Ateneo Central Bar Operations 2007 Civil Law Summer Reviewer

ATENEO CENTRAL BAR OPERATIONS 2007 Civil Law SUMMER REVIEWER SUCCESSION CHAPTER 1: GENERAL PROVISIONS SUCCESION - Is 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)

ELEMENTS OF SUCCESSION 1. Decedent 2. Successors a. Heirs – those who are called to the whole or to an aliquot portion of the inheritance either by will or by operation on law b. Devisees or Legatees – persons to whom gifts of real or personal property are respectively given by virtue of a will. 3. Death of the Person – However, a person may be presumed dead for the purpose of opening his succession (see rules on presumptive death). In this case, succession is only of provisional character because there is always the chance that the absentee may be alive. 4. Inheritance – is the subject matter of Succession it includes: • Property and transmissible rights and obligations • Existing at the time of his death • AND those which have accrued thereto since the opening of succession. RIGHTS EXTINGUISHED BY DEATH 1. Support 2. Usufruct 3. Those arising from personal consideration 4. Personal easements 5. Partnership rights 6. Agency QuickTime™ and a decompressor 7. Life Annuity TIFFare(Uncompressed) needed to see this picture. Succession Refers to the legal mode by which inheritance is transmitted to the persons entitled to it.

Inheritance Refers to the universality or entirety of the property, rights and obligations of a person who died.

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 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 KINDS OF HEIRS 1. Compulsory – those who succeed by force of law to some portion of the inheritance, in an amount predetermined by law, of which they cannot be deprived by the testator, except by a valid disinheritance 2. Voluntary or Testamentary – 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 3. Legal or Intestate – 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

CHAPTER 2: GENERAL PROVISIONS ON WILLS ELEMENTS OF A WILL 1. It is an act; 2. whereby a person is permitted; 3. with the formalities prescribed by law; 4. to control to a certain degree; 5. the disposition of his estate; 6. to take effect after his death. KINDS OF WILLS: 1. Notarial – an ordinary or attested will 2. Holographic – a handwritten will COMMON REQUISITES BETWEEN THE TWO WILLS: 1. must be in writing and 2. in a language or dialect known to the testator CHARACTERISTICS OF A WILL: 1. Unilateral 2. Strictly Personal act a. Acts which may not be left to the discretion of third persons (Articles 785 AND 787): i. Duration or efficacy of the designation of heirs, devisees or legatees;

—Adviser: Dean Cynthia del Castillo Head: Joy Ponsaran, Eleanor Mateo; Understudy: Joy Tajan, John Paul Lim; Subject Head: Polaris Rivas;

Civil Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 ii.

3. 4. 5. 6. 7.

Determination of the portions which they are to take, when referred to by name; and iii. Determination of whether or not the testamentary disposition is to be operative b. Acts which may be entrusted to third persons (Article 787); i. Distribution of specific property or sums of money that he may leave in general to specified classes or causes; and ii. Designation of the persons, institutions or establishments to which such property or sums are to be given or applied. Free and voluntary act Formal and solemn act Act mortis causa Ambulatory and revocable during the testator’s lifetime Individual act

INTERPRETATION OF WILLS 1. Animus Testandi - The testator’s intent (animus testandi), as well as giving effect to such intent is primordial. EXCEPT: when the intention of the testator is contrary to law, morals or public policy. 2. In case of doubt, the interpretation by which the disposition is to be operative or will sustain and uphold the will in all its parts shall be adopted, provided that it can be done consistently with the established rules of law. 3. Ambiguities in Wills – Intrinsic or extrinsic evidence may be used to ascertain the testatorial intent of the testator. EXCEPT: the oral declarations of the testator as to his intentions must be excluded because such testimony would be hearsay. 4. After Acquired Property - Property acquired during the period between the execution of the will and the death of the testator is NOT included among the property disposed of. EXCEPT: When a contrary intention expressly appears on the will. QuickTime™only and a to legacies and NOTE: This rule applies TIFF (Uncompressed) decompressor areto needed to see this picture. devisees and not institution of heirs TESTAMENTARY CAPACITY 1. All persons who are not expressly prohibited by law 2. 18 years old and above

3. Of sound mind, at the time of its execution; A testator is considered of sound mind if he knows at the time of making of the will the following: a. Nature of the estate to be disposed of b. Proper objects of his bounty c. Character of the testamentary act •

Supervening capacity or incapacity does not affect the will because the validity of a will is determined at the time of the execution of the will.

LEGAL PRESUMPTION SOUNDNESS OF MIND • •

IN

FAVOR

OF

GENERAL RULE: The law presumes that the testator is of sound mind EXCEPT: a. When the testator, one month or less, before making his will was publicly known to be insane; or b. Was under guardianship at the time of the making of his will. (Torres and Lopez de Bueno vs. Lopez, 48 Phil. 772)

CHAPTER 3: FORMS OF WILL 1. NOTARIAL WILL – a valid notarial will: a. Must be in writing and in a language or dialect known to the testator b. Subscribed at the end by the testator himself or by the testator’s name written by some other person in his presence, and by his express direction c.

Attested & subscribed by three or more credible witnesses in the presence of the testator and of one another • Mandatory Part: The signing on every page in the witnesses’ presence • NOTE: Test of presence is not whether they actually saw each other sign, but whether they might have seen each other sign had they chosen to do so considering their mental and physical condition and position with relation to each other at the moment of inscription of each signature. • Directory Part: The place of the signature, i.e. the left margin; the signature can be affixed anywhere on the page.

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Civil Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 d. Each and every page, except the last, must be signed by the testator or by the person requested by him to write his name, and by the instrumental witnesses of the will, on the left margin. Signatures on the left margin on each and every page NOT REQUIRED: i. In the last page, when the will consists of two or more pages; ii. When the will consists of only one page; iii. When the will consists of two pages, the first consists of all the testamentary disposition and is signed at the bottom by the testator and the witnesses and the second contains only the attestation clause duly signed at the bottom by the witnesses. e. Each and every page of the will must be numbered correlatively in letters placed on the upper part of each page. • Mandatory Part: Pagination by means of a conventional system. • Directory Part: The pagination in letters on the upper part of each page f.

It must contain an attestation clause, stating the following: a. The number of pages used upon which the will is written b. The fact that the testator signed the will and every page, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses c. All the instrumental witnesses witnessed and signed the will and all its pages in the presence of the testator and of one another

g. It must be acknowledged before a notary public by the testator and the witnesses ATTESTATION v. SUBSCRIPTION Attestation – An act of witnessing execution of will by testator in order to see and take note mentally those things are done which the statute requires for the execution of a will and that the signature ofQuickTime™ the testator exists as a and a TIFF (Uncompressed) decompressor fact. are needed to see this picture. •

The attestation clause need not be written in a language or dialect known to the testator nor to the witnesses since it does not form part of the testamentary disposition

•

The attestation clause need only be signed by the witnesses and not by the testator as it is a declaration made by the witnesses.

