written, dated and signed in the
hand of the testator himself [Art. 810, CC ]
Advantages Disadvantages
Simple and easy to
make
Induces foreigners in
this jurisdiction to
set down their last
wishes
Guarantees the
absolute secrecy of
the testamentary
dispositions
No guarantee as to
the capacity of the
testator
No protection
against violence,
intimidation or
undue influence
May not faithfully
express the will of
the testator due to
faulty expressions
Can be easily
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falsified and
concealed
Witnesses Required for Probate [Art. 811, CC ]
At least one witness who knows thehandwriting and signature of the testator;
explicitly declare that it is the testator’s
If contested – at least 3 of such witnesses
In the absence of a competent witness,
expert testimony may be resorted to
General rule: The holographic will itself must
be presented for probate [Gan v. Yap (1958) ]
Exception: If there is a photostatic copy or
xerox copy of the holographic will, it may be
presented for probate [Rodelas v. Aranza
(1982) ]
Additional Dispositions
In holographic wills, the dispositions of the
testator written below his signature must be
dated and signed by him in order to make
them valid as testamentary dispositions [Art.
812, CC ]
When a number of dispositions appearing in a
holographic will are signed without being
dated, and the last disposition has a signature
and date, such date validates the dispositions
preceding it, whatever be the time of prior
dispositions. [Art. 813, CC ]
Insertion, Cancellation, Erasure or Alteration
[Art. 814, CC ]
Testator must authenticate by his full
signature.
Full signature does not necessarily mean the
testator’s full name; it rather means his usual
and customary signature. [Balane (2010) ]
Effect of insertion written by another person on
the validity of a holographic will
When Made Effect
After the execution,
without consent of
testator
Insertion considered
not written. Validity
cannot be defeated by
the malice or caprice
of a third person
After execution, with
consent
Will is valid, insertion
is void
After execution,
validated by testator’s
signature
Insertion becomes part
of the will. Entire will
becomes void because
it is not wholly written
by the testator
Contemporaneous to
the execution of the
will
Will is void because it
is not written entirely
by the testator
Joint Wills
(1) A single testamentary instrument,
(2) Which contains the wills of two or more
persons,
(3) Jointly executed by them,
(4) Either for their reciprocal benefit or for the
benefit of a third person.
Mutual Wills
(1) Executed pursuant to an agreement
between two or more persons,
(2) Jointly executed by them,
(3) Either for their reciprocal benefit or for the
benefit of a third person.
Reciprocal Wills
(1) Testators name each other as beneficiaries
in their own wills,(2) Under similar testamentary plans
Note: A will that is both joint and mutual is one
executed jointly by two or more persons, the
provisions of which are reciprocal and which
shows on its face the devises are made in
consideration of each other. Such is prohibited
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under Art. 819, CC. Prohibition is applicable
only to joint wills executed by Filipinos, even if
execution is made in a foreign country which
allows joint wills.
A.4. CODICILSCodicil
(1) It is a supplement or addition to a will,
(2) made after the execution of a will,
(3) and annexed to be taken as a part of the
will,
(4) by which any disposition made in the
original will is explained, added to, or
altered.
(5) in order that it may be effective, it shall be
executed as in the case of a will. [Arts.
825-826, CC ]
A.5. INCORPORATION BY REFERENCE
Requisites [Art. 827, CC ]
(a) The document or paper referred to in the
will must be in existence at the time of the
execution of the will.
(b) The will must clearly describe and identify
the same, stating among other things the
number of pages thereof.
(c) It must be identified by clear and
satisfactory proof as the document orpaper referred to therein; and
(d) It must be signed by the testator and the
witnesses on each and every page, except
in case of voluminous books of account or
inventories.
A.6. REVOCATION
A will may be revoked by the testator at any
time before his death [Art. 828, CC ]
Modes of Revocation [Art. 830, CC ]
(1) By implication of law; or
(2) By the execution of a will, codicil or other
writing executed as provided in the case of
wills; or
(3) By burning, tearing, canceling, or
obliterating the will with the intention of
revoking it, by the testator himself, or by
some other person in his presence, and by
his express direction.
The act contemplating revocation must be
done at any time before the death of thetestator. The right of revocation cannot be
waived or restricted. [Art. 828, CC ]
Law Governing Revocation [Art. 829, CC ]
Place of
Revocation
Testator’s
Domicile
Governing Law
Philippines Philippines, or
some other
country
Philippine Law
Outside the
Philippines
Philippines Philippine law
Foreign
Country
(1) Law of the
place where
the will was
made; or
(2) Law of the
place in which
the testator
had his
domicile at
the time of
revocation
Doctrine of Dependent Relative Revocation
Molo v. Molo (1951)
The rule that where the act of destruction is
connected with the making of another will so
as to fairly raise the inference that the testator
meant the revocation of the old to depend
upon the efficacy of the new disposition
intended to be substituted, the revocation will
be conditional and dependent upon theefficacy of the new disposition; and if for any
reason, the new will intended to be made as a
substitute is inoperative, the revocation fails
and the original will remain in full force.
The failure of the new testamentary disposition
upon whose validity the revocation depends is
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equivalent to the non-fulfillment of a
suspensive condition and hence prevents the
revocation of the original will.
Revocation vs. Nullity
Revocation Nullity By the act of the
testator
Presupposes a valid
act
Takes place during
the lifetime of the
testator
Testator cannot
renounce the right to
revoke
Proceeds from law
Inherent in the
testament, be it an
intrinsic or an
extrinsic defect
Invoked after the
testator’s death by
his heirs
Nullity of a will can
be disregarded bythe heirs through
voluntary
compliance
therewith
A.7. REPUBLICATION AND REVIVAL
The execution of a codicil referring to a
previous will has the effect of republishing the
will as modified by the codicil. [Art. 836, CC ]
The testator cannot republish withoutreproducing in a subsequent will, the
dispositions contained in a previous one which
is void as to its form. [Art. 835, CC ]
Reproduction in the codicil is required only
when the original will is void as to it form; in all
other cases, reference to the original will
suffices to republish it through the codicil.
[Tolentino ]
If after making a will, the testator makes a
second will expressly revoking the first, the
revocation of the second will does not revive
the first will, which can be revived only by
another will or codicil. [Art. 837, CC ]
Principle of instanter – Revoking clause in the
2nd will is not testamentary in character but
operates to revoke the prior will immediately
upon the execution of the will containing it.
The revocation of the 2nd will does not revive
the 1st will which has already become a nullity.
Republication vs. Revival
Revocation Nullity
Takes place by an
act of the testator
Corrects extrinsic
and intrinsic defects
Takes place by
operation of law
Restores a revoked
will
A.8. ALLOWANCE AND DISALLOWANCE
OF WILLS
i. PROBATE REQUIREMENT
No will shall pass either real or personal
property unless it is proved and allowed in
accordance with the Rules of Court [Art. 838,
CC ]
Probate – a proceeding in rem required to
establish the validity of a will and in order to
pass real or personal property [Art. 838, CC ]
The testator himself may, during his lifetimepetition the court having jurisdiction for theallowance of his will. [Art. 838, CC ]
Matters to be proved in probate
(1) Identity – Whether the instrument which is
offered for probate is the last will and
testament of the decedent
(2) Due Execution – Whether the will has been
executed in accordance with the
formalities prescribed by law
(3) Capacity – Whether the testator had
testamentary capacity at the time of
execution of the will
Scope of probate proceedings [Art. 839, CC ]
General rule: The probate court cannot inquire
into the intrinsic validity of testamentary
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provisions. Only the extrinsic validity of such
wills may be examined.
Exception: When practical considerations
demand that the intrinsic validity of the will be
resolved
When the will is intrinsically void on its face
(e.g., when there is clearly a preterition) such
that to rule on its formal validity would be a
futile exercise. [ Acain v. Diongson (1987)]
Claimants are all heirs and they consent, either
expressly or impliedly, to the submission of the
question of intrinsic validity to the court.
[Valera v. Inserto (1987)]
Probate court may pass upon the title to a
property, but such determination is provisional
and not conclusive, and is subject to the final
decision in a separate action to resolve title.
[Pastor v.CA (1983)]
Probate court may decide on the ownership of
a property when the estate contains only one
property to be adjudicated upon. [Portugal v.
Portugal-Beltran (2005)]
Revocation vs. Disallowance
Revocation Disallowance
Voluntary act of the
testator
Given by judicial
decree
With or without cause Must always be for a
legal cause
May be partial or total Always total, except
when the ground of
fraud or influence for
example affects only
certain portions of the
will
Effect of Final Decree of Probate,
Res Judicata
on Formal Validity
Subject to the right of appeal, the allowance of
the will, either during the lifetime of the
testator or after his death, shall be conclusive
as to due execution. [Art. 838, CC ]
The probate of a will by the probate court
having jurisdiction thereof is usually
considered as conclusive as to its dueexecution and validity, and is also conclusive
that the testator was of sound and disposing
mind at the time when he executed the will,
and was not acting under duress, menace,
fraud, or undue influence, and that the will is
genuine and not a forgery. [Mercado v. Santos
(1938) ]
ii. GROUNDS FOR DENYING PROBATE
(1) If the signature of the testator was
procured by fraud;(2) If it was procured by undue and improper
pressure and influence, on the part of the
beneficiary or some other person;
(3) If the testator acted by mistake or did not
intend that the instrument he signed
should be his will at the time affixing his
signature thereto;
(4) If the testator was insane or otherwise
mentally incapable of making a will at the
time of its execution;
(5)
If the formalities required by law have notbeen complied with; or
(6) If it was executed through force or under
duress, or the influence of fear, or threats.
[Art. 839, CC ]
B. INSTITUTION OF HEIR
Institution of Heirs – an act by virtue of which
the testator designates in his will the person or
persons who are to succeed him in his property
and transmissible rights and obligation [Art.
840, CC ]
A will shall be valid even though it
(1) should not contain an institution of an heir
or
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(2) such institution should not comprise the
entire estate or
(3) the person so instituted should not accept
the inheritance or be incapacitated to
succeed.
