SUCCESSION 33pages.doc

8/20/2019 SUCCESSION 33pages.doc

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San Beda College of Law53

MEMORY AID IN CIVIL LAW

SUCCESSION

SUCCESSION A mode of acquisition by virtue

of which the property, rights andobligations to the extent of thevalue of the inheritance, of aperson are transmitted throughhis death to another or otherseither by his will or by operationof law. (Art. 774)

Kinds:. !estamentary or !estacy (by will)"#. $egal or intestacy (by operation of

law based on the decedent%spresumed will)"&. 'ixed (artly !estamentary and

$egal)" and4. artition inter vivos (to a certain

degree).

Elements:. *+**! (sub-ective element)#. /++*01 (sub-ective element)

a. 2eirs 3 those who are called tothe whole or to an aliquotportion of the inheritance either

by will or by operation of law) oluntary 5 those instituted

by the testator in his will, tosucceed to the inheritanceor the portion thereof of which the testator can freelydispose.

#) +ompulsory or 6orced 5 thosewho succeed by force of lawto some portion of theinheritance, in an amountpredetermined by law,nown as the legitime.

&) $egal or 8ntestate 5 thosewho succeed to the estate of the decedent who dieswithout a valid will, or tothe portion of such estatenot disposed of by will.

b. evisees or legatees 3 persons towhom gifts of real or personalproperty are respectively givenby virtue of a will

NOTE: !he distinctions betweenheirs and devisees9legatees aresignificant in these cases:

. reterition (pretermission)#. 8mperfect disinheritance&. After3acquired properties4. Acceptance or non3

repudiation of thesuccessional rights.

&. *A!2 06 !2* *+**! (casualelement)

'oment when rights to succeed are

transmitted (Art 777) 2owever, a person may be

;presumed< dead for the purpose of opening his succession (see rules onpresumptive death). 8n this case,succession is only of provisionalcharacter because there is alwaysthe chance that the absentee maystill be alive.

4. 8nheritance (ob-ective element)"

NOTE: =hatever may be the time whenactual transmission taes place,

succession taes place in any event atthe moment of the decedent%s death.(Lorenzo vs. Posadas 64 Phil 353)

SUCCESSION INHERITANCE1efers to the legalmode by whichinheritance istransmitted to thepersons entitledto it

1efers to theuniversality orentirety of theproperty, rightsand obligations of aperson who died

Inheritance includes:

. 10*1!>, 18?2! A 0@$8?A!80NO !"#N$%#&'! @> *A!2General rules on rights andobligations extinguished b hisdeatha) 1ights which are purel personal

are by their nature and purposeintrans*issi+le for they aree,tinguished + death (e.g.those relating to civilpersonality, family rights,discharge of office).

CIVIL LAW COMMITTEE CHAIRPERSON: Romuald Padilla ASST.CHAIRPERSON : Vida Bocar, Joyce Vidad EDP : Alnaia Ha!!iman, Doro"#y $ayon S%BJECT HEADS: C#ri!"oer Rey 'ara!i(an )Per!on! and *amily Rela"ion!+, Aleandro Ca!a-ar)Pro&er"y+, 'a.

R#odora*errer)ill! and Succe!!ion+, Ian Dominic Pua)O-li(a"ion! and Con"rac"!+, S#a Elia# Dumama)Sale! and /ea!e+, Jo#n S"een0uiam-ao)PAT+, C#ri!"oer Ca-i(ao)Credi" Tran!ac"ion!+, /i(aya Ali&ao)Tor"! and Dama(e!+, An"#onyPur(anan)/TD+,'a. Rica!ion Tu(adi )Con1ic"! o2 /a3+


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b) 1ights which are patri*onial orrelating to property aregenerally part of inheritance asthey are not e,tinguished +

death.c) -ights of o+ligations are by

nature trans*issi+le and mayconstitute part of inheritanceboth with respect to the rightsof the creditor and as regards tothe obligations of the debtor.

#. A$$ =28+2 2A* //-%! !2*1*!08+* !2* 0*8? 06 /++*80( rticle 012 /ivil /ode)

I! TESTA"ENTAR# SUCCESSION

A! CONCE$T

%I&& ' an act whereby a person ispermitted, with the formalitiesprescribed by law, to control to a certaindegree the disposition of his estate totae effect after his death (Art. 7&)

NOTE: !hus, a document that does notpurport to dispose of one%s estate eitherby the institution of heirs or designation

of devisees9legatees or, indirectly, byeffecting a disinheritance, is not to begoverned by the law on testamentarysuccession but by some other applicablelaws.

Kinds o( %ills:. otarial or ordinary#. 2olographic

Characteristics o( a %ill:. /8$A!*1A$#. !18+!$> *10A$ A+! 3 !he

disposition of property is solelydependent upon the testator.

NOTE: !he following acts 'A> 0! beleft to the discretion of a third person:( rticle 015 010 /ivil /ode)duration or efficacy of the designation of

heirs, devisees or legatees"determination of the portions which they

are to tae, when referred to byname" and

determination of whether or not thetestamentary disposition is to beoperative.

NOTE: 2owever, the following acts 'A>be entrusted to a third person: ( rticle016 /ivil /ode)

a. distribution of specific propertyor sums of money that he may leavein general to specified classes orcauses" and

b. designation of the persons,institutions or establishments towhich such property or sums are tobe given or applied.

&. 61** A 0$/!A1> A+! 5 Any viceaffecting the testamentary freedom can

cause the disallowance of the will.4. 601'A$ A 0$*' A+! 5 !heformalities are essential for the validityof the will.B. A+! '01!8 +A/AC. A'@/$A!01> A 1*0+A@$*

/18? !2* !*!A!01% $86*!8'*7. 888/A$ A+! 5 !wo or more personscannot mae a single oint will, eitherfor their reciprocal benefit or foranother person. 2owever, separate orindividually executed wills, althoughcontaining reciprocal provisions (*utual

wills), are not prohibited, sub-ect to therule on disposicion captatoria.. 808!80 06 10*1!>

)! INTER$RETATION O* %I&&S (A1!.737D#)!he testator%s intent (ani*us testandi),as well as giving effect to such intent, isprimordial. 8t is sometimes said that thesupreme law in succession is the intentof the testator. All rules of constructionare designed to ascertain and give effectto that intention. 8t is only when theintention of the testator is contrary tolaw, morals, or public policy that itcannot be given effect.

8n case of doubt, that interpretation bywhich the disposition is to be operativeshall be preferred. !hat construction isto be adopted which will sustain anduphold the will in all its parts, if it canbe done consistently with theestablished rules of law.




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Kinds o( A+biguities: (Article 7C). $A!*! 01 8!188+ A'@8?/8!8* 5that which does not appear on the face

of the will and is discovered only byextrinsic evidence.#. A!*! 01 *E!188+ A'@8?/8!8* 5that which appears on the face of thewill itself

NOTES:

!here is no distinction between

patent and latent ambiguities, in sofar as the admissibility of parol orextrinsic evidence to aidtestamentary disposition isconcerned.

*xtrinsic evidence to explain

ambiguities in a will cannot includeoral declarations of the testator asto his intention.

!he validity of a will as to its form

depends upon the observance of lawin force at the time it is made. (Art.7DB).

8f a law different from the law in

force at the time of the execution of the will goes into effect before orafter the death of the testator, such

a law shall not affect the validity of the will, provided that such will wasduly executed 8n accordance withthe formalities prescribed by law inforce at the time it was made.

A*TER'AC,UIRE- $RO$ERT# .Art! /012Gen! Rule: roperty acquired during theperiod between the execution of the willand the death of the testator is 0!included among the property disposedof.Exce3tion: =hen a contrary intentionexpressly appears in the will

NOTE: !his rule applies only to legaciesand devises and not to institution of heirs.

C! TESTA"ENTAR# CA$ACIT#4 refers to the ability as well as thepower to mae a will.3 must be present at the time of theexecution of the will.

Re5uisites:

1. At least years of age

2. 0f sound mind, i.e., the ability tonow:a. the nature of the estate to be

disposed of"b. the proper o+ects of his bounty"

andc. the character of the

testa*entar act.

NOTE: !he law presu*es that thetestator is of sound mind, /$*:a. he, one month or less, before mainghis will, was publicly nown to be

insane" orb. was under guardianship at the time of maing his will. (orres and Lopez deueno vs. Lopez 41 Phil 00)

8n both cases, the burden of provingsanity is cast upon proponents of thewill.