Icasiano vs. Icasiano, II SCRA 422 – the inadvertent failure of one witness to affix his signature to one page of the original will due to the simultaneous lifting of two pages in the course of signing is not per se sufficient to justify denial of probate when the duplicate will shows Cruz v. Villasor, 54 SCRA 31- the notary public cannot be counted as one of the attesting witnesses Subscription - The manual act of instrumental witnesses in affixing their signature to the instrument. ATTESTATION

SUBSCRIPTION

1. act of the senses

1. act of the hand

2. mental act

2. mechanical act

3. Purpose is to render available proof during the probate that such will had been executed in accordance with the formalities prescribed by law 4. Found after the attestation clause at the end or last page of the will

3. Purpose is for identification

4. Found at the left side margin of every page of the will

ADDITIONAL REQUISITES FOR VALIDITY a. If the Testator be Deaf or Deaf-Mute: i. Testator must personally read the will, if able to do so; ii. Otherwise, he shall designate two persons to read it and communicate to him, in some practicable manner, its contents (Art 807) b. If the Testator be Blind: The will shall be read to the testator twice i. Once by one of the subscribing witnesses Page 85 of 297

Civil Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 ii. •

Once by the notary public before whom the will is acknowledged (Art 808) NOTE: Articles 807 and 808 are mandatory, failure to comply with either would result in nullity and denial of probate.

2. HOLOGRAPHIC WILL – a holographic will is valid if it is: a. In writing and in a language or dialect known to the testator b. Entirely written, dated, and signed by the hand of the testator himself c. Dispositions of the testator written below his signature must be dated and signed by him in order to validate the testamentary dispositions. (Art 812) • EXCEPT: In case of dispositions appearing in a holographic will which are signed without being dated, where the last disposition has a signature and a date, such date validates the dispositions preceding it, whatever be the time of prior dispositions • A holographic will is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed. (Art 810)

INSERTION, CANCELLATION, ERASURE ALTERATION IN A HOLOGRAPHIC WILL

OR

a. If made after the execution of the will, but without the consent of the testator, such insertion is considered as not written because the validity of the will cannot be defeated by the malice or caprice of a third person b. If the insertion after the execution of the will was with the consent of the testator, the will remains valid but the insertion is void. c.

If the insertion after the execution is validated by the testator by his signature thereon, then the insertion becomes part of the will, and the entire will becomes void, because of failure to comply with the requirement that it must be wholly written by the testator

d. If the insertion made by a third person is made contemporaneous to the execution of the will, then the will is void because it is not written entirely by the testator

PROBATE OF HOLOGRAPHIC WILL a. There must be at least one witness. • EXCEPTION: If the will is contested, at least three of such witnesses shall be required (merely directory). In the absence of such competent witness and if the court deems it necessary, expert testimony may be resorted to. b. who knows the handwriting and signature of the testator c. •

must explicitly declare that the will and the signature are in the handwriting of the testator. (Art 811) QuickTime™ and a NOTE: This article decompressor applies only to post TIFF (Uncompressed) are needed to see this picture. mortem probates and not to ante mortem probates since in such cases the testator himself files the petition and will identify the document himself.

Gan v, Yap, 104 Phil 509 – in the probate of a holographic will, the document itself must be produced; a lost holographic will cannot be probated. Exception: When copy of the will is produced

WHO MAY BE A WITNESS TO A WILL – Any person may be a witness provided he is: a. b. c. d. e. f.

Of sound mind Of the age of 18 years or more Not blind, deaf or dumb Able to read and write Domiciled in the Philippines Have not been convicted of falsification of a document, perjury or false testimony

CHAPTER 4: LAWS GOVERNING VALIDITY OF A WILL 1. FORMAL VALIDITY a. If the testator is a Filipino and the will is executed in the Philippines then its formal validity is governed by the CC of the Philippines b. If the testator is a Filipino and the will is executed in a foreign country, then its formal validity is governed either: Page 86 of 297

Civil Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 i. ii.

c.

By the law of the place where the will was made By the CC of the Philippines

are also dated and signed, and everything is written by the hand of the testator himself b. Certain dispositions or additional matter may be suppressed or inserted PROVIDED that said cancellation is signed by the testator and written by the hand of the testator himself c. Through a codicil which may either be notarial or holographic

If the testator is a foreigner and the will is executed in the Philippines, then its formal validity is governed either: i. By the CC of the Philippines ii. By the law of his own country

ELEMENTS OF A CODICIL d. If the testator is a foreigner and the will is executed in a foreign country, then its formal validity is governed either: i. By the law of the place where the will was made ii. By the law of his own country iii. By the law of the country where he resides iv. By the CC of the Philippines 2. SUBSTANTIVE VALIDITY ASPECTS OF THE WILL GOVERNED NATIONAL LAW OF THE DECEDENT: a. b. c. d.

BY

Order of succession Capacity to succeed Amount of successional rights Intrinsic validity (Art 16)

Intrinsic validity VALIDITY OF JOINT WILLS •

•

Two or more persons cannot make a will jointly, or in the same instrument, either for their reciprocal benefit or for the benefit of a third person. (669) NOTE: Joint wills executed by Filipinos in a foreign country shall not be valid in the Philippines, even though authorized by the laws of the country where they may have been executed.

CHAPTER 5: AMENDMENTMENT, REVOCATION AND REPUBLICATION WILLS QuickTime™ andOF a TIFF (Uncompressed) decompressor are needed to see this picture.

AMENDMENT OF WILLS 1. Notarial – only through a codicil 2. Holographic – in three ways a. Dispositions may be added below the signature, PROVIDED that said dispositions

1. 2. 3. 4.

It is a supplementary or addition to a will made after the execution of the will and annexed to be taken as a part thereof by which any disposition in the original will may be explained, added to or altered

REQUISITES REFERENCE

FOR

INCORPORATION

BY

1. the document or paper referred to in the will must be in existence at the time of the execution of the will 2. the will must clearly describe and identify the same, stating among other things the number of pages thereof 3. it must be identified by clear and satisfactory proof as the document or paper referred to therein 4. 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 REVOCATION OF WILLS 1. By operation of law – instances of revocation by operation of law: a. decree of legal separation b. preterition c. legacy or credit against third person or remission of debt was provided in will and subsequently, testator brings action against debtor d. substantial transformation of specific thing bequeathed e. when heir, devisee or legatee commits any of the acts of unworthiness 2. By the execution of a will, codicil or other writing executed as provided in case of wills a. EXPRESS – When there is a revocatory clause expressly revoking the previous will or a part thereof

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Civil Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 b. IMPLIED – When the provisions thereof are partially or entirely inconsistent with those of the previous wills

a. The cause must be concrete, factual and not purely subjective b. It must be false c. The testator must not know of its falsity d. It must appear from the will that the testator is revoking because of the cause which is false.

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. REQUISITES: a. Testamentary capacity at the time of performing the act of destruction; b. Intent to revoke (animus revocandi); c. Actual physical act of destruction; d. Completion of the subjective phase; AND e. Performed by the testator himself or by some other person in his presence and express direction LAWS WHICH GOVERN REVOCATION 1. If the revocation takes place in the Philippines whether the testator is domiciled in the Philippines or not, a. Laws of the Philippines 2.

3.

If the revocation takes place outside the Philippines, by a testator who is domiciled in the Philippines, a. Laws of the Philippines Revocation done outside the Philippines by a testator who is not domiciled in this country, a. Laws of the place where the will was made; or b. Laws of the place in which the testator had his domicile at the time of the revocation. Art. 832 A revocation made in a subsequent will shall take effect, even if the new will should become inoperative by reason of the incapacity of the heirs, devisees or legatees designated therein, or by their renunciation. EXCEPTION: Molo v. Molo, (90 Phil 37), When the testator provides in the subsequent will that the revocation of the prior one is dependent on the capacity or acceptance of QuickTime™ and a the heirs, devisees, or legatees instituted in the TIFF (Uncompressed) decompressor are needed to see this picture. (dependant relative subsequent will revocation)

REVOCATION BASED ON A FALSE OR ILLEGAL CAUSE •

Revocation based on a false or illegal cause is null and void. REQUISITES:

Art. 834. The recognition of an illegitimate child does not lose its legal effect, even though the will wherein it was made should be revoked.