In such cases, the testamentary dispositions
made in accordance with law shall be
complied with and the remainder of the estate
shall pass to the legal heirs. [Art. 841, CC ]
Extent of Grant [Art. 842, CC ]
Freedom of disposition depends upon the
existence, kind and number of compulsory
heirs.
No compulsory heirs – Testator has full
power of disposition One with compulsory heirs cannot disregard
the rights of the latter; may only dispose of
the free portion of his estate
Effect of Predecease of Heir [Art. 856, CC ]
Any heir who dies before the testator or is
incapacitated to succeed or renounces the
inheritance transmits no rights of the testator
to his own heirs. This is without prejudice to
the rights of representation. [Tolentino ]
MANNER OF INSTITUTION
Rules on Identity of Heirs [Arts. 843-849, CC ]
The heir must be designated with sufficient
clarity
If an unknown person is instituted, the
disposition is void (unless by some event, the
identity becomes certain)
If a definite class or group of persons is
instituted, institution is valid.
The heir shall be designated by name orsurname.
If there are two or more persons with the
same names, indicate some circumstance by
which the heir may be known.
Even though the name may have been
omitted but there can be no doubt as to who
has been instituted, the institution is valid.
If there is error in the name but identity can
still be identified through other proof,
institution is still valid.
If heir is unidentifiable, none is deemed
instituted.
MANNER OF DISTRIBUTION
Heirs instituted without designation of
shares shall inherit in equal parts [Art. 846 ]
If the institution pertains to some heirs
individually and others collectively, the
presumption is that all are individually
instituted. [Art. 847 ]
If siblings are instituted (whether full or half-
blood), the presumption is that the
inheritance is to be distributed equally [Art.
848 ]. This is different from the rules ofdistribution in intestate succession.
If parents and children are instituted, they
are presumed to have been instituted
simultaneously and not successively. [Art.
849 ]
Every disposition in favor of an unknownperson shall be void, unless by some event orcircumstance his identity becomes certain.
A disposition in favor of a definite class or
group of persons shall be valid. [Art. 845, CC ]
INTENT OF THE TESTATOR
False Cause [Art. 850, CC ]
The statement of a false cause for the
institution of an heir shall be considered as not
written unless it appears from the will that the
testator would not have made such institution
if he had known the falsity of such cause.
Austria v. Reyes (1973)
Falsity of stated cause for institution will set
aside or annul the institution if the following
are present:
(1) The cause for the institution is stated in the
will
(2) The cause is shown to be false
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(3) It appears on the face of the will that the
testator would not have made such
institution if he had known the falsity of the
cause.
Scope of Institution [Arts. 852-853, CC ] (1) There are more than one instituted heir
(2) The testator intended them to get the
whole estate or the whole disposable
portion
(3) The testator has designated a definite
portion for each heir
(4) Under Art. 852: the total of all portions is
less than the whole estate (or free portion)
Therefore, a proportionate increase is
necessary
The difference cannot pass by intestacybecause the intention of the testator is
clear—to give the instituted heirs the
entire amount
(5) Under Art. 853: The total exceeds the
whole estate (or free portion)
Therefore, a proportionate reduction
must be made on the remaining part of
the estate.
Preterition
The preterition or omission of one, some, or allof the compulsory 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 annul the institution of heir; but the
devises and legacies shall be valid insofar as
they are not inofficious.
If the omitted compulsory heirs should die
before the testator, the institution shall be
effectual, without prejudice to the right of
representation. [Art. 854, CC ]
Concept [Art. 854, CC ]
(1) There must be a total omission of one,
some or all of the heir/s from the
inheritance. [Seangio v. Reyes (2006) ]
(2) The omission must be that of a compulsory
heir.
(3) The compulsory heir omitted must be of
the direct line.
(4) The omitted compulsory heir must be living
at the time of the testator’s death or must
at least have been conceived before the
testator’s death.
(a) Compulsory Heirs in the Direct Line
A direct line is that constituted by the
series of degrees among ascendants and
descendants (ascending and descending).
[Art. 964, par.2, CC ]
(b) Dispositions Less Than Legitime But No
Preterition [Balane]
If the heir in question is instituted in the
will but the portion given to him by the willis less than his legitime – there is no
preterition. [Reyes v. Barretto-Datu (1967) ]
If the heir is given a legacy or devise –
there is no preterition. [Aznar v. Duncan
(1966) ]
If the heir had received a donation inter
vivos from the testator – the better view is
that there is no preterition. The donation
inter vivos is treated as an advance on thelegitime under Articles 906, 909, 910 and
1062.
The remedy, if the value of inheritance,
legacy or devise, or donation inter vivos is
only for completion of his legitime under
Articles 906 and 907.
(c) Distinguished from Disinheritance
Preterition Disinheritance
Tacit deprivation of a
compulsory heir of
his legitime
May be voluntary but
the presumption of
Express deprivation
of a compulsory heir
of his legitime
Always voluntary
For some legal
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law is that it is
involuntary
Law presumes there
has been merely
oversight or mistake
on the part of thetestator
Since preterition
annuls the
institution of heirs,
the omitted heir gets
not only his legitime
but also his share in
the free portion not
disposed of by way
of legacies and
devises
cause
If the disinheritance
is valid, the
compulsory heir
disinherited is
totally excludedfrom the
inheritance. In case
of invalid
disinheritance, the
compulsory heir is
merely restored to
his legitime
(d) Effects of Preterition [ Art. 854, CC ]
(1) The institution of the heir is annulled.
(2) Devises and legacies shall remain valid
as long as they are not inofficious.
(3) If the omitted compulsory heir should
die before the testator, the institution
shall be effective, without prejudice to
the right of representation.
When there are no devises and legacies,preterition will result in the annulment ofthe will and give rise to intestatesuccession. [Neri v. Akutin (1941) ]
C. SUBSTITUTION OF HEIRS
Substitution - is the appointment of another
heir, so that he may enter into the inheritance
in default of the heir originally instituted. [Art.
857, CC ]
The substitute shall be subject to the samecharges and conditions imposed upon theinstituted heir, unless the testator hasexpressly provided the contrary, or the chargesor conditions are personally applicable only tothe heir instituted. [Art. 862, CC ]
Kinds
(1) Brief or Compendious
(2) Reciprocal
(3) Simple or Common
(4) Fideicommissary
(1) Brief or Compendious [Art. 860, CC ]
Brief – Two or more persons were
designated by the testator to substitute for
only one heir
Compendious – One person is designated
to take the place of two or more heirs
(2) Reciprocal [Art. 861, CC ]
If the heirs instituted in unequal shares
should be reciprocally substituted, thesubstitute shall acquire the share of the
heir who dies, renounces, or is
incapacitated, unless it clearly appears
that the intention of the testator was
otherwise. If there is more than one
substitute, they shall have the same share
in the substitution as the institution.
Example (only 1 substitute): If two heirs are
reciprocally substituted, then if one of
them dies before the testator dies,renounces, or turns out to be
incapacitated, the other will get his share,
regardless of whether or not their shares
are equal.
Example (more than 1 substitute): A is
instituted to 1/3, B to 1/6, and C to ½. If C
dies before the testator, renounces or turns
out to be incapacitated, then the other two
will get his shares in the same proportion
as in the institution. A will get twice asmuch as B (because his share of 1/3 in the
institution is twice the size of B’s share of
1/6)
(3) Simple Substitution [Art. 859, CC ]
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The testator may designate one or more
persons to substitute the heir/s instituted
in case the heirs should:
(1) die before him (predecease),
(2) should not wish to accept the
inheritance (repudiation), or(3) should be incapacitated to accept the
inheritance (incapacitated).
(4) Fideicommissary Substitution
The testator institutes an heir with an
obligation to preserve and to deliver to
another the property so inherited. The heir
instituted to such condition is called the
First Heir or the Fiduciary Heir; the one to
receive the property is the Fideicommissary
or the Second Heir. [Art. 863, CC ]
Requisites: [Arts. 863-865, CC ]
(a) A Fiduciary or First Heir instituted is
entrusted with the obligation to
preserve and to transmit to a
Fideicommissary Substitute or Second
Heir the whole or part of the
inheritance.
(b) The substitution must not go beyond
one degree from the heir originally
instituted.(c) The Fiduciary Heir and the
Fideicommissary are living at the time
of the death of the testator.
(d) The fideicommissary substitution must
be expressly made.
(e) The fideicommissary substitution is
imposed on the free portion of the
estate and never on the legitime
In the absence of an obligation on the part
of the first heir to preserve the property forthe second heir, there is no
fideicommissary substitution. [PCIB v.
Escolin (1974) ]
Effects of predecease of the first heir/fiduciary
or the second heir/fideicommissary
Situation 1: If the first heir dies followed by the
second heir, then the testator dies, who will
inherit? The legal heirs. There is no
fideicommissary substitution because first and
second heirs are not living at the time of the
testator’s death. [Art. 863, CC ]
Situation 2: The testator dies first followed by
the second heir. The first heir survived them
but subsequently dies, who will inherit? The SH
and his heirs under Art. 866, CC. This is
because the SH passes his rights to his own
heirs when he dies before FH.
Situation : If the first heir dies, followed by the
testator, then the second heir, who will inherit?
No specific provision in law, but SH inherits
because the T intended him to inherit.
D. TESTAMENTARY DISPOSITIONS
WITH A CONDITION, A TERM, AND A
MODE
Kinds of Testamentary Dispositions
(1)
Conditional [Art. 871, CC ]
(2) Dispositions with a term [Art. 885, CC ]
(3) Dispositions with a mode/modal
dispositions [Art. 882, CC ]
CONDITIONAL DISPOSITIONS
Basis of testator’s right to impose conditions,
terms or modes: Testamentary freedom
Prohibited conditions: (considered as not
imposed)
(1)
Any charge, condition or substitution
whatsoever upon the legitimes. [Art. 872 ]
(2) Impossible and illegal conditions. [Art.