Effect of Certain Infirmities:. mere senility or infirmity of old age

does not necessarily imply that aperson lacs testamentary capacity"

#. physical infirmity or disease is notinconsistent with testamentarycapacity"

&. persons suffering from idiocy (thosecongenitally deficient in intellect),imbecility (those who are mentallydeficient as a result of disease), andsenile dementia (peculiar decay of the mental faculties whereby theperson afflicted is reduced to secondchildhood) do not possess thenecessary mental capacity to mae awill"

4. an insane delusion which will renderone incapable of maing a will maybe defined as a belief in thingswhich do not exist, and which norational mind would believe to exist"

B. if the insane delusion touches tosub-ect matter of the will,testamentary disposition is void.

C. a deaf3mute and blind person canmae a will (i.e. Art. F73F). Ablind man with a sound and disposingmind can mae a holographic will.




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7. an intoxicated person or personunder the influence of drugs maymae a will as there is no completeloss of understanding.

!,ception: where the testator hasused intoxicating liquor or drugsexcessively to such an extent as toimpair his mind, so that at the timethe will is executed, he does notnow the extent and value of hisproperty, or the names of personswho are the natural ob-ects of hisbounty, the instrument thusexecuted will be denied probate forlac of testamentary capacity.

-! *OR"A&ITIES O* %I&&S

.E6TRINSIC 7A&I-IT#2

CO""ON *OR"A&ITIES. *very will must be in writing" and#. *xecuted in a language or dialect

nown to the testator.

S$ECIA& *OR"A&ITIESI! NOTARIAL OR ORDINARY WILLa. /@+18!80 5 made at the end

thereof by the testator himself or bythe testatorGs name written by someother person in his presence and by

his express direction" &u+scription refers to the

*anual act of testator and alsoof his instru*ental 7itnesses of affi,ing their signature to theinstru*ent.

b. A!!*!A!80 A /@+18!80 3(evidenced + an 8attestationclause9) by & or more crediblewitnesses in the presence of thetestator and of one another" Attestation consists in the act of

witnesses of witnessing theexecution of the will in order tosee and tae note mentally thatsuch will has been executed inaccordance with requirementsprescribed by law.

ATTESTATION SU)SCRI$TION. an act of the

senses. an act of thehand

#. mental act #. mechanical act

&. purpose is torender availableproof duringprobate of will

&. purpose isidentification

c. 'A1?8A$ 8?A!/1* 5 affixed bythe testator or the person requestedby him to write his name and theinstrumental witnesses of the will oneach and every page thereof, exceptthe last, on the left margin"

Exce3tions to the rule that all o( the3ages o( the 8ill shall ha9e to besigned on the le(t +argin b thetestator and 8itnesses::

() in the last page, when the will

consists of two or more pages"(#) when the will consists of only onepage"(&) when the will consists of twopages, the first of which contains allthe testamentary dispositions and issigned at the bottom by the testatorand the witnesses and the secondcontains only the attestation clauseduly signed at the bottom by thewitnesses.

!he inadvertent failure of one

witness to affix his signature to onepage of a testament, due to thesimultaneous lifting of two pages inthe course of signing, is not per sesufficient to -ustify denial of probate(#casiano vs. #casiano ## &/- 4).

d. A?* /'@*18? 5 =rittencorrelatively in letters placed on theupper part of each page"

NOTE: !his is not necessary when all of the dispositive parts of a will are written

on one sheet only.

e. A+H0=$*?'*! 5 one before anotary public by the testator and theinstrumental witnesses.

NOTE: !he notary public before whomthe will was acnowledged cannot beconsidered as the third instrumentalwitness since he cannot acnowledgebefore himself his having signed the will.8f the third witness were the notary




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public himself, he would have to avow,assent, or admit his having signed thewill in front of himself. !o allow suchwould have the effect of having only two

attesting witnesses to the will whichwould be in contravention of Arts. FBand FC. (/ruz vs. illasor 54 &/- 32) "ANNER O* SIGNING: !he use of any signature, mars or

design intended by the testator toauthenticate renders the willsufficiently signed by the testator.

A signature by mar will be sufficient

even if at the time of placing it, thetestator new how to write and isable to do so.

8t is sufficiently signed by writing hisinitials, or his first name, or he mayuse even an assumed name.

A complete signature is not essential

to the validity of a will, provided thepart of the name written was affixedto the instrument with intent toexecute it as a will.

ATTESTATION C&AUSE3 memorandum or record of factswherein the witnesses certify that thewill has been executed before them, andthat it has been executed in accordancewith the formalities prescribed by law. Absence of this clause will render

the will a nullity.

8t must state the following ESSENTIALFACTS:

2. the number of pages used uponwhich the will is written"

20=**1, even if number of pages isomitted in the A+ @/! if there is anacnowledgment clause which states the

number of pages or the will itself mentioned such number of pages, it maystill be considered valid applying the$iberal 8nterpretation of the law.(a+uada vs. -osal)

. the fact that the testator signedthe will and every page thereof,or caused some other person towrite his name, under hisexpress direction, in the

presence of the instrumentalwitnesses"

=hen the testator expressly caused

another to sign the former%s name,

this fact must be recited in theattestation clause. 0therwise, thewill is fatally defective. ($arcia vs.Lacuesta ;< Phil 41;)

3. that the witnesses witnessed andsigned the will and all the pagesthereof in the presence of thetestator and of one another.

TEST O* $RESENCE: ot whetherthey actually saw each other sign,but whether they might have seen

each other sign had they chosen todo so considering their mental andphysical condition and position withrelation to each other at themoment of inscription of eachsignature. (=a+oneta vs. $ustilo)

8n the case of an ordinary or attested

will, its attestation clause need not+e 7ritten in a language or dialect>no7n to the testator since it doesnot form part of the testamentarydisposition.

!he language used in the attestation

clause liewise need not even +e>no7n to the attesting 7itnesses.Art. FB merely requires that, insuch a case, the attestation clauseshall be interpreted to saidwitnesses. (/aneda vs. / &/-012)

E((ects o( de(ects or i+3er(ections inthe Attestation Clause: 8f the defect of the attestation

clause goes into the very essence of the clause itself or consists in theomission of one, some, or all of theessential facts, and such omissioncannot be cured by an examinationof the will itself, the defect issubstantial in character, as aconsequence of which the will isinvalidated.

2owever, 8n the absence of bad

faith, forgery, fraud, or undue and




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improper pressure and influence,defects and imperfections in theform of attestation or in thelanguage used therein shall not

render the will invalid if it is provedthat the will was in fact executedand attested in substantialcompliance with Art. FB ( for*alre?uire*ents). !his is nown as the-OCTRINE O* &I)ERA&INTER$RETATION (Art. FD)

$ur3oses o( re5uiring 8itness to attestand to subscribe to a 8ill:. identification of the instrument#. protection of the testator from fraud

and deception&. the ascertainment of the

testamentary capacity of thetestator.

NOTE: Certain points to consider (olentino). 'ere nowledge by testator that

another is signing, and acquiescing init, there being no expressdirection, is 0! sufficient.

#. ot required that the name of theperson who writes the testator%s

name should also appear on the will"enough that testator%s name iswritten.

&. 8f the required numbers of attestingwitness are competent, the fact thatan additional witness, who wasincompetent also attested to thewill, cannot impair the validity.

4. 8mmaterial in what order the actsare performed provided thesignature or acnowledgment by thetestator and the attestation of thewitnesses be accomplished in oneoccasion, and as part of onetransaction.

B. !he law refers to pae and not tosheet or leaf or folio, so every pageused in the will should be signed onthe left margin.

C. An attestation clause need be signed0$> by the witnesses and not bythe testator as it is a declarationmade by the witnesses.

7. date of !ill:

a. ordinar 7ill: not an essentialpart"

b. holographic 7ill: an essentialpart.

. 6ailure or error to state the place of exec"tion will not invalidate thewill.