Art. 837. 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.

FACTS DEMONSTRATING ART 837 • In 1985, X executed Will 1 • In 1987, X executed Will 2, expressly revoking Will 1 • In 1990, X executed Will 3, revoking Will 1 CONCLUSION ON THE FACTS • The Revocation of Will 2 by Will 3 does not revive Will 1 • This demonstrates the theory of instant revocation because the revocatory effect of the second will is immediate upon the first will • NOTE: This article only applies where the revocation of the first will by the second will is express. REPUBLICATION AND REVIVAL OF WILLS •

If the testator wishes to republish a will that is void as to form, the only way to republish it is to execute a subsequent will and reproduce it

•

The testator need only execute a subsequent will or codicil referring to the previous will if the testator wishes to republish a will that is either: a. Void for reason other than a formal defect b. Previously revoked

REPUBLICATION Takes place by an act of the testator Corrects extrinsic and extrinsic defects

REVIVAL Takes place by operation of law Restores a revoked will

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Civil Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 CHAPTER 6: ALLOWANCE AND DISALLOWANCE OF WILLS 1. PROBATE OF A WILL a. A special proceeding required for the purpose of establishing the validity of the will. b. Probate of a will is mandatory c. The probate court can only inquire into the extrinsic validity of testamentary provisions, which include the following: i. That the testator was of sound and disposing mind ii. That his consent was not vitiated iii. That the will was signed by the required number of witness iv. That the will is genuine EXCEPTION: Nuguid v. Nuguid, 17 SCRA 449, the probate court may pass upon the intrinsic validity of the will when its probate might become an idle ceremony if on the will’s face it appears to be intrinsically void.

KINDS OF PROBATE 1. Post-Mortem – after the testator’s death 2. Ante-Mortem – during his lifetime FINAL DECREE OF PROBATE • Once a decree of probate becomes final in accordance with the rules of procedure it becomes Res Judicata • It is conclusive as to the due execution of the will (extrinsic validity only) 2.

DISALLOWANCE OF WILL - grounds for disallowance of a will: a. If the formalities required by law have not been complied with; b. If the testator was insane, or otherwise mentally incapable of making a will, at the time of its execution; QuickTime™ and a c. If it was TIFF executed through (Uncompressed) decompressorforce or under are needed to see this picture. duress, or the influence of fear, or threats; d. If it was procured by undue and improper pressure and influence, on the part of the beneficiary or of some other person; e. If the signature of the testator was procured by fraud; f. If the testator acted by mistake or did not intend that the instrument should be his will

at the time of thereto.(Art 839) REVOCATION Voluntary act of the testator With or without cause May be partial or total

affixing

his

signature

DISALLOWANCE Given by judicial decree Always for a legal cause Always total EXCEPT when the ground of fraud or influence for example affects only certain portions of the will

CHAPTER 7: INSTITUTION OF HEIRS INSTITUTION OF HEIR 1. It is an act by virtue of which a testator designates in his will 2. the person or persons who are to succeed him in his property and transmissible 3. rights and obligations REQUISITES FOR A VALID INSTITUTION OF HEIR 1. Designation in will of person/s to succeed a. Directory - designation of name and surname b. Mandatory – identity of the heir must be established, otherwise void disposition, unless his identity becomes certain. NOTE: If there is ambiguity in the designation, the designation must be resolved by discerning the testator’s intent. If the ambiguity cannot be resolved, intestacy to that portion results. 2. Will specifically assigns to such person an inchoate share in the estate. 3. The person so named has capacity to succeed 4. The will is formally valid 5. No vice of consent is present 6. No preterition results from the effect of such will THREE PRINCIPLES IN THE INSTITUTION OF HEIRS 1. Equality – heirs who are instituted without a designation of shares inherit in equal parts 2. Individuality – heirs collectively instituted are deemed individually named unless a contrary intent is proven 3. Simultaneity – when several heirs are instituted, they are instituted simultaneously and not successively RULES ON A PERSON’S RIGHT TO DISPOSE OF HIS ESTATE

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Civil Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 1. If one has no compulsory heirs: a. He can give his estate to any person qualified to inherit under him b. However, he must respect restrictions imposed by special laws 2. If one has compulsory heirs: a. He can give only the disposable portion to strangers b. Legitimes of compulsory heirs must be respected REQUISITES FOR THE ANNULMENT OF INSTITUTION OF HEIRS: 1. Cause of institution of the heirs must be stated in will 2. Cause must be shown to be false 3. It appears from the face of the will that the testator would not have made the institution had he known the falsity of the cause. RULES ON INSTITUTION OF ALIQUOT SHARE LESS THAN OR IN EXCESS OF THE WHOLE ESTATE: 1. Intestacy Results if a. the heir institutes an aliquot portion of the estate b. to only one heir If the heir institutes several heirs to an aliquot part of the 2. Each heir’s share shall be proportionally increased: a. There are more than one instituted heir b. The testator intended the heirs to inherit the whole estate c. The aliquot parts of each share do not cover the whole inheritance 3. Each heir’s share shall be proportionally decreased: a. There are more than one instituted heir b. The testator intended the heirs to inherit the whole estate c. The aliquot parts of each share exceed the whole inheritance PRETERITION 1. There must be an omission of one, some or all of QuickTime™ and a the heir/s in the TIFFwill (Uncompressed) decompressor are needed to see this picture. 2. The omission must be that of a COMPULSORY HEIR 3. Compulsory heir omitted must be of the DIRECT LINE 4. The omitted compulsory heir must be LIVING at the time of testator’s death or must at least have been CONCEIVED before the testator’s death 5. The omission must be complete and total in character. : There is no omission if

a. A devise or legacy has been given to the heir b. A donation inter vivos has been previously given to the heir c. Anything is left from the inheritance which the heir may get by way of intestacy EFFECTS OF PRETERITION: 1. The institution of 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 effectual, without prejudice to the right of representation DISTINGUISH PRETERITION FROM DISINHERITANCE PRETERITION DISINHERITANCE Deprivation of a Deprivation of the compulsory heir of his compulsory of his legitime legitime is tacit is express May be voluntary but Always voluntary the law presumes that it is involuntary Law presumes that Done with a legal cause there has been merely an oversight or mistake on the part of the testator Omitted heir gets not If disinheritance is only his legitime but also unlawful, compulsory heir his share in the free is merely restored to his portion not disposed of legitime by way of legacies or devises CHAPTER 8: SUBSTITUTION OF HEIRS CLASSES OF SUBSTITUTION: 1. Vulgar or Simple – the testator may designate one or more persons to substitute the heir or heirs instituted in case such heir or heirs should: a. die before him (PREDECEASE) b. should not wish, (RENOUNCE) or c. should be incapacitated to accept the inheritance (INCAPACITATED) 2. Brief or Compendious – two or more persons may be substituted for one; and one person for two or more heirs 3. Reciprocal – if heirs instituted in unequal shares should be reciprocally substituted, the substitute shall acquire the share of the heir who dies, renounces, or incapacitated, unless it clearly appears that the intention of the testator was otherwise. If there are more than one substitute, Page 90 of 297

Civil Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 they shall have the same share in the substitution as in the institution 4. Fideicommissary Substitution - if the testator institutes an heir with an obligation to deliver to another the property so inherited. The heir instituted to such condition is called the first heir or fiduciary heir, the one to receive the property is the fideicommissary or second heir REQUISITES FOR A FIDEICOMMISSARY SUBSTITUTION: 1. A fiduciary or first heir instituted entrusted with the obligation to preserve and to transmit to a fideicommissary substitute or second heir the whole or part of the inheritance 2. Such substitution must not go beyond one degree from the heir originally instituted 3. The fiduciary or first heir and the second heir are living at the time of the death of the testator 4. The fideicommissary substitution must be expressly made 5. The fideicommissary substitution is imposed on the free portion of the estate and never on the legitime •