873 ]
(3) Absolute condition not to contract a first
marriage. [Art. 874 ]
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(4) Absolute condition not to contract a
subsequent marriage unless imposed on
the widow or widower by the deceased
spouse, or by the latter’s ascendants or
descendants. [Art. 874 ]
(5)
Scriptura captatoria or legacy-huntingdispositions - dispositions made upon the
condition that the heir shall make some
provision in his will in favour of the testator
or of any other person. [Art. 875 ]
criptura captatoria/
Legacy-Hunting
Dispositions
Reasons for prohibition:
(1) The captatoria converts the testamentary
grants into contractual transactions;
(2)
It deprives the heirs of testamentary
freedom;
(3) It gives the testator the power to dispose
mortis causa not only of his property but
also of his heir’s.
Effect: Entire disposition is void
Potestative, Casual and Mixed Conditions
(1) Potestative Conditions
General rule: Must be fulfilled as soon asthe heir learns of the testator’s death
Exception: If the condition was already
complied with at the time the heir learns of
the testator’s death; or if the condition is of
such a nature that it cannot be fulfilled
again.
Constructive Compliance: deemed fulfilled
(2)
Casual or mixed
Casual condition – one whose fulfillment
depends on chance or the will of a third
person.
Mixed condition – one whose fulfillment
depends partly on the will of the heir and
partly on chance or the will of a third
person.
General rule: May be fulfilled at any time
(before or after testator’s death), unless
testator provides otherwise.
Exception: If already fulfilled at the time of
execution of will:
(1) if testator unaware of the fact of
fulfillment – deemed fulfilled
(2) if testator aware:
can no longer be fulfilled again:
deemed fulfilled
can be fulfilled again: must be
fulfilled again.
Constructive Compliance:
if casual – not applicable
if mixed – applicable only if dependent partlyon the will of a third party not interested.
DISPOSITIONS WITH A TERM
A term may either be suspensive or resolutory.
(1) If the term is suspensive:
Before the arrival of the term, the property
should be delivered to the legal or
intestate heirs.
A caución muciana has to be posted by the
heirs.
(2) If the term is resolutory:
Before the arrival of the term, the property
should be delivered to the instituted heir.
No caución muciana required as the heir
has a right over the property during the
period.
MODAL DISPOSITIONS
Dispositions with an obligation imposed upon
the heir, without suspending the effectivity of
the institution, as a condition does
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Must be clearly imposed as an obligation in
order to be considered as one. Mere
preferences or wishes expressed by the
testator are not modes.
A mode functions similarly to a resolutorycondition.
In modal institutions, the testator states (1) the
object of the institution, (2) the purpose or
application of the property left by the testator,
or (3) the charge imposed by the testator upon
the heir. [Rabadilla v. CA (2000) ]
Caución Muciana
A security to guarantee the return of the value
of property, fruits, and interests, in case ofcontravention of condition, term or mode
Instances when it is needed:
(1) Suspensive term [ Art. 885,CC ]
(2) Negative potestative condition - when the
condition imposed upon the heir is
negative, or consists in not doing or not
giving something [ Art. 879, CC ]
(3) Mode [ Art. 882, par 2, CC ]
E. LEGITIME
It is that part of the testator’s property which
he cannot dispose of because the law has
reserved it for his compulsory heirs. [Art. 886,
CC ]
COMPULSORY HEIRS AND VARIOUS
COMBINATIONS
Classes of Compulsory Heirs [Art. 887, CC ]
(1)
Primary: Those who have precedence over
and exclude other compulsory heirs:
Legitimate Children and Legitimate
Descendants with respect to their
Legitimate Parents and Ascendants
(2) Secondary: Those who succeed only in the
absence of the Primary compulsory heirs:
(a) Legitimate Parents and Legitimate
Ascendants, with respect to their
Legitimate Children and Descendants.
(They will inherit only in default of
legitimate children and their
descendants) (b) Illegitimate Parents with respect to
their Illegitimate Children. (They will
inherit only in default of the
illegitimate and legitimate children
and their respective descendants).
Note that other illegitimate
ascendants are not included.
(3) Concurring: Those who succeed together
with the primary or the secondary
compulsory heirs:
(a)
Widow or Widower / Surviving Spouse(Legitimate)
(b) Illegitimate Children and Illegitimate
Descendants
If the testator is a
legitimate child:
If the testator is an
illegitimate child:
(1) LC and
descendants
(2) In default of No. 1,
LP and ascendants(3) SS
(4) IC and
descendants
(1) LC and
descendants
(2) ILC and
descendants(3) In default of Nos.
1-2 ILP only
(4) SS
Specific Rules on Legitimes
(1) Direct Descending Line
(a) Rule of Preference between lines [Arts.
978 and 985, CC ]
Those in the direct descending line
shall exclude those in the direct
ascending and collateral lines; and Those in the direct ascending line
shall, in turn, exclude those in the
collateral line.
Rule of Proximity [Art. 926, CC ]: The
relative nearest in degree excludes
the farther one
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(b) Right of representation ad infinitum in
case of predecease, incapacity, or
disinheritance [Arts. 972 and 992, CC ]
For decedents who are Legitimate
Children, only the Legitimate
Descendants are entitled to right ofrepresentation.
For decedents who are Illegitimate
Children, both the Legitimate and
the Illegitimate Descendants can
represent, only with respect to the
decedent’s illegitimate parents.
(c) If all the Legitimate Children repudiate
their legitime, the next generation of
Legitimate Descendants may succeed
in their own right.
(2) Direct Ascending Line
(a) Rule of division between lines
The father and the mother shall
inherit equally if both living. One
parent succeeds to the entire estate
of the child if the other parent is
dead. [Art. 986, CC ]
In default of the mother and thefather, the ascendants nearest in
degree will inherit. [Art. 987 ]
If there is more than one relative of
the same degree but of different
lines, one half will go to the paternal
ascendants and the other half to the
maternal ascendants. [Art. 987 ]
(b) Rule of equal division
The relatives who are in the same
degree shall inherit in equal shares.
[Art. 987 ]
Summary of Legitimes of Compulsory Heirs
Legend: LC – Legitimate ChildrenSS – Surviving SpouseLP – Legitimate ParentsILP – Illegitimate Parents
Surviving
Relatives
LC &
Descendants
SS ILC LP &
AscendantsILP
1 LC alone 1/2 of the
estate in equal
portions
2 1 LC, SS 1/2 1/4
LC, SS 1/2 in equal
portions
Same portion as 1LC
4 LC, ILC 1/2 in equal
portions
1/2 share of 1 LC (for
each ILC)
5 1 LC, SS, ILC 1/2 1/4 (preferred) 1/2 share of 1 LC (foreach child)
N.B. The share of the
ILC may suffer
reduction pro rata
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because spouse is
given preference
6 2 or more LC,
SS, ILC
1/2 in equal
portions
Same as share of 1LC 1/2 share of 1 LC (for
each child)
7 LP alone 1/28 LP, ILC 1/4 in equal portions 1/2
9 LP, SS 1/4 1/2
10 LP, SS, ILC 1/8 1/4 1/2
11 ILC alone 1/2 in equal portions
12 ILC, SS 1/3 1/3 in equal portions
1 SS alone 1/2
*SS alone where
marriage is in articulomortis and testatordies within 3 monthsfrom marriage – 1/3
But if they have been
living together as
husband and wife for
more than 5 years – 1/2
14 ILP alone 1/2
15 ILP, SS 1/4 1/4
Steps in Determining the Legitime of
Compulsory Heirs
(1) Determine the gross value of the estate at
the time of the death of the testator.
(2) Determine all debts and charges which are
chargeable against the estate.
(3) Determine the net value of the estate by
deducting all the debts and charges from
the gross value of the estate.
(4)
Collate or add the value of all donationsinter vivos to the net value of the estate.
(5) Determine the amount of the legitime from
the total thus found.
(6) Impute the value of all donations inter
vivos made to strangers against the
disposable free portion and restore it to the
estate if the donation is inofficious.
(7) Distribute the residue of the estate in
accordance with the will of the testator.
Remedy of a Compulsory Heir in case of
Impairment of Legitime
Extent and Nature of
ImpairmentRemedy
Total omission of a
compulsory heir who is
a direct descendant or
ascendant (preterition)
Annulment of
institution and
reduction of legacies
and devises [Art. 854,
CC ]
Testamentary
dispositions impairing
Reduction of the
disposition insofar as
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or diminishing the
legitime
they may be inofficious
or excessive [Art. 907,
CC ]
Partial impairment Completion of the
legitime [Art. 906, CC ]
Impairment by
inofficious donations
Collation – reduction
of donations [Arts. 771
and 911, CC ]
RE ERVA TRONCAL
Art. 891, CC. The ascendant who inherits fromhis descendant any property which the lattermay have acquired by gratuitous title fromanother ascendant, or a brother or sister, isobliged to reserve such property as he may
have acquired by operation of law for thebenefit of relatives who are within the thirddegree and who belong to the line from whichsaid property came.
Concept of
Reserva Troncal
(1) A descendant (prepositus ) inherits or
acquires property from an ascendant or
from a brother or sister (origin or mediate
source) by gratuitous title
(2) The same property is inherited by another
ascendant (reservista ) or is otherwiseacquired by him by operation of law from
the said descendant (prepositus )
(3) The said ascendant (reservista ) must
reserve the property for the benefit of the
relatives of the deceased descendant
within the third civil degree and who
belong to the line from which the said
property came (reservatarios ).
Parties: [Balane ]
(1)
Origin or Mediate Source – either anascendant of any degree of ascent or a
brother or sister of the Prepositus ;
responsible for the 1st transfer
(2) Prepositus – the first transferee of the
reserved property
(3) Reservista – an ascendant of the
Prepositus other than the Origin or
Mediate Source; the one obligated to
reserve the property
(4) Reservatarios – within the 3rd degree of
consanguinity from the Prepositus
[Cabardo v. Villanueva (1922) ] belonging to
the line from which the property came
Requisites for
Reserva Troncal
[Chua vs. CFI
(1977) ]:
(a) That the property was acquired by a
descendant (Prepositus ) from an
ascendant or from a brother or sister
(Origin or Mediate Source ) by gratuitous
title,
(b) That the Prepositus died without
(legitimate*) issue,
(c)
That the property is inherited by anotherascendant (Reservista ) by operation of law,
and
(d) That there are relatives within the 3rd
degree (Reservatarios ) belonging to the
line from which said property came.