D. igning of a will by the testator andwitnesses and acnowledgmentbefore a notary public, need not bea single act.

F. Testamentar# capacit# must alsoexist at the time of acnowledgment.

A--ITIONA& RE,UIRE"ENTS *OR S$ECIA& CASES$% Deaf or deaf&m"te testator:

a) personal reading of the will, if able to do so" 01

b) if not possible, designation of #persons to read the will andcommunicate to him, in somepracticable manner, the contentsthereof. (Article F7)

'% (lind testator: ouble3reading requirement:

a. first, by one of the subscribingwitnesses, A

+. second , by the notary publicbefore whom the will is

acnowledged. (rticle 1


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2. able to read and write"3. not blind, deaf or dumb"4. at least years of age"5. domiciled in the hilippines"

6. has not been convicted of falsification of a document, per-ury,or false testimony

NOTE: A witness need not now thecontents of the will, and need not beshown to have had a good standing in thecommunity where he lives. Also, theacnowledging notary public cannot beone of the & minimum numbers of witnesses.Interested 8itness A witness to a will who is

incapacitated from succeeding fromthe testator by reason of adevise9legacy or other testamentarydisposition therein in his favor, or infavor of his spouse, parent, or child.'o7ever his co*petence as a7itness su+sists.

! )OLO*RA+)IC WILL .Article ;


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handwriting of the testator" if nowitness, expert testimony may beresorted to.

#. 8f /ON!&! requires at least & of

such credible witnesses, if noneexpert witness.

NOTE: =here the testator himself petitions for the probate of hisholographic will and no contest is file,the fact that he affirms that theholographic will and the signature are inhis own handwriting, shall be sufficientevidence thereof. 8f the holographic willis contested, the burden of disprovingthe genuineness and due executionthereof shall be on the contestant.

A photostatic or xerox copy of a lost

or destroyed holographic will may beadmitted because the authenticity of the handwriting of the deceased canbe determined by the probate court,as comparison can be made with thestandard writings of the testator.(-odelas vs. ranza 22; &/- 26)

GO7ERNING &A% ON *OR"A&ITIES$% As to time: !he validity of a will as to its for*

depends upon the observance of thela8 in (orce at the ti+e it is +ade.8ts intrinsic validit , however, is-udged at the ti+e o( thedecedent>s death b the la8 o( hisnationalit.

! As to place: a. 6ilipino testator executing a will in

the hilippines: hilippine lawb. 6ilipino testator executing a will

outside of the hilippines: either) !he law of the country in which

it is executed" or#) !he law of the hilippines.

c. Alien testator executing a will in thehilippines: either) !he law of the hilippines" or#) !he law of the country of which

he is a citiJen or sub-ect.d. Alien testator executing a will

outside of the hilippines: either) !he law of the place where it is

executed" or

#) !he law of the place in which heresides" or

&) !he law of his country" or4) !he law of the hilippines.

As3ects o( the 8ill go9erned bNational &a8 o( the -ecedent (ArticleF&D and Article C +ivil +ode)a. 0rder of successionb. Amount of successional rightsc. 8ntrinsic validityd. +apacity to succeed

Koint will 5 a single testamentaryinstrument which contains the wills of two or more persons, -ointly executed bythem, either for their reciprocal benefit

or for the benefit of a third person33will of # or more persons is made in thesame instrument and is -ointly signed bythem

'utual wills 5 wills executed pursuant toan agreement between two or morepersons to dispose of their property in aparticular manner, each in considerationof the other33separate wills of # persons, which arereciprocal in their provisions.

1eciprocal wills3 wills in which thetestators name each other asbeneficiaries under similar testamentaryplans

NOTE: A will that is both -oint andmutual is one executed -ointly by two ormore persons, the provisions of whichare reciprocal and which shows on itsface that the devises are made inconsideration of the other. uch isprohibited.

Reasons:. will is purely personal and unilateral

act#. contrary to the revocable character

of a will&. may expose the testator to undue

influence, and may even induce oneof the testators to ill the other.

NOTE: Koint wills executed by 6ilipinosin a foreign country shall not be valid inthe hilippines, even though authoriJed




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by the foreign country in which they mayhave been executed ( rticle 12; /ivil/ode).

!his prohibition is applicable

only in -oint wills executed by @ilipinosin a foreign country" it does 0! A$>to -oint wills executed by aliens.

E! CO-ICI& AN- INCOR$ORATION )#RE*ERENCE

CO-ICI& A supplement or addition to a will,

made after the execution of a willand annexed to be taen as a partthereof, by which any disposition

made in the original will isexplained, added to, or altered.(Article #B)

NOTE: !o be effective, it must beexecuted as in the case of a will. 8tsexecution has the effect of republishingthe will as modified.

INCOR$ORATION )# RE*ERENCE (A1! #7) +ontemplates only lists of

properties, boos of accounts, andinventories.

rovisions which are in the nature of

testamentary dispositions must becontained in the will itself.

Re5uisites (or a 9alid incor3oration bre(erence: (A1! #7)

in the will must be in existence atthe time of the execution of thewill"

! !he will must clearly describe andidentify the same, stating among

other things the number of pagesthereof"1! 8t must be identified by clear and

satisfactory proof as the documentor paper referred to therein"

?! 8t must be signed by the testator andthe witnesses on each and everypage, except in case of voluminousboos of account or inventories.

*! RE7OCATION O* %I&&S AN-TESTA"ENTAR# -IS$OSITIONS

RE7OCATION An act of the mind, terminating the

potential capacity of the will to

operate at the death of the testator,manifested by some outward orvisible act or sign, symbolic thereof.uch right to revoe a will cannot bewaived or restricted.

&A%S %HICH GO7ERN RE7OCATION(A1! #D)

hilippines, whether the testator isdo*iciled in the Philippines or inso*e other countr , it is valid whenit is in accordance with the la8s o(

the $hili33ines! 8f the revocation taes place outside

the hilippines, by a testator 7ho isdo*iciled in the Philippines, it isvalid when it is in accordance withthe la8s o( the $hili33ines

&. 1evocation done outside thehilippines, by a testator 7ho doesnot have his do*icile in thiscountr , is valid when it is doneaccording to the:a. la8s o( the 3lace 8here the

8ill 8as +ade, or

b. la8s o( the 3lace in 8hich thetestator had his do+icile at theti+e o( re9ocation"

"O-ES O* RE7OCATION (A1! &F)1. @y implication of law:

a. legal separation revoestestamentary provisions in favorof the offending spouse"

b. preterition revoes theinstitution of heir"

c. -udicial action for recovery of debt revoes a legacy of credit9remission of debt"

d. transformation, alienation, orloss of bequeathed propertyrevoes a legacy of suchproperty"

e. act of unworthiness by an heir,devisee9legatee revoestestamentary provisions in hisfavor"

f. if both spouses of thesubsequent marriage acted inbad faith, said marriage shall be




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void ab initio and testamentarydispositions made by one infavor of the other are revoedby operation of law (Art. 44,

6amily +ode)" andg. void ab initio or annulled

marriages revoe testamentarydispositions made by one spousein favor of the other (Art. BF,6amily +ode).

#. @y some will, codicil, or otherwriting, executed as provided incase of wills, which may either be:a. *xpress 5 when there is a

revocatory clause expresslyrevoing the previous will or apart thereof

b. 8mplied 5 when the provisionsthereof are partially or entirelyinconsistent with those of theprevious will

NOTE: =hile express revocation may beeffected by a subsequent will, or acodicil, or a nontestamentary writingexecuted as provided in case of wills,implied revocation may be effected onlyby either a subsequent will, or a codicil.

&. @y burning, tearing, cancelling, orobliterating the will.

Re5uisites:a. testamentary capacity at the

time of performing the act of destruction"

b. intent to revoe (animusrevocandi)"

c. actual physical act of destruction"

d. completion of the sub-ectivephase" and

e. performed by the testatorhimself or by some other personin his presence and expressdirection

(!2* $8! 8 *E+$/8*.)

NOTE: !he act of revocation is apersonal act of the testator. 2e cannotdelegate to an agent the authority to dothe act for him. Another person,however, may be selected by him as aninstrument and directed to do therevocatory acts in his presence. Adestruction not accomplished in the

testator%s presence is an ineffectiverevocation of the will.

-OCTRINE O* $RESU"E- RE7OCATION

=henever it is established that thetestator had in his possession or hadready access to the will, but uponhis death it cannot be found orlocated, the presumption arises thatit must have been revoed by him byan overt act.