NOTE: Pending the transmission of the property, the fiduciary is entitled to all the rights of a usufructuary although the fideicommissary is entitled to all the rights of a naked owner. CHAPTER 9: CONDITIONAL TESTAMENTARY DISPOSITIONS AND DISPOSITIONS WITH A TERM

TESTAMENTARY DISPOSITIONS 1. Condition – future or uncertain event, or a past event unknown to the parties, upon which the performance of an obligation depends 2. Term – the day or time when an obligation either becomes demandable or terminates 3. Modal Institution – the statement of the institution; application of the property left by the testator or the charge imposed on him 4. Disposicion Captatoria – condition that the heir shall make some provision in his will of the testator or of any other person (prohibited QuickTime™ and a because it willTIFF make the making of the will a (Uncompressed) decompressor are needed to see this picture. contractual act) 5. Causal Condition – condition us casual if it depends upon chance and/or upon the will of a third person 6. Mixed Condition - It is mixed if it depends both partly upon the will of the heir himself and upon chance and/or the will of a third person 7. Potestative Condition – one the fulfillment of which depends purely on heir

8. Suspensive term – one that merely suspends the demandability of a right. It is sure to happen 9. Caucion Muciana – bond or security that should be given in favor of those who would get the property if the condition not be complied with INTERPRETATION • When in doubt whether there is a condition or merely a mode, consider the same as mode •

When in doubt as to whether there is a mode or merely a suggestion, consider same only as a suggestion

•

The condition suspends but does not obligate, the mode obligates but does not suspends (for he who inherits with a mode is already an heir; one who inherits conditionally is not yet an heir.)

RULES ON POTESTATIVE, CASUAL AND MIXED CONDITIONS 1. POTESTATIVE Positive Potestative Condition: • General Rule – must be fulfilled as soon as the heir learns of the testator’s death • EXCEPTION a. the condition was already complied with at the time the heir learns of the testator’s death b. the condition is of such nature that it cannot be fulfilled again Negative Potestative Condition: • Heir must give security to guarantee the return of the value of property, fruits, and interests, in cases of contravention 2. CASUAL OR MIXED Positive • GENERAL RULE – may be fulfilled at any other time (before testator’s death), unless testator provides otherwise. • If ALREADY FULFILLED at the time of execution of the will a. If testator unaware of fact of fulfillmentdeemed fulfilled b. If testator aware thereof – i. If it can no longer be fulfilled again – deemed fulfilled ii. If it can be fulfilled again – must be fulfilled again Constructive Compliance a. if casual – not applicable Page 91 of 297

Civil Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 b. if mixed – i. If dependent partly on chance – not applicable ii. If dependent partly on will of third party – 1. if 3rd party interested – applicable 2. if 3rd party not interested – not applicable

•

i. On the offending spouse – disqualified ii. On the innocent spouse – no effect c. Death of either spouse during the pendency of a petition for legal separation – dismissal of the case Illegitimate children and descendants (legitimate or illegitimate)

EFFECTS OF SUSPENSIVE CONDITION OR TERM •

The estate shall be placed under administration until 1. condition is fulfilled 2. until it becomes certain condition will never be fulfilled 3. until arrival of the term CONDITIONS PROHIBITING MARRIAGE 1. If a first marriage is prohibited – condition considered always as not imposed 2. If a subsequent marriage is prohibited as imposed by the deceased spouse or by his/her ascendants or descendants - valid 3. if a subsequent marriage is prohibited and imposed by anyone else- considered not written CHAPTER 10: LEGITIMES • •

The portion of the decedent’s estate reserved by law is called the legitime. The heirs for whom the law reserves such portion are called compulsory heirs.

CLASSES OF COMPULSORY HEIRS 1. Primary – those who have precedence over and exclude other compulsory heirs • Legitimate children and descendants (legitimate), with respect to their legitimate parents and ascendants 2. Secondary – those who succeed only in the absence of the primary heirs • Legitimate parents and ascendants (legitimate), with respect to their legitimate children and descendants QuickTime™ and a 3. Concurring –TIFF those who decompressor succeed together with (Uncompressed) are needed to see this picture. the primary or the secondary compulsory heirs • Widow or widower (legitimate) – the surviving spouse referred to is the spouse of the decedent. • NOTE: a. Mere estrangement is not a ground for the disqualification of the surviving spouse as heir b. Effect of decree of legal separation:

Testator is a Legitimate Person Legitimate children and descendant In default of the foregoing, legitimate parents and ascendants Surviving spouse

Illegitimate children and descendant

Testator is an Illegitimate Person Legitimate children and descendants Illegitimate parents and ascendants In default of the foregoing, illegitimate parents only Surviving spouse

GENERAL RULES IN ASCERTAINING LEGITIMES 1. Direct descending line a. Rule of preference between lines b. Rule of proximity c. Right of representation ad infinitum in case of predecease, incapacity or disinheritance 2. Direct ascending line a. Rule of division by line b. Rule of equal division 3. Non-impairment of legitime - Any compulsory heir who was given title less than his legitime may demand that the same be completed (Art 906) EXCEPTIONS: a. If the predecessor gave the compulsory heir a donation inter vivos and provided that it was not charged against the legitime (Art 1062) b. Testamentary dispositions made by the predecessor to the compulsory heir, unless the testator provides that it should be considered part of the legitime. SHARES OF COMPULSORY HEIRS 1.

Legitimate Children or Descendants -

Share of legitimate children and descendants Free portion

½ of the net estate ½ of the net estate

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Civil Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 2. Legitimate Parents and Ascendants

Surviving spouse

Share of legitimate parents and ascendants Free portion of the estate

Illegitimate children

½ of the net estate ½ of the net estate Free portion

3.

One legitimate child or descendant; Surviving spouse;

Share of a legitimate child Share of the surviving spouse Free disposable portion 4.

Free portion

½ of the net estate Portion equal to the legitime of each of the legitimate children or descendant Whatever remains

Free disposable portion parents

or

ascendants;

Share of legitimate parents or ascendants Share of the surviving spouse Free disposable portion 7.

8.

Surviving

¼ of the free portion ¼ of the estate

1/3 of the net estate 1/3 of the net estate 1/3 of the net estate

Legitimate parents or ascendants; Illegitimate children

Share of legitimate parents ½ of the net estate QuickTime™ and a and ascendants TIFF (Uncompressed) decompressor Illegitimate children are needed to see ¼this ofpicture. the net estate Free portion ¼ of the estate 9.

Surviving spouse; Legitimate descendant; Illegitimate children

Share of legitimate children and descendants

or

½ of the net estate 1/8 of the estate ¼ of the estate 1/8 of the estate

Surviving spouse only Free portion

½ of the net estate ½ of the estate

Surviving spouse only (marriage in articulo mortis) Free portion

1/3 of the net estate 2/3 of the estate

12. Illegitimate children only. Share of illegitimate children Free portion

½ of the net estate ½ of the estate

13. Illegitimate parents only; With illegitimate and legitimate children or descendant; With surviving spouse.

½ of the net estate

Illegitimate children, surviving spouse

Share of illegitimate children Share of surviving spouse Free portion

Share of legitimate parents and ascendants Surviving spouse Illegitimate children Free portion

parents

11. Surviving spouse only; Exception: Marriage in articulo mortis

½ of the legitime of each legitimate children or ascendant Whatever remains

Two or more legitimate children or descendant; surviving spouse

Legitimate spouse

Surviving spouse; Legitimate ascendants; Illegitimate children

½ of the net estate

Share of legitimate children Share of the surviving spouse

6.