Only legitimate descendants will prevent the
property from being inherited by the legitimate
ascending line by operation of law [Balane ]
transmissions involved: [Balane ] (1) 1st transfer – by gratuitous title, from a
person to his descendant, brother or sister
(2) 2nd transfer – by operation of law, from the
transferee in the 1st transfer to another
ascendant. This creates the reserva.
(3) 3rd transfer – from the transferee in the
second transfer to the relatives
JURIDICAL NATURE OF RIGHTS
Nature of the reservista’s right: [Balane citing
Edroso v. Sablan ] The reservista’s right over the reserved
property is one of ownership
The right of ownership is subject to a
resolutory condition, i.e. the existence of
reservatarios at the time
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The right of ownership is alienable, but
subject to the same resolutory condition.
The reservista’s right of ownership is
registrable.
Nature of reservatarios’ right: [Sienes v.Esparcia ]
The reservatarios have a right of expectancy
over the property.
The right is subject to a suspensive condition,
i.e. the expectancy ripens into ownership if
the reservatarios survive the reservistas .
The right is alienable but subject to the same
suspensive condition.
The right is registrable.
Reserva Minima
vs.
Reserva Maxima
(1) The prepositus acquired property
gratuitously from an ascendant, a brother
or sister
(2) In his will, he institutes as his heir his
ascendant (who is also a compulsory heir)
such that the ascendant receives half of
the estate by operation of law as legitime
and the other half by testamentary
disposition
Two Views
(1) Reserva Maxima: The entire property will
be considered acquired as legitime and
therefore wholly reservable
(2) Reserva Minima: One half is reservable, the
other half is not subject to reserva troncal
[Tolentino, p. 284 ]
Extinguishment of the
Reserva
(1) Loss of the reservable property
(2) Death of the reservista
(3) Death of all the relatives within the third
degree belonging to the line from which
the property came
(4) Renunciation by the reservatarios
(5) Registration of the reservable property
under the Torrens system as free
(6) Prescription, when the reservista holds the
property adversely against the
reservatarios , as free from reservation
F. DISINHERITANCE
Definition [Art. 915, CC ](1) It is the act by which the testator
(2) For just cause
(3) Deprives a compulsory heir of his right to
the legitime.
Requisites of a Valid Disinheritance
(a) Heir disinherited must be designated by
name or in such a manner as to leave no
room for doubt as to who is intended to be
disinherited.
(b)
It must be for a cause designated by law.(c) It must be made in a valid will.
(d) It must be made expressly, stating the
cause in the will itself.
(e) The cause must be certain and true, and
must be proved by the interested heir if the
person should deny it.
(f) It must be unconditional.
(g) It must be total.
F.1. DISINHERITANCE OF CHILDREN AND
DESCENDANTS [Art. 919, CC ](1) When a child or descendant has been
found guilty of an attempt against the life
of the testator, his or her spouse,
descendants, or ascendants;
(2) When a child or descendant has accused
the testator of a crime for which the law
prescribes imprisonment for six years or
more, if the accusation has been found
groundless;
(3)
When a child or descendant has beenconvicted of adultery or concubinage with
the spouse of the testator;
(4) When a child or descendant by fraud,
violence, intimidation, or undue influence
causes the testator to make a will or to
change one already made;
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(5) A refusal without justifiable cause to
support the parent or ascendant who
disinherits such child or descendant;
(6) Maltreatment of the testator by word or
deed, by the child or descendant;
(7)
When a child or descendant leads adishonorable or disgraceful life;
(8) Conviction of a crime which carries with it
the penalty of civil interdiction.
F.2. DISINHERITANCE OF PARENTS AND
ASCENDANTS [Art. 920, CC ](1) When the parents have abandoned their
children or induced their daughters to live
a corrupt or immoral life, or attempted
against their virtue;(2) When the parent or ascendant has been
convicted of an attempt against the life of
the testator, his or her spouse,
descendants, or ascendants;
(3) When the parent or ascendant has accused
the testator of a crime for which the law
prescribes imprisonment for six years or
more, if the accusation has been found to
be false;
(4) When the parent or ascendant has been
convicted of adultery or concubinage withthe spouse of the testator;
(5) When the parent or ascendant by fraud,
violence, intimidation, or undue influence
causes the testator to make a will or to
change one already made;
(6) The loss of parental authority for causes
specified in this Code;
(7) The refusal to support the children or
descendants without justifiable cause;(8) An attempt by one of the parents against
the life of the other, unless there has been
a reconciliation between them.
F.3. DISINHERITANCE OF A SPOUSE [Art. 921, CC ]
(1) When the spouse has been convicted of an
attempt against the life of the testator, his
or her descendants, or ascendants;
(2) When the spouse has accused the testator
of a crime for which the law prescribes
imprisonment of six years or more, and the
accusation has been found to be false;
(3) When the spouse by fraud, violence,
intimidation, or undue influence cause the
testator to make a will or to change one
already made;
(4) When the spouse has given cause for legal
separation;
(5) When the spouse has given grounds for the
loss of parental authority;(6) Unjustifiable refusal to support the
children or the other spouse.
Summary of Causes of Disinheritance
Grounds for Disinheritance
CC 919
Children &
Descendants
CC 920
Parents &
Ascendants
CC 921
Spouse
CC 1032
Unworthiness
1 Guilty or Convicted of Attempt Against
the Life of the Testator, Spouse,Ascendant or Descendant
✓ ✓ ✓ ✓
2 Accused Testator or Decedent of Crime
Punishable by Imprisonment of 6 years
or more, and Found Groundless or False✓ ✓ ✓ ✓
Causes testator or decedent to Make a
Will or Change one by Fraud, Violence,
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Intimidation, or Undue Influence ✓ ✓ ✓ ✓
4 Unjustified Refusal to Support Testator ✓ ✓ ✓
5 Convicted of Adultery or Concubinage
with Spouse of Testator or Decedent
✓ ✓ ✓
6 Maltreatment of testator by Word and
Deed
✓
7 Leading a Dishonorable or Disgraceful
Life
✓
8 Conviction of Crime which carries the
penalty of Civil Interdiction
✓
9 Abandonment of Children or Inducing
Children to Live Corrupt and Immoral
Life or Against Attempted Virtue✓ ✓
10 Loss of Parental Authority ✓ ✓
11 Attempt by One Parent Against the Life
of the Other Unless there is
Reconciliation Between Parents✓
12 Spouse Has Given Cause for Legal
Separation
✓ ✓
1 Failure to Report Violent Death of
Decedent Within One Month Unless
Authorities Have Already Taken Action✓
14 Force, Violence, Intimidation, or UndueInfluence to Prevent Another from
Making a Will or Revoking One Already
Made or Who Supplants or Alters the
Latter’s Will
✓
15 Falsifies or Forges Supposed Will of
Decedent
✓
Modes of Revocation of Disinheritance
(1) Reconciliation [Art. 922, CC ]
(2) Subsequent institution of the disinherited
heir
(3) Nullity of the will which contains the
disinheritance.
Note: The moment that testator uses one of
the acts of unworthiness as a cause for
disinheritance; he thereby submits it to the
rules on disinheritance. Thus, reconciliation
renders the disinheritance ineffective.
Reconciliation [Art. 922, CC ] Effect of Reconciliation between Offender and
Offended Person: If no disinheritance has been
made yet, the offended person will be deprived
of his right to disinherit.
If disinheritance has been effected, it will be
rendered ineffectual.
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Rights of descendants of person disinherited
[Art. 923, CC ]
Disinheritance gives rise to the right of
representation in favor of the children anddescendants of the disinherited person with
respect to his legitime.
This is inconsistent with Art. 1033. In
disinheritance, reconciliation is sufficient. It
need not be in writing. In unworthiness,
however, it needs to be in writing. [Balane ]
INEFFECTIVE DISINHERITANCE [Art. 918, CC ]
Instances of Ineffective disinheritance:
(1)
There is no specification of the cause.(2) The cause is not proved.
(3) The cause is not among those specified in
the provisions.
Effect of Ineffective Disinheritance: if the
disinheritance lacks one or other of the
requisites mentioned in this article, the heir in
question gets his legitime. [Balane ]
Ineffective
DisinheritancePreterition
Person disinherited
may be any
compulsory heir
Person omitted must
be a compulsory heir
in the direct line
Only annuls the
institution in so far as
it prejudices the
person disinherited
Annuls the entire
institution of heirs
G. LEGACIES AND DEVISES
Legacy Devise
A gift of personal
property given in a will
A gift of real property
given in a will
It is bequeathed It is devised
Persons Charged With the Duty to Give
Legacies and Devises in a Will
(1) Compulsory heir, provided, their legitimes
are not impaired [ Art. 925, CC ]
(2) Voluntary heir
(3)
Legatee or devisee can be charged with theduty of giving a sub-legacy or sub-devise
but only to the extent of the value of the
legacy or devise given him [ Art. 925, CC ]
(4) The estate represented by the executor or
administrator, if no one is charged with this
duty to pay or deliver the legacy or devise
in the will
If there is an administration proceeding,
it constitutes a charge upon the estate.
If there is no administration proceeding,
it is a charge upon the heirs.