=here it is shown that the will was

in custody of the testator after itsexecution, and subsequently, it wasfound among the testator%s effectsafter his death in such a state of mutilation, cancellation or

obliteration as represents asufficient act of revocation, it willbe presumed in the absence of evidence to the contrary, that suchact was performed by the testatorwith the intention of revoing thewill.

-OCTRINE O* -E$EN-ENT RE&ATI7ERE7OCATION (A1! ) A revocation sub-ect to a condition

does not revoe a will unless anduntil the condition occurs. !hus,where a testator ;revoes< a willwith the proven intention that hewould execute another will, hisfailure to validly mae a latter willwould permit the allowance of theearlier will.

=here the act of destruction is

connected with the maing of another will so as fairly to raise theinference that the testator meantthe revocation of the old to depend

upon the efficacy of the newdisposition intended to besubstituted, the revocation will beconditional and dependent upon theefficacy of the new disposition" andif for any reason, the new willintended to be made as a substituteis inoperative, the revocation failsand the original will remains in fullforce (da. e 'olo vs. 'olo DF hil&7).

Re9ocation b +ista@e




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A revocation of a will based on a

false cause or an illegal cause is nulland void. !hus, where a testator bya codicil or later will, expressly

grounding such revocation on theassumption of fact which turns outto be false, as where it is stated thatthe legatees9devisees named thereinare dead, when in fact, they areliving, the revocation does not taeeffect.

G! RE$U)&ICATION AN- RE7I7A& O*%I&&S

RE$U)&ICATION !he act of the testator whereby he

reproduces in a su+se?uent 7ill(express) the dispositions containedin a previous will which is void as toits form, or he executes a codicil(constructive) to his will.

8ts purpose is to cure the will of its

formal defects.

NOTES:

!o republish a will void as to its

for* all the dispositions must bereproduced or copied in the new or

subsequent will" !o republish a will valid as to its

for* +ut alread revo>ed theexecution of a codicil which maesreference to the revoed will issufficient.

E((ects o( Re3ublication b 9irtue o( aCodicil:. +odicil revives the previous will#. !he old will is republished as of the

date of the codicilL maes it spea,as it were, from the new and later

date.&. A will republished by a codicil is

governed by a statute enacted to theexecution of the will, but which wasoperative when the codicil wasexecuted.

RE$U)&ICATION RE7I7A&

. !aes place by anact of the testator

. !aes place byoperation of law.

#. +orrects extrinsicand intrinsicdefects.

#. 1estores a revoedwill

RE7I7A& !he restoration to validity of a will

previously revoed by operation of law (implied revocation).

$RINCI$&E O* INSTANTER !he e,press revocation of the first

will renders it void because therevocatory clause of the second will,not being testamentary in character,operates to revoe the previous willinstantly upon the execution of the

will containing it.NOTE: 8n i*plied revocation, the firstwill is not instantly revoed by thesecond will because the inconsistenttestamentary dispositions of the latterdo not tae effect immediately but onlyafter the death of the testator.H! A&&O%ANCE AN- -ISA&&O%ANCE O*%I&&S

$RO)ATE A special proceeding mandatorily

required for the purpose of

establishing the validity of a will. !he statute of limitations is not

applicable to probate of wills.

,uestions deter+inable b the 3robatecourt: (8+*). identity of the will"#. testamentary capacity of the

testator at the time of the executionof the will" and

&. due execution of the will.

$!N!-L -%L!: 8n probate

proceeding, the court%s area of inquiry islimited to an examination of, andresolution on the extrinsic validity if thewill, the due execution thereof, thetestatrix%s testamentary capacity andthe compliance with the requisites orsolemnities prescribed by law. !heprobate court cannot inquire into theintrinsic validity of testamentaryprovisions.




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!"/!P#ON: ractical considerations,

e.g. when the will is intrinsically void onits face.

8n Nuguid vs Nuguid (20 &/- 44;)the upreme +ourt held that, if thecase were to be remanded forprobate of the will, nothing will begained. 0n the contrary, thislitigation would be protracted. Andfor aught that appears in the record,in the event of probate or if thecourt re-ects the will, probabilityexists that the case will come uponce again before us on the sameissue of the intrinsic validity ornullity of the will. 1*/$!: waste of

time, effort, expense, plus addedanxiety.

8n Nepo*uceno vs / (23; &/-


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. voluntary act of the testator.

. given by -udicialdecree.

#. with or withoutcause.

#. must always befor a legal cause.

&. may be partial ortotal.

&. always totale,cept: when theground of fraud orinfluence forexample affectsonly certainportions of thewill.

I! INSTITUTION O* HEIRS(A1!. 4F3BC)

INSTITUTION An act by virtue of which a testator

designates in his will the person orpersons who are to succeed him inhis property and transmissible rightsand obligations. (Art 4F)

!he proper test in order to

determine the validity of aninstitution of heir is the possibility of finally ascertaining the identity of the instituted heir by intrinsic orextrinsic evidence.

$RESU"$TIONS. $resu+3tion o( E5ualit 5 2eirs

instituted without designation of shares shall inherit in equal parts.!his is limited only to the casewhere all of the heirs are of thesame class or -uridical condition, andwhere there are compulsory heirsamong the heirs instituted, it shouldbe applied only to the disposablefree portion.

#. $resu+3tion o( Indi9idualit 5 =hen

the testator institutes some heirsindividually and others collectively,those collectively designated shallbe considered as individuallyinstituted, unless it clearly appearsthat the intention of the testatorwas otherwise.

&. $resu+3tion o( Si+ultaneit 5 whenthe testator calls to the succession aperson and his children, they are alldeemed to have been institutedsimultaneously and not successively.

INSTITUTION )ASE- ON A *A&SE CAUSE.Article ;=2

$!N!-L -%L!: !he statement of a

false cause for the institution of an heirshall be considered as not written. Reason: ?enerosity of the testator is

the real cause of the testamentarydisposition.

!"/!P#ON: 8f it appears from the face

of the will that the testator would nothave made the institution had he nownthe falsity of the cause. !,a*ple: =here the person

instituted is a total stranger to thetestator, it is obvious that the real

cause of the testamentarydisposition is not the generosity of the testator but the fact itself whichturned out to be false.

RE,UISITES *OR THE ANNU&"ENT O*INSTITUTION O* HEIRS:. cause of institution of heirs must be

stated in will"#. cause must be shown to be false"&. it must appear from the face of the

will that the testator would not havemade the institution had he nown

the falsity of the cause.

=here the one3sentence will

institutes the petitioner as the sole,universal heir and preterits theparents of the testatrix, and itcontains no specific legacies orbequests, such universal institutionof petitioner, by itself, is void.8ntestate succession ensues.(Nuguid vs. Nuguid et al. 20 &/-44;)

$RETERITION (A1!. B4) 0mission in the testator%s will of

one, some, or all of the compulsoryheirs in the direct line, whetherliving at the time of the execution of the will or born after the death of the testator.

Re5uisites:. !he heir omitted must be a

compulsory heir in the direct line"




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#. !he omission must be complete andtotal in character" and

&. !he compulsory heir omitted mustsurvive the testator.

There is no total o+ission

8hen:a. A devise9legacy has been given

to the heir by the testatorb. A donation inter vivos has been

previously given to the heir bythe testator" or

c. Anything is left from theinheritance which the heir mayget by way of intestacy.

NOTE: 8n the above cases, the

remedy of the heir is completion of legitime under Art. DFC, in case thevalue of the property received is lessthan the value of the legitime.

E((ects o( $reterition:. 8t annuls the institution of heir"#. !he devises and legacies are valid

insofar as they are not inofficious"and

&. 8f the omitted compulsory heirshould die before the testator, theinstitution shall be effectual,

without pre-udice to the right of representation.

NOTE: 8n case of o*ission 7ithout preterition, the rule in Art. BB shouldbe followed. !he suggested alternatephrasing of r. !olentino to the saidarticle is: 8he share of the co*pulsor heir o*itted in a 7ill *ust +e firstta>en fro* the part of the estate notdisposed of + the 7ill if anC if that isnot sufficient so *uch as *a +enecessar *ust +e ta>en proportionall

fro* the shares of the heirs given tothe* + 7ill.9

$RETERITION -ISINHERITANCE

. deprivation of acompulsory heir of his legitime is tacit

. deprivation of acompulsory heir of his legitime isexpress.

#. may be voluntarybut the lawpresumes that it isinvoluntary

#. alwaysvoluntary.