½ of the net estate ¼ of the net estate ¼ of the estate

Illegitimate children, legitimate children;

Share of children and descendants Share of each illegitimate children

5.

10.

Equal to the portion of the legitime of each legitimate child ½ of the share of each legitimate child Whatever remains

children

½ of the net estate

and

Share of illegitimate parents only Free portion

½ of the net estate

Share of illegitimate parents Share of the surviving spouse Free portion

¼ of the net estate ¼ of the estate

½ of the estate

½ of the estate

STEPS IN DETERMINING THE LEGITIME OF COMPULSORY HEIRS: 1. Determination of the gross value of the estate at the time of the death of the testator; 2. Determination of all debts and charges which are chargeable against the estate; 3. Determination of the net value of the estate by deducting all the debts and charged from the gross value of the estate; 4. Collation or addition of the value of all donations inter vivos to the net value of the estate; 5. Determination of the amount of the legitime from the total thus found; Page 93 of 297

Civil Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 6. Imputation of all the value of all donations inter vivos made to compulsory heirs against their legitimes and of the value of all donations inter vivos made to strangers against the disposable free portion and restoration to the hereditary estate if the donation is inofficious. 7. If legitime is impaired, the following reductions shall be made: a. First, reduce pro-rata non-preferred legacies and devises, and the testamentary dispositions. b. Second, reduce pro rata the preferred legacies and devises c. Third, reduce the donations inter vivos according to the inverse order of their dates 8. Distribution of the residue of the estate in accordance with the will of the testator. CHAPTER 11: RESERVA TRONCAL Reserva Troncal - The reservation by virtue of which an ascendant who inherits from his descendant any property which the latter may have acquired by gratuitous title from another ascendant or a brother or sister, is obliged to reserve the property form the benefit of relative within the 3rd degree and who belong from the same line from which the property came from. •

It constitutes as an exception to both the system of legitime and the order of intestate succession.

PURPOSE OF RESERVA TRONCAL: 1. To reserve certain properties in favor of certain persons; 2. To prevent person outside a family from acquiring, by some chance or accident, property which otherwise would have remained with the said family; 3. To maintain a separation between paternal and maternal lines. REQUISITES OF RESERVA TRONCAL 1. The property should have been acquired by QuickTime™ and a TIFF (Uncompressed) decompressor operation of law by an ascendant are needed to see this picture. (RESERVISTA) from his descendant (PROPOSITUS) upon the death of the latter. NOTE: by operation of law is limited to succession, either by legitime or intestacy 2. The property should have been previously acquired by gratuitous title by the propositus from another ascendant or from a brother or sister (ORIGINATOR).

NOTE: gratuitous encompasses transmissions by donation and succession. 3. The propositus should have died without any legitimate issue in the direct descending line who could inherit from him. NOTE: Nieva v. Alcala, 41 Phil 495, all relationships must be legitimate

PERSONAL ELEMENTS 1. ORIGINATOR – the ascendant, brother or sister from whom the propositus had acquired the property by gratuitous title 2. PROPOSITUS – The descendant who died and from whose death the reservistas in turn had acquired the property by operation of law. The so called “ARBITER OF THE FATE OF THE RESERVA TRONCAL.” Note: Prepositus can terminate the reserva by: a. Substituting or alienating the property b. By bequeathing or devising it either to the potential reservista or to other third person c. By partitioning it and assigning the property to parties other than the reservista 3. RESERVISTA – The ascendant, not belonging to the line from which the property came that is the only compulsory heir and is obliged to reserve the property. 4. RESERVATARIOS – The relative of the propositus within the 3rg degree and who belong to the line from which the property came and for whose benefit reservation is constituted. They must be related by blood not only to the propositus but also to the originator. • NOTE: The Civil Code did not provide for the rules on how the reservatarios would succeed to the reservista. However, the following rules on intestacy have been consistently applied: a. Rule of preference between the lines b. Rule of proximity c. Right of representation – provided that the representative is a relative within the 3rd degree, and that he belongs to the line from which the reservable property came d. “full blood/double share” rule in Article 1006 NOTE: Gonzales v. CFI, 104 Phil 479, the reservista had no power to appoint, by will, which reservatarios were to get the reserved property

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Civil Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 RIGHT OF THE RESERVATARIOS OVER THE RESERVABLE PROPERTY

2. Representation 3. Accretion DISINHERITANCE

1. Death of Propositus – qualified reservatario merely acquire an inchoate right. The reservistas own the property subject to the resolutory condition 2. Death of Reservista – surviving reservatarios acquire a perfect right.

1. 2. 3. 4. 5. 6.

RIGHT OF THE RESERVISTA OVER THE RESERVABLE PROPERTY 1. The right of the reservista over the reserved property is one of ownership 2. The ownership is subject to a resolutory condition 3. the right of ownership is alienable 4. The right of ownership is registrable

7. 8. 9.

Reserva Maxima Much of the potentially reservable property as possible must be demed included in the part that passes by operation of law

Maximizes the scope of reserva

Rerserva Minima Every single property in the Prepositus estate must be deemed to pass, partly by will and partly by operation of law, in the same proportion that the part given by will bears to the part not so given Minima finds wider acceptance here

10.

11.

12.

13.

Heir is being deprived of his legitime. Only in cases of testate succession. Counterpart in intestate is unworthiness. Will containing disinheritance must be probated. Effect: Heir loses legitime. However, the disinherited heir can be represented in the legitime. a. Only in the descending line, never in the ascending b. In collateral line, only with respect to nephews and nieces. In the free portion, SAI Even if validly disinherited, heir can still be validly restored in the legitime by RECONCILIATION. Reconciliation – when in “speaking terms again,” no particular form In unworthiness, there must a pardon in writing to remove incapacity to inherit. However, it does not have to be in a will. If grounds for disinheritance and unworthiness are common, reconciliation does not erase the fact that the heir is unworthy. As long as there is reconciliation, it should be considered to have revoked the inheritance as well as the unworthiness. Ineffective disinheritance v. Preterition

REQUIREMENTS FOR VALID DISINHERITANCE EXTINGUISHMENT OF RESERVA TRONCAL 1. The death of the Reservista 2. The death of the all the Reservatorios’ 3. Renunciation by all Reservatorios, provided none is born subsequently 4. Total Fortuitous loss of the reserved property 5. Confusion or merger of rights 6. Prescription or adverse possession

1. 2. 3. 4. 5. 6. 7.

Effected only through a valid will; For a cause expressly stated by law; Cause must be expressly state in the will itself; Cause must be certain and true; Unconditional; Total; AND The heir disinherited must be designated in such a manner that there can be no doubt as to his identity.

CHAPTER 12: DISINHERITANCE GROUNDS FOR DISINHERITANCE QuickTime™ and a CAUSES OF VACANCY IN SUCCESSION TIFF (Uncompressed) decompressor are needed to see this picture.

1. Disinheritance - The testator creates it himself 2. Repudiation - The heir does something 3. Incapacity/Predecease - Something happens to the heir HOW VACANCIES ARE FILLED

Grounds for Disinheritance Common To All Compulsory Heirs 1. Attempt on the life of testator, spouse, ascendant, descendant a. Conviction necessary b. In case of spouse, giving cause for legal separation, no conviction needed c. Include both attempted and frustrated.