Validity and Effect of Legacy or Devise
Legacy or devise of a thing belonging to another
[Art. 930, CC]
Testator erroneously believed
that the property belonged to
him
Void
The thing bequeathed
afterwards becomes his by
whatever title
Effective
Legacy or devise of thing already belonging to
the legatee or devisee
The thing already belongs to
the legatee or devisee at the
time of the execution of the
will [Art. 932, CC ]
Ineffective
The thing is subject to an
encumbrance or interest of
another person [Art. 932, CC ]
Valid only as to
the interest or
encumbrance
Legatee or devisee
subsequently alienates the
thing [Art. 933,CC ]
Ineffective
After alienating the thing, the
legatee or devisee
subsequently reacquires it
Ineffective
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gratuitously [Art. 933, CC ]
After alienating the thing, the
legatee or devisee acquires it
by onerous title [Art. 933, CC ]
Legatee or
devisee can
demand
reimbursement
from the heir
or estate
Different Objects of Legacies and Devises [Art. 934-944, CC ]
Objects of Legacy or Devise Effect
Thing pledged or mortgaged to
secure a debt Estate is obliged to pay the debt
Other charges pass to the legatee or devisee
Credit or remission or release of
a debt
Effective only as regards the credit or debt existing at the time ofthe testator’s death
Legacy lapses if the testator later brings action against the debtor
If generic, comprises all credits/debts existing at time of execution
of will
Thing pledged by debtor Only the pledge is extinguished; the debt remains
To a creditor Shall not be applied to his credit unless the testator so declares
Order of payment of a debt If testator does not really owe the debt, the disposition is void
If the order is to pay more than the debt, the excess is not due
This is without prejudice to the payment of natural obligations
Alternative legacies and devises The choice is with the heir, or the executor or administrator
If the heir, legatee or devisee dies, the right passes to their heirs
Once made, the choice is irrevocable
Legacy of generic personalproperty or indeterminate real
property
Legacy is valid even if there are no things of the same kind in theestate
Devise of indeterminate real property valid only if there areimmovable property of the same kind in the estate
The choice belongs to the heir, legatee or devisee or the executoror administrator
Legacy of education Lasts until the legatee is of age or beyond the age of majority inorder that he may finish some professional, vocational or generalcourse provided he pursues his course diligently
If testator did not fix the amount, it is fixed in accordance with thesocial standing and circumstances of the legatee and the value ofthe estate
Legacy of support
Lasts during lifetime of legatee
If the testator used to give the legatee a sum of money for support,give the same amount unless it is markedly disproportionate to theestate
If testator did not fix the amount, it is fixed in accordance with thesocial standing and circumstances of the legatee and the value ofthe estate
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Order of Payment in Case the Estate Is Not Sufficient to Cover All the Legacies and Devises
Art. 911 Art. 950
Order of Preference
Legitime of compulsory heirs
Donations inter vivos Preferential legacies or devises
All other legacies or devises pro rata
Remuneratory legacy/devise
Preferential legacy/devise Legacy for support
Legacy for education
Legacy/devise of specific, determinate thing
which forms a part of the estate
All others pro rata
Application
When the reduction is necessary to preserve the
legitime of compulsory heirs from impairment
whether there are donations inter vivos or not; or
When, although, the legitime has been
preserved by the testator himself there are
donations inter vivos.
Art. 911, CC governs when there is a conflict
between compulsory heirs and the devisees and
legatees.
When there are no compulsory heirs and the
entire estate is distributed by the testator as
legacies or devises; or
When there are compulsory heirs but their
legitime has already been provided for by the
testator and there are no donations inter vivos.
Art. 950, CC governs when the question of
reduction is exclusively among legatees and
devisees themselves.
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Delivery of Legacy/Devise [Art. 951, CC ]
(1) The very thing bequeathed shall be
delivered and not its value
(2) With all its accessions and accessories
(3) In the condition in which it may be upon
the death of the testator(4) Legacies of money must be paid in cash
Effect of ineffective legacies or devises [Art.
956, CC ]
In case of repudiation, revocation or incapacity
of the legatee or devisee, the legacy or devise
shall be merged with the mass of the
hereditary estate, except in cases of
substitution or accretion.
Revocation of Legacies and Devises [Art. 957,
CC ]
(1) Testator transforms the thing such that it
does not retain its original form or
denomination
(2) Testator alienates the thing by any title or
for any cause. Reacquisition of the thing by
the testator does not make the legacy or
devise valid, unless it is effected by right of
repurchase.
(3)
Thing is totally lost during the lifetime orafter the death of the testator
(4) Other causes: nullity of will, non-
compliance with suspensive condition, sale
of the thing to pay the debts of the
deceased during the settlement of his
estate.
III. Legal or Intestate
SuccessionA. GENERAL PROVISIONS
Intestacy – that which takes place by operation
of law in default of compulsory and
testamentary succession. Not defined in the
Civil Code.
Instances when Legal or Intestate Succession
operates [Art. 960, CC ]
(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
(3) Upon the expiration of term, or period of
institution of heir [Balane, 426 ]
(4) Upon fulfillment of a resolutory condition
attached to the institution of heir,
rendering the will ineffective [Balane, 426 ]
(5) When the will does not dispose of all the
property belonging to the testator. Legal
succession shall take place only with
respect to the property which the testator
has not disposed (mixed succession)(6) If the suspensive condition attached to the
institution of the heir does not happen or is
not fulfilled
(7) If the heir dies before the testator
(8) If the heir repudiates the inheritance, there
being no substitution, and no right of
accretion takes place
(9) When the heir instituted is incapable of
succeeding, except in cases provided in the
Civil Code
(10)
Preterition – Intestacy may be total orpartial depending on whether or not there
are legacies or devises [Balane, 426 ]
Note: In all cases where there has been an
institution of heirs, follow the ISRAI order:
(1) If the Institution fails, Substitution occurs.
(2) If there is no substitute, the right of
Representation applies in the direct
descending line to the legitime if the
vacancy is caused by predecease,
incapacity, or disinheritance.
(3) The right of Accretion applies to the free
portion when the requisites in Art. 1016 are
present.
(4) If there is no substitute, and the right of
Representation or Accretion are not
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proper, the rules on Intestate succession
shall apply.
The Intestate or Legal Heirs:
(1) Relatives
(a)
Legitimate ascendants(b) Illegitimate parents
(c) Legitimate children
(d) Illegitimate children
(e) Surviving Spouse
(f) Brothers, sisters, nephews and nieces
(BSNN)
(g) Other collateral relatives
(2) Surviving spouse
(3) State (through escheat proceedings)
Intestate succession is based on the presumedwill of the decedent. That is, to distribute the
estate in accordance with the love and
affection he has for his family, and in default of
these persons, the presumed desire to promote
charitable and humanitarian activities.
[Balane ]
Fundamental Principles in Intestate Succession:
(1) Rule of Preference between Lines
Those in the direct descending line shall
exclude those in the direct ascendingand collateral lines;
Those in the direct ascending line shall,
in turn, exclude those in the collateral
line.
(2) Rule of Proximity
The relative nearest in degree excludes
the farther one [Art. 962(1), CC ] , saving
the right of representation when it
properly takes place.
(3) Rule of Equal Division
The relatives who are in the same degree
shall inherit in equal shares. [Arts.
962(2), 987 and 1006, CC ]
Exceptions: [Balane, 427-428 ](a) Rule of preference between Lines
(b) Distinction between legitimate and
illegitimate filiation. The ratio under
present law is 2:1. [Art. 983, in relation
to Art. 895 as amended by Art. 176, FC ]
(c) Rule of division by line in the ascending
line [Art. 987 (2), CC ](d) Distinction between full-blood and
half-blood relationship among
brothers and sisters, as well as
nephews and nieces. [Art. 1006 and
1008, CC ]
(e) Right of representation.
(4) Rule of Barrier between the legitimate
family and the illegitimate family (the iron-
curtain rule)
The illegitimate family cannot inherit by
intestate succession from the legitimatefamily and vice-versa. [Art. 992, CC]
(5) Rule of Double Share for full blood
collaterals
When full and half-blood brothers or
sisters, nephews or nieces, survive, the full
blood shall take a portion in the
inheritance double that of the half-blood.
[Arts. 895 and 983, CC]
Note:
If one of the legitimate ascendants,illegitimate parents, legitimate children or
illegitimate children survives, the brother,
sisters, nephews, and nieces (BSNN) are
excluded.
If one of the legitimate ascendants,
illegitimate parents, legitimate children,
illegitimate children or surviving spouse
survives, the other collateral relatives and
the state are excluded.
If any of the heirs concur in legitimes, thenthey also concur in intestacy.
A.1. RELATIONSHIP
The number of generations determines the
proximity of the relationship. Each generation
forms one degree. [Art. 963, CC ]
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A series of degrees forms a line. This line may
either be direct or collateral. [Art. 964, CC ]
A direct line is that constituted by the series
of degrees among ascendants and
descendants.
The direct line is either ascending (brings aperson with those from whom he descends)
and descending (connecting the head of the
family with those who descend from him).
[Art. 965, CC ]
A collateral line is that constituted by the
series of degrees among persons who are not
ascendants or descendants, but who come
from a common ancestor.
Note: It is important to distinguish between
direct and collateral as the direct has
preference over the collateral.
In a line, as many degrees are counted as there
are generations. [Art. 966, CC ]
(1) In the direct line, ascent is made up to the
common ancestor or progenitor.
(2) In the collateral line, ascent is made to the
common ancestor. Then descent to the
person with whom the computation is to be
made.
Note: Descending line is preferred over
ascending.
Blood relationship is either full or half-blood.
[Art. 967, CC ]
Note: As among brothers and sisters and
nephews and nieces, there is a 2:1 ratio for full-
blood and half-blood relatives. Direct relatives
are preferred. But this distinction does not
apply with respect to other collateral relatives.
Incapacity [Art. 968, CC ]
General rule: If there are several relatives of the
same degree, and one or some of them are
unwilling or incapacitated to succeed, his
portion shall accrue to the others of the same
degree.
Exception: When the right of representation
should take place.
Note: This accretion in intestacy takes place in
case of predecease, incapacity, or renunciation
among heirs of the same degree. The relatives
must be in the same relationship because of
the Rule of Preference of Lines.
Repudiation [Arts. 968-969, CC ]
There is no right of representation in
repudiation. If the nearest relative/s repudiates
the inheritance, those of the following degree
shall inherit in their own right.
In case of repudiation by all in the same
degree, the right of succession passes on the
heirs in succeeding degrees: descending line
first, ascending line next, and collateral line
next. [Balane ]
Adoption [Art. 189, FC ]
In adoption, the legal filiation is personal and
exists only between the adopter and the
adopted. The adopted is deemed a legitimatechild of the adopter, but still remains as an
intestate heir of his natural parents and other
blood relatives. (Note, however, Section 16 of
the Domestic Adoption Act [RA 8552], which
provides that all legal ties between the
biological parent(s) and the adoptee shall be
severed and the same shall then be vested on
the adopter(s).”