&. law presumesthat there has beenmerely an oversightor mistae on the

part of the testator.

&. done with alegal cause.

4. omitted heir getsnot only his legitimebut also his share inthe free portion notdisposed of by wayof legacies9 devises.

4. if disinheritanceis not lawful,compulsory heir ismerely restored tohis legitime.

=here the deceased left no

descendants, legitimate orillegitimate, but she left forced heirsin the direct ascending lineLher

parents, and her holographic willdoes not explicitly disinherit thembut simply omits them altogether,the case is one of preterition of parents, not a case of ineffectivedisinheritance. (Nuguid vs. Nuguid 20 &/- 44;)

NOTE: reterition of the survivingspouse () does not entirely annul theinstitution of the heir since is not acompulsory heir in the direct line.2owever, since Article 4# protects the

legitime of the , the institution ispartially annulled by reducing the rightsof the instituted heir to the extentnecessary to cover the legitime of .(olentino)

E**ECT O* $RE-ECEASE33an heir who dies before the testatorshall transmit no right to his own heirs(rule is absolute with respect to avoluntary heir)33what is transmitted to therepresentatives of compulsory heir is his

right to the legitime and not to the freeportionE**ECT O* INCA$ACIT#33A voluntary heir who is incapacitatedto succeed from testator shall transmitno right to his own heirs.33compulsory heir may be represented,but only with respect to his legitime

E**ECT O* RE$U-IATION33whether voluntary or compulsory, theheir who repudiates his inheritance




15/33



cannot transmit any right to his ownheirs.

B! SU)STITUTION O* HEIRS

(A1! B737F)

SU)STITUTION !he act by which the testator

designates the person or persons totae the place of the heir or heirsfirst instituted (!olentino). 8t may beconsidered as a subsidiary andconditional institution.

Kinds:. Si+3le or Co++on (that which

taes place when the testator

designates one or more persons tosubstitute the heirs9s instituted incase such heir9s should die beforehim, or should not wish, or should beincapacitated to accept theinheritance)

#. )rie( or Co+3endious: +rief (thereare two or more persons designatedby the testator to substitute for onlyone heir), co*pendious (one heir isdesignated to tae the place of twoor more heirs)

Instances 8hen substitutionta@es 3lace:

a. instituted heir predeceases thetestator"

b. incapacit of the instituted heirto succeed from the testator"and

c. repudiation of the inheritance.

E((ect o( substitution:*eneral r"le: once the substitutionhas taen place, the substitute shallnot only tae over the share thatwould have passed to the institutedheir, but he shall be sub-ect to thesame charges and conditionsimposed upon such instituted heir.Exceptions: () =hen the testator has expresslyto the contrary"(#) =hen the charges or conditionsare personally applicable only to theheir instituted.

1! *ideico++issar

Re5uisites:a. 6irst heir ( fid"ciar# ) called to the

succession.b. An obligation clearly imposed upon

such first heir to preserve theproperty and to transmit it to thesecond heir.

c. econd heir ( fideicommissar# ) towhom the property is transmitted bythe first heir.

=ithout the obligation clearly

imposing upon the first heir thepreservation of the property and itstransmission to the second heir,there is no fideicommissarysubstitution (-a+adilla vs. / 334&/- 5)

NOTE: ending transmission of property,the fiduciary is entitled to all the rightsof a usufructuary, although thefideicommissary is entitled to all therights of a naed owner.

&i+itations:a. ubstitution must not go beyond one

degree from the heir originallyinstituted.

b. 8egree9 means degree of relationship.

c. 6iduciary and fideicommissary mustbe living at the time of the death of the testator.

d. ubstitution must not burden thelegitime of compulsory heirs.

e. ubstitution must be made expressly. A fideicommissary substitution is

void if the first heir is not related inthe st degree to the second heir(-a*irez vs. da. e -a*irez 222&/- 0


16/33



the language of the will. 0therwise, it isnot binding.

L#B##ON&:

. !he testator cannot impose anycharge, burden, encumbrance,condition, or substitutionwhatsoever upon the legiti*e of co*pulsor heirs.

#. #*possi+le conditions and thosecontrar to la7 or good custo*s arepresumed to have been imposederroneously or through oversight,thus, are considered as not imposed.

&. An a+solute condition not tocontract a first marriage is alwaysvoid and will be considered as not

written.4. An a+solute condition not to

contract a su+se?uent marriage isgenerally void, unless imposed upona widow or widower by the deceasedspouse or by the latter%s ascendantsor descendants. *ven so, however,the legiti*e of the surviving spousecannot +e i*paired .

An absolute condition not to

contract marriage when validlyimposed is resolutory in character.

+onsequently, if the testatorinstitutes his wife as heir sub-ect tothe condition that she will nevermarry again, she immediatelyacquires a right to the inheritanceupon the death of testator, but if sheviolates the condition by contractinga #nd marriage, she loses her right tosaid inheritance.

NOTE: 2owever, the following relativeconditions regarding marriage have beenconsidered as -alid and .indin:

a. generic condition to contractmarriage"

b. specific condition to contractmarriage with a determinateperson" and

c. specific condition not tocontract marriage with adeterminate person.

B. Any disposition made upon thecondition that the heir shall maesome provisions in his will in favor of

the testator or of any other personshall be void ( disposicioncaptatoria).

C. +onditions imposed by the testator

upon the heirs shall be governed bythe rules established for conditionalobligations in all matters notprovided for by the law onsuccession.

Kinds o( Conditions. Potestative /ondition 5 depends

exclusively upon the will of the heir,devisee, or legatee, and must beperformed by him personally.

#. /ausal /ondition 5depends upon thewill of the heir, devisee, or legatee,

but upon the will of a third person.&. Bi,ed 5 depends -ointly upon the will

of the heir, devisee, or legatee andupon chance and9or will of a thirdperson.

*ul(ill+ent o( Conditions:. Potestative /onditions must be

fulfilled after the death of thetestator (except when it has alreadybeen fulfilled and is of such naturethat it cannot be repeated)"

#. /ausal or *i,ed conditions may be

fulfilled either .efore or after suchdeath unless the testator hasprovided otherwise.

"O-A& INSTITUTION .INSTITUCION SU)"O-O2 Attachment by the testator to an

institution of heir, or to a devise orlegacy, of a statement of the:a. o+ect of the institution"b. application of the property left

by testator" orc. charge imposed by him.

NOTES:

=hen in doubt as to whether there is

a condition or merely a *odeconsider the same as *ode.

=hen in doubt as to whether there is

a *ode or merely a suggestionconsider same only as a suggestion.




17/33



!he Mcondition% suspends but does

not obligate" the Mmode% o+ligatesbut does not suspend (for he whoinherits with a mode is already an

heir" one who inherits conditionallyis not yet an heir)

-OCTRINE o( CONSTRUCTI7E*U&*I&&"ENT: =hen without the faultof the fault of the heir, an institucionsub modo cannot tae effect in theexact manner stated by the testator, itshall be complied with in a manner mostanalogous to and in conformity with hiswishes.

NOTE:

8f the condition is casual, the

doctrine is not applicable since thefulfillment of the event whichconstitutes the condition isindependent of the will of the heir,devisee9legatee. 8f the condition ispotestative or mixed, the doctrine isapplicable.

&! &EGITI"ES (A1! C 5 D4)&EGITI"E !hat part of the testator%s property

which he cannot dispose of becausethe law has reserved it for certainheirs who are, therefore, calledcompulsory heirs.

!he course of action to enforce a

legitime accrues upon the death of the donor3decedent since it is onlythen that the net estate may beascertained and on which basis, the

legitime may be determined.(#*perial vs. / 326 &/- 323)

NOTE: 0ne half of the estate is alwaysreserved for the primary or secondarycompulsory heirs. !he other half is whatis termed under the ++ as the ;freeportion< from which the legitime of theconcurring compulsory heirs are taen.!his ;free portion< is different from the;disposable free portion< over which thetestator has testamentary control. !he

;disposable free portion< is that whichremains after the legitime has beencovered.

CO"$U&SOR# HEIRS .CH2 !hose for whom the legitime is

reserved by law, and who succeedwhether the testator lies it or not.!hey cannot be deprived by thetestator of their legitime e,cept bydisinheritance properly effected.