1. Substitution Page 95 of 297

Civil Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 d. Attempt on life of relatives, may be consummated. 2. Accusation of a crime with penalty of six years or more. a. Penalty imposable, not actually imposed. b. Made by the heir in a proceeding as a complainant or witness in a criminal case. c. Found to be groundless, false. d. Groundless – court should make a positive finding that the testator has not committed the crime. It is then false. e. Chismis – not the one referred here, it is outside criminal proceeding. 3. Induce testator to make/change the will. a. Will – purely personal b. Vices of consent. c. It does not punish the result but the interference in the making/changing of the will. d. Will + disinheritance (will making) e. Will + amended will + disinheritance (will changing) 4. Support unjustifiably not given. a. Must prove obligation to give support b. Spouses: mutual obligation to give support c. Reason must be unjustifiable Grounds for Disinheritance Common between Ascendants and Descendants •

Adultery and Concubinage – with the spouse of the testator

1. 2. 3. 4.

It must be the heir who committed such liaison With the legal spouse of the testator Not necessarily incestuous Applicable to both legitimate and illegitimate descendant

Grounds for Disinheritance Common Ascendant and Spouse (in addition to A, B) •

Loss of parental authority

1. Causes: Arts. 230, 231, 232 of the Family Code 2. Ascendant of testator QuickTime™ and a 3. Spouse has TIFF given causedecompressor for loss of parental (Uncompressed) are needed to see this picture. authority. 4. No actual deprivation, but it must exist. It means that the act is committed which may be a cause for loss of parental authority over their common children, EXCEPT for those enumerated in A. 5. There are no common grounds between spouse and descendants.

Grounds for Descendant

Disinheritance

Only

against

1. Maltreatment of testator a. By word – slander, offensive language, insult, libel. May be spoken or written. b. By deed – no need for violence, something which caused the testator to be humiliated. Laying hands if not under attempt on life. 2. Leading a disgraceful life (or dishonest) i.e., daughter living with a married man, estafadora, prostitutes, drug dealers, drug addict. 3. Commission of crime which carries with it the penalty of civil interdiction a. Descendant convicted of crime with civil interdiction. Necessarily imposable, not actually imposed. b. Reclusion temporal, reclusion perpetua. Ground for Disinheritance Ascendants (Parents)

Only

against

1. Abandonment by parents a. Willfully left the children to fend for themselves b. Abdication of parental duties. c. Only refers to abandoned child. d. Induced daughters to lead a disgraceful life – also applicable to sons. 2. Attempt on the life of one parent against another parent. a. Parent v. parent b. Even if parents are not married, it is still a ground. c. No need for conviction. As long as the heir can prove that there is an attempt. d. They do not need to be spouses. However, the testator must be a common child. Grounds for Disinheritance Only against spouse – refers to legal spouses only, legally married to each other 1. Giving cause for legal separation a. No need for previous conviction b. Prove infidelity if cause is contested c. No need to prove grounds unless contested by the heir. d. Legal separation instituted but not terminated, OK e. If there is already a decree: i. Ground is conclusive ii. But, there is a need to disinherit

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Civil Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 iii.

Effects: Guilty spouse is not entitled to inherit. f. See 10 causes under the Family Code. 2. Support – refusal to give support to the children a. Offended the testator b. Common children of the testator and the spouse c. Spouse refuses to give support to the child d. Parents share in support of their common children. Refusal of the other spouse causes damage to the other. (testator)

is the effect of a subsequent reconciliation upon the heir’s capacity to succeed? 1. If disinheritance has been made: Rule on reconciliation applies, the disinheritance becomes ineffective 2. If disinheritance has not been made: The rule on reconciliation does not apply, the heir continues to be incapacitated to succeed unless the testator pardoned him under Art. 1033.

IMPERFECT DISINHERITANCE

PERSONS CHARGED WITH LEGACIES AND DEVICES:

Imperfect Disinheritance - Disinheritance which does not have one or more of the essential requisites for its validity.

EFFECTS OF IMPERFECT DISINHERITANCE 1. If the testator had made disposition of the entire estate; annulment of the testamentary disposition only in so far as they prejudice the legitime of the person disinherited; does not affect the dispositions of the testator with respect to the free portion 2. If the testator did not dispose of the free portion; compulsory heir given all that he is entitled to receive as if the disinheritance has not been made, without prejudice to lawful dispositions made by the testator in favor of others 3. Devisees, legacies and other testamentary dispositions shall be valid to such extent as will not impair the legitime IMPERFECT DISINHERITANCE Person disinherited may be any compulsory heir Always express Always intentional Effect: partial annulment of institution of heirs

PRETERITION The person omitted must be a compulsory heir in the direct line Always implied May be intentional or unintentional Effect: total annulment of institution of heirs

QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture.

REVOCATION OF DISINHERITANCE 1. Reconciliation 2. Subsequent institution of the disinherited heir 3. Nullity of the will which contains the disinheritance •

NOTE: Where the ground for disinheritance is also a ground for unworthiness to succeed, what

CHAPTER 13: LEGACIES AND DEVICES

1. 2. 3. 4. •

•

Compulsory heir; Voluntary heir; Legatee or devisee; Estate. If the will is silent as to who shall pay or deliver the legacy/devise, there is a presumption that such legacy or devise constitutes a charge against the decedent’s estate Since legacies and devises are to be taken from the disposable free portion of the estate, the provisions on institution of heirs are generally applicable to them

ORDER OF PAYMENT IN CASE ESTATE IS INSUFFICIENT TO COVER ALL LEGACIES AND DEVICES 1. Remuneratory legacies or devises 2. Legacies or devises declared by the testator to be preferential 3. Legacies for Support 4. Legacies for Education 5. Legacies or devises of a specific, determinate thing which forms a part of the 6. estate 7. All others, pro-rata WHEN LEGACY/DEVISE CAN BE REVOKED BY OPERATION OF LAW 1. If the testator transform the thing bequeathed or devised in such a manner that it does not retain its form and denomination 2. If the testator, by any title or for any cause, alienates the thing bequeathed or devised or any part thereof 3. If the thing bequeathed or devised is totally lost during the lifetime of the testator, or after his death without the heir’s fault

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Civil Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 4. If the legacy is a credit against a third person or the remission of a debt, and the testator, subsequent to the making of the will brings an action against such debtor for payment

VALIDITY AND EFFECT OF LEGACY/DEVISE Please Refer to Succession Table 1 GROUNDS FOR REVOCATION OF LEGACIES OR DEVISES 1. Testator transforms the thing bequeathed in such a manner it does not retain either the form or the denomination it had. 2. The testator by any title or for any cause alienates the thing bequeathed, or any part thereof, it being understood that in the latter case the legacy or devise shall be without only with respect to the part alienated EXCEPT: when the thing should again belong to the testator after alienation. 3. The thing bequeathed is totally lost during the lifetime of the testator, or after his death without the heirs fault; 4. Other Causes: nullity of the will; noncompliance with suspensive conditions affecting the bequests; sale of the thing to pay the debts of the deceased during the settlement of his estate.

CHAPTER 14: GENERAL PROVISIONS ON LEGAL OR INTESTATE SUCCESSION CAUSES OF GENERAL

INTESTATE

SUCCESSION

1. In the absence of applicable valid will a. Annulment of institution of heirs. b. When will loses its validity. c. Testator did not make any will. d. Will not probated. QuickTime™ and a e. Revocation. TIFF (Uncompressed) decompressor f. Preterition are needed to see this picture. 2. In the absence of qualified heirs a. Ineffective disinheritance (a portion) b. Repudiation (one or all) c. Incapacity d. Disinheritance e. Institution subject to conditions i. Suspensive condition did not happen ii. Resolutory condition happens.