A.2. RIGHT OF REPRESENTATION
Representation – right created by fiction of
law, by virtue of which the representative is
raised to the place and the degree of the
person represented, and acquires the rights
which the latter would have if he were living or
if he could have inherited [Art. 970, CC ]
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Effect of Representation
The representative heir acquires the rights
which the person represented would have if he
were living or if he could have inherited.
When it occurs
Representation is allowed with respect to
inheritance conferred by law (legitime and
intestate based on Art. 923)
It occurs only in the following instances: (DIP)
(1) Predecease of an heir
(2) Incapacity or unworthiness
(3) Disinheritance [Art. 923, CC ]
There is no representation in testamentary
succession. [Art. 856, CC ]
There is no representation in repudiation.
A renouncer can represent, but cannot be
represented. Rationale is found in Art. 971
which states that “The representative does not
succeed the person represented but the one
whom the person represented would have
succeeded.”
Representation in the Direct Descending Line
Representation takes place ad infinitum in the
direct descending line but never in the direct
ascending line. [Art. 972, CC ]
General rule: Grandchildren inherit from the
grandparents by right of representation, if
proper.
Exception: Whenever all the children repudiate,
the grandchildren inherit in their own right
because representation is not proper. [Art.
969, CC ]
Representation in Collateral Line
In the collateral line, representation takes
place only in favor of the children of the
brothers or sisters (i.e., nephews and nieces)
whether of the full or half-blood [Art. 972 , CC ]
and only if they concur with at least one uncle
or aunt. In this case, they share in the
inheritance per stirpes.
If the children survive alone, they inherit in
their own right and share in equal proportionsor per capita . [Art. 975, CC ]
Right of representation in the collateral line is
only possible in intestate succession. It cannot
take place in testamentary succession.
Per stirpes
Inheritance per stirpes means that the
representative/s shall receive only what the
person represented would have received, if
he were living or could inherit. [Art.975 , CC ] If there are more than one representative in
the same degree, then it shall be divided
equally, without prejudice to the distinction
between legitimate and illegitimate, if
applicable.
The Double Heirship Test
In determining whether or not representation
is proper, it is necessary that the
representative must be a legal heir of both
the person he is representing and the
decedent. [Art. 973, CC ]
But the representative need not be qualified
to succeed the person represented. [Art. 971,
CC ] In the same manner, the person
represented need not be qualified to succeed
the decedent, as it is his disqualification
which gives rise for representation to apply.
Legitimate children may not be
represented by their illegitimate
descendants (because of the bar in Art.992). In contrast, illegitimate children may
be represented by their legitimate and
illegitimate descendants. [ Art. 902 ]
Illustration
A has legitimate son J and
illegitimate son K. J has an illegitimate son
J-1 while K also has an illegitimate son K-1.
K-1 may inherit from A by representation of
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K (under Art. 902), but J-1 may not inherit
from A (because of the barrier under Art.
992)
Representation in Adoption
If the adopting parent should die before theadopted child, the latter cannot represent
the former in the inheritance of the parents
or ascendants of the adopter. The adopted
child is not related to the deceased in that
case, because filiation created by fiction of
law is exclusively between the adopter and
the adopted. [Tolentino, 448-449 ]
B. ORDER OF INTESTATE SUCCESSION
Decedent is a Legitimate Child Decedent is an Illegitimate Child Decedent is an Adopted Child
1 Legitimate children or
descendants (LCD)
Legitimate children or
descendants (LCD)
Legitimate children or
descendants (LCD)
2 Legitimate parents or
ascendants (LPA)
Illegitimate children or
descendants (LPA)
Illegitimate children or
descendants (ICD)
3 Illegitimate children or
descendants (ICD)
Illegitimate parents (IP) Legitimate or illegitimate
parents, or legitimate
ascendants, adoptive parents
4 Surviving spouse (SS) Surviving spouse (SS) Surviving spouse (SS)
5 Brothers and sisters, nephews,
nieces (BS/NN)
Illegitimate brothers andsisters, nephews, nieces(IBS/NN)
Brothers and sisters, nephews,
nieces (BS/NN)
6 Legitimate collateral relatives
within the 5th degree (C5)
State State
7 State
Rules of Exclusion and Concurrence in Intestate Shares
Intestate Heirs Excludes Excluded By Concurs With
LC + LD Ascendants, Collateralsand State
No one SS + ILC
ILC + D ILP, Collaterals andState
No one SS, LC, LP
LP + LA Collaterals and State LC ILC + SS
ILP Collaterals and State LC and ILC SS
SS Collaterals other than
siblings, nephews and
nieces, State
No one LC, ILC, LP, ILP,Siblings, Nephews,
Nieces
Siblings, Nephews,Nieces
All other collaterals andState
LC, ILC, LP, ILP SS
Other collaterals within
5th degree
Collateral more remotein degree and State
LC, ILC, LP, ILP and SS Collaterals in the same
degree
State No one Everyone No one
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Outline of Intestate Shares
(1) Legitimate children only
Divide entire estate equally among all
legitimate children [Art. 979, CC ]
Legitimate children include an adopted
child.
(2) Legitimate children and Illegitimate children
Divide entire estate such that each
illegitimate child gets ½ of what a
legitimate child gets [Art. 983, CC and Art.
176, FC ]
Ensure that the legitime of the legitimate
children are first satisfied.
(3) Legitimate children and surviving spouse
Divide entire estate equally between the
legitimate children and the surviving
spouse, the latter deemed as one child. The
same rule holds where there is only one
child.
“Children” as used in Art. 996 is interpreted
to include a situation where there is only
one child.
(4) Legitimate children. Surviving spouse, and
Illegitimate children
Divide the entire estate such that the
surviving spouse is deemed one legitimate
child and each illegitimate child getting ½
of what the legitimate child gets. [Art. 996,
CC and Art. 176, FC ]
Ensure that the legitime of the legitimate
children and the spouse are first satisfied.
(5) Legitimate parents only
Divide the entire estate equally. [Art. 985,
CC ]
(6) Legitimate ascendants only (excluding
parents)
Divide the entire estate equally but with the
observance of the rule of division by line.
[Art. 987, CC ]
(7) Legitimate parents and illegitimate children
Legitimate parents get ½ of the estate,
illegitimate children get the other ½. [Art.
991, CC ]
(8) Legitimate parents and surviving spouse
Legitimate parents get ½ of the estate; The
surviving spouse gets the other ½. [Art. 997,
CC ]
(9) Legitimate parents, surviving spouse and
illegitimate children
Legitimate parents get ½ of the estate;
surviving spouse and the illegitimate child
each get ¼ each, the latter to share among
themselves if more than one. [Art. 1000, CC ]
(10) Illegitimate children only
Divide the entire estate equally. [Art. 988,
CC ]
(11) Illegitimate children and surviving spouse
Illegitimate children get ½ of the estate; the
surviving spouse gets the other ½. [Art. 998,
CC ]
(12) Surviving spouse only
Entire estate goes to the surviving spouse.
[Art. 994/995, CC ]
(13) Surviving spouse and illegitimate parents
Illegitimate parents get ½ and the spouse
gets the other ½. [by analogy with Art. 997,
CC ]
(14) Surviving spouse and legitimate brothers
and sisters, nephews and nieces
Surviving spouse gets ½ of the estate, while
the rest gets the other ½ with the nephews
and nieces inheriting by representation if
proper. [Art. 1001 ]
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(15) Surviving spouse and illegitimate brothers
and sisters, nephews and nieces
Surviving spouse gets ½ of the estate while
the rest gets the other ½ with the nephews
and nieces inheriting by representation, ifproper; Note that all the other relatives
should be “illegitimate” because of the iron-
curtain rule. [Art. 994, CC ]
(16) Illegitimate parents only
Entire estate goes to the illegitimate
parents. [Art. 993, CC ]
(17) Illegitimate parents and children of any kind
(whether legitimate or illegitimate child)
Illegitimate parents are excluded and donot inherit; For the rule on the respective
shares of the children, see numbers 1, 2 or
10, whichever is applicable.
(18) Legitimate brothers and sisters only
Divide the entire estate such that full-blood
brothers/sisters gets a share double the
amount of a half-blood brother or sister.
[Art. 1004 and 1006, CC ]
(19)
Legitimate brothers and sisters, nephews
and nieces
Divide the entire estate observing the 2 is to
1 ratio for full and half-blood relationships
with respect to the brothers and sisters,
with the nephews and nieces inheriting by
representation, if proper. [Art. 1005 & 1008,
CC]
(20) Nephews and nieces only
Divide the entire estate per capita ,
observing the 2 is to 1 ratio. [Arts. 975 and1008, CC ]
(21) Other collaterals [Arts. 1009 and 1010 ]
Divide entire estate per capita. Collateral
relatives must be with the 5th degree of
consanguinity.
Note: the nearer relative excludes the more
remote relatives.
(22) State
If there are no other intestate heirs, the
State inherits the entire estate throughescheat proceedings. [Art. 1011, CC ]
IV. Provisions Common
to Testate and Intestate
Succession
A. RIGHT OF ACCRETION
Definition of Accretion [Art. 1015, CC ] It is a right by virtue of which, when two or more
persons are called to the same inheritance,
devise or legacy, the part assigned to one who
renounces or cannot receive his share or who
died before the testator is added or
incorporated to that of his co-heirs, co-devisees,
or co-legatees.
Requisites: [Tolentino p. 497-499 ]
(a) Unity of object and plurality of subjects (two
or more persons are called to the same
inheritance or same portion thereof)
(b) Vacancy of share (one of the heirs dies
before the testator, or renounces the
inheritance, or is incapacitated)
When does Accretion Occur?
Accretion happens when there is repudiation,
incapacity, or predecease of an heir. (RIP)
It is the mechanism where the share of an heir is
increased by vacant shares vacated by heirs who
cannot inherit for various reasons. (Rationale:
the decedent intended to give the property to
nobody but the co-heirs.)