Kinds o( Co+3ulsor Heirs:. $ri+ar 5 those who have

precedence over and e,clude other+2. *.g. $+.

#. Secondar 5 those who succeed only

in the a+sence of the pri*ar +2.*.g. $A or 8.

&. Concurring 5 those who succeedtogether with the primary orsecondary +2. *.g. 8+ and .

I( the testator isa &EGITI"ATE

3erson

I( the testator isan I&&EGITI"ATE

3erson

. $egitimatechildren anddescendants

($+)

. $egitimatechildren anddescendants

($+)

#. 8n default of the foregoing,legitimateparents and ascendants($A)

#. 8llegitimatechildren anddescendants(8+)

&. urvivingspouse ()

&. 8n default of the foregoing,illegitimate

parents onl (8)

4. 8llegitimatechildren anddescendants(8+)

4. urvivingspouse ()

NOTES:

ee ections 7 I of 1.A. BB#.

@y force of the 6amily +ode,

adopted children are deemedlegitimate children of the adopters.




18/33

San Beda College of Law7"


@y force of the 6amily +ode, 8+

without distinction and so long astheir filiation is duly established orproved in accordance with law, are

each entitled to 9# of the legitimeof a $+, thus abrogating the B:4 ratiobetween ;natural< and ;non3natural< 8+.

RU&ES:. irect descending line

a. 1ule of preference between linesb. 1ule of proximityc. 1ight of representation ad

infinitu* in case of predecease,incapacity, or disinheritance ($+:$ only" 8+: both $ and 8)

d. 8f all the $+ repudiate theirlegitime, the next generation of $ succeed in their own right

#. irect ascending linea. 1ule of division by linesb. 1ule of equal division

&. on3impairment of legitime

TA)&E O* &EGITI"ES/1801 $*?8!8'* 0!*

$+ N ivide by theO of $+,

whether theysurvive aloneor withconcurring+2.

$+

NP

# or more$+

Nequal to $+

$+

8+

N

N of $+

$+8+

NPN of $+

All theconcurring +2get from thehalf freeportion, theshare of the havingpreferenceover that of the 8+, whoseshare maysuffer

reduction prorata becausethere is nopreferenceamong

themselves.

$A N =hether theysurvive aloneor withconcurring+2.

$A8+

NP

8+ succeed inthe P inequal shares.

$A

NP

$A8+

N9P

8+ N ivide equallyamong the 8+.

8+

9&9&

N 9& if marriage is in

articulomortis anddeceasedspouse dieswithin & mos.after themarriage.

8 N

8Any child

3excluded38t depends

+hildreninherit in theamounts

established inthe foregoingrules.

8

PP

0nly theparents are of 8+ areincluded.?randparentsand otherascendantsare excluded.




19/33

San Beda College of Law7#


STE$S IN -ETER"INING THE &EGITI"EO* CO"$U&SOR# HEIRS:

. etermination of the ross -al"e of the estate at the time of the deathof the testator"

#. etermination of all de.ts and c/ares which are chargeableagainst the estate"

&. etermination of the net value of the estate by deducting all the debtsand charges from the gross value of the estate"

4. Collation or addition of the value of all donations inter vivos to the netvalue of the estate"

B. etermination of the amount of theleitime from the total thus found"

C. Imp"tation of the value of alldonations inter vivos made tocompulsory heirs against theirlegitime and of the value of alldonations inter vivos made tostrangers against the disposable freeportion and restoration to thehereditary estate if the donation isinofficious" and

7. Distri."tion of the residue of theestate in accordance with the will of

the testator

CO&&ATION. 6ictitious mathematical process of

adding the value of the thingdonated to the net value of thehereditary estate (Art. DF and Arts.FC3F77).

#. Act of charging or imputing suchvalue against the legitime of thecompulsory heir to whom the thingwas donated (Arts. FC3F77).

&. Actual act of restoring to thehereditary estate that part of thedonation which is inofficious in ordernot to impair the legitime of compulsory heirs.

RESER7A TRONCA& .ART ;0


20/33

San Beda College of Law7$


in turn had acquired the property byoperation of law (e.g. by way of legitime or intestate succession). !heso3called ;arbiter of the fate of the

reserva troncal.<&. Reser-ista 5 the ascendant, not

belonging to the line from which theproperty came (Kustice itug) that isthe only compulsory heir and isobliged to reserve the property.

NOTE: r. !olentino is of the view thateven if the reservista and the originatorbelong to the sa*e line, there is still anobligation to reserve.4. Reser-atarios 5 the relatives of the

propositus within the &rd degree andwho belong to the line from which

the property came and for whosebenefit the reservation isconstituted. !hey must be related byblood not only to the propositus butalso to the originator.

NOTE: ll personal ele*ents *ust +e oined + +onds of legiti*aterelationship.

NOTE: 8n determining the right of thereservatarios over the reservableproperty, there are events to consider:

2. Deat/ of proposit"s: all qualifiedreservatarios acquire an inchoateright. -eservista o7ns the propert su+ect to a resolutor condition.

. Deat/ of reser-ista: survivingreservatarios acquire a perfect right.

NOTE: !he ++ did not provide for therules on how the reservatarios wouldsucceed to the reservista. 2owever, thefollowing rules on intestacy have beenconsistently applied:

a. 1ule of preference between linesb. 1ule of proximityc. 1ight of representation

( provided that therepresentative is a relative of the descendant3 proposituswithin &rd degree, and that hebelongs to the line from whichthe reservable property came)

d. ;6ull blood9double share< rulein Art. FFC

roperty sub-ect to reservation:

must be the same property whichthe reservista had acquired byoperation of law from propositus

upon the death of the latter andwhich the latter, in turn hadacquired by gratuitous title duringhis lifetime from another ascendant,brother9sister.

Obligations o( Reser9ista:() !o mae an inventory of all

reservable property"(#) !o appraise value of all

reservable movable property"(&) !o annotate in 1egistry of

property the reservable

character of all reservableimmovable property"

(4) !o secure by mortgage (a)restitution of movables notalienated, (b) payment of damages caused by his fault ornegligence, (c) return of pricereceived for movables alienatedand (d) payment of value of immovable alienated.

A reservatorio may dispose of his

e,pentanc to the reservableproperty during pendency of thereserve in its uncertain andconditional form. 8f he dies beforethe reservista, he has nottransmitted anything, but if hesurvives such reservista, thetransmission shall become effective.

7ill *a prevent the constitution

of a reserva. 8n case of testatesuccession, only the legitime passesby operation of law. !he propositus

may, + 7ill, opt to give the legitimeof his ascendant without giving tothe latter properties he had acquiredby gratuitous title from anotherascendant, or brother or sister. #nsuch case a reserva troncal isavoided .

2owever, if the ascendant wasnot disentitled in the will to receive suchproperties, the reser-a minima rule( proportional reserva) should befollowed. !he rule holds that all




21/33



property passing to the reservista mustbe considered as passing partly byoperation of law and partly by will of thepropositus. !hus, one half of the

properties acquired by gratuitous titleshould be reservable, and the other half should be free.

Causes (or Extinguish+ent o( Reser9aTroncal:1. eath of reservatarios"2. eath of all relatives of propositus

within the &rd degree who belong tothe line from which the propertycame"

3. $oss of the reservable property forcauses not due to the fault or

negligence of the reservista.4. =aiver or renunciation by the

reservatarios"5. rescription of the right of the

reservatarios, when the reservistaholds the property adversely againstthem in the concept of an absoluteowner"

6. 1egistration by the reservista of theproperty as free property under the$and 1egistration Act

"! -ISINHERITANCE (A1! DB 5 D#&)

A testamentary disposition by whicha person is deprived of, or excludedfrom, the inheritance to which hehas a right.

A disinheritance properly effected

totally excludes the disinherited heirfrom the inheritance. !hedisinherited heir is deprived not onlyof the legiti*e but also of such partof the free portion that would havepassed to him by a previous will(which is revoed, as inconsistentwith, the subsequent disinheritance)or by intestate succession.

Re5uisites:. *ffected only through a valid will"#. 6or a cause expressly stated by law"&. +ause must be stated in the willitself"4. +ause must be certain and true"B. /nconditional"C. !otal" and

7. !he heir disinherited must bedesignated in such a manner thatthere can be no doubt as to hisidentity.