IN

iii.

Expiration of term or period of institution

BASIC PRINCIPLES IN INTESTATE SUCCESSION 1. Intestate heirs always related by blood. Except: a. Spouse - not related by blood, stranger in the family b. Adoptive relation – adopter/adopted, fiction by law created by adoption, purely personal c. State – in the event no heir can inherit. 2. The nearer excludes the farther (rule of proximity) – the relative nearest in degree exclude the farther one. 3. Direct line is always preferred over collateral 4. Ascending line is always preferred over collateral 5. Descending line is always preferred over ascending and collateral lines. 6. Rule of equal division– – the relatives who are in the same degree shall inherit in equal shares same class Exception: a. Descending line – difference in class in the cases of legitimate or illegitimate filiation. i. In case of paternal/maternal lines ii. Collateral – half or full blood b. Ascending line – the shares are divided equally between maternal and paternal lines, which could result to unequal shares when there is only one grandparent in the maternal line while both grandparents survived in the paternal side. NOTE: In all cases where there has been an institution of heirs, follow the I.S.R.A.I. order of Justice Paras. If the Institution fails, Substitution occurs. If there is no substitute, right of Representation applies in the direct descending line to the legitime of the vacancy is caused by predecease, incapacity or disinheritance. The right of Accretion applies to the free portion when the requisites in Article 1016 are present. If there is no substitute, and the right of representation or accretion does not apply, the rule of Intestate succession shall take over. REPRESENTATION Representation Occurs:

-

Instances

when

1. Predecease 2. Incapacity of Unworthiness 3. Disinheritance •

NOTE: In case of repudiation, accretion takes place. Sayson v. CA, 205 SCRA 324, although a renouncer cannot be represented, he can represent the person whose he has Page inheritance 98 of 297 renounced.

Civil Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007

IN WHAT KINDS OF REPRESENTATION OPERATES

SUCCESSION QUALIFICATIONS TO REPRESENT

1. Legitimes • The children and descendants of the person disinherited shall take his or her place and shall preserve the rights of compulsory heir with respect to the legitime (Art 923) • And only when the heir to be represented: a. Predecease, becomes incapacitated, or was disinherited by the testator. b. Is a compulsory heir. c. No right of representation if the heir to be represented is a voluntary heir. 2. Intestate succession • Representation occurs in all intestate estate. All legal heirs may be represented when proper. (It is not proper only when the heir to be represented repudiated his share in the inheritance) IN WHAT OBTAIN

LINES

DOES

REPRESENTATION

1. Legitime - in the direct descending line only. Representation does not exist in the ascending line. Hence, the father cannot represent the son in the inheritance from the grandfather. 2. Intestacy: a. In the direct descending line. b. In the collateral line, it takes place only in favor of the children of brother or sisters (nieces and nephews of the decedent, not grand-nieces or grand-nephews). NOTE: If all the brothers and sisters are disqualified, the nephews and nieces shall inherit per capita. REPRESENTATION OF ADOPTED CHILDREN

ILLEGITIMATE

OR

QuickTime™ and a 1. If the child to TIFF be (Uncompressed) represented is legitimate – only decompressor are needed to see this picture. legitimate children and descendants can represent him. 2. If the child to be represented is illegitimate – both legitimate and illegitimate children/descendants can represent him. 2. An adopted child can neither represent nor be represented

Teotica v. Del Val, 13 SCRA 406, the rationale why an adopted child can neither represent or be represented is because the legal relationship created by the adoption is strictly between the adopter and the adopted

1. The representative himself must have capacity to succeed the decedent 2. The representative need not be qualified to succeed the person represented. HOW REPRESENTATION OPERATES ƒ

Division shall be made PER STIRPES. Factual Situation If all the children are disqualified If all the brothers /sisters are disqualified

Division All grandchildren still inherit per stirpes Nephews and nieces inherit per capita

THE SUCCESSIONAL BARRIER •

•

An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child. (Art 992) The Barrier rule only applies if there is a legitimate and illegitimate relation. Example: A is the legitimate son of B. C is the illegitimate son of A. C cannot inherit from B if A predeceases, or becomes incapacitated or be disinherited by B.

CHAPTER 15: ORDER OF INTESTATE SUCCESSION INTESTATE HEIRS 1. 2. 3. 4. 5. 5. 6. 7.

Legitimate Children/Descendants Illegitimate Children/Descendants Legitimate Parents/ Ascendants Illegitimate Parents Surviving Spouse Brothers, Sisters, Nephews, Nieces Other Collaterals – to the 5th degree State

RULES OF EXCLUSION AND CONCURRENCE Please Refer to Succession Table 2

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Civil Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 WHEN DECEDENT HAS NO HEIRS 1. Assignment and Disposition of Assets a. if decedent is a resident of the Philippines at any time i. Personal property – to the municipality of last residence ii. Real property – where situated b. If decedent was never a resident of the Philippines i. Personal and real property – where respectfully situated 2. How Property is to be Used a. For the benefit of public educational and charitable institutions in the respective municipalities/cities b. Alternatively, at the instance of an interested party, or motu proprio, the court may order the permanent trust for the benefit of the institutions concerned

CHAPTER 16: PROVISIONS COMMON TO INTESTATE AND INTESTATE SUCCESSION RIGHT TO ACCRETION 1. In Testamentary Succession a. Predecease b. Incapacity c. Repudiation d. Non-fulfillment of suspensive condition imposed upon instituted heir e. Ineffective testamentary disposition 2. In Intestate Succession a. Predecease of a legal heir (only when representation does not apply) b. Incapacity of legal heir (only when representation does not apply) c. Repudiation by a legal heir ELEMENTS OF ACCRETION IN TESTAMENTARY SUCCESSION 1. Two or more persons are called to the same inheritance, or to the same portion thereof, pro QuickTime™ and a indiviso (aliquot TIFFshare) (Uncompressed) decompressor are needed to see this picture. a. In cases of legacy or devise, as long as there is no specific designation of the specific share of each legacy or devise. b. Not necessarily equal. c. Once a certain specific part of the free portion has already been specifically earmarked, there is no accretion and there is no express provision on accretion.

d. But, it is okay to earmark parts of the free portion as long as no specific property has been designated. • NOTE: The heir to whom the portion goes by the right of accretion takes it in the same proportion that they inherit 2. Renunciation, predecease or incapacity of one (or more but less than all) of the instituted heirs. FUNDAMENTAL PRINCIPLES IN ACCRETION 1. Accretion in testate succession only takes place in the free portion. No accretion in the legitime because when the compulsory heir repudiates his legitime, the other co-compulsory heir inherits the repudiated share in their own right and not through accretion. If the cause of the vacancy is PID, representation will occur. 2. Accretion also takes place in cases of devisees and legatees and usufructuaries under the same conditions established for heirs. 3. Accretion is subordinate to substitution, because substitutes are instituted by the testator; hence, express will prevails over presumed will. • NOTE: if there is neither accretion nor substitution in testamentary succession, the part left vacant will lapse into testacy 4. The one that the heir gets from accretion can be renounced separate from the inheritance attributed to the heir who will renounced the accrued inheritance. CAPACITY TO SUCCEED The following are capable of succeeding: 1. Natural Persons a. General Rule – must be living when succession opens. NOTE: It is enough that the heir, devisee or legatee be already conceived in accordance with Arts 40 and 41, to be considered living. b. If institution subject to a suspensive condition – successor must be living both when decedent dies and when the condition happens c. If institution subject to a suspensive term – must be alive only at the moment of decedent’s death, successor need not be alive when the term alives. 2. Juridical Persons a. Organizations or associations which possess juridical personality