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There can only be accretion if there is an
institution of heirs with respect to specific
properties. [Art. 1016, CC ]
Among compulsory heirs, there can only be
accretion with respect to the free portion. Therecan be no accretion with respect to the
legitimes. [Arts. 1021 and 1018, CC ]
The heirs to whom the portion goes by the right
of accretion take it in the same proportion that
they inherit. [Art. 1019, CC ]
Exceptions [Balane ]
(1) In testamentary succession, if the testator
provides otherwise
(2)
If the obligation is purely personal, andhence intransmissible
The heirs to whom the inheritance accrues shall
succeed to all the rights and obligations which
the heir who renounced or could not receive it
would have had. [Art. 1020, CC ]
In testamentary succession, when the right of
accretion does not take place, the vacant
portion of the instituted heirs, if no substitute
has been designated, shall pass to the legal
heirs of the testator, who shall receive it with
the same charges and obligations. [Art. 1022,
CC ]
Accretion shall also take place among devisees,
legatees and usufructuaries under the same
conditions established for heirs. [Art. 1023, CC ]
Effect of Predecease, Incapacity, Disinheritance or Repudiation
Cause of Vacancy Testamentary SuccessionIntestate Succession
Legitime Free Portion
Predecease RepresentationIntestate Succession
AccretionIntestate Succession
RepresentationIntestate
Succession
Incapacity Representation
Intestate Succession
Accretion
Intestate Succession
Representation
Intestate Succession
Disinheritance RepresentationIntestate Succession
- -
Repudiation Intestate Succession Accretion Accretion
B. CAPACITY TO SUCCEED BY WILL
OR INTESTACY
Requisites for Capacity to Succeed by Will or by
Intestacy: [Art. 1024 – 1025, CC ]
(a) The heir, legatee or devisee must be living
or in existence at the moment the
succession opens; [Art 1025 ] and
(b) He must not be incapacitated or
disqualified by law to succeed. [Art 1024,
par.1 ]
PERSONS INCAPABLE OF SUCCEEDING [Arts.1027, 739, 1032 ]
Based on undue influence or interest [Art. 1027,
CC ]
(1) Priest who heard the last confession of the
testator during his last illness, or theminister of the gospel who extended
spiritual aid to him during the same period;
(2) Individuals, associations and corporations
not permitted by law to inherit;
(3) Guardian with respect to testamentary
dispositions given by a ward in his favor
before the final accounts of the
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guardianship have been approved, even if
the testator should die after the approval
thereof; except if the guardian is his
ascendant, descendant, brother, sister, or
spouse;
(4)
Relatives of the priest or minister of thegospel within the fourth degree, the
church, order, chapter, community,
organization, or institution to which such
priest or minister may belong;
(5) Attesting witness to the execution of a will,
the spouse, parents, or children, or any one
claiming under such witness, spouse,
parents, or children;
(6) Physician, surgeon, nurse, health officer or
druggist who took care of the testator
during his last illness.
Based on morality or public policy [Arts. 739
and 1028, CC ]
(1) Those made in favor of a person with
whom the testator was guilty of adultery or
concubinage at the time of the making of
the will.
(2) Those made in consideration of a crime of
which both the testator and the beneficiary
have been found guilty.
(3)
Those made in favor of a public officer orhis spouse, descendants and ascendants,
by reason of his public office.
Based on acts of unworthiness [Art. 1032, CC ]
The following are incapable of succeeding by
reason of unworthiness:
(1) Parents who have abandoned their
children or induced their daughters to lead
a corrupt or immoral life, or attempted
against their virtue;
(2)
Any person who has been convicted of an
attempt against the life of the testator, his
or her spouse, descendants, or ascendants;
(3) Any person who has accused the testator
of a crime for which the law prescribes
imprisonment for six years or more, if the
accusation has been found groundless;
(4) Any heir of full age who, having knowledge
of the violent death of the testator, should
fail to report it to an officer of the law
within a month, unless the authorities have
already taken action; this prohibition shall
not apply to cases wherein, according tolaw, there is no obligation to make an
accusation;
(5) Any person convicted of adultery or
concubinage with the spouse of the
testator;
(6) Any person who by fraud, violence,
intimidation, or undue influence should
cause the testator to make a will or to
change one already made;
(7) Any person who by the same means
prevents another from making a will, orfrom revoking one already made, or who
supplants, conceals, or alters the latter's
will;
(8) Any person who falsifies or forges a
supposed will of the decedent.
Pardon of Acts of Unworthiness
Express Implied
Made by the execution
of a document or anywriting in which the
decedent condones
the cause of incapacity
Effected when the
testator makes a willinstituting the
unworthy heir with
knowledge of the
cause of incapacity
Cannot be revoked Revoked when the
testator revokes the
will or the institution
Unworthiness vs. Disinheritance
Unworthiness DisinheritanceUnworthiness renders
a person incapable of
succeeding to the
succession, whether
testate or intestate
Disinheritance is the
act by which a
testator, for just cause,
deprives a compulsory
heir of his right to the
legitime [ Art. 815, CC ]
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Determination of Capacity [Tolentino p. 539 ]
General Rule: At the death of the decedent
[Art. 1034, CC ]
Exceptions:(1) Those falling under 2, 3, and 5 of Art. 1032
– when the final judgment is rendered
(2) Those falling under 4 of Art. 1032 – when
the month allowed for the report expired
(3) If the institution is conditional – when the
condition is complied with
C. ACCEPTANCE AND REPUDIATION
OF THE INHERITANCE
Characteristics [Arts. 1041 – 1042, 1056, CC ](1) Acceptance and repudiation must be
voluntary and free [Art. 1041, CC ]
(2) They are irrevocable except if there is
vitiation of consent or an unknown will
appears [Art. 1056, CC ]
(3) They have a retroactive effect [Art. 1042,
CC ]
Requisites [Art. 1043, CC ]
(a) Certainty of death of the decedent
(b)
Certainty of the right to the inheritance
Acceptance Repudiation
Involves the
confirmation of
transmission of
successional rights
Renders the
transmission of
successional rights
ineffective
Equivalent to an act
of disposition or
alienation
Publicityrequirement is
necessary for the
protection of other
heirs and creditors
Forms of Acceptance [Arts. 1049 – 1050, CC ]
(1) Express Acceptance – one made in a public
or private document. [Art. 1049 par. 1 ]
(2) Tacit Acceptance – one resulting from acts
by which the intention to accept is
necessarily implied or from acts which one
would have no right to do except in thecapacity of an heir.
(3) Implied Acceptance - Within thirty days
after the court has issued an order for the
distribution of the estate in accordance
with the Rules of Court, the heirs, devisees
and legatees shall signify to the court
having jurisdiction whether they accept or
repudiate the inheritance; if they do not do
so within that time, they are deemed to
have accepted the inheritance. [Art 1057,
CC ]
An inheritance is deemed accepted:
(a) If the heir sells, donates, or assigns his
right to a stranger, or to his co-heirs, or
to any of them – the heir must first
accept the inheritance before he can
dispose of it.
(b) If the heir renounces the same, even
though gratuitously, for the benefit of
one or more of his co-heirs – this is
actually a donation. The heir must firstaccept the inheritance before he can
donate it.
(c) If the heir renounces it for a price in
favor of all his co-heirs indiscriminately
– this is actually an onerous
disposition. The heir must first accept
the inheritance before he can dispose
of it.
Note: But if the renunciation should be
gratuitous, and in favor of all the co-heirs (to
whom the portion renounced should devolve
by accretion), the inheritance shall not be
deemed as accepted. [Art. 1050 ] This is a true
case of renunciation.
Forms of Repudiation [Art. 1051, CC ]
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(1) in In a public instrument acknowledged
before a notary public; or
(2) In an authentic document – equivalent of
an indubitable writing or a writing whose
authenticity is admitted or proved; or
(3)
By petition presented to the court having jurisdiction over the testamentary or
intestate proceeding
Heirs in Two Capacities [Art. 1055, CC ]
(1) If a person is called to the same
inheritance as an heir by will and by law
and he repudiates the inheritance in his
capacity as a testamentary heir, he will be
considered to have also repudiated the
inheritance as a legal heir.
(2)
If he repudiates it as a legal heir, withoutknowledge of his being a testamentary
heir, he may still accept it in the latter
capacity.
D. COLLATION
Concept of Collation
To collate is to bring back or to return to the
hereditary mass in fact or by fiction property
which came from the estate of the decedent,
during his lifetime by donation or othergratuitous title but which the law considers as
an advance from the inheritance. [Art. 1061,
CC ]
It is the act by virtue of which, the compulsory
heir who concurs with other compulsory heirs
in the inheritance brings back to the common
hereditary mass the property which they may
have received from the testator so that a
division may be effected according to law and
the will of the testator.
In reducing inofficious donations, the last to be
donated should be the first to be reduced.
Rationale for collation: If donations inter vivos
will not be collated, then the rule on legitimes
shall be circumvented or disregarded.
Operations Related to Collation
(1) Collation – adding to the mass of the
hereditary estate the value of the donation
or gratuitous disposition.
(2) Imputing or Charging – crediting the
donation as an advance on the legitime (if
the donee is a compulsory heir) or on the
free portion (if the donee is a stranger, i.e.,
not a compulsory heir). [Balane, p. 522 ]
(3)
Reduction – determining to what extentthe donation will remain and to what
extent it is excessive or inofficious.
(4) Restitution – returning or the act of
payment of the excess to the mass of
hereditary estate.
Persons Obliged to Collate
General rule: Compulsory heirs
Exceptions:
(1) When the testator should have so expressly
provided [Art. 1062, CC ](2) When the compulsory heir should have
repudiated his inheritance [Art. 1062, CC ]
Grandchildren who survive with their uncles,
aunts, or first cousins and inherit by right of
representation [Art. 1064, CC ]
Note: Grandchildren may inherit from their
grandparents in their own right, i.e., as heirs
next in degree, and not by right of
representation if their parent repudiates theinheritance of the grandparent, as no living
person can be represented except in cases of
disinheritance and incapacity. In this case, the
grandchildren are not obliged to bring to
collation what their parent has received
gratuitously from their grandparent.
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Surviving spouse is not obliged to collate.