E((ects o( -isinheritance:

1. eprivation of the compulsory heirwho is disinherited of anyparticipation in the inheritanceincluding the legitime.

2. !he children9descendants of theperson disinherited shall tae his orher place and shall preserve therights of compulsory heirs withrespect to the legitime.

3. !he disinherited parent shall nothave the usufruct or administration

of the property which constitutesthe legitime.

I"$ER*ECT -ISINHERITANCE A disinheritance which does not have

one or more of the essentialrequisites for its validity.

E((ects:

. 8f testator had made disposition of the entire estate: annulment of thetestamentary dispositions only in sofar as they pre-udice the legitime of

the person disinherited" does notaffect the dispositions of thetestator with respect to the freeportion.

#. 8f testator did not dispose of the freeportion: compulsory heir is given allthat he is entitled to receive as if the disinheritance has not beenmade, without pre-udice to lawfuldispositions made by the testator infavor of others.

&. evises, legacies and othertestamentary dispositions shall be

valid to such extent as will notimpair the legitime.

I"$ER*ECT-ISINHERITANCE

$RETERITION

. !he persondisinherited may beany compulsory heir

. !he personomitted must be acompulsory heir inthe direct line




22/33



#. Always express #. Always implied

&.Always intentional &. 'ay beintentional orunintentional

4. *ffect: artialannulment of institution of heirs

4. *ffect: !otalannulment of institution of heirs

Co++on Causes (or -isinheritance o( children or descendants 3arents orascendants and s3ouse:. =hen the heir has been found guilty

of an attempt against the life of thetestator, his9her descendants orascendants, and spouse in case of

children and parents"#. =hen the heir has accused the

testator of a crime for which the lawprescribes imprisonment for C yearsor more, if the accusation has beenfound groundless"

&. =hen the heir by fraud, violence,intimidation, or undue influencecauses the testator to mae a will orto change one already made"

4. 1efusal without -ustifiable cause tosupport the testator who disinheritssuch heir.

$eculiar Causes (or -isinheritance1. ChildrenD-escendants:

a. =hen the child9descendant hasbeen convicted of adultery orconcubinage with the spouse of the testator"

b. 'altreatment of the testator byword or deed by thechild9descendant"

c. =hen the child9descendant leadsa dishonorable or disgraceful

life" +onviction of a crime whichcarries with it a penalty of civilinterdiction.

2. $arentsDAscendants:a. =hen the parents have

abandoned their children orinduced their daughters to live acorrupt or immoral life, orattempted against their virtue"

b. =hen the parent9ascendant hasbeen convicted of adultery orconcubinage with the spouse of the testator"

c. $oss of parental authority forcauses specified in the +ode" and

d. Attempt by one of the parentsagainst the life of the other,unless there has beenreconciliation between them.

3. S3ouse:a. =hen the spouse has given

cause for legal separation" =henthe spouse has given grounds forthe loss of parental authority.

Re9ocation o( -isinheritance:

. 1econciliation"#. ubsequent institution of the

disinherited heir" and&. ullity of the will which contains the

disinheritance.

NOTE: 0nce disinheritance has beenrevoed or rendered ineffectual, itcannot be renewed except for causessu+se?uent to the revocation or basedon ne7 grounds.

RECONCI&IATION

8t is the resumption of genuinecordial relationship between thetestator and the disinherited heir,approximating that which prevailedbefore the testator learned of thecause for disinheritance, reciprocallymanifested by their actionssubsequent to the act of disinheritance.

A subsequent reconciliation between

the offender and the offendedperson deprives the latter of theright to disinherit, and rendersineffectual any disinheritance thatmay have been made. (Art. D##)

NOTES:

'ere civilit which may characteriJe

their relationship, a conduct that is




23/33



naturally expected of every decentperson, is not enough.

8n order to be effective, the testator

must pardon the disinherited heir.

uch pardon must specifically referto the heir and to the acts causingthe disinheritance. he heir *ustaccept the pardon.

o particular form is required. 8t

may be made expressly or tacitly.

NOTE: =here the cause for disinheritance is liewise a ground for un7orthiness to succeed, what is theeffect of a subsequent reconciliationupon the heir%s capacity to succeedQ. #f disinheritance has +een *ade:

1ule on reconciliation applies. !hedisinheritance becomes ineffective.

#. #f disinheritance has not +een *ade:1ule on reconciliation does notapply. !he heir continues to beincapacitated to succeed unlesspardoned by the testator under Art.F&&. !he law effects thedisinheritance.

N! &EGACIES AN- -E7ISES (A1!. D#4 5DBD)

$ersons charged 8ith legacies andde9ises:() compulsory heir"(#) voluntary heir"(&) legatee or devisee"(4) estate

NOTES:

8f the will is silent with regard to the

person who shall pay or deliver thelegacy9devise, there is apresumption that such legacy or

devise constitutes a charge againstthe decedent%s estate.

ince legacies and devises are to be

taen from the disposable freeportion of the estate, thus, theprovisions on institution of heirs aregenerally applicable to them.

STATUS O*$RO$ERT# GI7EN )#

E**ECT ON THE&EGAC#D-E7ISE

&EGAC#D-E7ISE

. @elonging to thetestator at the time of the execution of thewill until his death

*ffective

#. @elonging to thetestator at the time of the execution of thewill but alienated infavor of a &rd person

1evoed

&. @elonging to thetestator at the time of the execution of thewill but alienated infavor of thelegatee9devisee

gratuitousl

o revocation.!here is a clearintention tocomply withlegacy or devise.

4. @elonging to thetestator at the time of the execution of thewill but alienated infavor of the legatee ordevisee onerousl

$egatee9deviseecan demandreimbursementfrom the heir orestate

B. ot belonging to thetestator at the timethe will is executed buthe has ordered that thething be acquired inorder that it be givento the legatee9devisee

*ffective

C. ot belonging to thetestator at the timethe will is executedand the testatorerroneously believedthat the thingpertained to him

oid

7. ot belonging to thetestator at the timethe will is executed but

afterwards becomes hisby whatever title

*ffective

. Already belonged tothe legatee9devisee atthe time of theexecution of the willeven though anotherperson may haveinterest therein

8neffective




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D. Already belonged tothe legatee or deviseeat the time of theexecution of the willeven though it mayhave beensubsequently alienatedby him

8neffective

F.!estator hadnowledge that thething bequeathedbelonged to a thirdperson and thelegatee9deviseeacquired the property

gratuitousl after theexecution of the will

$egatee9deviseecan claim nothingby virtue of thelegacy9devise

.!estator hadnowledge that thething bequeathedbelonged to a thirdperson and thelegatee9deviseeacquired the propertyby onerous title

$egatee9deviseecan demandreimbursementfrom the heir orestate

ART! 0


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4. 0ther causes: nullity of the will"noncompliance with suspensiveconditions affecting the bequests"sale of the thing to pay the debts of

the deceased during the settlementof his estate.

NOTE: $8! 8 0! *E+$/8*

II! &EGA& OR INTESTATESUCCESSION

!hat which is effected by operation

of law in the absence or default of awill.

CAUSES O* INTESTAC#1. 8f a person dies without a will, or

with a void will, or one which hassubsequently lost its validity"

2. Absence of an institution of heir"3. artial institution of heir. 8n such

case, intestacy taes place as to theundisposed portion (mixedsuccession)"

4. on3fulfillment of suspensivecondition attached to the institutionof heir"

5. redecease of the instituted heir"

6. 1epudiation by the instituted heir"7. 8ncapacity of instituted heir"8. reterition. 8ntestacy may be total

or partial depending on whether ornot there are legacies9devises"

9. 6ulfillment of resolutory condition"10. *xpiration of term or period of

institution"11. on3compliance or impossibility of

compliance with the will.

NOTE: 8n all cases where there has beenan institution of heir, follo7 the

#.&.-..#. order of Kustice aras. 8f theI nstitution fails, Substitution occurs. 8f there is no substitute, the right of Representation applies in the directdescending line to the legitime if thevacancy is caused by predecease,incapacity, or disinheritance. !he rightof Accretion applies to the free portionwhen the requisites in Art. FC arepresent. 8f there is no substitute, andthe right of 1epresentation or Accretion

does not apply, the rules on I ntestatesuccession shall tae over.