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Civil Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 WHO ARE INCAPABLE OF SUCCEEDING 1. Those Prohibited under Art 1027 a. Priest who heard the confession of the testator during his last illness, or the minister of the gospel who extended spiritual aid to him during the same period b. Relatives of such priest or minister of the gospel within the 4th degree, the church, order, chapter, community, organization, or institution to which such priest or minister may belong c. Guardian with respect to testamentary dispositions given by a ward in his favor before the final accounts of the 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 d. Attesting witness to execution of will, their spouses, parents, children or any one claiming under such witness, spouse, parents or children e. Physician, surgeon, nurse, health officer or druggist who took care of the testator during his last illness f. Individuals, associations, and corporations not permitted by law to inherit 2. Those prohibited under Art 739 from giving and receiving donation from each other. a. Those made between persons who were guilty of adultery or concubinage at the time of the donation; b. Those made between persons found guilty of the same criminal offense, in consideration thereof; c. Those made to a public officer or his wife, descedants and ascendants, by reason of his office. 3. The following are incapable of succeeding by reason of unworthiness: a. Parents who have abandoned their children or induced their daughters to lead a corrupt or immoral life, or attempted against their virtue; b. Any person who has been convicted of an QuickTime™ and a attempt against the lifedecompressor of the testator, his or TIFF (Uncompressed) are needed to see this picture. her spouse, descendants, or ascendants; c.

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; d. 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 to law, there is no obligation to make an accusation; e. Any person convicted of adultery or concubinage with the spouse of the testator; f. Any person who by fraud, violence, intimidation, or undue influence should cause the testator to make a will or to change one already made; g. Any person who by the same means prevents another from making a will, or from revoking one already made, or who supplants, conceals, or alters the latter's will; h. Any person who falsifies or forges a supposed will of the decedent. (756, 673, 674a) •

NOTE: The cause of unworthiness shall be without effect if the testator had knowledge thereof at the time he made the will, or if, having known of them subsequently, he should condone them in writing. (757a)

ADDITIONAL NOTES 1. The capacity to succeed is governed by the law of the nation of the decedent. 2. Persons not incapacitated by law may succeed by will or ab intestato. 3. If the heir excluded from the inheritance by reason of incapacity is a compulsory heir, and if such compulsory heir has children or descendant, the latter shall acquire the incapacitated heir’s right to the legitime (by representation.). 4. A testamentary provision in favor of a disqualified person, even though made under the guise of an onerous contract, or made through an intermediary, shall be void. (755)

ACCEPTANCE OF INHERITANCE – Two kinds: 1. Express a. Public Document b. Private Writing 2. Tacit Acceptance a. When heir sells, donates, or assigns his right. b. When heir renounces it for the benefit of one or more heirs. c. When renunciation is in favor of all heirs indiscriminately for consideration d. Other acts of tacit acceptance: i. Heir demands partition of the inheritance Page 101 of 297

Civil Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 ii. iii.

Heir alienates some objects of the inheritance Under Article 1057, failure to signify acceptance or repudiation within 30 days after an order of distribution by the probate court.

CHARACTERISTICS OF REPUDIATION 1. Free and Voluntary Act 2. Irrevocable once made and cannot be impugned, except in cases vitiating consent. 3. Retroactive REQUISITES FOR A VALID REPUDIATION 1. Heir repudiating must be certain of two things before repudiating: a. Death of the person from whom he is to inherit; b. Right to the inheritance. 2. Who may repudiate? Any person having the free disposal of his property. 3. How is repudiation made? The repudiation of the inheritance shall be made in a public or authentic instrument, or by a petition presented to the court having jurisdiction over the testamentary or intestate proceedings. a. If the heir repudiates the inheritance to the prejudice of his own creditors, the latter may petition the court to authorize them to accept it in the name of the heir. b. If an heir is both a testate and legal heir, repudiation of the inheritance as a testate heir, he is understood to have repudiated in both capacities. However, should he repudiate as a legal heir, without knowledge of being a testate heir, he may still accept the inheritance as a legal heir. •

NOTES: If renounced in favor of other heirs, does it mean acceptance? It depends: a. If specific heir – whether or not renouncing heir receives anything, considered as acceptance on the part of the heir. There are QuickTime™ and a two transfers. TIFF (Uncompressed) decompressor are needed to see this picture. b. If gratuitous – i. In favor of all his co heirs indiscriminately - there is repudiation because heir deemed to have not accepted. Hence, accretion takes place. ii. In favor of all co-heirs but in proportion different from those they would receive by accretion: considered as tacit acceptance.

iii.

c.

If gratuitous in favor of one or some of his co-heirs – deemed conveyance in favor of the co-heirs specified, hence there is acceptance. If onerously: • There is no repudiation • Transfer considered to be with consideration • There are also tax implications because there are two transfers.

COLLATION Collation – is the act by virtue of which, the persons who concur in the inheritance bring back to the common hereditary mass the property which they have received from him, so that a division may be effected according to law and the will of the testator. 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, but which the law considers as an advance from the inheritance.

PROPERTIES OR RIGHTS COMPULSORY HEIR NOT COLLATION

RECEIVED SUBJECT

BY TO

1. Property left by will 2. Property which may have been donated by an ascendant of the compulsory heir 3. Property donated to the spouse of the compulsory heir 4. Expenses for support, education, medical attendance even in extraordinary illness, apprenticeship, ordinary equipment or customary gifts 5. Expenses incurred by parents in giving their children a professional, vocational, or other career 6. Wedding gifts consisting of jewelry, clothing and outfit, given by parents or ascendants, so long as they do not exceed 1/10 of the disposable portion 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 Page 102 of 297

Civil Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 compulsory heir) or on the free portion (if the donee is a stranger) 3. Reduction – determining to what extent the donation will remain and to what extent it is excessive or inofficious 4. Restitution – return or payment of the excess to the mass of hereditary estate. PERSONS OBLIGATED TO COLLATE • •

GENERAL RULE: compulsory heirs EXCEPT: a. When the testator should have so expressly provided; and b. When the compulsory heir should have repudiated his inheritance

fixed by law or given under the will to heirs or successors. EFFECTS OF INCLUSION OF INTRUDER IN PARTITION 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 heir is 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 •

CHAPTER 17 : PARTITION AND DISTRIBUTION OF ESTATE

NOTE: Partition with respect to the mistaken heir is VOID.

IMPORTANT PERIODS TO REMEMBER Please Refer to Succession Table 4 WHO MAY PARTITION 1. Decedent himself during his lifetime by an act inter vivos or by will; 2. Heir themselves; 3. Competent court; 3rd person designated by the decedent WHO CAN DEMAND PARTITION 1. 2. 3. 4.

Compulsory heir; Voluntary heir Legatee or devisee; Any person who has acquired interest in the estate

WHEN PARTITION CANNOT BE DEMANDED (PAPU) 1. When expressly Prohibited by the testator himself for a period not exceeding 20 years; 2. When the co-heirs Agreed that the estate shall not be divided for a period not exceeding 10 and a years, renewable for QuickTime™ another 10 years; TIFF (Uncompressed) decompressor are needed to see this picture. 3. When Prohibited by law; 4. When to partition the estate would render it Unserviceable for the use for which it is intended. •

NOTE: Partition Inter Vivos – it is one that merely allocates specific items or pieces of property on the basis of the pro-indiviso shares

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