What to Collate
(1) Any property or right received by
gratuitous title during the testator’s
lifetime [Art. 1061, CC ](2) All that they may have received from the
decedent during his lifetime. [Art. 1061, CC ]
(3) Expenses incurred by the parents in giving
their children a professional, vocational or
other career shall not be brought to
collation unless the parents so provide, or
unless they impair the legitime; but when
their collation is required, the sum which
the child would have spent if he had lived
in the house and company of his parents
shall be deducted therefrom. [Art. 1068,CC ]
(4) Any sums paid by a parent in satisfaction
of the debts of his children, election
expenses, fines, and similar expenses shall
be brought to collation. [Art. 1069, CC ]
Note: Only the value of the thing donated shallbe brought to collation.
PROPERTIES NOT SUBJECT TO COLLATION
Absolutely no collation
Expenses for support, education (onlyelementary and secondary), medicalattendance, even in extraordinary illness,apprenticeship, ordinary equipment, orcustomary gifts [Art. 1067, CC]
Generally not imputable to legitime/ cannot be
collated, subject to exceptions
(1) Expenses incurred by parents in giving
their children professional, vocational or
other career unless the parents so provide,or unless they impair the legitime. [Art.
1067, CC ]
(2) Wedding gifts by parents and ascendants,
consisting jewelry, clothing and outfit,
except when they exceed 1/10 of the sum
disposable by will. [Art. 1070, CC ]
(3) Neither shall donations to the spouse of
the child be brought to collation; but if
they have been given by the parent to the
spouses jointly, the child shall be obliged
to bring to collation one-half of the thing
donated. [Art. 1066, CC ]
Note: Parents are not obliged to bring to
collation in the inheritance of their ascendants
any property which may have been donated by
the latter to their children. [Art. 1065, CC ]
E. PARTITION AND DISTRIBUTION
OF ESTATE
E.1. IN GENERAL
Separate, Divide, Assign. Partition is the
separation, division and assignment of a thing
held in common among those to whom it may
belong. The thing itself or its value may be
divided. [Art. 1079, CC ]
Owned in common. Before partition, the whole
estate of the decedent is owned in common by
the heirs. [Art. 1078, CC ]
Thing or value may be divided. [Art. 1079 ]
Acts deemed partition. Every act which is
intended to put an end to indivision among
heirs and legatees or devisees is deemed a
partition, although it should purport to be a
sale, an exchange, a compromise, or any other
transaction. [Art. 1082, CC ]
A void partition may be valid if:
(1) The will was in fact a partition
(2)
The beneficiaries of the void will were legal
heirs
The titles of acquisition or ownership of each
property shall be delivered to the co-heir to
whom said property has been adjudicated.
[Art. 1089, CC ]
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JUDICIAL vs. EXTRAJUDICIAL PARTITION
Judicial – Partition done by Court pursuant to
an Order of Distribution which may or may not
be based on a project of partition.
Extra-judicial – partition made by the decedent
himself by an act inter vivos or by will or by a
third person entrusted by the decedent or by
the heirs themselves. [Paras ]
Partition Inter Vivos : It is one that merely
allocates specific items or pieces of property
on the basis of the pro-indiviso shares fixed
by law or given under the will to heirs or
successors. [Art. 1080, CC ]
Who May Effect Partition
(1) The Decedent, during his lifetime by an act
inter vivos or by will [Art.1080, CC ]
(2) The decedent’s heirs [Art.1083, CC ]
(3) A competent court [Art. 1083,CC ]
(4) A third person not an heir designated by
the decedent [Art.1081, CC ]
Who Can Demand Partition
(1) Compulsory heir
(2)
Voluntary heir upon fulfillment of conditionif any [Art. 1084, CC ]
(3) Legatee or devisee
(4) Any person who has acquired interest in
the estate
When Partition Cannot Be Demanded
(1) When expressly Prohibited by the testator
for a period not exceeding 20 years [Art.
1083, CC ]
(2) When the co-heirs Agreed that the estate
shall not be divided for a period notexceeding 10 years, renewable for another
10 years
(3) When Prohibited by law
(4) When to partition the estate would render
it unserviceable for the use for which it is
intended
Prohibition to Partition
(1) The prohibition to partition for a period not
exceeding 20 years can be imposed even
on the legitime.
(2) If the prohibition to the partition is for
more than 20 years, the excess is void.(3) Even if a prohibition is imposed, the heirs
by mutual agreement can still make the
partition.
Effects of Inclusion of Intruder in Partition [Art.
1108, CC ]
(1) Between a true heir and several mistaken
heirs – partition is void.
(2) Between several true heirs and a mistaken
heir – transmission to mistaken heir is void
(3)
Through error or mistake, share of true heiris allotted to mistaken heir – partition shall
not be rescinded unless there is bad faith
or fraud on the part of the other persons
interested, but the latter shall be
proportionately obliged to pay the true heir
of his share. The partition with respect to
the mistaken heir is void. [Sempio-Dy ]
Right of Redemption in Partition
Should any of the heirs sell his hereditary
rights to a stranger before the partition, any orall of the co-heirs may be subrogated to the
rights of the purchaser by reimbursing him for
the price of the sale, provided they do so within
the period of one month from the time they
were notified in writing of the sale by the
vendor [Art. 1088, CC ]
Strangers – those who are not heirs on the
succession.
E.2. EFFECTS OF PARTITION
Effect
A partition legally made confers upon each
heir the exclusive ownership of the property
adjudicated to him [Art. 1091, CC ]
Warranty
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After the partition has been made, the co-heirs
shall be reciprocally bound to warrant the title
to, and the quality of, each property
adjudicated [Art. 1092, CC ]
The reciprocal obligation of warranty shall beproportionate to the respective hereditary
shares of the co-heirs;
If any one of them should be insolvent, the
other co-heirs shall be liable for his part in the
same proportion, deducting the part
corresponding to the one who should be
indemnified.
Those who pay for the insolvent heir shall have
a right of action against him forreimbursement, should his financial condition
improve [Art. 1093, CC ]
An action to enforce the warranty among the
co-heirs must be brought within ten years from
the date the right of action accrues. [Art. 1094,
CC ]
If a credit should be assigned as collectible, the
co-heirs shall not be liable for the subsequent
insolvency of the debtor of the estate, but onlyfor his insolvency at the time the partition is
made. [Art. 1095, CC ]
The warranty of the solvency of the debtor can
only be enforced during the five years following
the partition.
Co-heirs do not warrant bad debts, if so known
to, and accepted by the distributee.
But if such debts are not assigned to a co-heir,and should be collected, in whole or in part,
the amount collected shall be distributed
proportionately among the heirs. [Art. 1095,
CC ]
End of Warranty
The obligation of warranty among co-heirs
shall cease in the following cases:
(1) The testator himself has made the
partition
Unless it appears, or it may be
reasonably presumed, that his intentionwas otherwise, but the legitime shall
always remain unimpaired.
(2) When it has been so expressly stipulated in
the agreement of partition
Unless there has been bad faith
(3) When the eviction is due to a cause
subsequent to the partition, or has been
caused by the fault of the distributee of the
property. [Art. 1096, CC ]
E.3. RESCISSION AND NULLIFICATIONOF PARTITION
Causes for Rescission or Annulment
(1) A partition may be rescinded or annulled
for the same causes as contracts. [Art.
1097, CC ]
(2) A partition, judicial or extra-judicial, may
also be rescinded on account of lesion,
when any one of the co-heirs received
things whose value is less by at least one-
fourth, than the share to which he is
entitled, considering the value of the
things at the time they were adjudicated
[Art. 1098, CC ]
This article applies only to cases of
partition among-coheirs
Lesion is the injury suffered in
consequence of inequality of situation by
one party who does not receive the full
equivalent for what she gives in a sale or
any commutative contract (3) The partition made by the testator cannot
be impugned on the ground of lesion,
except when the legitime of the
compulsory heirs is thereby prejudiced, or
when it appears or may be reasonably be
presumed, that the intention of the
testator was otherwise. [Art. 1099, CC ]
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UP LAW BOC SUCCESSION CIVIL LAW
(4) Preterition of a compulsory heir in the
partition [Art. 1104, CC ]:
Partition shall not be rescinded unless
bad faith or fraud on the part of other
heirs is proved.
The culpable heirs shall share in thedamages of the prejudiced compulsory
heir proportionately.
(5) A partition which includes a person
believed to be an heir, but who is not, shall
be void only with respect to such person.
[Art. 1105, CC ]
The action for rescission on account of lesion
shall prescribe after four years from the time
the partition was made. [Art. 1100, CC ]
The heir who is sued shall have the option of
indemnifying the plaintiff for the loss, or
consenting to a new partition
Indemnity may be made:
(1) By payment in cash or
(2) By the delivery of a thing of the same kind
and quality as that awarded to the
plaintiff.
If a new partition is made, it shall affect neitherthose who have not been prejudiced nor those
who have not received more than their just
share [Art. 1101, CC ]
An heir who has alienated the whole or a
considerable part of the real property
adjudicated to him cannot maintain an action
for rescission on the ground of lesion, but he
shall have a right to be indemnified in cash
[Art. 1102, CC ]
The omission of one or more objects or
securities of the inheritance shall not cause the
rescission of the partition on the ground of
lesion, but the partition shall be completed by
the distribution of the objects or securities
Nullity – the act is supposed to never have
existed
Rescission – the act is valid at the origin
though it afterwards became ineffective
Important Periods in Partition
1 month or
less before
making a will
Testator, if publicly known tobe insane, burden of proof is
on the one claiming validity of
the will
20 years
Maximum period testator can
prohibit alienation of
dispositions
5 years from
delivery to the
State
To claim property escheated
to the State
1 month
To report knowledge of violent
death of decedent lest he beconsidered unworthy
5 years from
the time
disqualified
person took
possession
Action for declaration of
incapacity & for recovery of
the inheritance, devise or
legacy
0 days from
issuance of
order of
distribution
Must signify
acceptance/repudiation
otherwise, deemed accepted
1 month form
written notice
of sale
Right to repurchase hereditary
rights sold to a stranger by a
co-heir
10 years
To enforce warranty of
title/quality of property
adjudicated to co-heir from
the time right of action
accrues
5 years from
partition
To enforce warranty of
solvency of debtor of the
estate at the time partition ismade
4 years from
partition
Action for rescission of
partition on account of lesion