A! RU&ES

1. Rule o( $re(erence bet8een lines !hose in the direct descending

line shall exclude those in thedirect ascending and collaterallines, and those in the directascending line shall, in turn,exclude those in the collateralline.

2. Rule o( $roxi+it !he relative nearest in degree

excludes the more distant ones,saving the right of representation when it properly

taes place. !his rule is sub-ect to the rule of

preference between lines.3. Rule o( E5ual -i9ision

1elatives in the sa*e degree

shall inherit in equal shares. !"/!P#ON&:

a) ivision in the ascending line(between paternal and maternalgrandparents)"

b) ivision among brothers andsisters, some of whom are of the

full and others of half blood" andc) ivision 8n cases where the rightof representation taes place.

NOTE: !his rule is sub-ect to therule of preference between lines.

4. Rule o( )arrier bet8een thelegiti+ate (a+il and theillegiti+ate (a+il !he illegitimate family cannot

inherit + intestate successionfrom the legitimate family andvice3versa.

5. Rule o( -ouble Share (or (ull blood

collaterals =hen full and half3blood

brothers or sisters, nephews ornieces, survive, the full bloodshall tae a portion in theinheritance double that of thehalf3blood.

NOTE: 8n case of a disposition made ingeneral terms under Article DBD, only the1ule of roximity applies.




26/33



)! RE&ATIONSHI$ (A1!. DC& 5 DCD). umber of generations determines

proximity.#. *ach generation forms a degree.

&. A series of degrees forms a line.4. A line may be direct or collateral. A

direct line is that constituted by theseries of degrees among ascendantsand descendants (ascending anddescending).

B. A collateral line is that constitutedby the series of degrees amongpersons who are not ascendants ordescendants, but who come from acommon ancestor.

C. 6ull blood: same father and mother"half blood: only one of either parent

is the same.7. 8n adoption, the legal filiation is

personal and exists only between theadopter and the adopted. !headopted is deemed a legitimate childof the adopter (A), but still remainsas an intestate heir of his naturalparents and other blood relatives.

C! RIGHT O* RE$RESENTATION .RR2(A1!. D7F 5 D77) A right created by fiction of law, by

virtue of which the representative is

raised to the place and degree of theperson represented, and acquiresthe rights which the latter wouldhave if he were living or if he couldhave inherited. !he representativeis called to the succession by the lawnot by the person represented. 2esucceeds the one whom the personrepresented would have succeeded.

NOTES:

8n the direct line, representation

taes place ad infinitu* in thedirect descending line, never in theascending.

8n the collateral line, representation

taes place only in favor of thechildren of brothers or sisters(nephews and nieces), whether of the full or half3blood, and only if they concur with at least uncle oraunt.

a) =hen a compulsory heir in thedirect descending line had

predeceased the testator andwas survived by his children or

descendants.b) =hen a compulsory heir in the

direct descending line isexcluded from the inheritancedue to incapacit orun7orthiness and he haschildren or descendants.

c) =hen a compulsory heir in thedirect descending line isdisinherited and he has childrenor descendants" representationcovers only the legitime.

d) A legatee9devisee who died after

the death of the testator may berepresented by his heirs.

! Intestate Successiona) =hen a legal heir in the direct

descending line had predeceased the decedent and was survivedby his children or descendants.

b) =hen a legal heir in the directdescending line is excluded fromthe inheritance due toincapacit or un7orthiness andhe has children or descendants.

c) =hen brothers or sisters had predeceased the decedent andthey had children ordescendants.

d) =hen illegiti*ate childrenrepresent their illegitimateparents who already died in theestate of their grandparents.

e) =hen nephe7s and nieces inherittogether with their uncles andaunts in representation of theirdeceased parents who are thebrothers or sisters of said unclesand aunts.

-! INTESTATE OR &EGA& HEIRS !hose who are called by law to the

succession either in the absence of awill or of qualified heirs, and whoare deemed called based on thepresumed will of the decedent.

REGU&AR OR-ER O* SUCCESSION.-ecedent is a legiti+ate 3erson2:




27/33



. $egitimate children or descendants($+)

#. $egitimate parents or ascendants($A)

&. 8llegitimate children or descendants(8+)

4. urviving spouse ()B. @rothers and sisters, nephews and

nieces (@9)C. 0ther collateral relatives within the

Bth degree (+B)7. tate

IRREGU&AR OR-ER O* SUCCESSION.-ecedent is an illegiti+ate 3erson2:

. $egitimate children or descendants($+)#. 8llegitimate children or descendants(8+)&. 8llegitimate parents (8)4. urviving spouse ()B. @rothers and sisters, nephews and

nieces (@9)C. tate

OR-ER O* CONCURRENCE. $+, 8+, and

#. $A, 8+, and &. 8+ and 4. and 8B. @9 and C. +B (alone)7. tate (alone)

TA)&E O* INTESTATE SHARES

/1801 8!*!A!* 2A1*Any classalone

*ntire estate

$+

9#9#(iongson vs. /inco 04&/- 221)

# or more $+

+onsider as $+,then divide estate bytotal number.

$A

9#9#

$A8+

9#9494

8

9#9#(he la7 is silent. ppl concurrence theor.)

@9

9#

9# $+8+

6irst, satisfy legitimes.*state would beinsufficient. 1eductionmust be made accordingto the rules onlegitimes. !he legitimesof $+ and shallalways be first satisfiedin preference to the 8+.

# or more $+8+

6irst, satisfy legitimes.!here would be anexcess in the estate.istribute such excess in

the proportion :#:#, inaccordance with theconcurrence theor .

OR-ER O* CONCURRENCE IN THE CASEO* A-O$TE- CHI&-

SUR7I7ORS SHARE. $A98

A N N

#. $A98A

N

N

&. $A A 8+

N

N

4. $A A 8+

9&

9& 9&

CAR-INA& $RINCI$&ES O* INTESTATESUCCESSION .Bustice $aras2

. *ven if there is an order of intestatesuccession, the +ompulsory 2eirs.CH) are never excluded. !he +ivil+ode follows the concurrence theory,not the exclusion theory.

#. 1ight of 1epresentation .RR ) in thecollateral line occurs only inintestate succession, never intestamentary succession because avoluntary heir cannot be represented(collateral relatives are not +2).




28/33

San Beda College of Law"


&. !he intestate shares are either equalto or greater than the legitime.

4. $!N!-L -%L!: ?randchildren

always inherit by 11, provided

representation is proper. !"/!P#ON: =henever all the

children repudiate, thegrandchildren inherit in their ownright because 11 would not beproper.

B. ephews and nieces inherit either by11 or in their 0wn 1ight (OR ).a. 11: when they concur with aunts

and uncles (provided that 11 isproper)

b. 01: when they do not concurwith aunts and uncles.

C. 8+ of legiti*ates cannot representbecause of the barrier, but both the8+ and $+ of illegiti*ates can.

7. !here can be reserva troncal inintestate succession.

. A renouncer can represent, butcannot be represented.

D. A person who cannot represent anear relative cannot also represent a

relative farther in degree.

III! "I6E- SUCCESSION OR $ARTIA& INTESTAC#

uccession that is effected partly by

will and partly by operation of law.

RU&ES:

into operation in partial intestacy,because the testamentary

dispositions can affect only thedisposable free portion but never thelegitimes.

! 8f among the concurring intestateheirs there are compulsory heirs,whose legal or intestate portionsexceed their respective legitimes,then the amount of thetestamentary disposition must bededucted from the disposable freeportion, to be borne by all theintestate heirs in the proportions

that they are entitled to receivefrom such disposable free portion asintestate heirs.

1! 8f the intestate share of a

compulsory heir is equal to hislegitime, then the amount of thetestamentary disposition must bededucted only from the intestateshares of the others, in theproportions stated above.

?! 8f the testamentary dispositionsconsume the entire disposable freeportion, then the intestate heirs whoare compulsory heirs will get onlytheir legitime, and those who arenot compulsory heirs will getnothing.

I7! $RO7ISIONS CO""ON TOTESTA"ENTAR# AN- INTESTATESUCCESSIONS

A! RIGHT O* ACCRETION .A2(A1! FB 5 F#&) A right by virtue of which, when two

or more persons are called to thesame inheritance, devise or legacy,the part assigned to one whorenounce or cannot receive hisshare, or who died before testator, isadded or incorporated to that of hisco3heirs, co3devisees, or co3legatees.

A right based on the pre

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